Opinion
G044186
09-02-2011
In re Marriage of AHMAD and FATEMEH HASHEMIAN. AHMAD HASHEMIAN, Appellant, v. FATEMEH HASHEMIAN, Respondent.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. Wiley for Appellant. Edward Stephen Temko for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 06D000344)
OPINION
Appeal from orders of the Superior Court of Orange County, Renee E. Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Motion to strike denied.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. Wiley for Appellant.
Edward Stephen Temko for Respondent.
This appeal is a companion to the pending appeal in In re Marriage of Hashemian, Case No. G042033 (the Companion Appeal). In the Companion Appeal, we address matters arising out of a judgment on reserved issues, including business valuation, spousal support, and attorney fees, and also arising out of an order denying an extension of time to file objections to a proposed statement of decision. In this appeal, we address the court's post judgment denial of Ahmad Hashemian's motion to reduce the spousal support payable to Fatemeh Hashemian and the court's order that Ahmad pay attorney fees and sanctions to Fatemeh. We affirm.
By order of July 14, 2011, we notified the parties of our intention to take judicial notice of the record in the Companion Appeal, Case No. G042033. No party having objected, we hereby take notice of that record. (Evid. Code, § 452, subd. (d).)
"Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not intend this informality to reflect a lack of respect. [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)
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Ahmad did not meet his burden to show that he was entitled to a reduction in spousal support obligations based on a change of circumstances. Although he did show that his monthly cashflow had decreased, there was evidence from which the court could have inferred that he was no longer making his best effort to maintain his business. With respect to attorney fees, the applicable statutes, contrary to Ahmad's assertion, do not prohibit the court from awarding attorney fees absent a finding of need. Finally, Ahmad's argument that he did not receive proper notice of Fatemeh's sanctions request is bordering on the absurd, and he has failed to show that the court abused its discretion in awarding sanctions.
On another matter, Ahmad's motion to strike various portions of Fatemeh's respondent's brief is denied. However, we will disregard any assertions of fact that are not supported by the record.
I
FACTS
Much of the background information is recited in our opinion in the Companion Appeal and we do not reiterate that information here.
On October 4, 2007, the court ordered Ahmad to pay temporary spousal support in the amount of $30,000 per month.
The matter of the reserved issues came on for trial commencing March 19, 2008, and took place over 11 days ending July 31, 2008. The parties submitted their closing arguments on August 15, 2008. The court issued a decision of court on submitted matter on October 1, 2008. That decision included an order that Ahmad pay Fatemeh spousal support in the amount of $26,000 per month until the death of either party, the remarriage of Fatemeh, or further order of the court. It also ordered him to pay $45,000 per month in retroactive spousal support from April 1, 2006 through March 31, 2008, with credits for a previous payment of $150,000 and any other monthly payments made.
Ahmad thereafter filed a request for a statement of decision and, on October 17, 2008, the court ordered him to prepare a proposed statement of decision. On November 5, 2008, the court granted Ahmad an extension to December 5, 2008 to file the proposed statement of decision.
Before filing his proposed statement of decision, Ahmad filed, on November 18, 2008, an order to show cause re modification of spousal support, attorney fees and costs. In that order to show cause, Ahmad requested that the court modify the temporary support order of October 4, 2007, which he variously characterized as being in the amount of either $30,000 per month or $35,000 per month, on the basis of a change of circumstances. He stated: "My income has been reduced as a result of the economy, since the product I am involved with, namely, an insurance product, is considered a luxury by many and in these lean financial times, people do not have the extra money to pay for life insurance. As a result, since my income is based upon commissions, the amount of my income has been substantially reduced from that which existed during the years of 2006 and 2007, which were considered by the Court when the original Temporary Support Order was made."
In his order to show cause, Ahmad requested that his spousal support obligation be reduced to zero and that he be awarded attorney fees of $3,500, as well as costs. His order to show cause was supported by an incomplete income and expense declaration, which indicated that the jointly retained forensic accountant was preparing a cashflow analysis.
Ahmad filed his proposed statement of decision on December 5, 2008. The court's statement of decision was filed on February 3, 2009. Judgment on reserved issues was entered on April 7, 2009.
On May 8, 2009, Fatemeh filed her responsive declaration in opposition to Ahmad's order to show cause. In her points and authorities in opposition to the order to show cause, Fatemeh argued Ahmad was seeking "to circumvent the proper procedures of a Motion for Reconsideration." She stated that the time for filing a motion for reconsideration had lapsed and that there were no new or different facts or circumstances on which to base a motion for reconsideration in any event. This was so, she said, because Ahmad's current income was not the basis for the court's award of temporary spousal support as already adjudicated at trial. Fatemeh also stated that Ahmad's order to show cause was barred by the doctrine of collateral estoppel.
Much briefing followed. The matter was deemed submitted on May 17, 2010. Based on the court's August 2, 2010 findings and order after hearing, we gather the court ultimately must have deemed Ahmad's order to show cause to be a request for modification of the award of $26,000 per month in permanent spousal support, rather than a modification of the award of temporary spousal support. The court denied the request for modification. In its August 16, 2010 findings and order after hearing, the court ordered Ahmad to pay Fatemeh $12,500 in attorney fees and $5,000 in attorney fees as sanctions.
Ahmad filed a notice of appeal from the findings and order after hearing filed August 2, 2010 and the findings and order after hearing filed August 16, 2010.
II
DISCUSSION
A. Motion to Strike:
Ahmad has filed a motion to strike portions of Fatemeh's respondent's brief, pursuant to California Rules of Court, rule 8.204(e)(2)(B). He says Fatemeh devotes "pages and pages" of her brief to information from previous cases and to issues not relevant to this appeal. Ahmad requests this court to strike all references to: (1) the valuation of Capital Aspects, LLC; (2) Ahmad's alleged noncompliance with spousal support orders; (3) Ahmad's alleged posting of an inadequate bond; (4) orders to show cause not at issue in this appeal; (5) property division issues raised in Ahmad's April 2008 order to show cause; and (6) the alleged nonpayment of expert witness Glenn Mehner.
In a nutshell, Ahmad says the references are to purported conduct that is neither shown by the record nor relevant to this appeal. Consequently, he says, the references are improper. Furthermore, he says that Fatemeh has made so many misleading and prejudicial assertions of fact that it would be hard to address them all. In opposition to the motion to strike, Fatemeh insists that every reference Ahmad seeks to strike is supported by a citation to the record and is relevant to this appeal.
We decline to review a 51-page respondent's brief on our own to locate each item that could potentially fall into one of Ahmad's six referenced categories or to evaluate line-by-line which items potentially should be stricken. However, this court will disregard any assertion of fact that is not supported by the record. The motion to strike is otherwise denied.
B. Appeal:
(1) Introduction
Ahmad claims: (1) the court's refusal to modify the spousal support order was an abuse of discretion because (a) he met his burden to demonstrate a change of circumstances, (b) the court failed to consider his ability to pay, and (c) the trial court erred in considering his expenses rather than his income; (2) the court's award of attorney fees and costs without consideration of the factors set forth in Family Code sections 2030 and 2032 was an abuse of discretion; and (3) the court's imposition of sanctions under Family Code section 271 was improper because he had not received notice and there was no evidence of sanctionable conduct. We address these issues in turn.
(2) Spousal support order
"[W]hether a spousal support order should be modified is a matter within the sound discretion of the trial court, predicated upon a showing of a material change of circumstances since the last spousal support order. [Citations.]" (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76-77.) "The moving party bears the burden of establishing a material change of circumstances since the last order was made in order to obtain modification of the spousal support order. [Citations.] In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in . . . Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order. [Citation.] These statutes expressly require the trial court to consider the supporting spouse's ability to pay taking into account his or her earning capacity. [Citations.] Accordingly, even if [the supporting spouse] shows a change of circumstances in actual income as the result of retirement, modification is not necessarily mandated given the court's obligation to reconsider the statutory standard, especially the reasonable needs and financial abilities of the parties. [Citation.] 'Thus, although a showing of changed circumstances is necessary to obtain the court's consideration of a modification of spousal support, it does not ensure that a modification will be granted.' [Citation.]" (In re Marriage of Stephenson, supra, 39 Cal.App.4th at pp. 77-78, fn. omitted.)
"In reviewing findings supporting a trial court's exercise of discretion in modifying spousal support, '. . . this court must accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment. When a finding of the trial court is attacked as being unsupported, our power begins and ends with a determination of whether there is any substantial evidence which will support the conclusions reached by the trial court. [Citation.]' [Citation.]" (In re Marriage of Stephenson, supra, 39 Cal.App.4th at p. 82, fn. 5.)
The joint forensic accountant, Glenn Mehner, opined that Ahmad's "monthly gross known controllable cash flow, before income taxes" for the 12-month period ending December 31, 2009, was $35,793. By contrast, the February 3, 2009 statement of decision found that Ahmad's monthly cashflow for the preceding 12 months had been $125,000. It would appear this finding was based on tax returns for the years 2006-2007. Given this substantial decrease in cashflow, Ahmad argues no reasonable judge could have denied a modification of spousal support.
Ahmad says there was no evidence to show that he had voluntarily decreased his income or stopped working. Perhaps so, but the record contains some interesting information casting light on his efforts and his outlook towards the business. He testified that he had taken two trips to Iran in 2009 and one to date in 2010. Each trip lasted about a month. Ahmad also acknowledged that at trial he had testified to a plan to retire at age 55. He further acknowledged that as of the date of the hearing on his motion to modify spousal support, he had attained age 55.
In his income and expense declaration in support of his motion, Ahmad stated that he worked about 60 hours per week. Although Ahmad stated in his motion that he was a victim of the economy, the record reflects that he had a few financial setbacks as well. For example, he had to repay $25,000 of a commission he had received on a policy that had lapsed. He also had to remit $34,167 to the Internal Revenue Service because of an audit. In addition, the broker/dealer for his business had, as Ahmad put it, "requested us to resign." This was because, as Ahmad explained: "[W]e got another superaudit by FINRA, the . . . government security division, regarding the life settlement business we did in 2005. And as a result of it, we were found guilty for not admitting the commission to the client. So because of that, FINRA gave us a fining of $10,000 and gave us the reprimand."
Ahmad argues that the reasons why a party's income has decreased are not proper considerations in the determination of whether to modify spousal support. We do not necessarily agree.
"It is undisputed that it has long been the rule the trial court could consider a supporting spouse's earning capacity when determining spousal support." (In re Marriage of Stephenson, supra, 39 Cal.App.4th at p. 78.) This is consistent with Family Code section 4320, subdivision (c), which requires a court to consider "[t]he ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living." The court in In re Marriage of Stephenson, supra, 39 Cal.App.4th 71 observed that there nonetheless appears to be a split of authority in terms of when courts typically consider earning capacity. (Id. at pp. 78-79.) However, the California Supreme Court has made plain that "the statutory guidelines governing spousal . . . support do not limit the circumstances under which the trial court may consider the earning capacity of the supporting spouse or in any way restrict the trial court's discretion in the manner in which it may consider earning capacity as well as actual income in fixing support . . . ." (In re Marriage of Simpson (1992) 4 Cal.4th 225, 233.)
Ahmad claims it is Fatemeh's burden to show that he has the ability to earn more than he is presently earning. He cites Mendoza v. Ramos (2010) 182 Cal.App.4th 680, in which the court held that where one spouse moves to have income imputed to the other, it is the spouse seeking the imputation that has the burden to show the other has the ability to earn the income sought to be imputed. (Id. at pp. 685-686.) However, Fatemeh did not file a motion seeking to increase spousal support or to have income imputed to Ahmad. Ahmad filed a motion to decrease spousal support. The rule applicable to our situation is expressed in In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291. There, we stated, "in the very ordinary situation where the payor [spouse] loses his or her job and seeks a reduction in court-ordered support based on the changed circumstances of lack of income, it will be the payor [spouse], as moving party, who bears the burden of showing a lack of ability and opportunity to earn income. [Citations.]" (Id. at p. 1304.)
As Ahmad notes, the court stated he had not presented evidence explaining why his income was reduced or showing what actions he had taken to mitigate losses or increase revenue. The court had reason to question his efforts with respect to maintaining his business. As the record in the Companion Appeal reflects, before spending time on the life settlement business, Ahmad had been a member of the Million Dollar Round Table—an organization for insurance agents, whose members have to meet certain qualifications. In fact, at one point Ahmad had even qualified for the top tier of the Million Dollar Round Table—an elite group of the top 250 insurance agents in the nation.
Ahmad claims the court cannot impute income to an underemployed spouse without making affirmative findings of ability and opportunity. This argument is inconsistent with In re Marriage of Simpson, supra, 4 Cal.4th 225, which states that "statutory guidelines governing the determination of spousal and child support authorize the trial court in its discretion to consider the earning capacity as well as the actual income of the supporting spouse in determining support, but they do not specify or limit the circumstances under which the trial court may look to earning capacity in addition to, or in place of, actual income in fixing support." (Id. at p. 232.)
Furthermore, it is not necessarily the case that in considering earning capacity, the court is restricted to considering the ability to produce income through work. "'Earning' need not be limited to payment for work; it may also be defined as: 'something (as wages or dividends) earned as compensation for labor or the use of capital.' [Citation.] 'Earn' means 'to bring in by way of return.' [Citation.]" (In re Marriage of Dacumos (1999) 76 Cal.App.4th 150, 154 [addressing earning capacity in child support context].) We may apply a broad "definition of earning capacity to include income that could be derived from income-producing assets as well as from work . . . ." (Ibid.)
In a somewhat disingenuous argument, Ahmad claims the court looked only at the outdated evidence of his income as contained in the April 7, 2009 judgment and failed to consider his income as of the time of the hearing on his motion. He claims the court thus abused its discretion for failing to consider his ability to pay, as required by Family Code section 4320, subdivision (c).
In support of this argument, Ahmad quotes out of context the following sentence from the order: "'The findings of the court pursuant to Family Code § 4320 are contained in the [April 7, 2009] Judgment and the Statement of Decision filed February 3, 2009.'" Read in context, it is clear that the court was reciting the procedural history of the marital dissolution proceedings and stating that the findings of the court, following the trial concluded on July 31, 2008, were set forth in the statement of decision filed February 3, 2009 and the judgment filed April 7, 2009. It explained that the existing spousal support order contained in that judgment was based on findings regarding Ahmad's prior monthly cashflow of $125,000 per month as established at trial. Having offered that background, the court in its findings and order after hearing then proceeded to show why the decrease in monthly cashflow to $35,793 did not justify a modification of spousal support. Clearly, the court did consider Ahmad's change in income, and his current monthly cashflow of $35,793, contrary to his feeble contention. It just did not arrive at the conclusion Ahmad wanted.
Next, Ahmad argues the court erred in considering his lifestyle, including his several vacations to Iran. He says that support must be based on income.
It is unquestionably correct that the court must consider his ability to pay. Family Code section 4320, subdivision (c) clearly so provides. But in determining ability to pay, income is not the only thing the court must consider. The court must "tak[e] into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living." (Fam. Code, § 4320, subd. (c).) Furthermore, section 4320 contains a list of 14 things the court must consider in affixing spousal support. The last of those 14 is contained in subdivision (n). That subdivision permits the court to consider "[a]ny other factors the court determines are just and equitable." The court could well have construed Ahmad's testimony about having taken three month-long vacations within a 14-month period as showing that he was not making an effort to maintain his business.
Ahmad cites our opinion in In re Marriage of Loh (2001) 93 Cal.App.4th 325 for the proposition that the court may not consider lifestyle evidence in determining support. That is not what the case says, and the case is distinguishable in any event.
In In re Marriage of Loh, supra, 93 Cal.App.4th 325, the ex-wife sought to increase the child support obligation of the ex-husband without presenting any evidence of his then current income. She did, however, present photographs of the ex-husband with various cars, one apparently owned by his girlfriend, as well as photographs of his girlfriend's house, in which he resided. (Id. at pp. 328-329.) "In closing argument, [the ex-wife's] trial attorney argued it was 'inconceivable' that one could 'duplicate' [the ex-husband's] 'lifestyle . . . for a sum less than $400,000 per annum.'" (Id. at p. 329.) Based on such "evidence," the trial court greatly increased the ex-husband's child support obligation. (Ibid.)
We reversed, holding that "[a] few photos of an ex-spouse with assets owned by the ex-spouse's new spouse or 'nonmarital partner'" did not constitute sufficient evidence to support the order. (In re Marriage of Loh, supra, 93 Cal.App.4th at p. 336.) We commented in closing: "[W]e are not saying that a parent may never prove income that was either nonreported or underreported on the other parent's tax returns by means of lifestyle evidence—at least when lifestyle evidence is not based on new spouse or nonmarital partner income. [Citation.] If the IRS can do it, a parent should be able to do it. But we are saying that to do so will take a more detailed showing than was made here." (Id. at pp. 337-338.)
In the matter before us, Fatemeh was neither presenting lifestyle evidence without evidence of current financial information nor seeking to upwardly modify Ahmad's support obligation. Rather, Ahmad was seeking to reduce his support obligation, by providing evidence that his cashflow had decreased considerably. It was his burden to show a change of circumstances and the court questioned why his business had so deteriorated and whether he had made any efforts to bolster his business. Evidence of significant travel, to the tune of about three months out of 14, could be construed by the court as evidence that Ahmad had failed to give his best efforts to the business once he had been ordered, based on a prior showing of significant cashflow, to pay spousal support.
After all, Fatemeh's testimony at the April 22, 2010 hearing on Ahmad's motion showed that he had shirked his spousal support obligations as set forth in the April 7, 2009 judgment. That judgment, as we recall, required that Ahmad pay Fatemeh $26,000 per month from April 1, 2008 forward and $45,000 per month in retroactive spousal support for the period of April 1, 2006 through March 31, 2008, with offsets for prior payments. However, Fatemeh testified on April 22, 2010 that Ahmad had paid zero spousal support in 2010, zero spousal support in May through December 2009, and only $10,000 per month in spousal support in January through April 2009.
Ahmad says his vacationing habits are not indicative of his ability to pay support and offers that his "travel could have been paid for by his new wife, as he was remarried at the time of the modification hearing." However, there is no indication in the record that the court sought to impute the income of Ahmad's new wife to him. That matter aside, there is no reason why the court could not consider Ahmad's vacations in evaluating whether he was really putting effort into his business.
Lastly, Ahmad contends the court abused its discretion in considering his expenses, instead of his income. As the court observed in its August 2, 2010 findings and order after hearing, Ahmad's income and expense declaration filed November 18, 2008 showed monthly expenses of $13,165, whereas his income and expense declaration filed March 15, 2010 reflected monthly expenses of $18,995. Clearly, an increase in expenses of more than $5,000 per month affects ability to pay. Therefore, it was proper for the court to consider Ahmad's expenses. (Fam. Code, § 4320, subd. (c).) And, it was within the discretion of the court to consider whether the dramatic increase in expenses showed either a lack effort on Ahmad's part to keep cashflow under control or even an intent to manufacture a change of circumstances.
(3) Award of attorney fees
The court ordered Ahmad to pay $12,500 in attorney fees to Fatemeh. Ahmad claims the court erred in awarding Fatemeh attorney fees and costs without considering Fatemeh's need, as required by Family Code sections 2030 and 2032. He emphasizes the portions of Family Code section 2030, subdivision (a)(1) providing that in a marital dissolution proceeding "the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding . . . ." (Italics added.) He argues that this language shows a finding of need is required.
Ahmad maintains this interpretation is underscored by certain language from Family Code section 2032. Section 2032 provides in pertinent part: "(a) The court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) 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 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." (Italics added.)
Looking at Family Code section 2032, subdivision (b), Ahmad again emphasizes the language regarding "need." He contends the italicized language confirms that a finding of need is required before the court may award attorney fees and costs.
His argument was squarely rejected in In re Marriage of O'Connor (1997) 59 Cal.App.4th 877. The court there said such an argument was "nothing more than a refusal to acknowledge the unequivocal meaning of the language of [Family Code section 2032, subdivision (b)], which permits an award to a spouse even if that spouse has sufficient resources to pay attorney's fees and costs from his or her own pocket." (Id. at p. 883.) The court in In re Marriage of Duncan (2001) 90 Cal.App.4th 617 construed the statute in the same manner, stating "section 2032, subdivision (b) permits an award to a spouse . . . who has sufficient resources to pay . . . ." (In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 631.)
Finally, we reject Ahmad's assertion that there is no evidence the court considered the statutory requirements in making its order. It its August 16, 2010 findings and order after hearing, the court stated: "(1) Pursuant to Family Code [sections] 2031 and 2032, the Court must not only consider the need of a party and the ability to pay, but also the reasonableness of the fees for maintaining or defending the proceeding. Also, pursuant to Family Code [section] 2032(b), 'the fact that the party requesting an award of attorney fees and costs has resources from which the party could pay the party's own attorney fees and costs is not itself a bar to an order that the other party pay all of the fees and costs. Financial resources are only one fact for the court to consider . . . [.]" (Italics omitted.)
The court explained that it denied Ahmad's motion due to insufficient evidence and indicated that, insufficiency of the evidence notwithstanding, Fatemeh had no choice but to retain an attorney to oppose the motion, which was filed before the April 7, 2009 judgment had even been entered. The implication is that the court disapproved of Ahmad's litigation tactics, which drove up costs. Furthermore, with apparent reference to Ahmad's own fee request, the court complained that Ahmad had failed to disclose what portion of his fees had been incurred in "postjudgment" litigation and had only specified the total fees incurred with respect to the entire case.
The court stated: "While this court has little doubt that both parties have the ability to pay their attorney fees and costs, this court must also consider the complexity of the case and the cooperation of the parties in attempting to settle." In other words, the court considered whether the parties needed assistance in paying their legal fees, the fact that Ahmad had been unforthcoming with respect to what portion of his legal bill even arose out of his motion, and the lack of cooperation on Ahmad's part in connection with "postjudgment" matters.
"'[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] 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. . . ."' [Citation.]" (In re Marriage of O'Connor, supra, 59 Cal.App.4th at p. 881.) Ahmad has not made a clear showing of abuse.
(4) Award of sanctions
It its August 16, 2010 findings and order after hearing, the court also ordered Ahmad to pay Fatemeh $5,000 in fees as sanctions, pursuant to Family Code section 271. Ahmad contends the court erred in awarding sanctions because he did not receive proper notice of the sanctions request and the court failed to cite any evidence of sanctionable conduct. He acknowledges that Fatemeh requested sanctions in her brief filed in response to his order to show cause. However, he maintains this was not proper notice.
As the record shows, Fatemeh requested sanctions in her May 6, 2009 responsive declaration to the order to show cause, in her May 8, 2009 declaration in opposition to the order to show cause, in her points and authorities in opposition to the order to show cause, and in her August 21, 2009 respondent's opening brief regarding the order to show cause. Ahmad, in similar fashion, requested Family Code section 271 sanctions against Fatemeh in his September 2, 2009 rebuttal to her opening brief.
At the April 22, 2010 hearing on Ahmad's motion, his counsel said: "I would like to submit on the issues of fees and costs, because I assume the court will make a decision or take it under submission with regard to the support, and then the issue of attorney fees can be addressed by declaration. That's my preference." Fatemeh's counsel was willing to stipulate to the suggested procedure.
Fatemeh renewed her request for Family Code section 271 fees in the closing argument she filed on May 7, 2010 and in her May 13, 2010 rebuttal brief. On June 21, 2010, Ahmad filed his brief regarding attorney fees. In that brief Ahmad argued that Fatemeh's fee requests under both Family Code section 2030 and Family Code section 271 should be denied. He asserted that she should pay attorney fees and sanctions to him, rather than the reverse.
Each party filed a declaration of attorney in support of his or her position. Six paragraphs of the declaration of Fatemeh's attorney fell under the topic heading of "PETITIONER'S OBSTRUCTIONIST CONDUCT."
It its August 16, 2010 findings and order after hearing, the court stated: "Wife has also requested Family Code [section] 271 attorney fee sanctions. Pursuant to Family Code [section] 271(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.' Both parties in this matter gave the other 'notice.' Notice and opportunity to be heard having been afforded the parties, request for fees pursuant to Family Code [section] 271 is awarded payable forthwith by Petitioner, to Respondent, in the sum of $5,000." (Italics omitted.)
The court's findings are clearly supported by substantial evidence. The notice required under Family Code section 271 is addressed in subdivision (b) thereof. That subdivision provides: "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." Considering the evidence in the record that Fatemeh gave notice to Ahmad, that Ahmad's attorney orally requested at the April 22, 1010 hearing to address fees by declaration, and that Ahmad filed written opposition to Fatemeh's request, Ahmad's position that the award should be overturned due to lack of proper notice is untenable. Niko v. Foreman (2006) 144 Cal.App.4th 344, upon which Ahmad relies, is distinguishable on its facts and does not support his position.
As his second ground, Ahmad says the sanctions award should be overturned because the court failed to cite any sanctionable conduct. He says the court only stated Fatemeh had no choice but to hire an attorney to represent her. This, he argues, is not a basis for awarding sanctions.
"We review a family court's decision to grant or deny attorney fees under [Family Code] section 271 . . . under an abuse of discretion standard. [Citation.] 'While sanctions are discretionary, the term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion, all the material facts must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision. [Citation.] Therefore, the court must examine the entire record in determining whether the ultimate sanction should be imposed. [Citations.]' [Citation.]" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.)
"An award of fees under section 271 is authorized where an opposing party's conduct frustrates the policy of the law in favor of settlement, and increases the cost of litigation. [Citations.] In reviewing such an award, we must indulge all reasonable inferences to uphold the court's order. [Citation.]" (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991, criticized on a different point in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.)
The sanctions award was set forth in the August 16, 2010 findings and order after hearing. As we have already discussed, the court implied that Ahmad had engaged in uncooperative litigation tactics. We need not look far to find support in the record for that proposition.
Despite having been ordered to pay spousal support in the April 7, 2009 judgment, Ahmad flouted the court's order and refused to pay. Furthermore, when ordered to file a proposed statement of decision, he delayed doing that and filed instead what Fatemeh legitimately characterized as a disguised and improper motion for reconsideration. We need not address the many other reasons Fatemeh says sanctions should be imposed.
III
DISPOSITION
The orders are affirmed. The motion to strike is denied. Fatemeh Hashemian shall recover her costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.