Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. FAM43186, Dale R. Wales, Temporary Judge.
Law Offices of Frederic S. Wieder, Frederic S. Wieder and Darryl S. Cordle for Defendant and Appellant.
Erica L. Hedlund for Plaintiff and Respondent.
OPINION
Gaut J.
1. Introduction
Jake E. Williams (Williams) appeals from an order modifying child support and making other awards, which the court entered on December 27, 2006. (Code Civ. Proc., § 904.1.) Williams raises three issues involving abuse of discretion: an award of $80,000 in attorney’s fees under Family Code sections 3557 and 3652; an award of $97,115 in expert witness fees as a sanction under section 271; and the determination of child support for 2004 through 2006, which he claims was based on stale financial information for 2002 and 2003.
All statutory references are to the Family Code unless stated otherwise.
Based on the record, we do not perceive an abuse of discretion. We affirm the judgment.
2. Factual and Procedural Background
Williams’s appellant’s opening brief does not comply with California Rules of Court, rule 8.204(a)(1)(C), requiring that a brief “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”
Robert L. Filippis (Robert) was born in November 1992. His parents are Libby L. Filippis (Filippis) and Williams, who have never married.
The original family law action was filed in October 1992. In 1999, the court ordered Williams to pay to Filippis child support of $476 a month. The case continued to be litigated from inception until January and April 2002 when Filippis sought orders modifying child support and visitation and seeking attorney’s fees and costs. That proceeding was finally resolved by the order dated December 27, 2006.
After nearly five years of discovery proceedings and hearings, the court issued its statement of decision on December 27, 2006. The court found that, based on the testimony of Filippis’s financial expert, Donald Miod, Williams’s monthly income in 2002 was initially $9,995 and, beginning July 1, 2002, it was $13,904. The amount of monthly child support awarded for January 15, 2002, through June 30, 2002, was $1,343. The arrearage was $3,469.27. The amount of monthly child support awarded for July 1, 2002, through August 31, 2006, (50 months) was $1,543. The arrearage was $59,350. The court made various other findings about payments of arrearages, child care costs, and uninsured medical expenses.
The court ordered $5,000 in attorney’s fees to Filippis under section 3557 because Williams had refused to pay child care costs of $2,628.75 and uninsured medical costs of $200.65. The court further ordered $75,000 in attorney’s fees to Filippis under section 3652 as the prevailing party in the motion to modify child support from $476 to $1,543 a month.
Finally, the court made an award of sanctions of $97,115 under section 271, based on its finding that Williams was “the party who clearly frustrated the policy of the law to promote settlement and reduce the cost of litigation.” Williams “was less than forthcoming and definitely not candid about his financial affairs. He continually impeded discovery by refusing to provide requested documents or only partially providing them. . . . [He] significantly misrepresented and understated his gross monthly income available for child support . . . during the relevant years 2002 and 2003. [¶] . . . He and his wife Denise made a concerted effort to conceal the truth about his income and their lifestyle,” including the creation of a corporate shell called Uganda, Inc. to shield their income and assets. Furthermore, “[a]s a result of [Williams’s] lack of forthrightness, the creation of a shell company to hide his assets and income from scrutiny and liability, and [his] unreasonable demands . . . the Court finds that [Williams] shared a far greater responsibility for decreasing the likelihood of settlement and increasing the cost of litigation . . . .”
Additionally, about Williams’s ability to pay, the court found its orders did not impose an unreasonable financial burden. He had assets of almost $1 million and “monthly income available for support [of] $9,559 in 2002 and $13,904 in 2003.” In 2004 and 2005, his assets and income had not decreased. The court found that Williams’s conduct had forced Filippis to incur the expert witness fees and it awarded her that amount as sanctions.
3. Discussion
We review the family court’s child support orders and awards for attorney’s fees, costs, and sanctions for an abuse of discretion: “In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] ‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769; County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1105.)
Williams contends the trial court abused its discretion by not considering evidence of whether he had the present financial ability to pay and by not giving Williams proper notice of the proposed sanctions. He also protests the child support orders were not based on his actual income for 2004 through 2006. Unfortunately, other than repeating these contentions throughout his appellate brief, Williams offers few supporting citations to the record. His legal arguments are also unconvincing.
First, Williams confuses the various awards and the statutory grounds under which they were imposed. Section 270 generally applies to an award of attorney’s fees or costs: “If a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay. [Emphasis added.]” Section 270 applies to the two awards for fees made under sections 3557 and 3652.
Section 3557: “(a) Notwithstanding any other provision of law, absent good cause to the contrary, the court, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights, shall award reasonable attorney’s fees to any of the following persons: (1) A custodial parent . . . to whom payments should be made in any action to enforce . . . [¶] (A) An existing order for child support.”
“[A]n order modifying, terminating, or setting aside a support order may include an award of attorney’s fees and court costs to the prevailing party.”
Section 271 applies separately to the award of sanctions: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. [Emphasis added.] In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.
“(b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”
We first consider whether the fee awards under sections 3557 and 3652 were made in accordance with section 270’s direction that the court find “the party has or is reasonably likely to have the ability to pay.” As noted above, the trial court specifically found that Williams had assets of $952,000 and a monthly income of $13,904, meaning he was able to pay the attorney’s fees of $80,000. Clearly, the awards of attorney’s fees under sections 270, 3557, and 3652 were not “made in a vacuum” as Williams asserts. We do not agree with Williams’s argument that he was precluded by the trial court from presenting evidence of the decline of his monthly income in 2004 and 2005. (He offers no argument on appeal about a reduction in the value of his assets.) Instead, the trial court explained that Williams would need to file a new motion seeking modification for those years but it did not prohibit him from doing so.
Similarly, the award of sanctions under section 271 satisfied the requirement that: “The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.” The trial court’s factual findings about Williams’s assets and monthly income also support the sanctions award and demonstrate that the court did not abuse its discretion in imposing sanctions.
Nor do we accept the contention made by Williams that he was not accorded adequate notice and due process regarding the imposition of sanctions. We conduct an independent review of this issue. A family law litigant’s assertions regarding notice and hearing requirements of statutes providing for imposition of attorney’s fees present a question of law. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177-178.)
Williams argues variously that he did not receive proper notice, that the sanctions should not be imposed until the end of litigation, and, again, that he was not allowed to present evidence of his post-2003 financial condition. We have already rejected the latter contention.
The trial court addressed the issue of adequate notice in the statement of decision when it recited that Williams’s attorney had stipulated to have the court decide all requests for attorney’s fees and expert witness fees (on which the sanctions award was based). The stipulation to which the court referred was executed by both parties in March 2006 and provided they “stipulate and agree through their respective counsel that in respect to all their requests for attorney’s fees and expert witness fees, particularly requests for attorney’s fees requiring a noticed motion (e.g. [section] 271, [Code of Civil Procedure sections] 128.5 and 128.6), the parties waive the noticed motions and hearings for attorney’s fees and expert witness fees. All requests and supporting arguments for attorney’s fees and expert witness fees are included in and are to be considered in any previously-filed pleadings and closing arguments submitted to the Court.” Because Williams previously waived any notice requirement under section 271, he cannot assert a challenge for that reason on appeal.
In his reply brief, Williams argues he should be able to repudiate the stipulation on which the trial court relied. This is the first time an objection to the stipulation has been raised, either at trial or on appeal. Any such claim should have been raised below and cannot be raised now in a reply brief. (In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1485, citing Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396 and In re Marriage of Helsel (1988) 198 Cal.App.3d 332; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
We also conclude it was appropriate for the court to assess sanctions under section 271 in December 2006 at the conclusion of Filippis’s five-year-long motion seeking modification of child support. At that point, the sanctions could be properly assessed because “‘. . . the extent and severity of the party’s bad conduct [could] be judged.’ (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.)” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6; Niko v. Foreman (2006) 144 Cal.App.4th 344, 369.) Filippis should not have to wait, as urged by Williams, until the end of the family law case—perhaps after the parties’ son, Robert, turns 18 in 2010—to be reimbursed for the expense caused to her by Williams’s present bad conduct.
Next, we reject Williams’s contention that the court misapplied In re Marriage of Chakko (2004) 115 Cal.App.4th 104 and In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28. In its statement of decision, the trial court characterized the holding in Chakko as being that the amount of gross monthly income stated in a loan application constitutes substantial evidence of monthly income. That is precisely the holding in Chakko: “Father contends that the trial court abused its discretion because there is no substantial evidence that he earns $40,000 per month. He argues that the sole evidence of his income, the loan application, does not constitute substantial evidence because it was completed by a third party, contains only an estimate of his actual earnings, and bears a forged signature. This argument is premised on an impermissible reweighing of the evidence. The loan application, standing alone, constitutes substantial evidence that Father’s income was $40,000 per month. [Citation.]” (Chakko, supra, at p. 108.) Calcaterra simply repeated the Chakka holding. (Calcaterra, supra, at p. 35.)
Finally, we do not understand Williams’s citation to Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1319, involving the application of a restrictive local rule implemented in family court by the San Diego superior court. The present case does not involve such a rule and Williams cannot credibly contend to have been deprived of due process in this case in which the extensive proceedings lasted for five years in the family court and are now more than six years old.
4. Disposition
We affirm the family court’s order of December 27, 2006. Filippis is the prevailing party and entitled to recover her fees and costs on appeal.
We concur: Hollenhorst, Acting P. J., King, J.