Opinion
A156875
07-31-2020
JOSEPH CAMACHO, Respondent, v. DEBRA REISS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD16-02795)
Appellant Debra Reiss (Mother) and respondent Joseph Camacho (Father) divorced and entered into a marital settlement agreement (MSA or agreement) in Mississippi. The MSA awarded custody of the couple's child (Minor) to Mother and required Father, who was then unemployed, to pay $150 per month in child support, with an escalation clause requiring him to pay 14 percent of his income once he became gainfully employed.
The questions in this appeal are whether the agreement's escalation clause is enforceable, whether the trial court abused its discretion in setting interest on Father's child support arrears, whether it erred in calculating Mother and Father's income for purposes of future child support, and whether the trial court properly denied Mother's request for attorney fees. We conclude the trial court erred in finding the escalation clause unenforceable and in imputing income to Mother. We find no abuse of discretion in the award of interest, although we do not constrain the court in exercising its discretion when setting interest on a new award of arrears on remand. We reject Mother's other contentions, and accordingly reverse in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
We need not recite all the details of the long and complex procedural history of the parties' child support disputes to resolve the issues before us. Mother and Father married in 2003, when both of them were enlisted in the United States Air Force. Minor was born in 2004, and Father and Mother separated shortly thereafter. At the time, they lived in Mississippi. In 2006, they dissolved their marriage and entered into the MSA, which was incorporated into the Mississippi judgment of divorce.
Father has not filed a respondent's brief. When there is no respondent's brief, we may decide the appeal based on the record, the opening brief, and any oral argument by the appellant. (Cal. Rules of Court 8.220(a)(2).) The Contra Costa County Department of Child Support Services (DCSS) initially indicated it did not intend to file a respondent's brief. At our invitation, it later filed a letter brief taking the position that the escalation clause was enforceable, but expressing no view on the other issues in this case.
The MSA provided that Mother would have physical custody of Minor and that the parties would have joint legal custody. Father had visitation on alternate weekends, two months during the summer, and specified holidays. Father would pay child support as follows: "Husband shall pay to Wife as child support, the sum of $150.00 commencing on the 1st day of June, 2006 and continuing on the first day of each month thereafter until the child reach[es] twenty-one (21) years . . . . When husband becomes gainfully employed, he shall pay 14% of his monthly adjusted income as child support, as required by the State of Mississippi." This escalation clause—increasing Father's child support payments to a percentage of his income when he became gainfully employed—is at the heart of the dispute before us.
Over the next decade, Mother and Father did not hew closely to this arrangement. According to findings of a North Carolina Court, which Mother does not dispute, Mother and Father had approximately equal custodial time with Minor from June 2006 until August 2009, with the exception of a period from January until May 2007, when Mother was deployed and Minor lived with Father. After Minor began kindergarten in August 2009, Mother and Father began to adhere to the MSA. Mother was again deployed for several months in 2011, and Minor lived with Father during this time and for a short time thereafter while she finished her school year. During the years leading up to 2012, Father did not pay child support to Mother.
Mother sought arrears from Father in 2012 through the Mississippi DCSS, which calculated his arrears at $11,400, apparently based on $150 a month from June 2006 through September 2012. It appears that after Mississippi began enforcement, Father made some child support payments; the amount is immaterial to the issues before us.
Mother remained with the Air Force until 2016, by which time she was living in North Carolina and Father in Contra Costa County, California. In 2017, the North Carolina Court took jurisdiction and, in January 2018, modified the custody order to grant the parents joint legal custody, with Father to have primary physical custody and Mother to have visitation. It appears that North Carolina forwarded the case to California for enforcement and modification, and Mississippi closed its case.
On January 29, 2018, Father filed a request in Contra Costa County for an order modifying the current child support order, imputing income to Mother, and requiring her to pay child support. The Contra Costa County DCSS filed a motion on behalf of Mother to determine Father's arrears from June 11, 2006 onward under the escalation provision of the MSA. Mother took the position that Father's arrears should be calculated as 14 percent of his earnings during the time he owed child support.
After a trial, the court issued its final statement of decision. As pertinent here, the court ruled that the escalation provision of the MSA, requiring Father to pay 14 percent of his monthly adjusted income once he became gainfully employed, should be interpreted under Mississippi law, that under that law it was unenforceable, and that arrears should therefore be based on the original amount of $150 a month.
The court then noted that Mississippi law required a court to set interest on awards at a rate "set by the judge hearing the complaint." (Miss. Code Ann., § 75-17-7.) The court ordered interest of one percent on the child support arrears.
As to Father's motion to modify child support now that Minor was in his physical custody, the court ordered Mother to pay child support of $403 a month. The court denied Mother's request for attorney fees.
DISCUSSION
I. Escalation Clause
Mother first contends the trial court erred in finding the MSA's escalation clause unenforceable under Mississippi law.
There appears to be no dispute that Mississippi law governs the interpretation of the MSA and the award of interest on child support arrears under the MSA, and that California law applies to the remaining issues in this appeal.
In making its ruling, the trial court explained that Mississippi law allows for escalation clauses, but that they must be clear, reasonable, and tailored to the parties' situation. (Tedford v. Dempsey (Miss. 1983) 437 So.2d 410, 419 (Tedford).) The court went on: "It is inconceivable that the Mississippi Court intended to make a child support order that would require this Court, 12 years later, to apply Mississippi law to each of the intervening months and years between 2006 and 2018. That would result in constantly changing child support amounts from month to month given the custodial changes between the parties, both parties' subsequent marriages and later born children, Father's income changes, and other factors the Court would have to consider in applying Mississippi law." The court interpreted the 14 percent provision as akin to a reservation of jurisdiction, which would allow Mother to file a motion to obtain an order for a new amount of child support.
Our review of Mississippi law, under which the escalation clause was formed, persuades us that this ruling was error. We see nothing to suggest escalation clauses are treated as akin to a reservation of jurisdiction authorizing a parent to go to court to seek a higher child support award if the supporting parent's income increases. Rather, Mississippi's Supreme Court in Tedford encouraged the use of escalation clauses, tied to either a parent's earnings, inflation, or both, in order to ensure adequately and timely child support and to bring about "less frequent modification litigation." (Tedford, supra, 437 So.2d at pp. 419-420, italics added.) Such clauses assist parents in "cop[ing] with the ever changing circumstances in which they find themselves." (Id. at p. 419, fn. 7.) Thus, a clause setting child support at 15 percent of a father's adjusted gross income, with a minimum amount of $36,000 per year, was upheld in Short v. Short (Miss. 2014) 131 So.3d 1149, 1153-1154.) And a clause increasing child support by 20 percent of each increase in pay a father received was upheld in Caplinger v. Caplinger (Julian) (Miss.Ct.App. 2013) 108 So.3d 992, 995-996 (Caplinger).)
Nor are we persuaded that this escalation clause presents insuperable obstacles to calculation and enforcement after many years in which Father paid no child support. An analogous situation arose in Caplinger, where for at least 13 years, neither parent ensured that the father increased his support payments by 20 percent for each pay raise. (Caplinger, supra, 108 So.3d at p. 996.) The chancellor concluded the intent of the parties was to keep the child support payments at 20 percent of the father's adjusted gross income; consistent with that understanding, instead of trying to "reach back in time and determine exactly what raises [the father] received" and on what dates, the chancellor simply determined his adjusted gross income for each year and applied the 20 percent. (Ibid.) The appellate court concluded the chancellor did not abuse his discretion in taking this practical approach. (Ibid.)
Here, the escalation clause requires Father, once gainfully employed, to pay 14 percent of his monthly adjusted income as child support, "as required by the State of Mississippi." And Mississippi law establishes a child support guideline of 14 percent of adjusted gross income for one child and defines the term adjusted gross income. (Miss. Code Ann., § 43-19-101, subd. (a)(1) & (3).) Furthermore, Mother's argument is simply that once Father became gainfully employed, he was thereafter required to pay 14 percent of his adjusted gross income; she does not appear to contend that, during any intervening years that 14 percent of Father's income fell below $150 a month, she is entitled to at least $150. It is not beyond the capacity of the court to apply a practical approach similar to that taken in Caplinger to calculate 14 percent of Father's adjusted gross income, rather than tracing his income for each individual month, and Mississippi law does not appear to forbid it. What it does appear to forbid is excusing Father's agreed-to obligation to pay 14 percent of his adjusted gross income after he became gainfully employed, even if Mother did not seek to enforce the obligation earlier—perhaps because, as she testified, she was unaware until 2017 that Father was employed.
The court also concluded there was no evidence Father had been "gainfully employed" for purposes of Mississippi law at any point since June 2006: he was retired from the military with a 100 percent disability rating, he currently worked only 10 to 15 hours per week, and he had to provide care for a son who had cancer. But the record contains evidence Father had earned more than $20,000 in 2018, as of the end of July 2018; more than $58,000 in 2016; and more than $54,000 in 2015. It also contains his Social Security statement showing his history of taxed Social Security earnings: the amounts varied, but those earnings were more than $20,000 for 2009, more than $30,000 for both 2006 and 2014, and more than $50,000 for 2007, 2008, 2015 and 2016. By any reasonable measure, these amounts qualify as gainful employment.
We recognize, as the trial court pointed out, that the escalation clause here is less specific than that in Southworth v. Luckett (Miss.Ct.App. 1998) 726 So.2d 1214, which provided that upon becoming gainfully employed for at least 30 hours a week, a mother would pay child support consistent with the state guidelines. (Id. at p. 1215.) But the term "gainfully employed" is not ambiguous. (See Black's Law Dictionary (5th ed. 1979), p. 610 [defining "[g]ainful employment" as "any calling, occupation, profession or work which one may profitably pursue"].) In concluding otherwise, the trial court cited Wing v. Wing (Miss. 1989) 549 So.2d 944, 946, 948, wherein the Mississippi Supreme Court found an escalation clause tied to the "consumer price index" lacked sufficient specificity to be enforceable. That was because the clause did not set out which consumer price index would be used, and because there was no connection to the father's ability to pay and the child's needs. (Id. at p. 948.) But here, the language used is readily understandable and, bearing in mind the record of Father's earnings, we cannot agree with the trial court that there is no evidence he was gainfully employed at any point after 2006.
We make one final point, noting that the trial court denied Father's request for credit for the times Minor lived with him. (See Alexander v. Alexander (Miss. 1986) 494 So.2d 365, 368 [noncustodial parent entitled to credit for support paid after child moved in with him]; Brewer v. Holliday (Miss. 2014) 135 So.3d 117, 120-121 [chancellor should have considered whether father entitled to equitable credit for time he paid child support to mother although child lived with him]; see In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075-1076 [trial court should consider whether parent satisfied child support by providing home and support to child].) On remand, the landscape will have shifted considerably, as Father's arrearages may be based on a substantially higher figure than $150 a month. Nothing we say is intended to prevent the trial court from exercising its equitable powers on remand to take into account any periods Father had Minor in his physical care.
We accordingly conclude the trial court erred in finding the escalation clause unenforceable. The matter must be remanded for a recalculation of Father's child support arrears in a manner consistent with the views we have expressed.
II. Interest on Arrears
The trial court ordered Father to pay one percent interest on his child support arrears. Mother contends this ruling was an abuse of discretion, suggesting an appropriate interest rate would have been eight percent. Although the underlying arrears upon which the interest was assessed will necessarily be recalculated, we address this issue for the guidance of the court on remand.
Under Mississippi law, as relevant here, a judgment "shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair . . ." (Miss. Code Ann., § 75-17-7.) This "fairly deferential" standard (Beasnett v. Arledge (Miss.Ct.App. 2006) 934 So.2d 345, 349-350 (Beasnett)) allows the judge discretion to set the rate of interest (Brawdy v. Howell (Miss.Ct.App. 2003) 841 So.2d 1175, 1180). In setting the rate, the court determines what is "a fair rate under the circumstances." (Caplinger, supra, 108 So.3d at p. 999; see Cash Distrib. Co. v. Neely (Miss.Ct.App. 2006) 947 So.2d 317, 328 [directing trial judge on remand to award interest "in the amount he deems appropriate in this case"].) One factor a court may consider is the prevailing interest rate. (Watson v. Watson (Miss. 2004) 882 So.2d 95, 111; Houck v. Ousterhout (Miss. 2003) 861 So.2d 1000, 1003 (Houck).)
Mother points out correctly that a number of Mississippi decisions have affirmed awards of eight percent interest on child support arrears, and suggests that rate is appropriate here as well. (See, e.g., Houck, supra, 861 So.2d at p. 1003 [no abuse of discretion]; Beasnett, supra, 934 So.2d at pp. 349-359 [no abuse of discretion]; see also Formigoni v. Formigoni (Miss.Ct.App. 1999) 733 So.2d 868, 870 [referring to "8% legal interest"]; Fuhr v. Fuhr (Miss.Ct.App. 2002) 818 So.2d 1237, 1239-1240 & fn. 2 [referring to eight percent " 'legal rate' " of interest].) But it appears Mississippi courts' common reliance on eight percent as the appropriate interest rate—or even the "legal" interest rate—is a vestige of their practice under an earlier version of section 75-17-7 of the Mississippi Code, which set eight percent as the statutory rate of interest on judgments. (Bluewater Logistics, LLC v. Williford (Miss. 2011) 55 So.3d 148, 164-165 (Bluewater).) The statute was amended in 1989 to allow the trial judge to set the rate in his or her discretion, but as late as 2011, the Mississippi Supreme Court still found it necessary to remind the bench and bar that there was no longer an eight percent statutory rate of interest. (Ibid.; see Watson v. Watson, supra, 882 So.2d at p. 111.)
In the course of its discussion, the court in Bluewater explained that "a two- or three-percent interest rate might sometimes be fair and reasonable, while, at other times, market conditions and other relevant factors might require the trial judge to set a higher rate." (Bluewater, supra, 55 So.3d at p. 164.) An award at the lower rate of three percent was found to be not an abuse of discretion in Brawdy v. Howell, supra, 841 So.2d at p. 1180, in which the court noted that it found no authority holding such a rate "an abuse of discretion or manifest error."
In setting the interest rate at one percent, the court reasoned that Father and Mother had Minor in their care equally until she entered kindergarten in 2009 and that Minor lived with Father during Mother's periods of deployment; as a result, Minor spent more time with Father than with Mother for much of the time between July 2006 and August 2011. And, the court reasoned, until he received an arrears notice in December 2012, Father had a reasonable belief he and Mother were not following the terms of the MSA. Moreover, no one had presented evidence of interest rates at trial. The court went on, "Bank interest rates on savings and CDs have been extremely low over the past decade—not even approaching 1%." The court therefore set an interest rate of one percent on the child support arrears, finding that rate fair and just given the circumstances of the case.
We find no abuse of discretion in this ruling. We recognize that the one percent interest rate set by the court here was even lower than the lowest amount mentioned in Bluewater as appropriate in such circumstances. (Bluewater, supra, 55 So.3d at p. 164.) But the governing Mississippi statute places the rate of interest on a judgment in the hands of the trial judge. (Miss. Code Ann., § 75-17-7), and Mother has not pointed to a single Mississippi case indicating the trial court could not properly take into account the facts that Minor spent large amounts of time in the Father's care during the time he was obliged to provide child support—during which he presumably relieved her of some of the expenses of caring for Minor—and that Mother did not seek arrears until 2012 as part of the relevant circumstances in setting an interest rate. Nor are we persuaded that what Mother refers to as Father's "litany of misconduct," in failing to disclose his income and pay child support, requires a larger award of interest, in light of what the trial court treated as Father's reasonable belief that the parties were not following the terms of the MSA.
Mother also argues the trial court improperly considered evidence outside the record when it noted the low rates on bank accounts and certificates of deposit. (See Pruitt v. Pruitt (Miss.Ct.App. 2012) 144 So.3d 1249, 1252-1253 [abuse of discretion to consider evidence outside the record in valuing assets].) But it appears Mother provided no evidence of interest rates during the relevant period to guide the trial court's exercise of its discretion; she is therefore in no position to fault the court for its decision on this ground. In this respect, we note that in affirming an award of interest in Houck, the Mississippi Supreme Court pointed to both "today's lower interest rates" and the fact that interest rates had fluctuated over several years, with no indication the parties had presented evidence on this point. (Houck, supra, 861 So.2d at p. 1003.)
We are thus not persuaded that, in the unusual circumstances of this case, the trial court abused its discretion in setting an interest rate of one percent. Nothing we say, however, is intended to constrain the trial court's discretion on remand in setting a higher interest rate on a new award of arrears.
III. Imputation of Income to Mother
Mother contends the trial court erred in calculating her income for purposes of her child support to Father going forward. We review a child support order for abuse of discretion, and determine whether the court's factual findings are supported by substantial evidence and whether it acted reasonably in exercising its discretion. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730.)
Mother submitted an income and expense declaration, in which she reported that she was disabled; that she worked three hours a week as a dog walker for ten dollars an hour; and that she was married. Her own income was derived from VA disability payments of $1,840 per month and self-employment income of $120. She reported monthly expenses totaling $9,547, checking the boxes on the income and expense declaration for "[e]stimated expenses," "[a]ctual expenses," and "[p]roposed needs." Those expenses included a mortgage, insurance, health care costs, child care, groceries, eating out, utilities, phone and internet expenses, laundry, clothes, education, entertainment, gifts, and vacation, auto expenses, debt payments, and miscellaneous expenses. As debt, she reported car payments, orthodontist bills, and legal fees, with retirement savings and family loans as the source of her payments for attorney fees.
At trial, Mother testified that she had a high school diploma; that as a result of her service in the military she was unable to participate in strenuous or anxiety-provoking activities; that she could not lift heavy objects; and that foot and leg pain restricted her mobility. She currently had two broken index fingers. When asked about her service-related disabilities as determined by the VA, the trial court did not allow her to testify on this point, saying she was not competent to do so. The court similarly did not allow her to testify as to her stomach issues, saying it would need testimony from her doctor. Mother was allowed to testify, however, that she had a 70 percent VA disability rating, that she was unable to work in a stressful environment, and that the military was providing mental health services. The minimum wage in the area where she lived was $7.25 an hour, and she was unable to carry out the duties she had performed as a medical technician in the military.
In its statement of decision, the trial court noted that Mother argued that she was disabled, but went on to say that she had "provided no evidence as to what her disability entails, or how it currently prevents her from doing any kind of work." The court said it would "therefore use the only evidence actually provided," Mother's income and expense declaration, which was signed under penalty of perjury. In that regard, the court noted that, with the exception of litigation expenses, Mother had been able to meet her monthly expenses without taking on credit card debt; that the mortgage payment she reported was 47 percent of her gross household income; and that, taking into account both Mother's income and her current husband's salary, Mother's reported monthly expenses were $1,199 more than her reported household income. Finding this evidence of income and expenses "not credible," the court imputed to Mother $1,199 as income, based on her met needs—that is, based on the assumption that Mother must have some unknown source of income to meet the expenses she reported.
We note that the trial court does not appear to have taken mother's income from dog walking into its calculations.
Mother contends the evidence does not support an imputation of income and that she was wrongly prevented from testifying about her injuries.
In calculating a parent's income for purposes of child support, the court calculates "income from whatever source derived," with specified exceptions; and, in its discretion, the court may "consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (Fam. Code, § 4058, subds. (a) & (b).) We review a trial court's decision as to whether to impute income to a parent for abuse of discretion, and the amount of the imputed income for substantial evidence. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927-928; see In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079.) "[F]igures for earning capacity cannot be drawn from thin air; they must have some tangible evidentiary foundation." (Cohn, at p. 931; accord, Berger, at p. 1079 [probability of earning capacity "must be evidenced, not merely suspected"].) And, when presented with an income and expense declaration that "just [doesn't] 'add up,' " the family court is not bound to accept it, but may "determine which declarations have the 'ring of truth' and which do not." (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 38 (Calcaterra).)
All undesignated statutory references are to the Family Code.
Even recognizing our deferential standard of review, we cannot uphold the trial court's action in imputing $1,199 in monthly income to Mother. Notably, the court did not conclude she could earn that amount, but rather apparently took the view that her income and expense declaration was inaccurate and that she currently had access to that amount of extra funds. We have examined the declaration carefully and have determined that it does not support this conclusion. Although Mother testified at trial that the expense amounts were accurate, she checked the boxes for "[e]stimated," "[a]ctual," and "[p]roposed" expenses and needs. It is thus not clear that she was asserting her household was actually spending $9,547 on its monthly expenses. And on its face, the declaration indicates Mother had received substantial loans from family members and her retirement account to assist with her litigation expenses and that she was not making payments on the family loans, which totaled $27,000. The court also expressed skepticism that the family could have a mortgage payment obligation of 47 percent of the household gross income. But the record shows Mother retired from active duty in the Air Force only in September 2016, less than two years before she signed her income and expense declaration; our attention has been drawn to nothing showing the mortgage payments consumed such a large portion of the family's income when they first bought the house. This case is thus nothing like Calcaterra, in which the husband's tax returns and income and expense declaration showed a smaller income than a loan application signed under penalty of perjury; from that deception, the trial court could properly draw adverse factual inferences and use a higher income figure when calculating the father's child support. (Calcaterra, supra, 132 Cal.App.4th at pp. 32-33, 35-36.) The evidence here is insufficient to support a conclusion that Mother's true monthly income was $1,199 more than she reported.
In the circumstances before us, we conclude the matter should be remanded for a new evidentiary hearing on the issue of Mother's child support obligations. (See Cohn, supra, 65 Cal.App.th at p. 931 [remanding for evidentiary hearing where substantial evidence did not support amount of imputed income].) Although the evidence does not support $1,199 in imputed income, neither does it show whether the expenses Mother reported reflect her current obligations or her proposed spending, and, if they reflect her current spending, what funds paid for them. On remand, the trial court shall again calculate Mother's income for purposes of child support in a manner consistent with the views we have expressed.
Should the trial court decide, on remand, to impute income to Mother reflecting an ability to earn more than she receives from part-time dog walking, we note that a witness may properly testify to her own physical or mental state. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 32 [person could testify to his own physical and mental condition because he personally experienced symptoms]; People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228 [lay witness can give opinion as to " 'mental condition less than sanity,' " i.e., that he had trouble remembering things " 'because of his brain cells' "].)
IV. Father's Income
Mother also argues the trial court miscalculated Father's monthly income, contending that his pay records showed a monthly income significantly higher than the income included in the child support calculation. Specifically, she argues that the trial court set Father's taxable income at $2,435 per month, and points out that his wage stubs for the first seven months of 2018 show higher average monthly earnings, $2,882 per month.
This argument appears to be based on a misreading of the record. First, the Dissomaster page Mother cites states that the parent with monthly net disposable income of $2,435 is "Parent 1." But it is clear from the document that Mother, not Father is Parent 1. The corresponding amount for Father, $2,821 is nearly $400 higher. Second, Mother is comparing apples to oranges: the Dissomaster item Mother cites is the parent's net disposable income, but the pay rate upon which she bases her challenge is Father's gross income during the first part of 2018. She has not met her burden on appeal to show the trial court's computation was erroneous.
Although the names of the parents are not shown on the Dissomaster pages in the record, their identities are evident from the facts that Parent 1 is required to pay Parent 2 current child support; only Parent 1 pays taxes in another state; Parent 1 is treated as having "Other Non-Taxable Income" of $1,199, the amount imputed to Mother; and Parent 2 receives disability payments of $3,425, precisely the amount Father was receiving. --------
V. Attorney Fees
Mother contends the trial court abused its discretion in denying her request for attorney fees.
Section 2030 authorizes a court to order one party in a dissolution action to pay the other party's attorney fees, after making findings as to whether there is a disparity of funds to retain counsel and whether one party is able to pay for the legal representation of both. (§ 2030, subd. (a)(1) & (2); see In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049-1050.) Similarly, section 3557 authorizes an award of attorney fees to a custodial parent enforcing a child support order if the court determines that an award is appropriate, "there is a disparity in access to funds to retain counsel," and "one party is able to pay for legal representation for both parties." Section 271 provides that a court may base an award of attorney fees on "the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and . . . reduce the cost of litigation by encouraging cooperation between the parties." (§ 271, subd. (a).) An award under section 271 is "in the nature of a sanction," but an award may not "impose[] an unreasonable financial burden on the party against whom the sanction is imposed." (§ 271, subd. (a).) We review the court's decision regarding attorney fees for abuse of discretion, reversing only if no judge could reasonably make the order in light of all the evidence. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.)
In denying Mother's request, the trial court found first that Father had no ability to pay Mother's fees, and that Father's actions did not warrant sanctions under section 271. It went on to fault Mother for not appearing by telephone at hearings or conferences before trial, and her counsel for opposing California's jurisdiction to modify child support; objecting to a commissioner's findings and insisting on a new hearing before a judge; insisting on unnecessary accountings; spending time trying to prove Father's income, even after the court made clear the escalation clause was a threshold issue; and spending too much time in settlement discussions.
In challenging the order denying her request for attorney fees, Mother argues the trial court failed to make the necessary findings; she contends the court was incorrect in stating she did not appear telephonically for hearings; and she contends the court's criticisms of her and her counsel were unwarranted. But under both section 2030 and section 3557, a threshold question for an attorney fee award is whether one party is able to pay for the legal representation of both. (§§ 2030, subd. (a)(2), 3557, subd. (a).) The trial court here expressly found that Father had "no ability" to pay Mother's attorney fees, and Mother raises no challenge to this finding. She has therefore failed to establish the trial court abused its discretion in denying her request for attorney fees.
DISPOSITION
The order is reversed to the extent it established Father's child support arrears and fixed Mother's current child support obligation, and affirmed in all other respects. The matter is remanded for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.