Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 03D007708, Claudia Silbar, Judge.
Evan D. Marshall for Appellant Mimi L. Barker.
Law Offices of Steven E. Briggs and Steven E. Briggs for Respondent Marvin Barker.
OPINION
O’LEARY, J.
In the final judgment on reserved issues in the dissolution of the marriage of Mimi L. Barker and Marvin Barker, the family residence (in which Mimi resided) and a rental property owned by the couple were both declared to be community property, and ordered sold. While the appeal on the final judgment was pending, Marvin was endeavoring to sell the two properties. Mimi refused to cooperate with the sales of either, forcing Marvin to file several orders to show cause (OSC) to have the clerk of the court sign necessary documents. Mimi did not appeal any of those postjudgment orders.
We follow the practice in family law cases of referring to the parties by their first names and no disrespect is intended. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
Subsequently, the trial court granted Marvin’s motion under Family Code section 271 and imposed $25,000 in sanctions against Mimi. Mimi appeals from that postjudgment order contending the court abused its discretion in imposing sanctions. She also contends the court erred by dismissing her OSC concerning spousal support. We find no merit to her contentions and affirm the order.
I FACTS
The Judgment and Companion Appeal
On March 23, 2006, the court entered a judgment on reserved issues in the dissolution of Mimi’s and Marvin’s marriage. In the judgment, among other things, the court granted Marvin sole legal and physical custody of the parties’ then minor child, Amanda. The judgment ordered Marvin to pay Mimi $3,360 per month in spousal support, Mimi was to designate a bank account into which Marvin could direct deposit the support payments, and Mimi was ordered to cooperate in facilitating that method of payment.
Mimi remained living in the parties’ former family residence, located on Via Genoa in Newport Beach (the Newport Beach Property). The Newport Beach Property was declared to be community property, with a market value of $2,500,000, with total liens of $881,715. Mimi was given the option to buy Marvin out for the amount of his equity in the property ($809,142.50), but if she did not do so by March 19, 2006, the property was to be sold. Mimi was ordered to cooperate with listing agents and to maintain the property in satisfactory condition for sale.
The parties also owned a rental property located in San Jose (the San Jose Property). The court found the San Jose Property to be community property and ordered it listed for sale at a price of $750,000. Mimi and Marvin were ordered to each cooperate with the sale of the property.
In its judgment on reserved issues the court also made distributions of personal property. Of relevance here are two items only: (1) A 1994 Jeep Cherokee that was in Mimi’s possession was valued at $3,550 and awarded to Marvin; and (2) a Sabot sailboat was valued at $2,000 and awarded to Marvin.
Finally, in addition to earlier discovery sanction awards against Mimi totaling $5,000, Mimi was ordered to pay $120,000 in attorney fees to Marvin due to her conduct in the family law proceedings. Mimi’s attorney of record, Peter C. Lomtevas, was additionally ordered to pay a sanction of $25,000 to the clerk of the court. Mimi appealed the judgment, which is pending with this appeal. (In re Marriage of Barker (July 3, 2008, G036916) [nonpub. opn.].) The facts concerning procedural issues leading up to the trial and subsequent judgment are detailed in our opinion in the companion case.
Postjudgment Orders
1. Marvin’s first OSC
On May 8, 2006, Marvin filed an ex parte OSC to have the clerk of the court sign various documents necessary to carry out the court’s judgment. Although she was unable to buy out Marvin’s interest in the Newport Beach Property, Mimi would not cooperate with signing the listing agreement for the property. Similarly, she refused to sign the listing agreement on the San Jose Property. Marvin was very worried that with residential property values beginning to decline, they would lose money on both properties. Mimi also refused to sign documents transferring title to the 1994 Jeep and the Sabot sailboat.
At a hearing on May 8 before Judge Michael J. Naughton, Mimi was represented by Evan D. Marshall, her current appellate counsel. He argued Mimi’s appeal of the judgment resulted in an automatic stay of enforcement of the judgment as to the San Jose Property because it was not in Mimi’s possession or control within the meaning of Code of Civil Procedure section 917.4. The court disagreed. It ordered the clerk of the court to execute the listing agreements for both properties and the transfer of title documents for the Jeep and the Sabot sailboat. The court also ordered that Marvin be allowed into the Newport Beach Property on a specific date to remove his personal belongings. The court granted a temporary stay of its orders until May 19, 2006, to allow Mimi time to post a bond in the amount of $1,525,000 to effect a stay of the judgment.
On May 17, 2006, in the main appeal (In re Marriage of Barker, supra, G036916), Mimi filed a petition in this court for writ of supersedes to set aside Judge Naughton’s May 8 order and requested an immediate stay of enforcement of the entire judgment. The petition was denied, as was Mimi’s petition for review by the Supreme Court. On May 19, 2006, before Judge Silbar, Mimi was represented by Marshall and after ascertaining that Mimi had not posted an undertaking (and her writ petition had been denied), the clerk executed the various listing and title transfer documents.
2. Marvin’s second OSC
On June 5, 2006, Marvin filed a second ex parte OSC seeking exclusive use and possession of the Newport Beach Property. Marvin complained that Mimi continued to refuse to cooperate with showing the property to prospective buyers. She had refused Marvin access to the house to remove his belongings on the date previously ordered by the court. Mimi was not making the mortgage payments on the property (as she had been earlier ordered to do), and the loan was in default. Mimi refused to give Marvin a bank account number into which he could direct deposit her support payments, despite the court’s order that she do so. Mimi’s appellate attorney, Marshall, had suggested to Marvin he could send support payments to him via certified mail, but then Mimi told Marvin that Marshall did not represent her in such matters and objected to that procedure. When Marvin went to record the vehicle transfer documents, he learned from the Department of Motor Vehicles that Mimi had sold the Jeep, despite the judgment awarding it to Marvin.
The hearing on this OSC was continued several times and eventually heard with other matters on June 23. Ultimately, it was agreed Mimi would vacate the house from 9:00 a.m. until 5:00 p.m., Mondays through Fridays, and from 12:00 noon until 5:00 p.m., on Sundays, so the house could be shown to prospective buyers during those times, unless the listing agent advised Mimi the house was not going to be shown on any particular day.
3. Marvin’s third; Mimi’s first OSC
On June 14, Marvin filed a third OSC concerning the San Jose property. An offer had been received for the property at well above the original listing price and the value the court had set on the property in the judgment. Mimi refused to sign any documents associated with the sale.
Mimi filed her own OSC asking the court to vacate the May 8 order (Judge Naughton’s) directing the clerk to execute listing documents for the San Jose Property—asserting the order was beyond the court’s jurisdiction because it violated the automatic stay. At the hearing on June 14 before Judge Silbar, Mimi was represented by Marshall, who again asserted the court had no jurisdiction to take any steps to enforce the judgment as to the San Jose Property. He argued the San Jose Property was not in Mimi’s control or possession so Code of Civil Procedure section 917.4 (requiring an undertaking be posted to stay enforcement of a judgment as to disposition of real property within the appellant’s control or possession) did not apply. Marshall also argued the San Jose Property was not community property, but was in fact Mimi’s separate property.
The court rejected Mimi’s arguments. It granted Marvin’s motion and ordered the clerk to sign the documents related to the sale of the San Jose Property. It denied Mimi’s OSC.
4. Marvin’s fourth OSC
On June 23, 2006, Marvin filed a fourth OSC and obtained an order directing the clerk to execute further documents pertaining to the marketing of the Newport Beach Property and the pending sale of the San Jose Property, all of which Mimi refused to sign. The court deferred consideration of Marvin’s request for attorney fees until Marvin filed a motion for sanctions under Family Code section 271.
5. Marvin’s fifth OSC
On July 19, 2006, Marvin filed a fifth OSC to direct the clerk to sign more documents concerning the sale of the Newport Beach Property. Foreclosure proceedings on the property were pending. An offer had been received for $2.3 million (the March 23, 2006, judgment valued the property at $2.5 million and the listing price had been $2.595 million), and Marvin wanted to counteroffer at $2.448 million, the price recommended by the listing agent, but Mimi would not sign any of the documents. Marshall represented Mimi at the hearing. Mimi was present as well, and ultimately, she signed the property documents “under protest[.]”
6. Marvin’s sixth OSC
On September 29, 2006, Marvin filed a sixth OSC for an order that Mimi permit a termite repair company access to the interior of the Newport Beach Property so work necessary to close escrow could be performed. Mimi represented herself at the hearing and agreed to an order that permitted the access.
7. Mimi’s Support OSC and Marvin’s Motion for Sanctions Under Family Code Section 271: The Order on Appeal
On October 10, 2006, Marvin filed a motion for sanctions against Mimi under Family Code sections 270 and 271. His attorney declared Marvin had incurred $51,986.70 in attorney fees and costs related to his postjudgment efforts to sell the two properties. Mimi (in propria persona) filed an opposition on the hearing date, November 28.
On October 12, 2006, Mimi (in propria persona) filed a largely unintelligible OSC re support. She appeared to contend Marvin owed her over $62,000 in back spousal and child support and suggested spousal support should be increased to as much as $13,000 a month. The court denied ex parte relief, and set Mimi’s motion for hearing with Marvin’s motion for sanctions.
Mimi represented herself at the November 28 hearing. In its minute order, the court found Mimi had sold both the Jeep and the Sabot sailboat, in defiance of the court’s judgment awarding them to Marvin, and she owed Marvin $4,800 for the Jeep and $1,100 for the Sabot sailboat (the amounts she sold them for).
The court attempted to elicit from Mimi what it was she wanted by way of her October 12 motion. In discussions, the court noted, the motion was unclear, had not been properly served, lacked a proof of service, and there was no accompanying income and expense declaration, which was “required on any economic request.” The court ordered the motion dismissed without prejudice, inviting Mimi “to file it properly in the future[.]”
The court then turned to Marvin’s sanctions request. It found all the requirements of Family Code section 271 had been met, and Mimi had the ability to pay sanctions. It ordered Mimi to pay Marvin $25,000 in sanctions from her share of the proceeds of the sale of the Newport Beach Property. On March 13, 2007, the court entered its findings and order after the November 28 hearing. On March 21, 2007, Mimi filed her notice of appeal from the March 13, 2007, order.
II DISCUSSION
A. Sanctions in Family Law Cases
Family Code section 271, “advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys’ fees and costs as a sanction. [Citations.]” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177 (Petropoulos).)
On appeal, “[w]e will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it. [Citations.]” (Petropoulos, supra, 91 Cal.App.4th at p. 178.) Mimi has the burden of demonstrating the order constitutes an abuse of discretion. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 10.) She has failed in that burden.
Mimi has repeatedly defied the trial court’s orders. The judgment ordered the sale of the Newport Beach Property, in which Mimi resided, and the San Jose Property, and the division of the proceeds between the former spouses. Even after this court denied her petition for a writ of supersedeas and immediate stay of the judgment, Mimi refused to cooperate in any way with that process, putting Marvin to the expense of repeatedly obtaining court intervention. Marvin was required to obtain six separate postjudgment orders directing Mimi to sign documents relating to the sale of both properties, to cooperate with sales agents, and to permit repair workers on to the premises. The court had also ordered Mimi to provide Marvin with a bank account into which he could direct deposit support checks; she refused. The judgment awarded the Jeep and the Sabot sailboat to Marvin, but Mimi sold them. Mimi has put Marvin to completely unnecessary legal expense in this matter. We cannot say an award of sanctions constituted an abuse of discretion.
B. Automatic Stay
Mimi was sanctioned in part because of her refusal to cooperate with carrying out the final judgment ordering the Newport Beach Property and the San Jose Property sold. She contends that as to the San Jose Property, the postjudgment orders violated the automatic stay perfected when she filed her appeal from the judgment. As to the Newport Beach Property, she essentially concedes the judgment was not automatically stayed, but asserts the trial court required an unreasonable undertaking as a precondition to issuing a stay of the judgment as to that property.
Mimi did not appeal any of the postjudgment orders about which she now complains (i.e., the orders directing the clerk to execute sales documents). This appeal concerns only the postjudgment order awarding Marvin sanctions under Family Code section 271. But to the extent Mimi’s complaints are subsumed into the sanction order, we address them briefly.
As a general proposition, perfecting an appeal stays enforcement of the judgment so appealed. (Code Civ. Proc., § 916.) But an appeal does not stay enforcement of that portion of the judgment directing “the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant . . . unless an undertaking in a sum fixed by the trial court is given . . . .” (Code Civ. Proc., § 917.4.) Similarly, perfecting an appeal does not stay enforcement of a judgment directing the delivery of personal property unless the appellant in possession of that property gives an undertaking in a sum fixed by the trial court. (Code Civ. Proc., § 917.4.)
Mimi contends the San Jose property was not in her possession or control—it was a rental property occupied by tenants and Marvin alone was responsible for collecting the rent—so Code of Civil Procedure section 917.4 did not apply as to that part of the judgment and, thus, Marvin’s efforts at enforcing the judgment as to the San Jose Property were improper. We need not decide that issue. Mimi concedes there was no automatic stay as to the Newport Beach Property (or for that matter as to the personal property awarded to Marvin that Mimi possessed) and her refusal to cooperate with those parts of the judgment is well documented.
Mimi also contends the trial court required an excessive undertaking as a precondition to issuing a stay against enforcement of the judgment. But as Mimi acknowledges, her avenue for appellate review of the bonding requirement was through her petition for writ of supersedeas in the main appeal, In re Marriage of Barker, supra, G036916. That petition was an auxillary proceeding to her appeal from the judgment. (Mills v. County of Trinity (1979) 98 Cal.App.3d 859, 861 [“[t]he writ of supersedeas is a purely auxillary writ, serving the sole function of preserving our appellate jurisdiction pending review of the appeal and a ruling on its merits”].) We denied her petition and denied a stay of the judgment. Mimi could not thereafter continue to assert the stay as a reason for refusing to comply with court orders concerning enforcement of the judgment.
C. Amount of Fees Incurred
Mimi contends the sanctions awarded impermissibly included fees incurred by Marvin with regard to appellate issues, in effect punishing her for pursuing her appellate rights. She also complains the trial court’s award failed to discriminate between the attorney fees incurred by Marvin in enforcing the judgment (e.g., in bringing his OSCs), and those that would have been incurred regardless of Mimi’s lack of cooperation (e.g., reviewing sales documents, talking to realtors).
These issues are raised for the first time on appeal. At no time below did Mimi challenge any of the specific fees incurred by Marvin. She has waived this complaint on appeal. (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.)
Furthermore, Mimi does not point to any specific item in the detailed bills provided by Marvin’s attorney to the trial court which she believes were improperly included in the award. We note Marvin documented that he incurred $51,986.70 in attorney fees and costs related to his postjudgment activities to effectuate the sale of the two properties. The trial court awarded him much less—$25,000. The trial court commented Mimi should be held accountable for all Marvin’s postjudgment fees, but did not believe Mimi had the ability to pay the full amount. Nonetheless, it appears the discount Mimi was given exceeded the fees she now contends should not have been considered.
D. Mimi’s OSC re Support
Mimi also contends the trial court erred by refusing to rule on her motion filed on October 12, 2006. The court noted Mimi’s motion was unclear, had not been properly served, lacked a proof of service, and there was no accompanying income and expense declaration which was “required on any economic request[.]” It ordered the motion dismissed without prejudice, inviting Mimi to “file it properly in the future.”
We can find no fault with the court’s order. The record indicates the trial court sincerely attempted to ascertain what relief it was that Mimi sought, but could not. We have reviewed Mimi’s motion and agree it is unclear. On the form motion, Mimi checked boxes indicating the motion was to establish arrearages in support and modify spousal support. Mimi claimed Marvin owed her almost $63,000 in support arrearages under an order entered May 10, 2004. The order is not in the record on this appeal. The form motion states a modification in spousal support was being sought, but does not indicate the amount. In an attached declaration, Mimi makes an uncertain reference to the sum of $13,000 a month.
Mimi asserts the absence of an income and expense declaration was not material and the court could have proceeded without one. We disagree. California Rules of Court, rule 5.128 is mandatory: “(a) A current Income and Expense Declaration (form FL-150) or a current Financial Statement (Simplified) (form FL-155), when such form is appropriate, and a current Property Declaration (form FL-160) must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. ‘Current’ is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue.” (Italics added.) A rule of court phrased in mandatory language is generally binding on the courts. (See In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524.)
Mimi’s assertion an income and expense statement was not relevant to the issue of arrearages does not alter our conclusion—she was also seeking a modification of support and the declaration was directly relevant to such a request. We reject Mimi’s suggestion other infirmities with her motion, such as the lack of proper notice, should have been overlooked by the court because support orders are frequently made on an ex parte basis. And in any event, given that the court dismissed the motion without prejudice leaving Mimi free to file a proper motion with the proper supporting documentation, we cannot see how she has been prejudiced.
III DISPOSITION
The postjudgment order is affirmed. Respondent is awarded his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.