Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CV0147572
RUVOLO, P. J.
This appeal by the former husband, Robert J. Nielsen, Jr., challenges a postjudgment award of attorney fees to the former wife, Michelle N. Olds. Nielsen contends that the trial court lacked authority to award fees incurred prior to the entry of an earlier order that denied a previous claim for fees due to a procedural default on Olds’s part. We conclude that Nielsen has not borne his burden of demonstrating error on appeal, and therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
This is the second appeal that we have considered arising out of this marital dissolution proceeding. The earlier proceedings in the case were related in our opinion on the prior appeal. (In re Marriage of Nielsen and Olds (May 23, 2008, A114586 [nonpub. opn.] (Nielsen I).) Briefly, in August 2000, Nielsen and Olds submitted their property division issues to binding arbitration. The arbitrator rendered an award, followed by a corrected award, that included a provision for an equalizing payment to Olds.
On October 5, 2001, Olds filed a petition in the trial court to correct and confirm the corrected award. In her petition, Olds also sought prejudgment interest on the equalizing payment from the date of the original award. On November 7, 2001, Nielsen responded by filing a motion to set aside the corrected award. Nielsen’s motion was denied, and on December 11, 2001, a court commissioner signed and filed a judgment (the December 2001 judgment) confirming the corrected award, and granting Olds’s request for prejudgment interest.
Nielsen did not appeal from the December 2001 judgment. Instead, he filed a motion seeking to set aside the provision entitling Olds to prejudgment interest on the equalizing payment. Further litigation over prejudgment interest ensued, lasting nearly four years. Ultimately, the trial court entered an order (the April 2006 order) providing that the December 2001 judgment, including the provision for prejudgment interest, was valid. Nielsen appealed. On May 23, 2008, we affirmed the April 2006 order in its entirety, and awarded Olds her costs on appeal. (Nielsen I, supra, A114586.)
Meanwhile, postjudgment litigation continued in the trial court. At the time the April 2006 order was entered, the court also had before it dueling requests for attorney fees by each party against the other. On October 6, 2006, the court entered an order (the October 2006 order) ruling on Olds’s request for needs-based attorney fees under Family Code section 2030 (section 2030), covering work performed since May 2004. The October 2006 order denied Olds’s fee request on the sole ground that Olds had not complied with a local rule requiring parties seeking need-based awards to file an updated income and expense declaration. The October 2006 order also declined to award attorney fees as sanctions to either party, on the ground that “neither party was blameless in over-litigating this case, ” and that “both parties exaggerated [and] postured and that at times the filings defied common sense and added nothing to the process.”
On October 31, 2008, after the issuance of the remittitur in Nielsen I, Olds filed another motion for attorney fees and costs, based on several statutory grounds: (1) Olds’s need and Nielsen’s ability to pay (section 2030); (2) Nielsen’s conduct in the course of the dissolution proceedings, which Olds characterized as unreasonable (Fam. Code, § 271); (3) Nielsen’s failure to pay spousal support (Fam. Code, § 3557); (4) Nielsen’s alleged unreasonable refusal to clear a lien on Olds’s property (Civ. Code, § 2941); and (5) Olds’s asserted status as the prevailing party on an action to enforce a promissory note executed by Nielsen (Civ. Code, § 1717). Under section 2030, Olds requested a total of $321,510.50 for the period from August 2, 2001 (the date of the original arbitration award) through September 30, 2008. The fee request was broken down by time periods during which the fees were incurred, as follows:
August 2001 to October 2001
$33,849.00
November 2001 to December 2003
$82,385.00
December 2003 to February 2004
$14,740.00
March 2004 to June 2006
$132,000.00
July 2006 to September 2008
$58,536.50
Nielsen responded on December 14, 2008, opposing the award of any attorney fees to Olds, and requesting sanctions and attorney fees. He also requested that the court abate interest on the unpaid portion of the December 2001 judgment, and appoint a referee to calculate the outstanding balance due on his obligations to Olds.
After considerable intervening litigation, the trial court filed an order on July 13, 2009 (the July 2009 order) disposing of the pending motions. The order awarded Olds $21,000 in additional attorney fees for the prior appeal (in addition to $10,000 awarded previously. The court denied Olds’s motions for fees under Family Code sections 271 and 3557, and Civil Code sections 2941 and 1717. With respect to Olds’s motion for fees under section 2030, the court awarded additional fees and costs in the amount of $162,000, which Nielsen was ordered to pay at the rate of $10,000 per month. No breakdown or allocation for fees awarded based on the enumerated time periods was requested by the parties, or provided by the trial court. The court also sanctioned Nielsen in the amount of $1,500 for his ongoing refusal to pay spousal support, but declined to award any other sanctions. Nielsen’s motions for sanctions, attorney fees, and abatement of the interest on the judgment were denied, but the court granted his request that an expert be appointed to determine the amount still due to Olds under the December 2001 judgment.
Nielsen responded, on July 28, 2009, by filing a motion for new trial and/or to vacate the July 2009 order. That motion was heard and denied on October 7, 2009. This timely appeal ensued.
Discussion
On this appeal, Nielsen’s sole argument is that the trial court exceeded its authority by awarding Olds fees and costs attributable to proceedings in the trial court prior to October 4, 2006, i.e., the date the October 2006 order was filed. As Nielsen correctly contends, because he raises only questions of law and statutory interpretation, we review the trial court’s order de novo. (In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1371-1372.)
Nielsen does not contest the award of fees incurred in connection with the prior appeal.
The trial court awarded fees to Olds under section 2030. As amended in 2004, this statute reads in pertinent part as follows: “(a)(1) In a proceeding for dissolution of marriage, ... and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party... to pay to the other party... whatever amount is reasonably necessary for attorney’s fees... during the pendency of the proceeding. [¶].... [¶] (c) The court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, ... including after any appeal has been concluded.” In In re Marriage of Hobdy (2004) 123 Cal.App.4th 360 (Hobdy), the court interpreted section 2030, as it read prior to the 2004 amendments, as overriding Code of Civil Procedure section 1008 (section 1008) with respect to attorney fee awards in marital dissolution proceedings. (Hobdy, supra, at p. 369.) Thus, the Hobdy court rejected the husband’s argument that section 1008 deprived the trial court of jurisdiction to reconsider its earlier order denying attorney fees to the wife. Nielsen contends that Hobdy is distinguishable on the ground that Hobdy involved a pendente lite fee award, whereas this case does not.
Before section 2030 was amended in 2004, the portions of the statute corresponding to those quoted in text read as follows: “(a) During the pendency of a proceeding for dissolution of marriage... the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights, order any party... to pay the amount reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding. From time to time and before entry of judgment, the court may augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded. [¶].... [¶] (c) For services rendered or costs incurred after entry of judgment, the court may award the attorney’s fees and costs reasonably necessary to maintain or defend any subsequent proceeding, and may augment or modify an award so made, including after an appeal has been concluded.” (Former Fam. Code, § 2030, italics added.)
Although the 2004 legislation amending section 2030 had been passed by the time the opinion was filed in Hobdy, supra, 123 Cal.App.4th 360, the amendments had not yet become effective, and in any event, the order reviewed by the Hobdy court was issued in 2002. Presumably for those reasons, Hobdy did not mention the amendments.
On appeal, we begin with the presumption that the trial court's rulings are correct and supported by substantial evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Consistent with this presumption, we draw all inferences in favor of the rulings unless the record expressly contradicts them. (Ibid.) An appellant must affirmatively demonstrate grounds for reversal, because trial court error will not be assumed. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1678.)
Based on these fundamental tenets of appellate review, we need not decide whether Nielsen’s interpretations of section 2030 and Hobdy are correct, because he has failed in his burden to show the trial court erred in granting fees. As Olds’s brief points out, the July 2009 order does not indicate how the trial court arrived at the fee amount it awarded. As we have noted, no breakdown by time period was either requested nor provided by the trial court. Olds requested $58,536.50 for the most recent period covered in her motion, which spanned from July 1, 2006 (three months before the October 2006 order) through September 30, 2008, and $132,000 for the period March 2004 to June 2006. The trial court awarded her fees in the amount of $162,000, which is $28,000 less than the total of the amounts requested for the period from March 2004 through September 2008. Therefore, the record does not support Nielsen’s contention that some portion of the fees actually awarded must be considered to be attributable to time periods earlier than May 2004, and thus could not be reconsidered under section 2030.
Alternatively, Nielsen argues that the October 2006 order constituted a final adjudication of Olds’s right to attorney fees for all time periods predating that order, and that under the doctrine of res judicata, the trial court therefore lacked the authority to modify prior awards based on what Nielsen characterizes as a collateral attack. But res judicata does not apply to a prior adverse judgment that was rendered not on the merits, but for procedural reasons. (See, e.g., United Medical Management Ltd. v. Gatto (1996) 49 Cal.App.4th 1732, 1740 [“[a] plaintiff whose action is dismissed on procedural grounds, such as noncompliance with statutory requirements, is not precluded by the doctrine of res judicata from bringing a second action, subject to the applicable statute of limitations, after compliance with the statute”]; Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 93-94 [where writ petition was summarily denied due to petitioner’s failure to supply adequate record, denial was not on merits, and res judicata did not preclude petitioner from filing second petition seeking same relief]; Folden v. Lobrovich (1957) 153 Cal.App.2d 32.) Here, the October 2006 order states that Olds had failed to file an updated income and expense declaration along with her motion, in violation of Alameda County local rules. Therefore, “[h]er failure to follow the Local Rules precludes this court from granting her any relief under Section 2030.” As the trial judge explained during one of the hearings leading up to the July 2009 order, Olds’s earlier fee request was “truly denied on what I considered to be a procedural lapse and that was the lack of an income and expense declaration.” Thus, the October 2006 order did not adjudicate Olds’s request for attorney fees on the merits, and res judicata did not preclude the trial court from modifying the October 2006 order as expressly permitted by section 2030.
In support of his res judicata claim, Nielsen refers to language in the October 2006 order where the trial court stated: “This court can find no legitimate basis in fact or law on which to award either Petitioner or Respondent any attorney’s [sic] fees and costs.” However, in context it appears that reference was made in connection with the parties’ claims for sanctions under Family Code section 271 and fees under Civil Code section 2941.
For these reasons, Nielsen has failed to show any error in the trial court award of attorney fees to Olds. Accordingly, we affirm the ruling.
Because Nielsen has failed to show that the fee award necessarily included fees previously awarded to Olds, we need not consider his alternative argument that the July 2009 order “is contrary to the principle of finality, ” under In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1062.
Disposition
The orders appealed from are affirmed. Olds is awarded her costs on appeal.
We concur: SEPULVEDA, J., RIVERA, J.