Opinion
G054776
09-24-2018
In re the Marriage of NICHOLAS PAPAGEORGES, III and SUSAN PAPAGEORGES. NICHOLAS PAPAGEORGES, III, Appellant, v. SUSAN PAPAGEORGES, Respondent.
Ludwig Law Center, Eric S. Ludwig and Michelle P. Ludwig for Appellant. Law Offices of Jennifer Owens and Jennifer Owens for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13D001170) OPINION Appeal from a judgment of the Superior Court of Orange County, Frank Ospino, Judge. Affirmed. Ludwig Law Center, Eric S. Ludwig and Michelle P. Ludwig for Appellant. Law Offices of Jennifer Owens and Jennifer Owens for Respondent.
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Nicholas Papageorges, III, appeals from the trial court's marital dissolution judgment awarding him $1,500 in monthly spousal support, rather than the $3,700 he requested, and denying his request that his ex-wife, Susan Papageorges, pay $35,000 of the $58,000 he incurred in attorney fees. As we explain, Nicholas fails to meet his appellate burden to demonstrate the court abused its discretion, and we therefore affirm the judgment.
For clarity and ease of reference, we will refer to Nicholas and Susan by their first names; we intend no disrespect by the informal designation. (In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
Nicholas and Susan married in October 1995, separated in November 2012, and Nicholas filed for divorce in February 2013. He filed an amended petition in August 2014, and the case progressed slowly through 2014 and 2015, after the couple earlier had attempted to resolve their differences through mediation. They had three children, and by the time the couple reached a stipulated division of assets in January 2016, only one child was a minor, with whom Nicholas had a 10 percent custody timeshare. Like the youngest child, the couple's two now-adult children continued to live at home with Susan at the time of trial, while they pursued academic and fire academy training, respectively.
Nicholas and Susan agreed in their trial testimony that during the marriage Susan was "fortunate to be able to stay home," but she also noted she "work[ed] from home" beginning in the "[e]arly '90's" when the children were young. She held an unspecified position in the real estate industry assisting a broker, while also "manag[ing] the[] domestic duties with working full-time." Susan acknowledged she did not "provide primary [financial] support for the children," clarifying her chief household contribution at the time was "[n]ot monetary," but rather [e]motional." She and Nicholas agreed "[t]hat was always the plan that we had" for the children, "that I would still be home when they were home."
Susan testified she did not begin working full-time in an office until "probably 2009, 2010," when their youngest child was 11 or 12 years old and two or three years before their separation in 2012. She worked as a commission-based real estate mortgage loan officer before and after the couple's separation.
The parties submitted a stipulation before trial that Susan's "agreed-upon marital income" was "$12,500/month." But as she explained at trial, the last year of the marriage before their separation, "2012[,] was the best year I had ever had in this business." She noted her income had not crossed the six-figure threshold until two years earlier in 2010. She testified her loan officer position was "a very volatile, unpredictable type of job" in which her income varied dramatically not only from month to month, but also "ebb[ed] and flowed every single year." While a $12,500 average monthly income corresponded to a $150,000 annual salary, Susan testified, "I have made $30,000 one year. I've made 60, 45. I mean, it's all over the place." She also testified that her unreimbursed job-related expenses, including marketing and attending conferences to generate leads, exceeded $1,000 a month.
An automobile mechanic for 35 years, Nicholas stipulated before trial that his "agreed-upon marital income" was "$4,000/month." He testified his income at the time of trial averaged $4,301 a month, with estimated monthly expenses of $3,240. He had owned his auto repair garage since 2001, six years into the marriage, but the parties did not establish a value for the business at trial or in their pretrial stipulation. Nicholas testified that while his monthly expenses included $800 to $900 a month in debt service on a business credit line, he planned to use a portion of his share of marital equalization proceeds to "zero" out the credit line so he would own his company debt-free.
Nicholas testified that whether he was "the primary financial support of the household" "ebbed and flowed over the years." He stated that Susan "was always able to stay at home and be a working mom," which "afforded her the luxury of us having a parent [at] home and also a flexible income." He noted that when he sold what apparently was an earlier business in 2001 "and went into full-time ministry stuff, my income got [sic] 50 percent off." He observed, "There's been many years where I made a little bit more money than she did and [years] she made more than I do . . . ." Nicholas estimated Susan's earnings first exceeded $6,000 a month in 2008, a few years before the marriage ended. The parties stipulated before trial that Susan's income helped support an "Upper middle class" standard of living. Nicholas, however, testified he believed the couple lived beyond their means during the marriage.
Nicholas faulted Susan, testifying that "[o]ver the marital duration, I was never able to get an agreed budget with her, and so things ran away f[or] different periods." But he also explained they "invested in some real estate and made some stock investments that did not go well," adding that "[t]here were times where we were in debt and then a mortgage refi[nance] settled the score." Nicholas added they "sold one of the two investment houses in Arizona, which brought additional finances to the budget." He summarized, "[A]ll that illuminates that over the course of 20 years, we didn't run a very balanced budget."
The parties agreed in their pretrial property division to sell their remaining Arizona investment property and "divide the net sale proceeds, if any." They also agreed to sell their 50 percent interest in a second home they owned in Big Bear. Nicholas testified that at one time in the marriage they owned three Mercedes Benz vehicles, but by the time of their separation, they had "changed cars." In dividing their property, Nicholas and Susan agreed that Susan would receive two of the vehicles, and Nicholas would receive four; the vehicles averaged well over 10 years old each.
The parties stipulated that their pretrial division of assets and debts resulted in a net equalization of property. Susan received the family home in Rancho Santa Margarita, where she and the three children resided. The parties estimated the 5-bedroom home was worth approximately $775,000, but Susan testified that with substantial first and second mortgages and other debts, her net worth in real and personal property totaled approximately $85,000. She had advanced $100,000 to Nicholas as an equalization payment enabling her to keep the home, and upon the sale of their Big Bear house, she owed him an additional $63,750, which approximated the value of both their shares in the property according to their pretrial stipulation. The couple also split their small investment accounts, with equalization of their debts and assets netting Nicholas $20,000 off the top of the accounts with the remaining balance to be split equally.
Nicholas's share from the division of the couple's assets also included their timeshare and his business, but without a value assigned to either. He used $13,000 of the equalization funds advanced by Susan to buy a sailboat from a friend, which he docked in Dana Point and used as his primary residence. He noted it provided roughly 120 square feet of living space and no shower. He also used a large spare room above his auto repair garage as a bedroom, which he furnished with a king-size bed, but there was only a half-bathroom on the premises, which was also used by his employee and customers.
Nicholas used most of his remaining equalization funds to eliminate or substantially pay down his share of community debt and his separate debts. Susan still owed him a $38,000 equalization payment at the time of trial, which he planned to use "to finish paying the debt to zero." Nicholas had assumed approximately $80,000 of community debt, which was only a small fraction of the debt on the marital home that Susan assumed, but the parties stipulated their division of assets and debts resulted in an equal division of property.
Nicholas and Susan also stipulated to Nicholas's duty to pay $336 per month in child support for their minor child. Consequently, the only contested issues remaining at trial for the court to resolve were Nicholas's requests for spousal support and for Susan to contribute a minimum of $35,000 towards his attorney fees.
Nicholas sought $3,700 in monthly spousal support. His attorney offered a mathematically "simple analysis [for] how to get to . . . what Mrs. Papageorges should pay to Mr. Papageorges per month to allow them both to live in the same marital standard of living that they enjoyed during the marriage." Specifically, using the parties' combined pretrial stipulated marital income of $16,500 as his starting point, Nicholas proposed "tak[ing] out [roughly $]400 for child support, just make it an even 16,000 dollars," then "divide that in half, that's 8,000 dollars to each of the parties." With Nicholas's current income at $4,300, "[y]ou add the [requested] 3700 to the 4300 and you get to the 8,000 dollars," which he justified as "a split in amount of monies between the 2 parties that they enjoyed during the marriage."
Nicholas based his request for attorney fees on the parties' "disparity of income." Nicholas incurred $33,000 in attorney fees billed by the firm that represented him through most of the divorce proceedings, and his new counsel billed him an additional $25,000 for the final eight months of the case through trial. In contrast, Susan's attorney fees for the entire period totaled $25,000, and she paid $5,700 of the mediator's fee at the outset of the case, while Nicholas paid the mediator $700. Nicholas did not attempt to account for the discrepancy between his $58,000 in attorney fees and Susan's far lesser amount. On cross-examination regarding the reasonableness of his former firm's fees, Nicholas responded, "I think the whole process is unreasonable, including the fees."
The trial court admitted e-mails between Nicholas and Susan that included Nicholas threatening to involve the media in an unspecified manner to resolve their case: "If the system will not serve me by paying [me] money and going in the front door as asked . . . . I will bring in family values experts, media . . . whomever would like a REAL live CA/Orange [C]ounty case to expose the corruption and evil dysfunctional nature of the system." (Original ellipses.) In the same e-mail a year before trial, Nicholas warned Susan, "We can still settle and get done . . . but at this point, you will have to sacrifice more than you have been willing to. I am gearing up for a very long winter in my life and ready for a very long, long battle of attrition."
In a similar e-mail to his attorney just before trial, which was copied to Susan, Nicholas, apparently believing Susan would be required to pay a portion of his attorney fees, wrote: "I warned her that I am tired of this crap and if this is her game . . . she can pay $0.75 to my $0.25 of each dollar to have the attorneys deal the cards. [¶] So . . . I will see you tomorrow with the emails and docs I have. Start the meter and spend her money." (Original ellipses.) Nicholas explained in his testimony, "My limited understanding of the law is that the position I am [in] financially [compared] to my ex . . . provides me an opportunity to ask for attorneys' fees." He acknowledged, "I was also told that the court [has] discretion and generally won't do that, which I have heard those kind of statements a lot, which is very frustrating."
Susan opposed Nicholas's requests for spousal support and attorney fees. Noting she only "began making [a] 6 figure salary two years before petitioner left her," her attorney argued Susan's increased income "should not be used against her"; instead, in "struggl[ing] to help her children through an extremely difficult time," she "kicked it into gear" to provide for her family and "continues to work to her fullest capacity to m[eet] the family needs." Her attorney argued that Nicholas had ample "prov[ision] for his self support based on the assets he has received," including "his business free and clear," the timeshare, his vehicles, and "163,750 dollars from respondent since October of 2015." Counsel argued that while Nicholas used those funds to buy a boat and eliminate his debt, Susan took on the substantial debt obligations to "maintain the home that th[e] children grew up in," "liquidated her retirement asset to fund the equalization payment," and "does not have the ability to pay spousal support in [an] amount of 35 or 3700 dollars a month," nor "to pay 30 or 40,000 dollars in attorney fees."
As to attorney fees, Susan's counsel argued that Nicholas's "fees dwarf respondent's fees in this matter" for "the same work," yet Nicholas "failed to introduce evidence of any bills of prior counsel" or a "declaration from the Core Law Group [his former counsel] supporting the fees." To the contrary, his "own e-mail correspondence . . . impugns the work that former counsel prepared on his behalf." Highlighting Nicholas's "battle of attrition" and "start the meter and spend her money" e-mails, Susan's counsel further argued that while Nicholas "claims [they] were drafted out of frustration," the court could conclude "that petitioner's own conduct inflated the fees and costs in this case."
After taking the matter under submission, the trial court ordered Susan to pay Nicholas $1,500 in spousal support "until the death of either party or remarriage" and denied Nicholas's attorney fee request. In a detailed ruling, the court found Nicholas's "earning capacity is not sufficient to maintain the marital standard of living," but explained that the "marital standard of living is not the absolute measure of reasonable need, but instead . . . a reference point" for measuring the statutory factors for support identified in Family Code section 4320. The court expressly reviewed those factors, including that "neither party contributed to the other's education or training and career or earning capacity," that Susan had "some ability to pay monthly spousal support" "after meeting her own reasonable living expenses," and that the needs of the parties, including Nicholas's living arrangements limited to his boat and a room above his auto shop weighed in favor of support.
The trial court also factored into its spousal support ruling the 17-year length of the marriage, the parties' good health at age 55 (Nicholas) and 51 (Susan), and their "relative hardships under [Fam. Code § ] 4320(k)," including that Susan "is the higher wage earner, and after meeting her own reasonable living expenses, she has some ability to pay a modest sum of spousal support." Considering other "just and equitable factors," the court observed that Nicholas had "received cash in the sum of $163,750 from respondent," "his business free and clear," "a timeshare," "vehicles," and "50 percent of the parties' Fidelity investment plus an additional $20,000 from [Susan's] share." In light of these assets, the court found Nicholas was "by no means destitute," and set the $1,500 spousal support figure based on "the marital standard of living and all the factors . . . just discussed."
The trial court explained that it denied Nicholas's attorney fee request because "each side had and has sufficient resources to fund their litigation. Each party had assets and income and/or earnings capacity to retain counsel, and each side had an ability to adequately present their respective cases . . . ." The court further found that shifting Nicholas's fees to Susan was inappropriate based on Nicholas's "conduct and litigation tactics that substantially increased the cost of litigation," "as evidenced by [his] e-mails" "replete with threats of litigation." The court noted it was "particularly struck by the quotes: 'Start the meter and spend her money,'" and "'I warned her about this crap, and if this is her game, she can pay to have [my] attorney deal with this crap.'" The court concluded it was reasonable to infer "not just [from] the actual words and threats contained therein, but also the tenor of the e-mails, that [Nicholas] engaged in obstreperous conduct that frustrated settlement, and his conduct clearly added to the cost of the litigation."
DISCUSSION
Nicholas contends the trial court erred in awarding him $1,500 in monthly spousal support, rather than a higher sum, and in denying his attorney fee request. As Nicholas concedes, we review most family law orders and judgments under the deferential abuse of discretion standard. Spousal support and attorney fee rulings are no exception. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr); In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166 (Drake).)
1. Spousal Support
We turn first to Nicholas's spousal support challenge. "An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines." (Kerr, supra, 77 Cal.App.4th at p. 93.) Those guidelines include Family Code section 4320. (Ibid.; all further statutory references are to this code unless noted.)
Section 4320 identifies more than a dozen factors a trial court must consider in ordering spousal support. These factors include: (1) each spouse's ability to maintain the marital standard of living; (2) contributions to the supporting spouse's education, training, or career; (3) the supporting spouse's ability to pay support; (4) the needs of each spouse based on the marital standard of living; (5) the obligations and assets of each spouse; (6) the duration of the marriage; (7) the supported spouse's ability to engage in gainful employment without unduly interfering with the interests of dependent children; (8) the age and health of the spouses; (9) documented evidence of any history of domestic violence; (10) tax consequences; (11) the balance of hardships; (12) an abusive spouse's criminal convictions; and (13) any other factors the court deems just and equitable. (§ 4320, subds. (a)-(n).)
"In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) "Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] 'Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.'" (Kerr, supra, 77 Cal.App.4th at p. 93.) Reversal is warranted only where "no judge reasonably could make the [support] order." (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)
Nicholas argues the trial court erred in not utilizing his mathematical formula of simply summing the parties' monthly incomes at the end of the marriage, subtracting his child support obligation, and dividing the result by two, which yielded his demand that Susan pay him $3,700 a month. Observing that such a calculation is "easy, but it's not just or equitable," the court reasonably rejected Nicholas's rigid approach. "Unlike child support, which courts generally calculate in accordance with the mathematical formula set forth in the mandatory guidelines [citation], in awarding spousal support, a trial court has broad discretion in weighing numerous statutory factors." (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1243.)
Of section 4320's statutory factors, Nicholas discusses only the marital standard of living, which he argues demonstrates the trial court erred in setting his support amount at $1,500. He argues he "finds himself living below the marital standard of living, while [Susan] continues to reside in the family residence with equity now in excess of $163,750.00." Nicholas provides no citation for this equity figure. The trial court as "'the sole judge of the credibility and weight of the evidence'" (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099) was entitled to credit Susan's testimony that she only had $85,000 in equity at the time of the court's order.
With $85,000 in net equity despite a house worth $775,000, Susan took on vastly more debt than Nicholas to remain in the family home with her children, and the fact the housing market may have increased in value since then, rather than declining as it had in the recent past, has no bearing on the validity of the court's support order. To the contrary, an "'order for spousal support must be based on the facts and circumstances existing at the time the order is made.'" (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
More importantly, the trial court reasonably could set spousal support for Nicholas at $1,500 a month consistent with the couple's actual marital standard of living and income. While the couple stipulated they enjoyed an upper middle class lifestyle, Nicholas testified they lived beyond their means. Susan also testified that while her income reached approximately $12,500 a month in the last year of their marriage, that was "the best year [she] had ever had" in her "volatile" commission-based job, with salary fluctuations down to "$30,000 one year" and "60" or "45" thousand in others. Nicholas testified Susan's income did not exceed $6,000 a month until 2008, just four years before the marriage ended, a figure less than half of the $12,500 Nicholas relied on to calculate his $3,700 support request. Similarly, Susan testified her income only passed the $100,000 annual mark in 2010.
Nicholas objected to this detailed testimony about Susan's variable salary as "inconsistent," with the parties' stipulation identifying her "agreed-upon marital income" at $12,500 a month. But the trial court overruled the objection. Nicholas does not contend on appeal that the court erred, and he therefore forfeits the claim. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcon & Fyke).) In any event, the objection fails on the merits. As the trial court explained, the testimony was "relevant" and therefore admissible. (Evid. Code, § 351.)
Specifically, testimony concerning Susan's salary changes was relevant to the court's duty to determine spousal support, including ascertaining an accurate picture of the couple's marital standard of living (§ 4320, subds. (a), (d)) and Susan's ability to pay support with a fluctuating income (id., subd. (c)). We must view the evidence in the light most favorable to the trial court's ruling and draw all inferences in favor of the judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Under this standard, the record supports the conclusion that for support purposes Susan's income should not be tabulated at its high-water mark at the very end of the marriage. Instead, the couple's combined income averaged around $12,000 a month in the last several years of their marriage, rendering the trial court's $1,500 monthly support order in combination with Nicholas's $4,300 monthly income a reasonable approximation of his half share of their community income and marital standard of living.
Nicholas also asserts the trial court "should not have considered the equalization payment in the final determination of permanent spousal support." The court observed that, in addition to the couple's time share, his vehicles, and "his business free and clear," Nicholas "received cash in the sum of $163,750 from" Susan. Countering that "[a]ssets are not income," Nicholas asserts the court "erred when it used this equalization payment as a factor when considering an appropriate . . . spousal support award."
The claim is meritless because section 4320, subdivision (e), expressly directs the trial court to consider the parties' "assets" in calculating spousal support. Moreover, while assets are not technically income, they can generate a stream of income in many ways, including effecting future income by paying down debt. Nicholas recognized this principle in his testimony, explaining that he chose to direct a portion of his equalization funds to eliminate his share of community debt and his personal and business debt because "as that's paid down, that reduces my monthly cash flow to the debt service." Using a portion of his equalization funds to pay his business debt to "zero in one more week," as Nicholas's trial testimony illustrated, freed up "about 8 to 9 hundred dollars a month." In effect, the equalization payment thus generated a substantial new income stream for Nicholas, and that is without also considering other potential income related to his plan to eliminate other debt.
That new cash flow of $800 to $900 per month, combined with the court's $1,500 support order, totaled an ample sum to pay market rent that Nicholas conceded would "help [him] to meet the marital standard of living." He previously had rented a two-bedroom condo for $2,300 a month. Nicholas's claim that he lived below the marital standard of living focused on his boat and office sleeping arrangements, which he compared unfavorably to Susan's continued residence at the marital home. But Susan shouldered hundreds of thousands of dollars in mortgage debt to do so, while Nicholas, with the equalization payment and the court's support order, may effectively access three separate debt-free residences: his boat, his large bedroom above his office, and potentially a rental condo. In sum, the parties have made their respective choices concerning housing and a lifestyle with or without debt, and we discern no abuse of discretion in the trial court's support order.
2. Attorney Fees
Nicholas challenges the trial court's decision denying his attorney fee request. The court did not abuse its discretion.
Section 2030 requires the trial court to "ensure that each party has access to legal representation, including access early in the proceedings, 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, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a)(1).) Section 2032, subdivision (a), authorizes the court to make an attorney fee award under section 2030, "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties."
Such "'need-based'" fee-shifting is not premised on prevailing party considerations. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) Instead, the statutory purpose "is to ensure a party has sufficient resources to adequately and properly litigate the controversy and to implement public policy favoring 'a parity between spouses in their ability to obtain legal representation' (equalizing litigating strengths)." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 14:155.)
"'[T]he [trial] court has broad discretion in awarding attorney fees and costs in dissolution proceedings.'" (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167 (Dick).) "'The discretion invoked is that of the trial court, not the reviewing court, and the 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.'" (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
The trial court reasonably could decline Nicholas's request to order Susan to pay $35,000 of the $58,000 in attorney fees he incurred. This is particularly true where Susan's legal bill totaled approximately $25,000, and Nicholas offers no justification for the substantial difference. As noted, the statutory purpose is to level the litigation playing field, not to tilt resources to one side. "We are not bound to develop appellants' arguments for them" (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830), and therefore cannot theorize or fashion a hypothetical basis for the fee differential; to the contrary, issues "'"not raised or supported"'" are deemed forfeited. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)
Moreover, "[i]n assessing one party's relative need and the other party's ability to pay, the family court may consider all evidence concerning the parties' current incomes, assets, and abilities . . . ." (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313-1314.) The goal "is not the redistribution of money from the greater income party to the lesser income party." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) Here, the parties stipulated that their division of assets was equal and, as discussed above, the court in effect equally divided their marital income. Because neither party enjoyed a substantial financial advantage over the other in this regard, the court's order was justified on that ground alone.
Additionally, the Legislature has provided that financial resources are only one factor to be considered in apportioning fees. (§ 2032, subd. (b).) The court also may consider whether the other party's tactics have increased litigation costs. (Drake, supra, 53 Cal.App.4th at p. 1167; Dick, supra, 15 Cal.App.4th at p. 167.) Nicholas attempts to limit the damage from his '"Start the meter and spend her money"' e-mail to "one act" of frustration disclosing no penchant for legal warfare. But it was the trial court's sole prerogative to evaluate Nicholas's credibility and the tone and effect of his multiple e-mails threatening a battle of attrition. (In re Marriage of Greenberg, supra, 194 Cal.App.4th at p. 1099.) The comparatively massive fees Nicholas incurred, which Nicholas himself described as unreasonable, supported the court's ruling.
Like the trial court, we find no merit in Nicholas's characterization of the court's denial of his fee request as a de facto sanction violating due process for lack of advance notice. According to Nicholas, "The sanction the court imposed here was its refusal to award Appellant Attorney Fees under F[amily] C[ode] §[§] 2030-2032." The implicit premise in Nicholas's argument is that the trial court was required to award him fees and any other result constituted a sanction. His premise is faulty. As discussed above, multiple grounds supported the court's ruling. Nicholas's sanctions argument therefore fails.
DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.