Opinion
A163971
06-25-2024
In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS. v. ANNEMARIE SCHILDERS, Appellant. STEVEN STUPP, Respondent,
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. FAM0110799)
Miller, J.
In 2010, Steven Stupp (Steven) filed a petition to dissolve his marriage to Annemarie Schilders (Annemarie). A stipulated judgment of dissolution of marriage was entered in March 2014, and since then this matter has been intensively litigated in the family court and on appeal. In this appeal, Annemarie challenges an order denying her request for need-based attorney fees, which was before the family court on remand (see Stupp v. Schilders (May 30, 2018, A148382) [nonpub. opn.] (Stupp I) [remanding Annemarie's December 2015 request for need-based attorney fees under Family Code section 2030]), and an order granting Steven's motion for terminating sanctions. We will affirm both of these orders. Annemarie also challenges what the family court characterized as "pending orders," which had not yet been imposed, for monetary sanctions totaling $86,000. We conclude the pending sanctions orders are not appealable, and we dismiss the appeal as to them.
Annemarie and/or her attorney Ester Adut have initiated 24 appeals, beginning with an appeal from the entry of stipulated judgment (Stupp v. Schilders (Mar. 25, 2016, A142302 [nonpub. opn.]), and filed seven writ petitions.
Undesignated statutory references are to the Family Code. References to rules are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
The tortuous history of this matter in the family court is reflected in the 182-page register of actions, the eight hearing transcripts included in the record on this appeal alone, the 16-page description of the relevant procedural history in Annemarie's appellate brief, and the 17 separate arguments Annemarie purports to raise on appeal. Although the proceedings described in this opinion arose from our straightforward remand of Annemarie's need-based attorney fee request and our direction to the family court simply to address the relative circumstances of the parties (Stupp I, supra), Annemarie and her counsel raised obstacle after obstacle to the family court's consideration of the merits on remand. Ultimately, the family court denied Annemarie's fee request under the disentitlement doctrine. In addition, after giving notice over the course of several months that it was considering terminating sanctions, and after giving Annemarie numerous opportunities to address the merits of that issue, which she declined to do, the family court imposed terminating sanctions in view of what it found to be Annemarie's "pattern of conduct over a lengthy period of time [which] has frustrated all judicial efforts."
Annemarie's brief includes citations to documents that are not in the record, including a Clerk's Transcript, which does not exist in view of Annemarie's election to proceed with an appendix under rule 8.124. In addition, Annemarie's brief includes citations to pages in her Appellant's Appendix that do not correspond to the documents referenced in the brief and therefore do not support the points for which they are cited. We disregard Annemarie's unsupported statements of fact. (See Air Couriers International v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928 [arguments in an appellant's brief must be supported by appropriate references to the record, and we may disregard unsupported factual assertions].)
The orders challenged here were issued in September 2021 after a June 15, 2021 hearing (June 2021 hearing) at which numerous pending motions and requests were addressed. To provide context for that hearing and the family court's orders, we must attempt to unravel the knot of proceedings that led to the hearing: the remand of Annemarie's request for need-based attorney fees (Stupp I, supra); Steven's August 2019 motion to compel responses to discovery concerning the remanded fee request; Steven's responsive request for sanctions under section 271 regarding the remanded fee request; Steven's responsive request for sanctions under section 271 regarding a motion Annemarie filed in September 2020 to strike or reduce costs; and Steven's request for terminating sanctions.
Section 271 authorizes the family court to award attorney fees and costs as a sanction based "on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).)
It will become clear that the underlying matter has devolved into litigation about litigation. The stipulated judgment of dissolution was entered 10 years ago. This appeal raises no issues concerning the matters typically addressed in dissolution proceedings, such as division of property, spousal or child support, or visitation and custody. Nor does it even raise the merits of Annemarie's fee request or Steven's motion to compel discovery concerning that request.
A. Annemarie's December 2015 Request for Attorney Fees
In December 2015, Annemarie filed an income and expense declaration and a request for approximately $370,000 in need-based attorney fees under section 2030. The request was denied and Annemarie appealed. We reversed, based on our conclusion that the family court's ruling, which relied on a finding that Steven's financial position was no better than Annemarie's, was not supported by substantial evidence. (Stupp I, supra.) We remanded for the family court to "determine what is 'just and reasonable under the relative circumstances of the respective parties' . . ., taking into consideration the section 4320 factors." (Ibid., citing § 2032 subds. (a) &(b).) We noted that in determining whether to award fees and costs the court was permitted to consider the parties' trial tactics. (Id., citing In re Marriage of Falcone &Fyke (2012) 203 Cal.App.4th 964, 975.) And we stated explicitly that on remand the family court was not required to order Steven to pay any or all of the requested fees. (Stupp I, supra.)
Section 2032, subdivision (b) provides: "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." Section 4320 sets forth the circumstances that the court must consider in making an order of spousal support.
In April 2019, the family court (Hon. Elizabeth M. Hill) set the remanded fee request for hearing in December 2019, and ordered that discovery on the issue would close 30 days before the hearing. Both parties served discovery requests in May 2019. Steven timely responded to the discovery propounded by Annemarie, but on the day Annemarie's responses to Steven's requests were due, her attorney, Ester Adut, filed on behalf of her client a request for a 60-day extension of time to respond. The request was supported by a declaration from Adut, who cited her busy work schedule and family issues, and stated that Annemarie "lives in the Netherlands and it is difficult to obtain and transmit documents and responses due to the time differences, [my] schedule, and the fact that records would have to be located in two different continents."
In August 2019, Judge Hill recused herself; the December 2019 hearing date for the remand was vacated; and the matter was assigned to Judge Sean P. Dabel, who presided over subsequent proceedings through the June 2021 hearing.
B. Steven's Motion to Compel Discovery Responses
In August 2019, Steven filed a motion to compel responses to his discovery requests, which was set for hearing in October 2019. In a supporting declaration, Steven's attorney stated that the discovery was being sought to prepare for Annemarie's remanded request for attorney fees, and that no responses had yet been received. The motion was served on Annemarie's counsel by mail.
The hearing on the motion was continued several times. At a hearing on December 10, 2019, the court ordered that the motion, along with other matters, would be heard on December 19, 2019, and ordered that the parties be present on that date. Annemarie was not present at the December 19, 2019 hearing, but Adut appeared, and stated that with respect to the motion to compel she was making a special appearance to contest jurisdiction. We described the proceedings at the December 19, 2019 hearing in a previous opinion, Stupp v. Schilders (June 17, 2021, A159414) (nonpub. opn.) (Stupp II). Suffice it to say that although Steven's motion to compel discovery had been served on Adut, who was representing Annemarie for all purposes in the proceeding, Adut represented to the court that Annemarie had no notice of the motion and therefore had no chance to respond, and was "not aware of" the motion. Adut further stated that she was "under the impression" that Annemarie lives in the Netherlands, that there was no proof of service to show that Annemarie had been served with the motion, that she had not discussed the motion with Annemarie, and that she had not asked Annemarie to attend that day's hearing. Steven's counsel stated that the only address Steven or his counsel had for Annemarie was a post office box in San Carlos, California. The court ordered Adut to provide Steven's counsel with a "physical address or location" for Annemarie. Adut apparently never did so. The matter was continued to January 29, 2020.
It became clear at that hearing that Adut was being evasive and was acting to thwart the possibility of personal service on her client. (See Stupp II, supra.) We cannot tell from the record whether the post office box that Steven had as Annemarie's address was the same as Adut's mailing address, which was also a post office box in San Carlos. Adut, however, was reportedly refusing to accept service by mail, and was sending envelopes back to Steven's counsel unopened and with "refused" written on them. At an earlier point in the proceedings, when Adut was representing Annemarie in limited scope, Annemarie gave her address for purposes of service as "Care of Ester Adut" with a San Carlos post office box number. At the December 19, 2019 hearing, Adut suggested that service on Annemarie might be made in the manner indicated in the notice of limited scope representation. The court asked, "So you are willing to accept service for [Annemarie] then?" Adut replied: "Well, I did not say I am willing to accept service for her."
In a written order filed December 20, 2019, the court ordered Annemarie to appear in person or by court call at the January 29, 2020 hearing, and stated that Adut was responsible to notify Annemarie of the order. The court also noticed its own motion for sanctions under section 271 concerning conduct at the December 19 hearing, and ordered Annemarie to prepare and submit an income and expense declaration in advance of the hearing. The declaration was never provided. According to the register of actions, Annemarie's most recent income and expense declaration was filed in 2017.
At the January 29, 2020 hearing, which was attended by Adut but not by Annemarie, the court heard further argument from counsel regarding jurisdiction over the motion to compel, and Steven stated he was prepared to submit the matter for decision.
At the January 29, 2020 hearing, the court asked Adut where Annemarie was, to which Adut responded, "I don't know where my client is, your Honor." The court then asked, "Did you-you didn't inform her of this order to be present?" Adut responded, "I cannot divulge attorney/client communications, your Honor, so I object to the question."
At a hearing in July 2020, the court stated that it had reviewed the motion to compel, and that it regarded the matter as stayed pending an appeal that Annemarie had filed. Steven asked the court to issue an order disqualifying Adut from further representation of Annemarie based on Adut's obstructive conduct and apparent failure to communicate with her client, who repeatedly failed to appear at hearings despite court orders. He also asked the court to consider the court's inherent power to dismiss an action on the grounds of deliberate misconduct. The court stated that in light of the emergency orders that were then in place as a result of the COVID-19 pandemic it would put the matter over for hearing in September 2020, at which point it would consider various issues, including the exercise of its inherent powers. The court reiterated its December 2019 order that Adut provide information about Annemarie's whereabouts, and ordered Annemarie to appear at the September 2020 hearing, which she could attend by videoconference.
C. Steven's Request for Terminating Sanctions
Adut was present at the September 2020 hearing; Annemarie was not.At that hearing, Steven orally requested terminating sanctions against Annemarie based on her repeated refusal to comply with court orders. The family court set a hearing for October 19, 2020 to address the removal of Adut as counsel, and terminating sanctions. The court expressed concern that Adut was "potentially . . . representing someone that does not have any real knowledge about these proceedings, and at a certain point, [Annemarie] is becoming exposed to extreme financial liability by the course and methodology of your representation." The court declined to move forward on Steven's motion to compel discovery because, as it explained, "I need to take into consideration as to whether or not [Annemarie] has been informed of this hearing by her counsel." After the hearing, Adut filed a "Response to the Court's Motion for Disqualification" in which she stated, "There is no fact and no legal basis upon which to disqualify me from representing my client."
The court asked Adut, "[D]o you know whether or not [Annemarie] is going to be making an appearance today?" Adut responded, "I don't believe she is." The court replied, "Okay. Do you have any information if she is or not?" Adut answered, "No."
In advance of the scheduled October 19, 2020 hearing, Steven filed and served points and authorities supporting the motion to disqualify Adut and the motion for terminating sanctions. The hearing, however, did not go forward on that day because Annemarie filed a statement of disqualification of Judge Dabel, which was subsequently denied.
Over the years, Annemarie sought unsuccessfully to disqualify three of the many different judges assigned to the matter. She filed three separate motions to disqualify Judge Dabel alone.
D. Proceedings from November 2020 to March 2021
On November 10, 2020, at a hearing with Adut present but not Annemarie, the court stated that the issue of terminating sanctions would be heard after the remanded attorney fee issue. The court set a briefing schedule and a hearing date of December 16, 2020, and ordered Annemarie to appear, which she could do by videoconference. Outstanding issues to be addressed at the December hearing included the remanded attorney fee issue, the disqualification of Adut as counsel, and terminating sanctions.
Steven subsequently filed a brief arguing that the court should deny Annemarie's request for attorney fees for two reasons: first, her current financial circumstances and need for fees were not known because she failed to comply with discovery requests and had not filed an income and expense declaration since December 2017, and second, her fee request was unreasonable in light of her litigation tactics and misconduct. He also argued that the court should award him section 271 sanctions based on the conduct of Annemarie and her counsel in connection with the remanded fee issue; that terminating sanctions should be issued; and that Adut should be disqualified as Annemarie's counsel. The brief was supported by a declaration from Steven's attorney, who stated that Annemarie's failure to appear and "Adut's refusal to comply with the Court's orders to provide reliable information to the Court about her client's whereabouts and financial circumstances" had caused unnecessary delays and confusion about the extent of Annemarie's involvement in the case, and had caused Steven to incur attorney fees and costs. Annemarie filed a responsive brief in which she stated, without citing any authority, that "[a]ny declaration, evidence, or argument of alleged facts not presented in the original hearing that led to the [fee] order appealed and reversed in [Stupp I, supra] is improper and should be stricken."
Adut was present at the December 16, 2020 hearing, but Annemarie was not. Although several pending issues were scheduled to be heard, the focus of the hearing was on the motion to disqualify Adut. The court stated that its primary concern was that Adut did not have adequate communication with her client. Steven testified about two emails he received from Annemarie dated October 30, 2020 and December 8, 2020, which were presented as exhibits. Annemarie (through Adut) objected to the admission of the exhibits into evidence.
At the beginning of the hearing, after Adut entered her appearance for Annemarie, the court asked whether Annemarie was participating, stating that Annemarie was not in the courtroom, and asking if Annemarie was participating by phone or videoconference. Adut responded, "I don't know."
Also at the December 16, 2020 hearing, Steven's attorney asked the court to take judicial notice of a verification signed by Annemarie under penalty of perjury personally verifying that the allegations contained in a writ petition were true and correct. The writ petition, filed in this court on December 10, 2020 (Schilders v. Superior Court (A161538)), sought to disqualify Judge Dabel, and included a summary of the recent proceedings, with reference to the pending motions for terminating sanctions and for disqualification of Adut as Annemarie's counsel. Steven's attorney argued that the verification showed that Annemarie was aware of the proceedings, including the orders that she appear, and should alleviate any concerns that Adut was not communicating with her client. Adut confirmed that she had submitted Annemarie's signed verification in the writ proceeding, but declined to answer the court's questions as to how she had communicated with Annemarie to arrange the signing of the document. Although the verified writ petition had been filed less than one week earlier, Adut said that she did not recall what the petition said, or whether it "make[s] any statements about proceedings other than in that particular document." She stated that the "verification does not indicate anything more than it verifies," and that "it verifies what it is that she signed to." The court took the evidentiary issues and the issue of disqualification under submission.
Meanwhile, in September 2020, Annemarie had filed a motion to tax costs. The motion was originally set for hearing on January 13, 2021, but was reset by the court to February 3, 2021. Neither Adut nor Annemarie appeared at the February 2021 hearing, and the motion was denied. The court reserved jurisdiction on Steven's request for $2,000 in section 271 sanctions in connection with the motion to tax costs.
Subsequent dates are in 2021 unless otherwise stated.
Steven's request for sanctions with respect to this motion was eventually heard at the June 2021 hearing. At that hearing, Adut contended that she had lacked notice of the February hearing. The family court rejected that contention, observing that Adut had testified that she received a communication from the court continuing the hearing, but did not read it for two months. The court explained: "This Court does not find it credible that Ms. Adut, an officer of the Court, would wait two months before reading a communication from the Court. Further, this Court finds that Ms. Adut's previous representations to the Court concerning her memories of prior court hearings have not been supported by the record and are not credible and those representations call her candor into question."
At a status conference held on March 2, which was again attended by Adut, but not by Annemarie, the court stated that it had determined there were no grounds to remove Adut as Annemarie's attorney, based on testimony and exhibits that had been submitted to the court at the December 2020 hearing. After Adut asked the court for an additional two months to provide information to the court concerning the remanded fee issue and the sanctions issues, the court set a briefing schedule and set a hearing for June 15 at which it would consider the remanded fee issue, outstanding issues concerning sanctions under section 271, and the issue of terminating sanctions. The court informed the parties that it was considering the disentitlement doctrine; and ordered Annemarie to attend the June 15 hearing, saying, "I am ordering that the parties would attend. That's also an order specifically to [Annemarie] because her input would be necessary to the Court, and I would need her to appear . . . because we are going to be reviewing terminating sanctions." The court ordered Adut to instruct Annemarie that her appearance at the hearing was necessary and that she could appear by videoconference.
E. June 2021 Hearing and September 2021 Order
Annemarie was not present at the June 15 hearing, which was conducted by videoconference. Adut was present, and when asked by the court whether Annemarie was with her or otherwise making an appearance, the following exchange took place:
"MS. ADUT: Well, she's not with me physically or in any other way.
"THE COURT: Okay. She's not with you physically. All right. And she-so as far as you know, she's not making an appearance; correct?
"MS. ADUT: I have no-nothing to show me that she is making an appearance, Your Honor.
"THE COURT: Right.
"MS. ADUT: I think that answers your question."
In its written order issued after the hearing, the court found that this was Annemarie's sixth failure to comply with the court's orders to appear.
Adut stated that she was appearing on Steven's request for section 271 sanctions against Annemarie in connection with Annemarie's failed motion to strike or reduce costs, but was not appearing in connection with the remanded fee issue. The court heard testimony from Adut in connection with Steven's request for sanctions on the motion to tax costs, heard argument on the various issues, and pronounced its rulings.
At the beginning of the hearing Adut stated that she understood that the remanded attorney fee issue was on calendar to be heard, but later in the hearing, she denied that the remanded fee issue had been set for hearing that day. The court found that Adut's denial was not credible, and that both Adut (who had been present at the March 2021 status conference when the hearing was scheduled) and Annemarie had adequate notice that the remanded fee issue was set for hearing that day.
In its comprehensive 11-page written order, issued in September, the family court recited the relevant procedural history of the case since December 2015, when Annemarie submitted the request for need-based attorney fees that was before the court on remand. In addition to summarizing the history of the motions before the court at the June 2021 hearing, the court noted that in March 2016, the judge then presiding over these postjudgment proceedings (Hon. Richard H. DuBois) "sanctioned Ms. Adut personally under Code of Civil Procedure section 128.7 in the amount of $999 as a deterrent against her litigious tactics of filing motions and/or appeals for any ruling that goes against her." The court also noted that in Findings and Order After Hearing issued in August 2018, the judge then presiding (Hon. Elizabeth M. Hill) found that Annemarie's "serial litigation of the issues is sanctionable under Family Code § 271. It is exactly the kind of conduct which frustrates settlement and reduces cooperation." And the court noted that in October 2020, it had ordered Adut to pay sanctions of $1,050 under Code of Civil Procedure section 177.5 for filing a request for issuance of a writ of execution as to a discovery sanction against Steven after the court had stayed enforcement of the sanction.
The court found that it lacked current financial information for Annemarie because she had not provided any such information to the court, defied orders to appear at court, had failed to comply with an order to produce an income and expense declaration, and had failed to comply with Steven's discovery requests relating to the fee request. The court further found that Annemarie had adequate notice of Steven's motion to compel discovery and motion for terminating sanctions, and that her "repeated failures to comply with this Court's orders, pattern of obstreperous conduct, and tactics which have increased the cost of litigation and delayed the proceedings, are sanctionable under Family Code § 271, comprise misconduct sufficiently severe to warrant the imposition of terminating sanctions, and have disentitled [her] from obtaining relief in this matter." Based on testimony submitted to the court on December 16, 2020, as well as review of the evidence and pleadings in the matter, the court found that terminating sanctions against Annemarie were appropriate "due to her pattern of pervasive discovery misconduct, unwarranted delay, and willful violation of Court orders including orders to appear. [Annemarie's] repeated refusal to obey court orders, abuse of the discovery process, and her litigation tactics warrant[ ] the issuance of terminating sanctions as an exercise of the Court's inherent authority as well as under Code Civ. Proc. § 2023.030, subd. (d)."The court found that "the amount of time and money that [Steven] has had to expend on this process due to the egregious conduct and litigation tactics of [Annemarie] and her counsel is appalling. [Annemarie's] pattern of conduct over a lengthy period of time has frustrated all judicial efforts. The Court has considered lesser sanctions and concluded that the issuance of these partial terminating sanctions is necessary and appropriate."
Code of Civil Procedure, section 2023.030, subdivision (d), authorizes the imposition of a terminating sanction "against anyone engaging in conduct that is a misuse of the discovery process." (Code Civ. Proc, § 2023.030.)
The court denied Annemarie's remanded request for need-based attorney fees based on the disentitlement doctrine, and granted Steven's request for $80,000 in sanctions under section 271 in connection with the remand. The court also granted Steven's August 2019 motion to compel discovery with respect to the remanded fee issue and ordered Annemarie to pay $4,000 as a discovery sanction. And the court granted Steven's request for sanctions under section 271 in the amount of $2,000 in connection with the unsuccessful motion to tax costs that Annemarie had filed in September 2020. The orders for monetary sanctions, which totaled $86,000, were denominated "pending orders": they were not imposed at that time, and the order explicitly stated they could be imposed only after Annemarie was personally served with the court's order.
Finally, the court issued terminating sanctions, dismissing the case but retaining jurisdiction to enforce its prior orders and retaining jurisdiction over the parties' minor child. The court ruled that Annemarie was free to raise issues related to the minor child if she followed the procedures set forth by the court in a November 2018 order, which was still in effect.
As we described in a previous opinion, at the time the November 2018 order was issued, Steven had custody of the parties' minor child, and Annemarie had apparently been overseas for more than six months. After an evidentiary hearing, the family court found that Annemarie had not been exercising her custodial time with the child, and granted Steven's request to suspend visitation until further order of the court. The court ordered Annemarie to notify Steven of her anticipated date of return to the United States, and provided that the suspension of contact and visitation would continue until Annemarie had returned to the United States and requested a modification. (Stupp v. Schilders (Sep. 2, 2020, A156022) [nonpub. opn.].)
Although the orders challenged on appeal were entered in September 2021, this case was not fully briefed until September 2023. Annemarie received extensions totaling 101 days and a 15-day default notice, but failed to file an opening brief. In November 2022 we dismissed the appeal for failure to file an opening brief, and then granted Annemarie's motion to vacate the dismissal and reinstate the appeal. After Steven's brief was filed, Annemarie requested and received extensions totaling 126 days to file her reply brief, but did not file one.
DISCUSSION
A. Annemarie's Remanded Request for Need-Based Attorney Fees
The abuse of discretion standard applies to the family court's ruling denying Annemarie's remanded request for attorney fees on the basis of the disentitlement doctrine. (In re Marriage of Cohen (2023) 89 Cal.App.5th 574, 583 (Cohen) [application of the disentitlement doctrine]; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 [attorney fees].) "The disentitlement doctrine is a corollary to the doctrine of 'unclean hands' and may be employed at both the trial and appellate court level as a means of precluding [a] party from obtaining affirmative relief when that party has disobeyed other orders warranting a stay or dismissal of the relief sought." (Hogoboom et al., Cal Practice Guide: Family Law (The Rutter Group 2023) ¶ 16:327.10; see Cohen, supra, 89 Cal.App.5th at pp. 580-581 [discussing the doctrine and its application at the appellate level].) A trial court abuses its discretion when it" 'exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Annemarie does not argue that the family court abused its discretion in applying the disentitlement doctrine to deny her request for fees: she does not even mention the disentitlement doctrine in her appellate brief. Instead, she argues that the family court failed to follow this court's directions on remand by hearing Steven's responsive request for section 271 sanctions at the same time as the remanded fee issue and by failing to consider" 'the relative circumstances of the respective parties' (§ 2032, subd. (a)), taking into consideration the section 4320 factors." (Stupp I, supra.) She also challenges some of the findings of fact on which the family court based its application of the disentitlement doctrine, arguing that any court orders she disobeyed are void or invalid and that there is no substantial evidence that any violation of a court order was willful. And she contends that the family court denied her a fair hearing by considering Steven's request for sanctions together with the fee issue. We consider these arguments in turn.
1. Directions on Remand
There is no merit in Annemarie's argument that the family court contravened our directions on remand by considering the remanded fee issue at the same time as it considered Steven's November 2020 request for section 271 sanctions in connection with the remand. Nothing in our directions to the family court precluded it from exercising its discretion to consider the fee issue and the sanctions issue, which arose from Annemarie's conduct in connection with the remanded fee issue, at the same hearing. Moreover, the family court's consideration of the two issues at the same hearing was consistent with our observation that" '[f]inancial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.' (§ 2032, subd. (b).) The court may also consider the parties' trial tactics." (Stupp I, supra; italics added.)
Nor are we persuaded that the family court contravened our directions on remand by not considering the relative circumstances of the parties, as required by sections 2032 and 4320. Our directions to the family court do not preclude it from exercising its discretion to apply the disentitlement doctrine in denying Annemarie's request for fees, based on its findings that her failure to comply with court orders, her pattern of obstreperous conduct, and her litigation tactics increased the cost of the litigation and delayed the litigation. A remand is not license for a litigant to flout court orders or otherwise engage in misconduct.
Moreover, our directions to the family court on remand do not relieve Annemarie of her obligation to provide current information that would allow the family court to determine what is" 'just and reasonable under the relative circumstances of the respective parties.'" (Stupp I, supra; see In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 893 [award of need-based fees must be decided on the basis of the parties' current relative circumstances].) Annemarie was required by the California Rules of Court to complete, file, and serve a current income and expense declaration-meaning one that has been completed within the past three months to support her remanded request for fees. (Rule 5.427(a).) She did not do so. And although she propounded discovery to Steven on the remanded fee issue, to which he responded, she failed to respond to his discovery on the issue. Nor did she provide any information or argument to the family court in connection with the remand, except for an unsupported argument made in a brief (and not raised on appeal) that the court should consider only the information that was before the court when the original fee order was issued. The family court found that it lacked current financial information for Annemarie, even though she had "multiple opportunities" to clarify her financial situation.
In these circumstances, Annemarie has not shown any error by the family court in complying with our directions on remand. "Where a party unlawfully withholds evidence of [her] income and assets, [she] will not be heard to complain that an order is not based on the evidence [she] refuses to disclose. If [Annemarie] wished the trial court to have considered all of the circumstances in making an attorney fee award, the simple solution would have lain in [her] own hands: disclose the information. But instead, [Annemarie] closed the door to an appeal from the trial court order and threw away the key." (In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 458-459 [applying disentitlement doctrine in dismissing appeal from award of needbased attorney fees under section 2030].)
2. Violation of Family Court Orders
The family court's application of the disentitlement doctrine to deny Annemarie's request for fees was based in part on its findings that Annemarie disobeyed a December 20, 2019 order to provide an income and expense declaration and that she disobeyed multiple orders to appear.Annemarie argues that those orders were invalid.
Annemarie does not challenge other findings on which the family court based its application of the disentitlement doctrine, including that she failed to comply with Steven's discovery requests, or that her abuse of the discovery process, and her litigation tactics increased the cost of litigation, delayed the proceedings, and disentitled her from obtaining relief, as well as warranting sanctions and dismissal.
Annemarie raises two arguments with respect to the family court's finding that she disobeyed the court's order to provide an income and expense declaration.
First, Annemarie argues that the order is invalid because the December 20, 2019 order, which included notice of the court's own motion for sanctions, was served only on her attorney, and was not served on her as required by section 215, subdivision (a), which provides that as a general matter, after a judgment of dissolution of marriage, "no subsequent order in the proceedings[ ] is valid unless any prior notice otherwise required to be given to a party to the proceeding is served, in the same manner as the notice is otherwise permitted by law to be served, upon the party. For the purposes of this section, service upon the attorney of record is not sufficient." But when a party's attorney of record is directly contacted and represents that he or she is still the attorney of record, as Adut was here at the December 19, 2019 hearing, the requirement of section 215, subdivision (a) has been met. (See Ruszovan v. Ruszovan (1969) 268 Cal.App.2d 902, 907 [discussing predecessor statute Civ. Code, § 147].) In any event, Annemarie has forfeited any objection to the manner of service of the court's order by her conduct and the conduct of her attorney. The family court's December 20, 2019 order was issued to clarify the oral pronouncements made at the December 19, 2019 hearing, a hearing at which Annemarie did not appear despite the court's direction at the previous hearing that she be present. At the December 19, 2019 hearing, Adut affirmed that she represented Annemarie for all issues. And even after lengthy discussion of the issue, the only address that Adut acknowledged as having been provided for service on Annemarie was in "care of" Adut. When a party is an active litigant in a matter even after judgment (which Annemarie was here, as shown by her numerous filings in the family court), when she is represented by counsel for all issues, when her attorney is served, and when her attorney frustrates attempts at personal service on the party by refusing to provide her client's address, we will not hear the party to claim defective service of a court order.
Second, Annemarie argues that the order is void because in issuing it the family court violated Canon 3B(7) of the Code of Judicial Ethics by independently investigating facts in a proceeding, thereby exceeding its jurisdiction. But she cites no authority to support her contention that the court was conducting its own investigation by requiring her to file an income and expense declaration, particularly in view of the fact that Annemarie was in any event required by the Rules of Court to provide a current income and expense declaration in connection with her remanded request for fees, as we have discussed. (Rule 5.427.)
In challenging the findings that she disobeyed orders to appear at hearings, Annemarie relies on Silvagni v. Superior Court (1958) 157 Cal.App.2d 287 for the proposition that the family court lacked authority to order her to appear personally rather than through counsel. That case has not been directly overruled, but its holding has been eroded over time. For example, Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 505, holds that a court may compel a litigant to attend a mandatory settlement conference.
More important, since 2013 the Rules of Court have authorized the family court to require the personal appearance of a party. (See rule 5.9(c) ["the court may require a party to appear in person at a hearing, conference, or proceeding if the court determines that a personal appearance would materially assist in the determination of the proceedings or in the effective management or resolution of the particular case"].) Annemarie cites several rules of court in her appellate brief, but she says nothing about rule 5.9. We conclude that the family court acted within its authority in ordering Annemarie to appear by telephone or videoconference at hearings in this matter, which it did on numerous occasions, though to no avail.
Annemarie also argues that the order that she appear at the June 2021 hearing "did not exist" because it was not in writing. Annemarie cites In re Marcus (2006) 138 Cal.App.4th 1009, for the proposition that to find a party guilty of contempt for violating a court order, the order must be in writing, but the matter before us does not involve any findings of contempt, or punishment for contempt. Further, Annemarie ignores the fact that the court's statement that it was ordering Annemarie to attend the June 15 hearing (pronounced at the March 2, 2021 status conference that was attended by Annemarie's counsel) was reflected in the court's written minute order, which states: "All parties are to attend the [June 15, 2021] hearing and Ms. Adut should instruct her client to appear." (Italics added.)
In addition, Annemarie argues that because she was not personally served with Steven's request for terminating sanctions or his responsive requests for sanctions under section 271, the court lacked jurisdiction to order her to appear at any hearings on those matters. We reject this argument just as we rejected the argument that lack of personal service under section 215, subdivision (a), invalidated the court's order that Annemarie provide an income and expense declaration. There is no dispute that Annemarie's counsel, who represented her for all purposes, was served with Steven's responsive requests for section 271 sanctions; that she was present when Steven made his oral motion for terminating sanctions; that she was served with Steven's briefs in support of sanctions; and that she appeared for Annemarie at numerous hearings where the court discussed the pending issues of terminating sanctions and section 271 sanctions. In any event, defective service under section 215, subdivision (a), would not result in lack of jurisdiction: "the issue is one of notice rather than 'jurisdiction' in the sense of service of process." (Gortner v. Gortner (1976) 60 Cal.App.3d 996, 1001, fn. 6 [discussing predecessor statute].) Through Adut, Annemarie had notice of all these issues and pending motions; and the family court explicitly found that both Adut and Annemarie had notice of the motion for terminating sanctions. Annemarie relies on In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033, for the proposition that failure to serve a postjudgment motion on the party renders the court's orders on the motion void, but the case is distinguishable: in that case, unlike this one, the party's attorney did not appear to argue the matter. (Id. at p. 1038.) And it bears repeating that Adut, who represented Annemarie for all purposes in the postjudgment proceedings (including in proceedings where Annemarie sought relief from the court, such as her September 2020 motion to tax costs) and who consistently appeared for Annemarie at hearings, never provided an address at which Annemarie could be served.
Annemarie argues that the family court's finding that she had adequate notice of the motion for terminating sanctions is not supported by substantial evidence. She supports her claim by asserting that the record shows no notice (citing a document that is not in the record) and that at the June 2021 hearing no evidence was presented that she had notice of the motion. She has forfeited her contention that the family court's finding is not supported by substantial evidence, because she does not discuss the evidence in the record that supports the court's finding. (See Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman &Clark) [argument that a finding of fact is not supported by substantial evidence is deemed waived unless appellant" 'set[s] forth in their brief all the material evidence on the point and not merely their own evidence' "].) In particular, she does not discuss the proceedings on September 3, 2020, at which Steven made his oral motion for terminating sanctions, and at which the court stated it was giving notice that it would be considering terminating sanctions. Annemarie did not include the transcript from those proceedings in her designation of the record; it was added to the record before us in response to Steven's request for augmentation.
If the argument had not been forfeited, it would nonetheless fail on the merits. To recapitulate: at the September 3, 2020 hearing, Steven requested terminating sanctions. To ensure that Annemarie (who was not present) had notice of her exposure, the court set a briefing schedule and scheduled a further hearing. Steven's brief, filed and served on Annemarie's counsel of record, set forth the legal and factual bases supporting an order granting terminating sanctions under the court's inherent authority. At a hearing in November 2020, with Annemarie's counsel present, the court set a further briefing schedule and scheduled a hearing on terminating sanctions for December 16, 2020. Steven served and filed a brief and supporting declaration. Among other things, the brief addressed the issue of terminating sanctions. At the December 16, 2020 hearing, Adut acknowledged the existence of an order filed by the court on October 7, 2020, which is not included in Annemarie's appendix, but which refers to Steven's motion for terminating sanctions. Also at that hearing, the parties and the court discussed whether Annemarie's verification of a writ petition that had been filed a few days before provided evidence that she was aware of the pending proceedings. Then, at the March 2, 2021 status conference, the court stated that the issue of terminating sanctions would be heard on June 15, 2021, and that it was particularly important that Annemarie appear because the court would be considering terminating sanctions. Thus, over the course of several months, Annemarie, through her attorney of record-who was not acting in limited scope, and who refused to provide an address at which Annemarie could be personally served-was given notice multiple times that terminating sanctions were being considered.
Annemarie also asserts that there is no substantial evidence in the record to support the family court's finding that her violation of court orders, including orders to appear, was willful. She contends that no evidence was presented at the June 2021 hearing that she knew of an order to appear on that day or any other day, or that she had the ability to comply, and that there was "no evidence of which specific orders she was found to have willfully violated." And she briefly discusses testimony and exhibits presented to the court at the December 16, 2020 hearing. But because Annemarie fails to discuss the extensive history of her failure to comply with court orders, including her failure to appear at court, and because she fails to discuss the evidence that supports the family court's finding that her conduct was willful, her argument on this issue, too, has been forfeited. (Foreman &Clark, supra, 3 Cal.3d at p. 881.) For example, Annemarie's brief says nothing about her December 10, 2020 signed verification of her petition for writ of mandate, which was the subject of argument and questioning at the December 16, 2020 hearing. And she says nothing about the January 2020 hearing, at which she failed to appear despite a court order that she be present, in person or by court call. Likewise, in discussing the March 2021 status conference she omits any reference to the family court's statement that it was ordering the parties, including Annemarie, to attend the June 2021 hearing. It is telling that, just like the transcript for the September 2020 proceedings, the transcripts for the January 2020 and March 2021 proceedings were not included in Annemarie's designation of the record, but were added to the record only in response to Steven's request that the record be augmented.
3. Fair Hearing
Finally, Annemarie contends that by hearing the remanded attorney fee issue along with Steven's responsive request for sanctions, the court denied her a fair hearing and violated section 2335, which states that "Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage . . . including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible." This issue has been forfeited by Annemarie's failure to raise it in the family court: Annemarie did not object at the March 3, 2021 hearing when the court set the remanded fee issue and "all outstanding issues concerning 271 sanctions" for hearing on June 15. (See In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 179 [failure to request separate hearing on sanctions and apparent acquiescence to briefing schedule waives the issue].) In any event, section 271, which permits sanctions for litigation misconduct, permits evidence of such misconduct, and therefore falls under the exception set forth in section 2335. And because Steven's request for sanctions under section 271 was responsive to Annemarie's conduct in seeking her attorney fees, by considering both issues at the same time the court" 'avoid[ed] possible duplicative, repetitious pleadings'" (In re Marriage of Perow &Uzelac (2019) 31 Cal.App.5th 984, 991), consistent with section 213, which authorizes a party to "seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration." (§ 213, subd. (a).) We disregard Annemarie's conclusory assertion, unsupported by any citation to the record or legal authority, that Stupp's arguments in connection with sanctions "confused the issues and were misleading." (See Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 [appellate court disregards assertions and arguments lacking record references or citations to legal authority].)
B. Terminating Sanctions
The family court found that Annemarie's pattern of discovery misconduct, unwarranted delay, and willful violation of court orders, including orders to appear, warranted the issuance of terminating sanctions as an exercise of the court's inherent authority, and as a discovery sanction. We apply the abuse of discretion standard in reviewing the family court's exercise of its inherent power to issue a terminating sanction for pervasive misconduct (Steven Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765 (Slesinger)) and in reviewing discovery sanctions. (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.)
With respect to the family court's exercise of its inherent authority, Annemarie argues that the court erred as a matter of law by hearing a motion for terminating sanctions that was not filed on a mandatory Judicial Council form (FL-300 "Request for Order") and was not served on Annemarie herself; that the court exceeded its jurisdiction or otherwise acted without authority in dismissing the case after judgment had been entered and in dismissing her as respondent; that the orders she purportedly violated were invalid; and that there is no substantial evidence that she willfully violated court orders. We turn now to these arguments, except for the arguments that the orders she was found to have violated were invalid and that there is no substantial evidence that any violation of orders was willful, which we have addressed above. Because we conclude that Annemarie does not show any error in the family court's imposition of terminating sanctions as an exercise of its inherent authority, we need not reach her additional arguments that the family court erred in imposing terminating sanctions as discovery sanctions.
1. Form and Notice of the Motion for Terminating Sanctions
There is no merit in Annemarie's contention that the family court lacked jurisdiction to hear Steven's motion for terminating sanctions because the original motion was made orally and not on Judicial Council form FL-300. As we understand her argument, she contends that a motion for terminating sanctions is a motion for which written notice is required under Code of Civil Procedure section 1005, and that Steven was thus required by rule 5.92(a) to use form FL-300 to make such a motion. Annemarie does not cite any case supporting her contention that a party's failure to make a motion on form FL-300 deprives the family court of jurisdiction to hear that motion. Nor does she cite any authority requiring written notice for a motion for sanctions based on the court's inherent authority to sanction misconduct. To the contrary, there is authority that sanctions may be ordered based on the court's inherent authority after an oral request. (See Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 50 [affirming terminating sanctions made in response to oral request] (Osborne).)
Nor did the court violate Annemarie's right to due process by hearing and deciding the motion for terminating sanctions in the absence of personal service of the motion on Annemarie herself. "When sanctions are at issue, due process can be satisfied if the court gives a clear warning identifying the anticipated grounds for the sanctions or if those grounds are identified by the opposing party, and the court provides counsel with an opportunity to respond at least orally." (Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 631-632.) Thus, due process requires notice and the opportunity to be heard. We discussed the notice issue at length above, where we concluded that Annemarie forfeited her contention that the family court's finding that she and her attorney had notice of the motion, and that in any event the court's finding is amply supported by the record. As we explained, through her attorney of record Annemarie was given notice multiple times that terminating sanctions were being considered. And Annemarie was given multiple opportunities to respond to the motion for terminating sanctions in writing, as well as the opportunity to argue the issue at the June 15, 2021 hearing, at which termination sanctions were finally ordered.
2. Authority to Dismiss Postjudgment
Annemarie contends that the family court's order dismissing the case is "impermissible and void." She notes that a judgment had been entered in this case in March 2014, and states that no authority supports dismissal of a case after judgment has been entered. She is incorrect. (See Department of Forestry &Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 196-198 [trial court has jurisdiction to impose terminating sanctions, which are authorized by the Civil Discovery Act and by common law, postjudgment; sanctions are effective upon entry of "judgment of dismissal or other order effectuating [the] award of terminating sanctions"], disapproved on other grounds in Presbyterian Camp &Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493; see also Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1125 [trial court has jurisdiction to consider postjudgment sanctions request].)
Annemarie argues that the cases cited by the family court to support its conclusion that terminating sanctions were warranted (Osborne, supra, and Slesinger, supra) do not support a postjudgment dismissal on account of terminating sanctions, because in those cases terminating sanctions were imposed and the cases dismissed before trial. Both of those cases involve prejudgment dismissals, but neither suggests that dismissal is unavailable after judgment in an appropriate case. The significance of those cases is that they stand for the proposition that "trial courts have inherent authority to control the proceedings before them," which "includes the authority to impose a terminating sanction where a party willfully violates the court's orders." (Osborne, supra, 247 Cal.App.4th at p. 53; see also Slesinger, supra, 155 Cal.App.4th at pp. 761-763 [recognizing inherent power of the court to terminate litigation for pervasive misconduct].)
Annemarie also contends that there is no legal authority supporting the dismissal of "only the [r]espondent from a case that is being dismissed." This contention rests on a misreading of the family court's order: the court's order did not dismiss only Annemarie, and did not "leav[e] the case pending with petitioner [i.e., Steven] as its only party." The family court dismissed the entire case as to both parties, except that the court retained jurisdiction over its prior orders and over issues related to the minor child, as to which Annemarie remains a party.
In short, we conclude that the family court did not err in issuing terminating sanctions here under its inherent authority.
C. Monetary Sanctions
We have jurisdiction over Annemarie's appeal from the family court's "pending orders" for monetary sanctions only if the orders are appealable. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696.) Annemarie contends that the court's monetary sanctions orders are appealable as orders made after an appealable judgment (Code Civ. Proc., § 904.1, subd. (a)(2)), and as orders requiring the payment of sanctions. (Id., § 904.1, subds. (a)(12), (b).) We disagree.
1. Additional Factual Background
The family court's written order specified that its awards of monetary sanctions, totaling $86,000 "shall remain pending orders and may only be imposed after [Annemarie] has been personally served with this Order." If there were any unclarity in the written order, it is dispelled by the transcript of the June 15, 2021 hearing, where the court stated that Steven could not yet attempt to collect the sanctions. The court explained, "out of an abundance of caution," and in order to avoid a potential miscarriage of justice, "I do need to . . . have her appear at some point to answer for these sanctions," which would remain pending until "a further hearing where [Annemarie] is personally served and appears . . . [so] the Court can then consider her actual ability to pay and what has happened over the last few years concerning her representation." Nothing in the record suggests that Annemarie has been personally served with the order, and therefore the orders by their terms are of no effect.
2. Analysis
The monetary sanctions orders challenged here were made after the appealable March 2014 judgment of dissolution in this case, but that does not mean that they are appealable as postjudgment orders. "To be appealable, a postjudgment order must meet certain requirements. [Citation.] Some postjudgment orders are not appealable because, 'although following an earlier judgment, [they] are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal. [¶] . . . [¶] . . . [Such postjudgment orders lack] finality in that they [are] also preparatory to later proceedings.'" (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403, citing and quoting Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644.) The monetary sanctions here are not ripe for appeal as postjudgment orders because they are preliminary to later proceedings which cannot occur until after Annemarie has been personally served. Nor are the orders appealable as orders requiring the payment of sanctions, because as things stand no payment is required.
Accordingly, we dismiss this appeal insofar as it pertains to the pending orders for monetary sanctions.
DISPOSITION
The appeal is dismissed insofar as it seeks to challenge the family court's pending orders concerning monetary sanctions against Annemarie, which are not appealable orders. The order denying Annemarie's remanded request for attorney fees is affirmed. The order granting terminating sanctions is affirmed. Steven shall recover his costs on appeal.
WE CONCUR: Stewart, P.J. Desautels, J.