Opinion
E080311
07-01-2024
La Quinta Law Group and Timothy L. Ewanyshyn; Law Office of Virginia S. Criste and Virginia S. Criste, for Appellant Woodrow William Bryan. David S. Karton, a Law Corporation, and David S. Karton, for Appellant Cheryl Bryan.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. IND1201068, Mickie Elaine Reed, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
La Quinta Law Group and Timothy L. Ewanyshyn; Law Office of Virginia S. Criste and Virginia S. Criste, for Appellant Woodrow William Bryan.
David S. Karton, a Law Corporation, and David S. Karton, for Appellant Cheryl Bryan.
OPINION
MENETREZ J.
This is the second appeal involving the marital dissolution proceedings of Woodrow William Bryan (Bill) and Cheryl Bryan. In 2022, the trial court entered a judgment on certain issues that were reserved from the 2016 judgment that was the subject of the first appeal. Cheryl and Bill challenge various aspects of the trial court's award of attorney fees and costs to Bill. Cheryl also argues that the trial court prejudicially erred by denying her request to issue a statement of decision, by awarding interest on an equalization payment, and by not requiring the parties to pay a jointly held corporation for certain assets. We reject all of the parties' arguments and affirm the judgment on reserved issues.
Because the parties have the same last name, we refer to them by their first names. No disrespect is intended.
BACKGROUND
Bill and Cheryl married in 1982, and Bill petitioned for dissolution of the marriage in June 2012. (In re Marriage of Bryan (Aug. 19, 2019, E067126) [nonpub. opn.].) Over the course of their marriage, Cheryl and Bill built an agricultural irrigation business, Farm Water Technological Services, Inc. (Water Tech), and its stock originally issued to them jointly "as 'Husband and Wife.'" (Ibid.) They later "apparently attempted to alter the share ownership so that 51 percent would be in Cheryl's name and the remaining 49 percent would be in Bill's name" and then later "tried to alter it further, with 52 percent in Cheryl's name and 48 percent in Bill's name." (Ibid.) Bill and Cheryl disagreed about the import of the unequal share ownership. (Ibid.) They also disagreed about the date they separated. (Ibid.)
The trial court held a 22-day trial, starting in August 2015 and ending in May 2016. (In re Marriage of Bryan, supra, E067126.) In October 2015, the court entered a status-only dissolution judgment. (Ibid.) In December 2016, the court entered an amended judgment on reserved issues, incorporating a statement of decision that included 13 pages of factual findings and seven pages of additional analysis. The trial court made various findings concerning the status and division of marital assets, determined when Bill and Cheryl separated, and concluded that Water Tech was community property to be evenly divided. The court found that the community property included 15 pieces of real estate, three automobiles (two Lexuses and one Mercedes), and an airplane. The court awarded (1) to Bill, the airplane valued at $265,000 and the two Lexuses with a value to be determined later, and (2) to Cheryl, the Mercedes with a value to be determined later. The court also awarded several properties both to Bill and to Cheryl and ordered them to sell eight properties because there was no competent evidence to determine value.
In addition to determining the status and division of the assets, the court found that Bill and Cheryl had breached fiduciary duties owed to each other under Family Code section 1101, subdivision (e), so it awarded remedies under that statute (id., subds. (g), (h)). (Unlabeled statutory references are to the Family Code.) Under subdivision (g) of section 1101 (§ 1101(g)), the court found that Bill sold a vehicle, a Chevy Avalanche worth $7,150, in breach of his fiduciary duty and that Cheryl committed a breach by removing $175,000 from a bank account. Under subdivision (h) of section 1101 (§ 1101(h)), the court found that Cheryl breached her fiduciary duties by removing $190,000 from another bank account and by cashing a corporate check for $8,964.30. The court awarded Cheryl $3,575 and Bill $286,464.30 for each other's breaches, with Cheryl owing Bill a net amount of $282,889.30.
The court ordered Cheryl to make two separate equalization payments "[a]t the time of corporate bank account division" totaling over $700,000 for the division of community property and for the fiduciary duty breaches. The payment for the breaches was ordered to be made from "the top of the bank accounts."
In the 2016 judgment, the court retained jurisdiction over various issues, including attorney fees.
Both parties appealed from the 2016 judgment. (In re Marriage of Bryan, supra, E067126.) Cheryl challenged the court's determinations regarding the date of separation and the equal division of Water Tech, and she argued that the trial court erred by not finding that Bill breached his fiduciary duty to her in several ways and by ordering certain real properties sold, with the proceeds equally divided between the parties. (Ibid.) Bill made several arguments on cross-appeal, including that the trial court erred by awarding sanctions from the parties' community property and by not finding additional breaches of fiduciary duty by Cheryl. (Ibid.)
In an unpublished opinion, we affirmed, with the exception of one point of error raised by Bill. (In re Marriage of Bryan, supra, E067126.) Bill argued that the trial court erred by ordering the sanctions payment "'off the top'" before the bank accounts were divided, and Cheryl conceded the error. (Ibid.) We modified the judgment to provide that the sanctions awarded to Bill of $194,964.30 under section 1101(h) would be paid to Bill directly from Cheryl's one-half share of the corporate bank accounts. (In re Marriage of Bryan, supra, E067126.) We awarded Bill "his costs of appeal." (Ibid.)
The remittitur issued on November 27, 2019. The following week, the trial court modified the judgment to comply with the remittitur. On December 30, 2019, Bill filed a memorandum of costs on appeal in which he requested $2,532.80 for various filings, service, and preparation of the record. No motion to tax costs was filed, and no hearing was held concerning the memorandum of costs.
In May 2021, Bill filed a request for orders on certain reserved issues and requested attorney fees and costs as follows: "(1) under section 271 for trial; (2) as required by law for violation of fiduciary duties; and (3) as prevailing party on appeal." Bill and his attorney, Virginia Criste, filed declarations in support of the request. Bill attested that he had incurred $232,937.38 in attorney fees and costs and $137,772 in forensic costs. Bill paid an additional $91,935 in appellate attorney fees and "$45,504 in regular fees during the appeal."
In her supporting declaration, Criste requested that Bill "be awarded $116,000 plus forensic fees, namely $137,772, equaling half of [Bill's] for [sic] total trial fees and all of his forensic costs, or $253,772 on the grounds that [Cheryl] should pay seventy-five percent (75%) of the total fees and all forensic costs by having been the one to have committed all but one of the fiduciary violations, and the ones which resulted in more than seven (7) times the penalties of [Bill's]. [Cheryl] was also the party who prolonged this litigation by stipulating to no foundation for the admission of evidence. Breach of fiduciary duties also mandate the award of attorney fees pursuant to § 1101g, or suggest them pursuant to § 1101h and" section 271. (Underlining omitted.) Criste additionally requested that Bill "be awarded $45,504.44 and $97,035 (appellate attorney fees [for work done by another attorney on the appeal]) . . . for being the prevailing party in the appeal and the successful party on his cross appeal, .... This was also an appeal initiated by" Cheryl.
Criste stated that she charged an hourly rate of $400, and she described the fees and costs that she had incurred in representing Bill from 2012 through May 2021. Attached to Criste's declaration were five exhibits totaling 83 pages, including itemized billing statements from Criste listing the fees and costs that she charged during various stages of the proceedings-before, during, and after the initial appeal, a billing statement from the appellate attorney from the last appeal, and invoices from an accounting firm.
The trial court held a four-day trial on the reserved issues in February 2022, ending on February 18. Bill, Cheryl, and an accountant testified, and both parties introduced documentary evidence. Neither Cheryl nor Bill summarizes or cites any of the evidence admitted at the trial in their respective opening briefs.
At the end of the third day of trial, the court orally issued its tentative ruling on attorney fees, indicating that it would award Bill $72,776.25 in appellate attorney fees and $103,329 in forensic costs. Bill's attorney argued that he should be awarded the entirety of the requested appellate attorney fees and attorney fees for some of the trial- related work that she had done, because attorney fees are mandatory under section 1101(g) once a breach is found. She also argued that attorney fees should be awarded to Bill under section 271 in the amount of $85,000 because Cheryl's conduct included "significant overlitigation", frustrated settlement, and resulted in the litigation being "much more expensive."
After hearing argument from both parties' attorneys, the court explained: "The reason that the Court did not award [section] 271 or breach of fiduciary duty fees is that there was no breakdown of what was necessary for the claims of breach of fiduciary duty. They were all thrown into one pot. The Court can look at some of them and try to say, 'Oh, maybe that's for that.' But [Cheryl's attorney] is correct that I don't have it separated.... [¶] So since I don't have any evidence at all of what part of the trial fees and trial prep fees were for the purpose of proving false claims by [Cheryl], because there were some, there were; and I think that it did take time, and money, and effort to prove the allegation .... [¶] So it did take money....And in an estate this size, and when we had [specified] disagreements . . ., there were actually things that were going to be litigated anyway. So the Court just cannot separate them out." With respect to forensic costs and appellate attorney fees, the court ruled that "there was testimony about the forensic costs. So the Court is going to award $103,329 of forensics costs to [Bill]. The Appellate Court did indicate that [Bill] should receive his costs on appeal. The Court is going to order $72,776.25 to [Bill] for his Appellate Court fees. I cannot award fiduciary duty fees, because they were just not specific enough for me to do that. So that will be my order."
Cheryl's attorney asked the court to clarify whether the appellate attorney fees were being included because "the Appellate Court court [sic] order[ed] cost[s]," and the court responded, "It does." The court explained, "It doesn't say 'Court costs.' These are costs on appeal, which includes ...." Cheryl's attorney interrupted the court and did not allow it to finish explaining what costs on appeal meant. Cheryl's attorney also asked the court to clarify the basis of the forensic fee award, and the court explained: "I am awarding 75 percent of the forensic cost for [Cheryl] to pay. Because I think the majority of them, based on what I heard at trial, were to disprove her false claims. There were always going to be some forensic costs in a case like this, but the majority were providing and tracing funds that she took.... [¶] . . . [¶] I'm relying on what I observed in trial, the evidence that I saw. And all of that was upheld by the Appellate Court. And it's listed pretty well. And you were there as well."
In October 2022, the clerk served the parties with notice of entry of judgment on certain reserved issues. With respect to attorney fees and costs, the judgment provides: Cheryl "shall pay to [Bill] as and for attorneys fees and costs the sum of $72,776.25 for appellate fees and $103,329 for forensic fees for a total of $176,105.25." Cheryl appealed from the 2022 judgment, and Bill cross-appealed.
DISCUSSION
I. Attorney fees and forensic costs
Both parties appeal from the 2022 judgment and challenge the trial court's award of attorney fees, with Cheryl also challenging the forensic costs award. Bill contends that Cheryl's appeal (and concededly his cross-appeal as well if we agree with his position) is not timely because Cheryl did not timely appeal from the proposed findings and order that he served after the hearing. We conclude that the appeals are timely and that both parties as appellants have failed to carry their respective burdens of demonstrating that the trial court prejudicially erred or abused its discretion.
A. Timeliness of Cheryl's appeal
Bill argues that Cheryl "waived her right to appeal the issue of attorney fees and costs awarded on February 18, 2022," by not filing a timely notice of appeal from the proposed findings and order after hearing that he electronically served on March 9, 2022. The argument lacks merit.
The minute order for February 18, 2022, reflected the court's award to Bill of $103,329 in forensic costs and $72,776.25 "as to costs on appeal." The same minute order directed Bill's attorney to prepare a "Findings and Order After Hearing."
On March 9, 2022, Bill served Cheryl with a proposed findings and order, and he filed the document the next day. The court never signed that proposed findings and order, and the court later ruled that "[t]his should be a Judgment on Reserved Issues and can be resubmitted 7 days after Reporter's transcript is received."
The appellant's appendix includes two copies of findings and orders after hearing. In the index, one is identified as "Petitioner's [Proposed] Findings and Order After Hearing [as to Trial]" from February 28, 2022., and the other is identified as "Petitioner's [Proposed] Findings and Order After Hearing and Proof of Service" from March 9, 2022. According to the register of actions, the first document was not filed with the court.
"Only a timely filed notice of appeal can invoke the jurisdiction of the appellate court." (In re Marriage of Adams (1987) 188 Cal.App.3d 683, 689 (Adams) [former rule].) "'Once a final, appealable order or judgment has been entered, the time to appeal begins to run.'" (Estate of Reed (2017) 16 Cal.App.5th 1122, 1127.)
Bill argues that Cheryl's appeal from the attorney fees award was untimely because the time to appeal began to run on March 9, 2022, when he served the proposed findings and order on Cheryl. The argument lacks merit. Bill cites no authority for the proposition that a proposed order prepared by a party and not signed by the court is appealable. We are aware of none. We accordingly reject Bill's argument that Cheryl's appeal from the award of attorney fees was untimely.
B. Timeliness of Bill's motion for attorney fees
Cheryl argues that the award of attorney fees to Bill "should be vacated" because the request was not timely filed under rule 3.1702(b)(1) of the California Rules of Court (unlabeled rule citations are to the California Rules of Court). We find no prejudicial error.
Cheryl cites "Rule 3.1702(B)(2)" but quotes verbatim rule 3.1702(b)(1), so we assume that she meant to cite the quoted rule. Rule 3.1702(b)(2) is irrelevant to Cheryl's argument. It specifies the time in which the parties can stipulate to an extension if the deadline in rule 3.1702(b)(1) applies.
Rule 3.1702(a) states that unless "otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in a contract." Rule 3.1702(b) sets forth the deadline for filing a motion for attorney fees "before trial court judgment," "including attorney's fees on an appeal before the rendition of judgment in the trial court." (Rule 3.1702(b)(1), boldfacing omitted.) Under rule 3.1702(c)(1), "[a] notice of motion to claim attorney's fees on appeal-other than the attorney's fees on appeal claimed under (b)-under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case ...." Under rule 8.278(c)(1), a party awarded costs by a reviewing court must file a verified memorandum of costs within 40 days of the remittitur's issuance.
In addition, rule 3.1702(d) provides: "For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation." "A court may grant a request for extension of time to file a motion for attorney's fees even if the motion is not filed until after the deadline for filing an attorney's fees motion under rule 3.1702." (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 326 (Robinson).) "Rule 3.1702(d) is 'remedial' and is to be given a liberal, rather than strict interpretation." (Lewow v. Surfside III Condominium Owners Assn., Inc. (2012) 203 Cal.App.4th 128, 135 (Lewow); see also Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1778.)
We independently review questions of statutory interpretation. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) We review the trial court's finding of good cause under rule 3.1702(d) for an abuse of discretion. (Robinson, supra, 4 Cal.App.5th at p. 327.)
Cheryl argues that Bill's request for appellate attorney fees was untimely because it was not filed within 40 days of the issuance of the remittitur. (Rule 8.278(c)(1).) Bill does not deny that if the 40-day deadline applies, then his request was untimely. Bill nevertheless contends that rule 3.1702(c)(1) does not apply in the present case because the court in the 2016 judgment reserved jurisdiction under section 2337 over the issue of attorney fees, so there was no applicable deadline to request attorney fees. We need not resolve that dispute. Assuming for the sake of argument that the deadline in rule 3.1702(c)(1) applied, rule 3.1702(d) authorized the court to grant Bill an extension "[f]or good cause," so "the late filing of the motion for attorney fees does not mean that [Bill was] precluded from recovering [his] reasonable attorney fees." (Lewow, supra, 203 Cal.App.4th at p. 134; Robinson, supra, 4 Cal.App.5th at p. 326.)
Section 2337 allows the court in a dissolution proceeding to "sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." (Id., subd. (a).) "A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues." (Id., subd. (f).)
Bill admitted at trial that he did not file a motion to extend the time for seeking an award of appellate attorney fees under rule 3.1702. He argued that any missed deadline under rule 3.1702 was not relevant in any event because rule 3.1702(d) gave the court "complete authority to extend that deadline for any good cause and for a longer period of time. And there's no deadline on that longer period of time." In response, Cheryl did not deny that rule 3.1702(d) authorized an extension but instead argued that Bill had never requested an extension. The court did not remark on Bill's argument concerning the extension, but it awarded Bill appellate attorney fees.
Because the trial court did not issue a statement of decision and the parties did not timely request one, we apply the doctrine of implied findings, which requires us to presume that the trial court implicitly found any facts necessary to support the judgment, as long as they are supported by substantial evidence. (Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 197 (Abdelqader).) Applying the doctrine to the present circumstances, we presume that the trial court implicitly found that good cause existed to entertain the late-filed request for appellate attorney fees. (Ibid.) Cheryl does not argue that the implied finding of good cause was not supported by substantial evidence or otherwise constituted an abuse of discretion.
Cheryl instead argues that rule 3.1702(d) did not authorize the court to act on its own motion or to extend the deadline. The argument fails for two reasons. First, the trial court did not act on its own motion. Rather, Bill's attorney argued that rule 3.1702(d) applied, and we presume that the trial court acted on that oral request, not on its own motion. Second, the argument fails because the rule does not prohibit the court from acting on its own motion. It allows the trial judge to extend the deadline "[f]or good cause" and does not limit the court to making that determination on request of a party. (Rule 3.1702(d).) We will not read a nonexistent requirement into the rule. (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.) We accordingly reject Cheryl's argument that Bill's attorney fee request was untimely.
C. Costs of appeal
Cheryl argues that the trial court erred by awarding Bill attorney fees as costs of appeal. We agree but conclude that Cheryl has failed to carry her burden of demonstrating that the error was prejudicial.
Rule 8.278(d)(1) specifies the types of costs recoverable as costs on appeal, and those costs do not include attorney fees. (Rule 8.278(d)(1)(A)-(G).) Rule 8.278(d)(2) provides: "Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702." Appellate attorney fees are recoverable if authorized by statute or contract. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.)
Cheryl argues that the trial court erred by awarding Bill appellate attorney fees, because they were not recoverable as costs of appeal in this case. We agree. In our prior opinion, we ordered that Bill "shall recover his costs of appeal." (In re Marriage of Bryan, supra, E067126.) We did not award Bill attorney fees as part of those costs. (Ibid.) Under these circumstances, attorney fees were not recoverable costs of appeal. (Rule 8.278(d)(1)-(2).)
The trial court nevertheless awarded Bill $72,776.25 in appellate attorney fees as "costs on appeal," because "[t]he Appellate Court did indicate that [Bill] should receive his costs on appeal." Because we did not include attorney fees in the costs award, that was error.
However, "error alone does not warrant reversal." (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 822 (Falcone).) When an appellant contends that an error is a basis "'for a reversal it is not sufficient for appellant to point to the error and rest there.'" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).) Rather, the appellant bears the burden "'in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.'" (Ibid.) "A miscarriage of justice is not found 'unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.'" (Falcone, at p. 823.) "Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. 'But our duty to examine the entire cause arises when and only when the appellant has fulfilled his [or her] duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his [or her] brief exactly how the error caused a "miscarriage of justice."'" (McLaughlin, at p. 337.)
Cheryl's briefs do not contain any argument explaining how the error prejudiced her. She accordingly has failed to carry her burden of demonstrating that the trial court's error was prejudicial. (McLaughlin, supra, 82 Cal.App.4th at p. 338.)
Moreover, it is at least arguable that the error was harmless. The trial court awarded Cheryl exactly 75 percent of the total amount of appellate attorney fees that she requested ($72,776.25 of $97,035). The trial court did not provide any explanation for the apportionment, but the apportionment reflects the same percentage of the total requested forensic costs that the court awarded Bill under section 1101(g) ($103,329 of $137,772). The court explained that it awarded Bill that amount of forensic costs because it found that about 75 percent of the forensic work was dedicated to disproving Cheryl's "false claims." Moreover, with respect to attorney fees unrelated to the appeal, Bill's attorney argued in her supporting declaration that Cheryl "should pay seventy-five percent (75%) of the total fees and all forensic costs by having been the one to have committed all but one of the fiduciary violations, and the ones which resulted in more than seven (7) times the penalties of" Bill's. Thus, although the trial court mistakenly believed that it was required to award attorney fees as costs of appeal, it nevertheless did not award Bill all of the appellate attorney fees that he incurred. Rather, the court adopted the allocation urged by Bill's attorney and awarded Bill the percentage of appellate attorney fees that Bill argued was appropriate for the other fees, given the disproportionate number of breaches committed by Cheryl.
The trial court had discretion to award Bill appellate attorney fees under section 1101(g) as a remedy for Cheryl's breaches of fiduciary duty. (§ 1101(g).) Given that in the prior appeal both parties challenged various aspects of the court's findings concerning the alleged breaches by the other spouse, the trial court reasonably could have concluded that it was appropriate to award Bill the same allocation of appellate attorney fees that he had requested for the other attorney fees and forensic costs. It therefore is at least arguable that Cheryl would not have obtained a more favorable outcome if the court had not erroneously believed that the award of appellate costs included attorney fees. (Falcone, supra, 164 Cal.App.4th at p. 823.)
For these reasons, we conclude that Cheryl has failed to carry her burden of demonstrating that the trial court's error in awarding appellate attorney fees as costs of appeal was prejudicial.
D. Sufficiency of the evidence
Cheryl argues that the court's award of forensic costs and attorney fees is not supported by substantial evidence. The argument lacks merit.
"'The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his [or her] brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.'" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 (Fink).)
In challenging the sufficiency of the evidence supporting the trial court's award of forensic costs and appellate attorney fees to Bill, Cheryl has failed to address all of the material evidence that is both favorable and unfavorable to the court's order. (Fink, supra, 25 Cal.3d at p. 887.) The trial court held a four-day trial on the reserved issues at which Bill, Cheryl, and an accountant testified, and both parties introduced documentary evidence. But Cheryl does not cite any of the trial evidence, testimonial or documentary, and she does not even summarize any of it. We are not obliged to search the record unguided. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 (Meridian).) Cheryl also does not even cite or summarize the evidence that Bill submitted in support of the attorney fee request, namely, his declaration, his attorney's declaration, and the supporting exhibits. Given the deficiency in briefing on the issue, we must reject Cheryl's challenge to the sufficiency of the evidence supporting the award of attorney fees and costs to Bill. (Fink, at pp. 887-888.)
In any event, there is sufficient evidence supporting both awards. In declarations supporting the request for order, Bill and Criste each attested that Bill had incurred over $90,000 in appellate attorney fees and $137,772 in forensic costs. That constitutes sufficient evidence to support the awards of attorney fees and forensic costs, both of which were lower than the amounts requested. (Steiny &Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)
E. Evidentiary issues
Cheryl argues that the trial court's award of forensic costs and attorney fees should be vacated because of several alleged evidentiary errors. We reject the arguments. We review for abuse of discretion "any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla).)
First, Cheryl argues that in her opposition to Bill's request for an order she objected to the exhibits attached to Criste's declaration "because none of the supporting exhibits were properly authenticated and were, therefore, inadmissible." The argument fails because the mere fact that Cheryl objected to Bill's evidence did not render it inadmissible. We review for abuse of discretion the trial court's ruling on that objection. (Waidla, supra, 22 Cal.4th at p. 717.) But Cheryl provides no explanation as to whether the trial court expressly overruled the objections; she does not provide any citation to the ruling, if made; and, she does not make any argument about how the trial court abused its discretion by explicitly or implicitly overruling the objections. Moreover, Cheryl does not support her conclusory assertion concerning the exhibits' admissibility with any legal analysis or citation to legal authority, and she does not explain why the declarations lacked a proper foundation or how that rendered them inadmissible. We are not obliged to search the record unguided, to develop an appellant's argument, or to speculate about the arguments counsel intended to make. (Meridian, supra, 67 Cal.App.5th at p. 684.) Because Cheryl has failed to develop this argument, it is forfeited. (Ibid.)
Second, Cheryl argues that because Bill did not move to admit his declaration or Criste's, the declarations "therefore cannot be the basis for an order." Cheryl did not make that argument in her opposition to Bill's request for attorney fees. It is not otherwise evident that Cheryl made the argument in the trial court, because Cheryl has failed to support the argument with any citation to the record. (Rule 8.204(a)(1)(C); United Grand Corp. v. Malibu Hillbillies, LLC. (2019) 36 Cal.App.5th 142, 156 [arguments not supported by record citations are forfeited].) "'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.'" (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.) Moreover, we consider an appellant to have "implied[ly] waived any objection" to the trial court's reliance in a dissolution proceeding on the other spouse's declaration and other documentary evidence submitted along with a request for an order if the argument is not made in the trial court. (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1131.) Given the deficiencies in briefing on the issue, the argument is forfeited. (United Grand, at p. 156.)
Third, Cheryl argues that Bill violated rule 5.92 because "there was no current FL-150 on file at the time of the fee request." Rule 5.92(b)(2) does require a party seeking an award of attorney fees or costs in a family law proceeding to support the request with a current income and expense declaration (form FL-150). (Rule 5.92(b)(2)(A)-(B).) Assuming for the sake of argument that the trial court erred by awarding attorney fees and costs even though Bill's request was not accompanied by a current income and expense declaration, Cheryl's briefs do not contain any argument explaining how the claimed error prejudiced her-that is, she does not argue that it is reasonably probable that the trial court would not have awarded Bill attorney fees absent the error. (McLaughlin, supra, 82 Cal.App.4th at p. 338.) Cheryl accordingly has failed to carry her burden of showing prejudice.
For these reasons, we conclude that Cheryl has failed to carry her burden of demonstrating that the trial court prejudicially erred with respect to the evidence that the court considered in awarding Bill attorney fees and forensic costs.
F. Attorney fees under section 271, section 1101(g), and section 1101(h)
Bill argues that the trial court erred by not awarding attorney fees under section 271 and subdivisions (g) and (h) of section 1101 on the ground that Bill failed to specify which attorney fees were incurred as a result of Cheryl's fiduciary breaches or sanctionable conduct. We are not persuaded.
"Section 271 authorizes a fees and costs award as a penalty for obstreperous conduct." (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1520.) It provides that a court "may base an award of attorney's fees and costs on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction." (§ 271, subd. (a).) An award of sanctions "under section 271 need not 'be limited to the cost to the other side resulting from the bad conduct.'" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226 (Corona); In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [addressing former Civil Code § 4370.6, the substantively identical predecessor of § 271].) Section 271 "does not require a correlation between the sanctioned conduct and specific attorney fees." (Corona, at p. 1226.)
We review for abuse of discretion an award of attorney fees under section 271. (Featherstone v. Martinez (2022) 86 Cal.App.5th 775, 783-784.) We will reverse "such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] 'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.'" (Corona, supra, 172 Cal.App.4th at pp. 1225-1226.)
"Under sections 721 and 1100, spouses have fiduciary duties to each other as to the management and control of community property. (§§ 721, subd. (b), 1100, subd. (e).)" (In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 347.) Subdivisions (g) and (h) of section 1101 set forth the applicable remedies when such a breach has occurred. If the breach involves conduct that rises to the level of malice, oppression, or fraud as defined in Civil Code section 3294, the award of attorney fees under section 1101(h) is discretionary. (In re Marriage of Bryan, supra, E067126; Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2023) ¶ 8:625.) But if the breach is not sanctionable under section 271 and does not involve fraud, malice, or oppression, then "section 1101, subdivision (g), governs the applicable remedies." (Fossum, at p. 347.) "That subdivision states that its remedies 'shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs.'" (Ibid., italics omitted; § 1101(g).) "The language of section 1101, subdivision (g) is unambiguous and mandatory," so the trial court lacks discretion to deny a fee request under section 1101(g) once a breach under that provision is found. (Fossum, at p. 348.)
The trial court did not award Bill attorney fees under section 271 and section 1101 because "there was no breakdown of what was necessary for the claims of breach of fiduciary duty." The court acted well within its discretion under section 271 and section 1101(h). Bill supported the request for attorney fees with 50 pages of billing statements from his attorney, spanning from March 2012 through December 2021. Most of the entries are fairly generic, such as telephone conference or correspondence with client, review discovery, prepare for deposition, correspondence with Cheryl's attorney, trial preparation, or trial. The entries are not differentiated based on subject matter, and Bill's attorney did not articulate in her declaration any basis to distinguish particular fees as specifically related to work concerning Cheryl's breaches or sanctionable conduct. The trial in this matter lasted 22 days over the course of several months. The parties' assets included a corporation, 15 real properties, and many other valuable assets. Bill and Cheryl disagreed about the status, value, and division of many of those assets and even disputed when they separated and how the corporation should be divided. Given the size of the estate, the quantity of marital assets, the length of the trial, and the number of disputes unrelated to any misfeasance, malfeasance, or misconduct by either spouse, it was well within the court's discretion to decline to award attorney fees to Bill under section 271 and section 1101(h) without any evidentiary guidance about the amount of attorney fees generated because of or related to Cheryl's breaches or sanctionable conduct.
Bill argues that by not awarding any attorney fees the trial court failed to exercise its discretion altogether. He also argues that the trial court applied the wrong legal standard because neither section 1101(h) nor section 271 contains any requirement that the fees awarded be correlated to the breach or sanctionable conduct. Neither argument has merit.
The trial court never stated that it believed that evidence correlating the claimed fees with the sanctionable conduct or fiduciary breaches was necessary to award attorney fees under either section 271 or section 1101(h) or that it was prohibited from awarding attorney fees under those provisions absent such evidence. Rather, the court chose not to award Bill attorney fees under those provisions given the number of issues in the proceeding unrelated to any breach or sanctionable conduct and the lack of any evidentiary basis to differentiate which attorney fees had any relation to such conduct. Thus, the trial court did not fail to exercise its discretion. Rather, it exercised its discretion not to award attorney fees under the circumstances, given that a lengthy trial and attendant attorney fees were inevitable regardless of Cheryl's breaches and inappropriate conduct. Regardless of whether the trial court could have exercised its discretion to award attorney fees under section 271 or section 1101(h)-that is, without any evidence of the amount of fees that were generated as result of Cheryl's breaches or sanctionable conduct-we conclude that the trial court did not abuse its discretion by declining to award sanctions.
With respect to section 1101(g), Bill argues that the trial court erred because attorney fees under that provision are mandatory once the court determines that a breach has occurred. We find no error.
The only breach of Cheryl's that the court found under section 1101(g) concerned her removal of $175,000 from a bank account. Bill did not provide any evidence about which attorney fees were incurred as a result of that single breach. Although section 1101(g) mandates the award of attorney fees when a breach is found under that provision, it does not require the trial court to award attorney fees when there is no evidence to support such an award. That is the situation here. Absent evidence showing the amount of attorney fees generated by the breach or even related to the breach, there effectively was no evidence supporting the award of attorney fees for the breach. There was no way for the trial court to ascertain what amount of the extensive litigation was dedicated to that singular breach. Any award of attorney fees under those circumstances would not have been supported by substantial evidence. Regardless of section 1101(g)'s mandate, the trial court is not required to award attorney fees that are not supported by evidence, and we would not affirm such an award. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.)
For these reasons, we conclude that the trial court did not err by declining to award Bill attorney fees under section 271, section 1101(g), and section 1101(h).
II. Statement of decision
Cheryl argues that the trial court prejudicially erred by "incorrectly declin[ing] to prepare a Statement of Decision or order a party to prepare a Statement of Decision." (Boldfacing omitted.) The argument lacks merit.
A. Relevant proceedings
The trial concluded on February 18, 2022. The minute orders from February 17 and 18 contained the court's rulings from the trial. On March 4, Cheryl filed a request for a statement of decision under section 632 of the Code of Civil Procedure, asking the court to provide the factual and legal basis for orders made during and at the conclusion of the trial. The trial court denied the request as untimely, explaining: Section 632 of the Code of Civil Procedure "prescribes that the request for a Statement of Decision must be made within 10 days of the court's tentative ruling. Therefore, the request is untimely and the court declines to issue a written statement of decision."
Two weeks later, Cheryl moved ex parte for reconsideration. She "acknowledged" that her request for a statement of decision "was not submitted within 10 days of the Court's verbal announcement of its tentative decision on February 18, 2022. (California Rules of Court No. 3.1590(d).) Ten days would have been Monday, February 28, 2022." She nevertheless argued that under rule 3.1590(m) good cause existed for the court to excuse the untimeliness of the request because her attorney was experiencing serious medical issues. The trial court summarily denied the request.
B. Legal framework
Section 632 of the Code of Civil Procedure provides that "upon the trial of a question of fact by the court," the trial "court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial." When, as here, the trial lasts longer than one day or eight hours, a party must make the request "within 10 days after the court announces a tentative decision." (Code Civ. Proc., § 632; rule 3.1590(d).) Rule 3.1590(m) allows the court to excuse noncompliance with the deadline "at any time before the entry of judgment . . ., for good cause shown and on such terms as may be just."
An "error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review." (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 (F.P.).) We accordingly will not reverse unless the appellant demonstrates that a more favorable result would have been reasonably probable absent the error. (Code Civ. Proc., § 475; Cal. Const. art VI, § 13; F.P., at pp. 1108-1109.)
C. Analysis
Cheryl argues that the reasons given by the trial court for denying her request for a statement of decision "were either an abuse of discretion, or, alternatively, a misunderstanding of law." The argument is forfeited. Cheryl does not support the argument with any legal analysis or authority and does not explain how the trial court abused its discretion or misunderstood the law. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).)
Cheryl also argues: "The rulings set forth in the Minute Orders of February 17 and February 18, 2022 are denominated a 'tentative ruling' although not so identified by the Court. (California Rule of Court No. 3.1590(a) and (b).) In addition, the Court did not comply with any of the provisions of the California Rule of Court No. 3.1590(c)." Those arguments are forfeited for the same reason. Cheryl does not provide any legal analysis explaining how the trial court did not comply with the rule or how the purported noncompliance had any impact on the court's subsequent denial of her request for a statement of decision as untimely. (Hernandez, supra, 37 Cal.App.5th at p. 277.) We will not develop an appellant's argument or "'speculate about which issues counsel intend to raise.'" (Ibid.; Meridian, supra, 67 Cal.App.5th at p. 684.)
Moreover, Cheryl's opening brief contains no argument that her request for a statement of decision was timely. Cheryl therefore has not carried her burden of demonstrating that the trial court erred by denying her request for a statement of decision as untimely. (Abdelqader, supra, 76 Cal.App.5th at p. 197.)
Cheryl argues for the first time in her reply brief that because the minute orders from February 17 and 18, 2022, did not indicate that they were tentative decisions or statements of decision, she "could not have known what the trial court only disclosed [in its order denying the request for a statement of decision]-that the trial court apparently intended the foregoing minute orders to be a tentative decision." (Italics omitted.) She makes the argument in response to Bill's contention that the trial court correctly denied the request as untimely. To the extent that Cheryl argues that her confusion about the February 17 and 18 minute orders somehow rendered her request timely or excused her untimely request, the argument is forfeited because it is made for the first time in the reply brief and no good cause exists for not advancing the argument earlier, particularly given that the trial court expressly ruled that the request was untimely. (Shaw v. Los Angeles Unified School Dist. (2023) 95 Cal.App.5th 740, 754.)
Moreover, the argument is forfeited for the additional reason that Cheryl did not make it in the trial court in either the initial request for a statement of decision or the motion for reconsideration. (In re M.H. (2016) 1 Cal.App.5th 699, 711.) It is particularly inappropriate for Cheryl to complain for the first time on appeal about uncertainty regarding whether the trial court's rulings were tentative decisions, given that the "new argument is inconsistent with the position [s]he took in the trial court." (Id. at pp. 711712.) In the trial court, Cheryl expressly "acknowledged" in her motion for reconsideration that the request for a statement of decision was not timely filed within 10 days of the court's tentative decision on February 18, 2022. Bill accordingly has never had an opportunity to respond to the argument. (People v. Silveria (2020) 10 Cal.5th 195, 255 ["'"[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"'"].)
Moreover, assuming for the sake of argument that Cheryl carried her burden of demonstrating that the trial court erred by failing to issue a statement of decision, she has failed to show that the error was prejudicial. (F.P., supra, 3 Cal.5th at p. 1108.) Cheryl's only argument on that point is that the error prejudiced her because "none of the benefits of a Statement of Decision [were] available and hardly constitute 'harmless error.'" In support of the argument, she recites verbatim some of the general purposes of a statement of decision as set forth in a leading treatise. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2023) ¶¶ 16:93-16:96.) If the loss of the general benefits of a statement of decision were sufficient to demonstrate prejudice, then erroneous failure to issue a statement of decision would be reversible per se. That would contravene our Supreme Court's holding that such an error is subject to harmless error review and not reversible per se. (F.P., at p. 1108.)
For these reasons, we conclude that Cheryl has failed to carry her burden of demonstrating that the trial court prejudicially erred by failing to issue a statement of decision.
III. Equalization payment
Cheryl argues that the trial court erred by ordering her to pay interest on the equalization payment because it does not constitute a money judgment. The argument lacks merit.
In paragraphs 7(g) and 7(h) of the 2016 judgment on reserved issues, the court ordered Cheryl to make equalization payments to Bill "[a]t the time of corporate bank account division" as follows: "[T]he amount owed to [Bill], from [Cheryl], ($282,889.30) for breach of fiduciary duty shall be awarded to [Bill] from the top of the bank accounts, with the balance evenly divided[,] [¶] . . . [and] the amount owed to [Bill], from [Cheryl] for equalization ($428,221.35) shall be paid directly from [Cheryl's] one-half share of the corporate bank account, to [Bill]." Because we concluded in our prior opinion that Bill was entitled to 100 percent of the section 1101(h) sanctions from Cheryl's share of the community funds and not "'off the top'" of the bank accounts, we ordered the trial court to modify paragraphs 7(g) and 7(h) as follows: "(1) In paragraph 7(g) . . ., the amount $282,889.30 is stricken and replaced by $83,925; and (2) in paragraph 7(h) . . ., the amount $428,221.35 is stricken and replaced by $627,185.65." (In re Marriage of Bryan, supra, E067126.)
During the 2022 trial, the parties agreed that Cheryl had paid Bill the equalization payment that she owed of $711,110.65. Cheryl made an initial payment of $428,221.35 on November 24, 2021, and paid the remainder of $282,889.30 on February 7, 2022. The court reasoned that 10 percent interest was due on the full amount of the equalization payment from December 1, 2016 (the date of the amended judgment), to November 23, 2021, and that 10 percent interest should accrue on the amount left unpaid from November 24, 2021, to February 6, 2022.
In the October 2022 judgment on reserved issues, the court ordered: "As of Friday, February 18, 2022, [Cheryl] owes interest on the equalization of $359,832.74 which continues to accrue. [Cheryl's] half of the joint bank account at Union Bank #x2705 containing approximately $832,613.37 shall not be utilized by [Cheryl] or disbursed by her until interest on the equalization is paid by her."
In general, "interest commences to accrue on a money judgment on the date of entry of the judgment." (Code Civ. Proc., § 685.020, subd. (a).) "'Money judgment' means that part of a judgment that requires the payment of money." (Code Civ. Proc., § 680.270.) "Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied." (Code Civ. Proc., § 685.010, subd. (a).) Because the relevant facts concerning the equalization payment are not in dispute, whether the equalization payment constitutes a money judgment is a question of law that we independently review. (International Engine Parts, Inc. v. Feddersen &Co. (1995) 9 Cal.4th 606, 611.)
Cheryl argues that the equalization payment did not amount to a money judgment because the language in paragraphs 7(g) and 7(h) of the 2016 judgment as modified "does not impose an obligation on Cheryl . . . to pay anything directly to" Bill but instead ordered the payment "to be made from a fund of money," so "the orders [were] in the nature of a distribution, rather than an order for payment." The argument lacks merit.
In support of her argument, Cheryl exclusively relies on In re Marriage of Teichmann (1984) 157 Cal.App.3d 302 (Teichmann). In Teichmann, the court was "asked to decide whether a spouse is entitled to interest on a community property award when payment is delayed without fault of the parties." (Id. at p. 304.) There, the trial court ordered the family residence sold in an interim judgment of dissolution. (Id. at pp. 304-305.) The proceeds were ordered to be divided equally between the parties after the wife first received a payment of $89,000 from the net sales "'to balance the division of community assets'" and the husband received a small sum to reimburse him for certain obligations. (Id. at p. 305.) The residence did not sell for over 19 months because of unfavorable market conditions. (Ibid.) The wife lived in the residence during that period, maintained it, and made the monthly mortgage payments. (Ibid.) After the residence sold, the wife filed a bill of costs in which she requested accrued interest on the $89,000 award from the date of entry of the interlocutory judgment. (Ibid.) The trial court ordered the cost bill stricken, and the wife appealed. (Ibid.)
The Court of Appeal affirmed, rejecting the wife's argument that the $89,000 award constituted a money judgment, finding the theory "legally unsupportable." (Teichmann, supra, 157 Cal.App.3d at p. 307.) Teichmann reasoned that the situation was distinguishable from cases in which "the recipient spouse was to receive payments directly from the other spouse," because the monetary award "was neither due nor payable by [the] husband but was to be distributed to her from the net proceeds of the eventual sale. Indeed, [the] husband himself was subject to a similar delay in payment of his pro tanto share of community property from the same source of funds." (Ibid., italics omitted.) The court further reasoned that the circumstances were "analogous to a partition proceeding in which the statutory scheme provides for reimbursement of out-ofpocket expenditures plus interest [citations] but makes no allowance for an award of postjudgment interest for the intervening period prior to sale." (Id. at pp. 307-308.)
Cheryl's reliance on Teichmann is misplaced. The equalization payment here was not contingent upon sale of any community property. Rather, the court ordered the payment made from the corporate bank account when it was divided. Division of the corporate bank account was completely within the control of Bill and Cheryl-Water Tech's only shareholders-and not subject to variable market conditions. The delay in payment was a result of Cheryl's choice to appeal from the judgment, which delayed the division of the corporate bank account. The circumstances are not analogous to a delay in the sale of residence for reasons outside of the parties' control.
Here, the court ordered a sum payable to Bill from Cheryl from a particular account when it was divided, and the parties had control of that account. That was a money judgment-that is, "part of a judgment that requires the payment of money" (Code Civ. Proc., § 680.270)-on which postjudgment interest accrued (Code Civ. Proc., §§ 685.010, subd. (a), 685.020, subd. (a)). We accordingly conclude that the equalization payment constituted a money judgment subject to the accrual of postjudgment interest.
IV. Alter ego ruling
In the 2022 judgment on reserved issues, the court ruled: "The Court declines to order that any money must be paid to the corporation, or that interest is owed. The corporation is not a party. These parties are the only two (2) owners. Corporate assets were already equalized in the Judgment."
Cheryl argues that "[b]ecause no evidence supports the 'alter ego' ruling by the trial court, each party must pay [Water Tech] for corporate assets awarded to that party." (Boldfacing omitted.) Cheryl's challenge to the ruling concerns the distribution of four automobiles-a Mercedes, a Chevy Avalanche, and two Lexuses-and one airplane. In the 2016 judgment, the court found the Mercedes to be a "community corporate asset" subject to equal division. In dividing the couple's community property, the court awarded (1) to Cheryl, the Mercedes with the value to be determined later, (2) to Bill, the airplane valued at $265,000, and (3) to Bill, the two Lexus automobiles with their value to be determined later. With respect to the Chevy Avalanche, the court found that Bill's sale of the vehicle valued at $7,150 amounted to a breach of his fiduciary duty to Cheryl under section 1101(g), so it awarded Cheryl 50 percent of the value of that vehicle. Considering the total amount of community property awarded to Bill and Cheryl, including the airplane and automobiles, the court concluded that Cheryl owed Bill $428,221.35 in equalization.
The 2022 judgment included the following findings: (1) "[t]he Mercedes automobile is stipulated to be valued at $38,000, less $15,000 stipulated to having been paid, leaving $23,000 charged to" Cheryl, (2) "[t]he two Lexus automobiles awarded to [Bill] are together valued at $7,630 which is charged to" Bill, and (3) "[t]he Avalanche automobile is already covered in the prior Judgment, and no further action is needed." The trial court did not make any further ruling about the airplane. In March 2023 (several months after the notices of appeal were filed), Cheryl filed a request for order for Bill to return funds that he purportedly improperly withdrew. She argued that Bill had improperly removed $265,000 from Water Tech's bank account, but Bill explained in an email that he removed those funds in order to recover "the money [he] paid for the airplane. Cheryl was already credited her half through equalizing in the original order."
Cheryl's argument that the 2022 judgment should have required the parties to reimburse the corporation for the airplane and the automobiles is meritless. The 2016 judgment determined that the airplane and the automobiles were property of the marital estate (not corporate assets), divided them between the parties, and accounted for them in the equalization payment. The parties did not challenge the characterization of those items as marital property in the appeal from the 2016 judgment, and it is too late for them to do so now. We lack jurisdiction to entertain Cheryl's belated argument that, contrary to the 2016 judgment, the airplane and the automobiles belonged to the corporation, not to the marital estate. (Adams, supra, 188 Cal.App.3d at p. 690.)
DISPOSITION
The October 3, 2022, judgment on certain reserved issues is affirmed. The parties shall bear their own costs of appeal.
We concur: RAMIREZ P.J., MILLER J.