Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. ED053719. Alan B. Clements, Judge.
IRION, J.
Ed Couvrette appeals the rulings of the family court: (i) ordering the transfer of funds from his 401(k) account to his former wife, Joanne Couvrette; (ii) increasing his spousal and child support obligations; and (iii) awarding attorney fees and sanctions. He contends that the court erred in ordering that funds in his 401(k) account be transferred to his former wife because the orders violated the automatic stay of judicial proceedings under the bankruptcy code; the 401(k) plan was not joined in the proceeding as required by Family Code section 2060; and the orders were preempted by federal law. Ed also contends that the family court erred in increasing his support obligations because it did so based solely on an inadmissible hearsay declaration. Finally, Ed argues that the court violated his due process rights in imposing a $20,000 sanction against him, and improperly awarded his former wife $10,000 in attorney fees.
All statutory references are to the Family Code unless otherwise specified.
We conclude that the court's orders which purported to authorize the transfer of funds from appellant's 401(k) were not "qualified domestic relations orders" as required under federal law, and are consequently invalid and unenforceable. We also determine that the family court improperly increased appellant's support obligations based on an inadmissible hearsay declaration, and that it improperly imposed the $20,000 sanction without first permitting Ed an opportunity to contest the basis for the sanction. Finally, we reject appellant's attorney fee award challenge, concluding that appellant fails to demonstrate the requisite abuse of discretion.
FACTS
In January 2002, citing irreconcilable differences, Ed filed for dissolution of his marriage of approximately 10 years to Joanne. On February 6, Joanne filed a response, also requesting dissolution of marriage. At the end of 2003 and into early 2004, a trial was held to resolve a number of contested issues, including the appropriate amount of spousal and child support. On February 2, 2004, the family court found, "[a]fter [hearing] testimony and evidence from both sides," that Ed's net monthly income was $9,900, and Joanne's net monthly income was $2,774. Based, in large part, on these findings, the court ordered Ed to pay child support of $1,614 per month and spousal support of $2,400 per month.
As is customary in family law cases, we refer to the parties by their first names for clarity.
The court confirmed its ruling in a May 17, 2004 statement of decision, in which the court stated that "following trial," it had found that Ed received "$150,000 per year, or $12,500 per month" as the chief executive officer of E.F. Couvrette Company, Inc., plus $1,604 per month in rental income from property in Texas, and had a total net income of $9,900. Based, in part, on this net income finding, the court's final ruling mandated that Ed pay "$1,614 BASE" child support and $2,400 per month of permanent spousal support with "no termination date."
Over a year later, on April 15, 2005, Joanne filed a motion with the family court alleging that she had been unable to collect over $100,000 in court-ordered payments from Ed and seeking "an order directing Principal Financial Group and/or E.F. Couvrette Co., Inc. to immediately release levied-upon funds in [Ed's] 401(k) account, held at Principal Financial Group, to [her]." Joanne also sought attorney fees.
On May 31, Joanne's counsel appeared for a hearing on the motion. Ed, appearing without counsel, requested a continuance of the hearing on the ground that he had retained counsel who would not be available to appear on the matter until the middle of July. Ed identified the attorney as Robert Amidon and verified that Amidon would be available to attend a hearing on Friday, July 29, at 9:00 a.m. The court stressed that the hearing would be "the only matter on my calendar" and would be set "with the understanding that there will be no continuances at that point."
On July 7, Joanne filed a motion seeking modification of Ed's support obligations based on a "change of circumstance[s]" — primarily, that Ed's net income was much higher than had previously been reported to the court. Joanne's motion was supported by her declaration and a copy of a declaration filed in an unrelated civil lawsuit in Virginia in which a former employee of Ed's company claimed that Ed received large unreported payouts from the company. Ed filed an opposition to Joanne's motion seeking funds from his 401(k) account, as well as a written objection to the declaration filed by Joanne from the Virginia litigation as "inadmissible hearsay as a matter of law."
On July 29, Joanne and her counsel appeared for the hearing on the two motions. Neither Ed nor his counsel were present, and the court placed on the record the fact that they had not contacted the court regarding their absence.
With respect to Joanne's request for modification of support, Joanne's counsel reported to the court that a "material change in circumstances has occurred," and specifically that: (i) due to a medical condition, Joanne's monthly income had decreased while her expenses had increased; and (ii) based on the declaration of Roy Dickenson, the former chief financial officer at E.F. Couvrette Company, Inc., Ed's "actual income," including "hidden salary" from the company, was $24,056 per month. The court ruled that Joanne's net income, which formerly had been found to be $2,774, had decreased to $1,420 per month; and that Ed's net income, formerly found to be $9,900, should be increased to $24,056 per month. The court then recalculated Ed's support obligations to be $2,445 per month for child support (up from $1,614), and $8,000 per month (up from $2,400) for spousal support.
The court also ruled that a 401(k) account could be accessed to satisfy a spouse's support obligations and granted Joanne's request for an order assigning funds from Ed's 401(k) account to her.
Finally, the court ordered "contribution towards the fees for the motions today in the sum of $10,000," and granted a request for sanctions against Ed in the amount of $20,000 "[b]ased upon what appear to the court to be misrepresentations of Mr. Couvrette and his intent to hire counsel and be prepared to proceed on the matter today . . . ." The court noted that all pending evidentiary objections had been overruled and that "[a]ll evidence has been received by the court."
Following the hearing, the court issued an order entitled "Qualified Domestic Relations Order," which recited that Ed owed $112,110 to Joanne, and ordered the administrator of Ed's 401(k) plan to pay any benefits from the plan owing to Ed directly to Joanne as an "alternate payee." The court also issued a second order to the same effect, entitled "Order Re Release to Los Angeles County Sheriff of Funds in 401(k) Account Held at Principal Financial Group for the Benefit of Petitioner Ed Couvrette."
On the same date as the July 29th hearing, Ed filed for bankruptcy in federal court in the Western District of Virginia. The bankruptcy proceedings were terminated in November 2006.
DISCUSSION
Ed challenges each of the family court's rulings made at the July 29th hearing. We consider each of the challenged rulings separately below.
I
The Orders Assigning Benefits to Joanne from Ed's 401(k) Account Are Invalid
To qualify for preferential tax treatment under the federal tax code, employer pension, profit-sharing and stock bonus plans including those established under 26 United States Code section 401(k) (so-called "401(k) plans") are required by law to prohibit the assignment or alienation of an employee's interest in the plan. (In re Marriage of Shelstead (1998) 66 Cal.App.4th 893, 899 (Shelstead); 26 U.S.C. § 401(a)(13)(A), (B); Bartlett Co-op. Ass'n v. Patton (Kan. 1986) 722 P.2d 551, 555 ["Federal law specifically requires that tax-qualified employee pensions, profit-sharing, and stock bonus plans contain an anti-alienation clause," citing 26 U.S.C. § 401(a)(13)].) Congress has, however, crafted a narrow exception to these anti-alienation prohibitions for the purpose of " 'protect[ing] the rights of nonemployee spouses and dependents by allowing state courts to make equitable divisions of property in a divorce or dissolution and provision for support of dependents.' " (Shelstead, at p. 899; 26 U.S.C. § 401(a)(13)(A), (B) [trust established under 26 U.S.C. § 401 must contain a provision that it "may not be assigned or alienated" and cannot be assigned to a third party, except by a "qualified domestic relations order"].) Under this exception, a court may order the administrator of a pension plan to assign the employee's interest in the plan to certain "alternate payees" even though such an assignment would otherwise be contrary to the plan's federally mandated anti-alienability terms. (Shelstead, at pp. 899-900.) For such an order to be valid, however, it must meet certain specified prerequisites, rendering it a "qualified domestic relations order" (QDRO). (Id. at p. 899 ["a domestic relations order that attempts to transfer pension benefits away from the employee is specifically barred by the spendthrift clause unless the order satisfies the QDRO criteria"].) If a court order does not meet the QDRO criteria, it is invalid and unenforceable because it is preempted by federal law. (Ibid.)
Under federal law, a 401(k) plan is required to "provide that benefits provided under the plan may not be assigned or alienated." (26 U.S.C. § 401(a)(13)(A).) The anti-alienation provision quoted above, however, "shall not apply if the order [seeking alienation] is determined to be a qualified domestic relations order." (26 U.S.C. § 401(a)(13)(B).)
For a domestic relations order to be "qualified," the order must, among other requirements, "clearly specif[y]" the name and address of the plan participant and of the alternate payee, and the amount and manner of the payments to be paid to the alternate payee. (29 U.S.C. § 1056(d)(3)(C).) The federal QDRO provisions define lawful " 'alternate payee[s]' " to include "any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant." (29 U.S.C. § 1056(d)(3)(K); Shelstead, supra, 66 Cal.App.4th at p. 902.)
Ed contends that the trial court's order permitting assignment of his 401(k) account to Joanne does not qualify as a QDRO because, in addition to identifying Joanne as the "alternate payee," it includes a provision that: "[i]f the Alternative Payee dies before the Alternate Payee has received the full amounts due from the Retirement Plan under this order, then the balance shall be paid to the Alternate Payee's designated beneficiary . . ., or if there is no designated beneficiary, then to her probate estate."
Joanne does not dispute Ed's contention that the QDRO is invalid under federal law. Instead, she argues, without citation to any authority, that "a QDRO is not necessary" to obtain funds from Ed's 401(k) account because "ED's 401(k) account is not a pension plan, and thus is not governed by ERISA." This argument fails to recognize, however, that whether or not a retirement plan created under 26 United States Code section 401(k) is labeled a "pension plan," federal law mandates that it cannot be assigned or alienated except through a QDRO. (26 U.S.C. § 401(a)(13)(A), (B); In re Marriage of Norfleet (Ill. App. 1993) 612 N.E.2d 939, 942 ["The trial court could not, in the . . . dissolution proceeding, assign or alienate [deceased ex-husband's] 401(k), absent the use of the QDRO"]; see generally Patterson, The 401(k) Handbook (2007) vol. I, ¶ 270.)
The "Alternative Payee" provision cited above is analogous to that considered by this court in Shelstead, where a purported QDRO stated that " '[t]he share payable to [the Alternate Payee] shall continue to be paid to [her], or her designated successor in interest should [she] predecease [her spouse], until terminated by [her spouse's] death.' " (Shelstead, supra, 66 Cal.App.4th at p. 896, italics omitted.) This court determined that inclusion of this provision rendered the domestic relations order not "qualified" and unenforceable under federal law because it created the potential for benefits from the pension to go to a person who was not an "alternate payee" under the statute. (Shelstead, at pp. 903-904.)
We find Shelstead's analysis persuasive and see no legal distinction between the provision that precluded qualification of the domestic relations order in that case and the provision that Ed challenges here. In the instant case, the purported QDRO allows Joanne to designate a third party who does not fit the federal definition of "alternate payee," creating the potential that Ed's 401(k) benefits will be assigned to a person not legally authorized to receive such an assignment under federal law. Consequently, as this Court held in Shelstead, the domestic relations order does not satisfy the federal prerequisites for a QDRO and is thus preempted by federal law and invalid.
As we reverse the QDRO on this ground, we need not address Ed's other challenges to the validity of the QDRO or the court's related rulings/orders authorizing assignment of his 401(k). For purposes of providing guidance to the parties on remand, however, we note the following. Ed's contention that the court's domestic relations orders are also invalid, because his 401(k) plan should have been joined in the proceedings under section 2060, fails to recognize that there is an exception to section 2060, provided in section 5103, subdivision (a), which states: "Notwithstanding Section 2060, an order for the payment of child, family, or spousal support may be enforced against an employee benefit plan regardless of whether the plan has been joined as a party to the proceeding in which the support order was obtained." Similarly, Ed's alternate contention that the QDRO is invalid, because it encompasses underlying awards for attorney fees and costs, fails to recognize that under federal law, a QDRO can be used to enforce judgments "relat[ing] to the provision of child support, alimony payments, or marital property rights to a . . . former spouse." (29 U.S.C. § 1056(d)(3)(B)(ii)(I), italics added.) Thus, analysis of these alternate claims, if raised in future proceedings, depends on the appropriate characterization of the various awards underlying the July 29th orders, an analysis that is missing from the briefs on appeal, and one that we need not, and do not, undertake in the instant appeal given our reversal of the family court's orders on other grounds. We also do not reach Ed's contentions regarding the family court's purported violations of the stay accompanying his bankruptcy filing, or his contention that the court was influenced by an improper ex parte communication, as these contentions are rendered moot by our rulings.
II
The Family Court Erred in Relying on a Hearsay Declaration Filed in a Virginia Proceeding to Establish Ed's Income for Child and Spousal Support Purposes
Ed contends that the family court erred by increasing his support obligations based on Joanne's submission of the declaration of a former employee of Ed's corporation, Roy Dickenson (the Dickenson Declaration). We agree that the court's recalculation of Ed's income, and subsequent order increasing his support obligations, was fatally flawed by its consideration of, and reliance on, the Dickenson Declaration.
A. Pertinent Procedural History
In support of her motion for modification of support, Joanne submitted the Dickenson Declaration, which she located through a computer search for court filings related to Ed and his business affiliations. As summarized in Joanne's declaration, the Dickenson Declaration states that: "Ed 'has a practice of taking funds out of the corporation for personal use,' " and that for 2004, Ed received "$215,173.07 in expenses paid on behalf of Ed" in addition to his salary, and that "most of such expenses were personal in nature." In addition, Joanne informed the family court, the Dickinson Declaration states that Ed's "girlfriend, Shirley Phipps, was on EFCC's payroll" and "received a salary of $35,000 per year," and that Ms. Phipps was on the payroll " 'to hide the money from [ED's] ex-wife [i.e., me]' " (alterations in original). At the July 29th hearing on the modification motion, Joanne's counsel further explained that by considering the $215,173 figure plus the $35,000 "as hidden salary," Ed's income should be increased to $24,056.
As the Dickenson Declaration is directed toward issues in an unrelated proceeding, Joanne summarized the pertinent portions of that declaration in a supplemental declaration of her own that she submitted to the court. For simplicity, and because Joanne's declaration is part of the appellate record and contained in the family court file, we rely on the facts as summarized in Joanne's declaration, and which both parties recognize to be an accurate treatment of the Dickenson Declaration.
In ruling on the motion, the court adopted Joanne's argument in its entirety, and recalculated Ed's net income accordingly, making a finding that Ed's net income was $24,056 per month, rather than the $9,900 per month previously established. The court also noted that all pending evidentiary objections had been overruled and that "[a]ll evidence ha[d] been received by the court."
B. Analysis
Ed contends that the family court erred when it overruled his objection to the Dickenson Declaration, and that its modification of Ed's support obligations based on the hearsay evidence presented in that declaration cannot stand. We agree.
The Dickenson Declaration is a classic example of hearsay evidence. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608 (Kulshrestha) ["Any statement not made by a witness testifying in court before the fact finder constitutes hearsay evidence when offered for its truth"].) "Hearsay evidence is generally incompetent and inadmissible without statutory or decisional authorization, or absent stipulation or waiver by the parties." (Id. at p. 609; Evid. Code, § 1200, subds. (a), (b); Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 597 ["The general rule in civil actions is that absent statutory authorization, stipulation of the parties, or a waiver by failure to object, an affidavit (Code Civ. Proc., § 2003) or a declaration under penalty of perjury (Code Civ. Proc., § 2015.5) is not competent evidence; it is hearsay because it is prepared without the opportunity to cross-examine the affiant"].)
Despite the often informal nature of marital dissolution proceedings, "such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions," including the prohibition of hearsay evidence. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins); Kulshrestha, supra, 33 Cal.4th at p. 608 ["In judicial proceedings, the trustworthiness of the evidence and the reliability of the factfinding process depend upon the notion that persons who possess relevant information appear in court and undergo cross-examination"].)
Joanne fails to cite any statutory or decisional exception to the hearsay rules that would support the admissibility of the Dickenson Declaration. Our own independent review has revealed that the only potentially applicable exception is that contained in Code of Civil Procedure section 2009, which permits courts to rely on declarations and affidavits when proceeding on a "motion." The California Supreme Court, however, recently clarified that even when proceedings are instituted by motion, ". . . Code of Civil Procedure section 2009 'has no application to the proof of facts which are directly in controversy in an action' " and " 'was not intended to have the effect of changing the general rules of evidence by substituting voluntary ex parte affidavits for the testimony of witnesses.' " (Elkins, supra, 41 Cal.4th at p. 1355.) Our high court emphasized that " '[t]he section only applies to matters of procedure,' " that is, " 'matters collateral, ancillary, or incidental to an action or proceeding, — and has no relation to proof of facts the existence of which are made issues in the case, and which it is necessary to establish to sustain a cause of action.' " (Ibid., quoting Lacrabere v. Wise (1904) 141 Cal. 554, 556-557; see also Fewel v. Fewel (1943) 23 Cal.2d 431, 438 (conc. opn. of Traynor, J.) ["The fact that [Code of Civil Procedure ]section 2009 permits [the admission of affidavits] 'upon a motion' does not mean that the issues in a contested case may be determined and a judgment rendered on the basis of written statements of parties not before the court"]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 13:106, p. 13-30.)
Here, the determinations of Ed's income for purposes of calculating support constituted a central issue in the marital dissolution proceedings that had already been resolved in an earlier trial proceeding based on live witness testimony. The redetermination of the parties' income in response to Joanne's motion cannot, then, be characterized as " 'collateral, ancillary, or incidental' " to the action. (Elkins, supra, 41 Cal.4th at p. 1355.) Consequently, that Joanne initiated the court's reconsideration of Ed's support obligations by the filing of a "motion" did not permit the court to bypass the general rules of evidence.
Although neither party raises the contention, and consequently we do not rely on it for our decision, Joanne's attempt to modify the court's findings as to Ed's support obligations upon a showing of changed circumstances appears problematic on other grounds as well. (See In re Marriage of Murray (2002) 101 Cal.App.4th 581, 593 [family court's modification of spousal support award based on conclusion that husband had misrepresented ability to pay was not proper because the court "modif[ied] the order upon a showing, not that [husband's] circumstances had since changed, but that his circumstances were not as he had represented them to be at the time the order was made"]; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 17:138.6, p. 17-32.19 ["A spousal support order is not modifiable on the ground that the circumstances were not as a party represented them to be at the time the order was made. The remedy when the order is predicated upon misrepresented circumstances (e.g., feigned disability and consequent false reduction in income, concealed assets, etc.) is a set-aside motion on the basis of fraud or perjury"].)
In sum, as there is no statutory or decisional authority for the admission of the Dickenson Declaration as substantive evidence, the family court erred in overruling Ed's hearsay objection to that declaration. As the Dickenson Declaration was the primary basis for the increase in Ed's support obligations, that increase cannot stand. (See Cal. Const., art. VI, § 13; Evid. Code, § 353.) Consequently, we reverse the court's order increasing Ed's support obligations.
Ed's alternative contention that the declaration should not have been admitted because it does not state that it is executed under the laws of California is meritless because the declaration states that it was executed in California. (Kulshrestha, supra, 33 Cal.4th at p. 612.)
III
The Trial Court's Award of Sanctions Was Improper
Ed contends that the July 29, 2005 order awarding Joanne $20,000 in sanctions was imposed without due process. We agree.
The court awarded sanctions against Ed during the July 29, 2005 hearing, stating in open court that "[b]ased upon what appear to the court to be misrepresentations of Mr. Couvrette and his intent to hire counsel and be prepared to proceed on the matter today, the request for sanctions of $20,000 is granted." Of course, Ed, who was absent from the hearing, had no notice or opportunity to respond to the court's imposition of sanctions on that basis. This constituted a violation of due process, and requires reversal. (In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1421 [reversing sanctions order where "[t]he grounds actually recited in the formal order imposing sanctions . . . were not asserted as a basis for sanctions . . . at any time before rendition of the sanctions order" and "consequently" the sanctioned party did not have a "reasonable opportunity to respond since he could not have known of the need to respond as to those grounds"]; § 271, subd. (b) ["An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard"]; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 14:115, p. 14-35 ["As a matter of due process, regardless of the source of the sanctions power . . . sanctions cannot be imposed unless the party, attorney or witness to be sanctioned has been given notice and opportunity to be heard"].)
We take no position as to whether sanctions could be properly imposed for Ed's failure to attend the July 29th hearing. Our ruling is simply that such sanctions could not be imposed without first providing Ed notice and an opportunity to respond to the propriety of imposing sanctions on that ground.
IV
The Family Court Did Not Abuse Its Discretion in Awarding Attorney Fees
Ed also challenges the family court's award of $10,000 of attorney fees to Joanne at the July 29th hearing. We conclude that Ed has failed to demonstrate any abuse of discretion in the court's award of fees.
During the July 29th hearing, in response to Joanne's written motion seeking an award of attorney fees, the court "order[ed] contribution towards the fees for the motions [heard] today in the sum of $10,000." The court did not specify the statutory authority for its ruling, but the request for attorney fees referenced: section 2030, subdivision (a), which authorizes an award of fees to "ensure that each party has access to legal representation to preserve each party's rights"; section 271, which authorizes an award of attorney fees "in the nature of a sanction" based on whether "the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation"; and section 3557, which requires the family court to award attorney fees, "absent good cause to the contrary," to a custodial parent in an action to enforce an existing order for child or spousal support.
"[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court," and will not be disturbed on appeal "[i]n the absence of a clear showing of abuse . . . ." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769 (Sullivan).) Such an abuse will be established, " 'only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' " (Ibid.)
Ed contends that we should overturn the fee award on two grounds. First, he argues that the award is improper because Joanne represented herself in the proceedings for which she was awarded fees. (See, e.g., Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 436 [rejecting award of attorney fees to pro se litigant, and noting that "the very use of the term ' "attorney fees" presupposes that the prevailing party has been represented by an attorney' "].) Second, Ed contends that the $10,000 fee award was "excessive and extravagant" because "[t]he legal services rendered [were] to attend a hearing which appeared to have lasted [only] several hours." Ed fails to carry his burden of demonstrating an abuse of discretion based on either of his two contentions.
The first argument is unpersuasive because the record demonstrates that Joanne sought attorney fees for services provided to her by counsel. Joanne's motion requesting fees notes her attorney as Gerald L. McMahon of the firm Seltzer, Caplan, McMahon and Vitek. McMahon's signature appears on pleadings filed in support of the motions heard at the July 29th hearing and McMahon argued the motions at that hearing on Joanne's behalf. Consequently, viewing the record in the light most favorable to the court's order (Sullivan, supra, 37 Cal.3d at p. 769), the fee award was intended to reimburse Joanne for the services of her attorney, and not for legal efforts on her own behalf.
The second argument is also unavailing. Viewing the record in the light most favorable to the order (Sullivan, supra, 37 Cal.3d at p. 769), the family court's order encompassed not solely attorney fees for McMahon's attendance at the hearing, but also attorney fees incurred on "the motions" prior to the hearing, which includes fees incurred in efforts to obtain the funds in Ed's 401(k) and with respect to the motion to increase the child and spousal support. Indeed, in the arguments presented at the July 29th hearing, McMahon noted that he had "labored long and hard" to enforce the court's earlier orders and was "combine[ing] those fees with the fees on the service of the motion for modification of support." The amount of the award was further supported by Joanne's pleadings filed prior to the July 29th ruling, which reflected a debt of $15,303 to her attorney as of June 30, 2005, and that McMahon's rate was $515 per hour. Consequently, viewing the record in the light most favorable to the family court's order, and given the absence of anything other than conclusory assertions of "extravagance" in Ed's pleadings, we cannot conclude that Ed has carried his burden of demonstrating an abuse of discretion in the fee award.
Ed's reliance on In re Marriage of Mulhern (1973) 29 Cal.App.3d 988 and Davidson v. Davidson (1970) 5 Cal.App.3d 51 is unavailing. In Mulhern, our colleagues in the Second District reversed an award of attorney fees as excessive after concluding that the family court was "improperly attempting indirectly to compensate for services rendered in connection with" a proceeding other than that which was properly before the court. (Mulhern, at p. 994.) There is no similar showing here. Similarly, Davidson is easily distinguished, as that case emphasized that the issues involved were "simpl[e]," and the husband, against whom fees were awarded, was fully cooperative in eliminating the need for any significant expenditure of attorney fees. (Davidson, at p. 53.) Here, the matters in dispute were not simple, and the family court had determined that Ed was not fully cooperating, a fact adequately supported by the evidentiary record.
DISPOSITION
Reversed in part and affirmed in part. The parties are to bear their own costs
WE CONCUR: McCONNELL, P. J., AARON, J.
The Dickenson Declaration itself was not originally made a part of the appellate record and we were unable to locate that declaration in our independent review of the voluminous court file. Ed includes the Dickenson Declaration in his June 15, 2007 request to augment the record and for judicial notice (tab 11), and we grant the request to augment the record on appeal with this document because both parties rely on and cite to the document, and neither challenges its authenticity (as opposed to its reliability), or dispute the fact that it was placed before the family court. We deny Ed's request with respect to the balance of the documents included in his request, which are either inappropriate for judicial notice, irrelevant to our decision, or both.