Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FL048670
RUSHING, P.J.
Appellant, Susan Mellen, proceeding in propria persona, returns to this court on appeal in her dissolution of marriage case with respondent Timothy Jackins. In this appeal, Mellen challenges the court’s award to Jackins of attorney fees and costs associated with the first appeal, as well as sanctions in the form of a return of previously paid spousal support.
STATEMENT OF THE FACTS AND CASE
The following facts are from our opinion In re Marriage of Mellen and Jackins (Apr. 6, 2006, H027895) [nonpub. opn.].
“In July 1997, the trial court entered judgment in the parties’ contested dissolution of marriage. The terms of the judgment included an order that Mellen’s husband, Timothy Jackins pay spousal and child support to Mellen in certain amounts.
“On October 22, 2003, Jackins filed a motion to terminate his future spousal support obligations. Jackins also requested an accounting of funds ordered pursuant to the original 1997 judgment.
“Shortly after filing the motion, Jackins served Mellen with a request for production of documents related to the accounting referred to in the motion to terminate support. Mellen objected to the production of any documents on the grounds of privacy, and on the basis that she “entered into a permanent waiver of her spousal support rights effective October 22, 2003.”
“In Mellen’s response to Jackins’s motion, she stated that she consented to the relief he was requesting, and maintained that she did not need to make an accounting to Jackins, because of her agreement to permanently waive future spousal support.
“On April 8, 2004, Mellen filed an amended declaration in response to Jackins’s motion. In the declaration, Mellen asked the court to continue the hearing on Jackins’s motion, and for a protective order requiring Jackins to discontinue requesting her financial information.
“At the initial hearing on the motion in April 2004, the court ordered Mellen to turn over the requested financial documents by May 20, 2004, and it continued the hearing on the motion to June 23, 2004.
“At the June 23, 2004 hearing on Jackins’s motion, the trial court determined that Mellen had not complied with the discovery order to turn over financial records to Jackins. As a result, the court issued the following order, dated July 21, 2004, that stated, in relevant part:
‘2. The Court finds that [Mellen] has not produced documents which she was ordered to produce on May 20, 2004. [Mellen] shall have until one week prior to September 8, 2004 to produce the documents requested in [Jackins’s] Request for Production of Documents Set Two.’
“Mellen filed a notice of appeal on August 31, 2004 to set aside the above referenced July 21, 2004 order.
“The trial court continued the September 8, 2004 hearing date to determine if Mellen’s notice of appeal stayed the July 21st order. At the new hearing date on September 29, 2004, the court found that the notice of appeal did not stay the order. In addition, the court determined that Mellen did not comply with the discovery order, and sanctioned her $2,500.
“Mellen filed a writ of supersedeas on October 18, 2004, and this court granted the writ on December 1, 2004.”
In April 2006, this court issued an opinion dismissing Mellen’s appeal in In re Marriage of Mellen and Jackins, supra, H027895. The dismissal was based on the fact that Mellen was attempting to challenge the original 1997 judgment beyond the statutory period for such review, and was also challenging an interim discovery order that was not appealable.
Mellen subsequently filed a petition for writ of mandate that was summarily denied by this court in May 2006 in case number H030148.
Mellen filed a petition for review by the California Supreme Court of this court’s opinion dismissing her appeal. In June 2006, the Supreme Court denied the petition.
Following the issuance of the remittitur in the appeal, in June 2006, Jackins moved for attorney fees and costs in the trial court associated with the appeal, subsequent motion for rehearing, and petition for review by the Supreme Court. Jackins also moved for an issue sanction regarding his request for an accounting of the previously paid spousal support if Mellen did not comply with the existing order to produce documents by the hearing date.
The trial court awarded Jackins attorney fees in the amount of $31,831, payable within 30 days. The court also granted Jackins’s request for issue sanctions, and ordered Mellen to re-pay $35,617 in spousal support that had been previously paid to her because of her refusal to provide the accounting documents.
Mellen filed a notice of appeal in 2006 of the award of attorney fees and sanctions following remittitur. In addition, Mellen is attempting to appeal the 2004 order for discovery sanctions in the amount of $2,500.
DISCUSSION
Mellen asserts on appeal that the trial court erred in ordering her to pay attorney fees in the amount of $31,831, and two separate sanctions in the amounts of $35,617, and $2,500.
At the heart of Mellen’s dispute with the attorney fees and sanctions in this case, is her repeated argument that the “order requiring [her] to produce documents exceeded the trial court’s jurisdiction and was therefore void . . . .” The basis for Mellen’s argument of jurisdiction is her assertion that Jackins never filed a motion to compel, and therefore, the court lacked the power to order production of the documents and consequently sanction her for refusing to turn them over.
Notwithstanding the fact that Mellen never objected to the order when it was made in the trial court, Mellen’s argument in this regard overlooks the fact that it was she who requested a protective order of the documents, and when that was denied, the court was well within its authority to order production, and sanction her for noncompliance. (Code of Civ. Proc., § 2031.060, subd. (c).)
2006 Award of Attorneys Fees in the Amount of $31,831
Following remittutur in the appeal, Jackins filed a motion for attorney fees and costs he incurred in defending against Mellen’s appeal, and subsequent petition for review to the California Supreme Court. The trial court considered the motion, and awarded Jackins $31,381 in attorney fees and costs.
“[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] ‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.) Moreover, the imposition of a sanction in the form of attorney fees under Family Code section 271 is reviewed under the abuse of discretion standard. (Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) “ ‘ “The burden is on the complaining party to establish abuse of discretion . . . .” ’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Family Code section 271, subdivision (a), which provides for an award of attorneys fees as sanctions in a family law matter, states in part: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the 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. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.”
This section “advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys’ fees and costs as a sanction.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) The statute evolved from former Civil Code section 4370.6, which “simply vested family law courts with an additional goad with which to enforce this state’s public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel. Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party’s costs and attorney’s fees such conduct generates.” (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1110, italics added; In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 964.)
Here, Mellen does not demonstrate that the trial court abused its discretion in awarding Jackins attorney fees in the amount of $31,381. The record demonstrates that the fees were incurred as a direct result of Mellen’s continual refusal to turn over documents the court ordered she produce. As a result, what could have been a relatively simple accounting matter became protracted and expensive litigation. This is exactly the type of conduct Family Code, section 271 is designed to prevent. (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 177 [sanctions under § 271 are authorized where a party’s conduct frustrates the policy of the law in favor of settlement and increases the cost of litigation]; In re Marriage of Daniels, supra, 19 Cal.App.4th at pp. 1105-1107 [counsel’s failure to respond towards settlement efforts fell below minimum level of professionalism and cooperation and warranted sanctions against the party].) Conduct need not rise to the level of bad faith or frivolousness in order to be sanctionable under section 271. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 58-59.)
The delay and additional costs could have been avoided had Mellen produced the documents she was ordered to produce. Indeed, Mellen’s actions in this case were directly contrary to 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.” (Fam.Code, § 271, subd. (a)). As a result, the trial court’s order was proper.
2006 Discovery Sanction in the Amount of $35,617
In addition to the order that Mellen pay Jackins’s attorney fees and costs in the amount of $31,381, the court also ordered Mellen to re-pay $35,617 of spousal support she was previously paid as a sanction for failing to comply with the discovery order to produce documents for an accounting.
In assessing Mellen’s contentions regarding the propriety of the sanctions award, we will “indulge all reasonable inferences to uphold the trial court’s order. [Citations.] We will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it. [Citations.]” (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 178.) Under this standard of review, the trial court’s order will be overturned only if, considering all of the evidence viewed most favorably in support of the order, no judge reasonably could have made it. (In re Marriage of Daniels, supra, 19 Cal.App.4th at p. 1106.)
This case has continued over a period of years, with the trial court issuing numerous orders compelling Mellen’s production of her financial documents. Mellen continually has refused to do so abide by those orders. In fact, in her responsive pleading to Jackins’s motion for attorney fees and costs, Mellen asserts: “I would prefer to return the spousal support I received under the 1997 Judgment rather than comply with an order that I believe was obtained by fraud.” This is exactly the order the court made in its sanction award of $35,617.
Code of Civil Procedure, sections 2023.010 and 2023.030 outline discovery misuse and provide authority for the court to order sanctions for discovery abuses. Specifically, in this case, Mellen abused the discovery process by “[d]isobeying a court order to provide discovery.” (Code of Civ. Proc., § 2023.010, subd. (g).) Moreover, “ ‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful [citation].’ [Citation.]” (Valbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)
Here, the trial court’s exercise of discretion in imposing sanctions in the form of return of previously paid spousal support was not arbitrary, capricious or whimsical in any way. It was only after years of repeated orders to produce the discovery, and Mellen’s blatant refusal to do so that the court made such order. Indeed, the demonstration of Mellen’s willful refusal to comply with the order can be seen in her responsive pleading to the motion for attorney fees, in which she suggests the sanction that the court actually imposed. We find no error.
2006 Sanction in the Amount of $2,500
In addition to the two 2006 sanction awards, Mellen also is attempting to appeal an award of sanctions the trial court ordered in the amount of $2,500 on October 19, 2004.
We are mindful of Code of Civil Procedure, section 904.1, subdivision (a)(12), which provides that a sanction award is appealable only if the amount exceeds $5,000. We note that sanction awards less than $5,000 may be considered by this court after entry of final judgment in the main action, which has occurred in this case. (Code of Civil Proc., § 904.1, subd. (b).)
The time for filing an appeal is governed by California Rules of Court, rules 8.104 and 8.108. Rule 8.104 states, in relevant part: [¶] “(a) . . . [A] notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of; . . .” (Cal. Rules of Court, rule 8.104(a).)
Here, the notice of appeal dated October 30, 2006, specifies that Mellen is appealing from an order following judgment pursuant to Code of Civil Procedure section 904.1, subdivisions (a)(2) and (a)(3)-(13), and she attaches the order after hearing dated October 19, 2004, requiring her to pay $2,500. The period to appeal the 2004 order after judgment has long since past. (Cal. Rules of Court, rule 8.104(a).) We do not have the jurisdiction to consider it.
Disposition
The order appealed from is affirmed.
WE CONCUR: PREMO, J., ELIA, J.