Opinion
B151496.
10-31-2003
In re the Marriage of NORDA R. FREEMAN and DONALD A. FREEMAN. NORDA R. FREEMAN, Appellant, v. DONALD A. FREEMAN, Respondent.
Nick A. Alden for Appellant. Law Offices of Donald S. Sherwyn and Donald S. Sherwyn for Respondent.
introduction
Norda R. Freeman (Norda) appeals from the trial courts entry of a judgment of marital dissolution ending her marriage to Donald A. Freeman (Donald), as well as from prior orders regarding temporary child and spousal support among other matters. The attempted appeal from the orders entered prior to the rendition of the judgment of dissolution is untimely and is therefore dismissed. Norda raises various contentions of error with regard to the judgment, none of which we find to have merit. We therefore affirm the judgment.
factual and procedural background
Norda and Donald married in 1984, and subsequently had two children. The parties separated in late March 1995, and Norda filed a petition for dissolution of marriage on March 27, 1995.
On March 29, 1995, Norda filed an order to show cause regarding custody, visitation, and child and spousal support. Donalds income and expense declaration stated his 1994 income was $ 200,000. On April 24, 1995, the trial court ordered Donald to pay $1,300 in spousal support and $2,952 in child support each month, commencing May 1, 1995, and also to pay the mortgage on the family home. These findings were embodied in a pendente lite order filed on July 17, 1995.
Pursuant to Nordas request, the court modified its prior order and required Donald to pay $2,932 in monthly child support, and $1,466 as monthly spousal support, commencing August 15, 1995. The support order took into account the fact that the family residence had been sold, the proceeds from which the court ordered placed in a trust account. The court "reserve[d] jurisdiction to modify this order retroactive to March 1, 1995." The court ordered Donald to produce his 1993 and 1994 income tax returns for his business, and complete bank statements.
Throughout her opening brief, Norda refers to this order as the August 7, 1995 order, the date on which the matter was heard, but the order was actually filed on December 1, 1995.
On June 10, 1996, Donald filed an order to show cause to modify his child and spousal support, claiming that for the preceding year his business lost over $17,800 per month. In August 1996, Norda filed a motion seeking prospective and retroactive modification of child and spousal support, contending that Donald had knowingly provided false information to the court with regard to his income. Donald filed opposition. The matters were consolidated for hearing.
On November 18, 1996, the court ruled that there was no showing of extrinsic fraud and denied Nordas request for a retroactive increase in Donalds support obligation. Instead, the court reduced Donalds support obligation by half, ordering him to pay child support in the amount of $1,408 per month, and spousal support of $825 per month, commencing November 1, 1996.
Norda filed a motion for reconsideration on November 27, 1996, contending that she recently acquired Donalds 1995 federal income tax return and learned that Donald earned $313,000 that year and had understated his income by $40,966 per month. Donald filed opposition to the motion for reconsideration on December 10, 1996.
The trial court issued a summary denial of Nordas motion for reconsideration on December 18, 1996. On January 22, 1997, Norda appealed from the order of November 18, 1996, denying her motion for retroactive modification of support and from the order denying her motion for reconsideration. In an opinion filed September 30, 1998, we dismissed the appeal from both orders as untimely. (In re Marriage of Freeman (B109568).)
On January 7, 1997, Norda filed another order to show cause to modify child and spousal support. Donald filed opposition. The parties stipulated to the appointment of a discovery referee, and of an independent forensic accountant. The matter was placed off calendar.
In September 1998, Norda brought an order to show cause to reset her motion for retroactive modification of child and spousal support and to compel appointment of a receiver for Donalds business. Donald filed opposition. After hearing argument on September 28, 1998, the court denied Nordas requests.
The forensic accountant issued its report on December 7, 1998. The parties stipulated to the admission of the report without further foundation or authentication, subject to cross-examination at trial.
On September 24, 1999, Norda filed another order to show cause seeking retroactive and prospective modification of child and spousal support, attorney fees, and appointment of a receiver. Donald filed a declaration in response. Norda then filed a reply to the opposition.
The matter was heard on October 19, 1999. On November 22, 1999, the court entered an order denying Nordas request for retroactive modification of support and the appointment of a receiver. It increased Donalds child support obligation to $2,553 per month, and eliminated spousal support. The accounting firm had not completed an accounting for the years 1998 and 1999, however the trial court denied Nordas request to continue the firms appointment to permit it to do so. The court reserved for trial the issue of Nordas request for attorney fees.
Norda filed a petition for writ of mandate on December 9, 1999. We issued a peremptory writ directing the trial court to reinstate Donalds spousal support obligation of $825 per month. We thereafter dismissed the petition as moot in November 2000.
The matter proceeded to trial on March 20, 2000, and was heard sporadically over the next several months, finally concluding on October 16, 2000. Norda renewed her request at trial for retroactive modification of the support orders.
The court entered judgment of dissolution on May 2, 2001. The judgment included rulings regarding child custody and visitation; Norda was awarded 80 percent custodial time, and Donald 20 percent. The court found Donalds monthly net income to be $10,894, and imputed to Norda a monthly net income of $ 1,964. Donald was ordered to pay to Norda $2,912 in child support per month, and $500 in spousal support per month. The court found that "[a]fter separation, the business enterprise receipts decreased for several years, but have now increased to an average of $1 million per year." It further ordered, pursuant to the parties stipulation that Donald owed Norda $10,899 in spousal support arrears, plus 10 percent interest per annum, payable at $200 per month. The court also divided the community property and debts, resulting in an equalization payment due from Donald in the amount of $315,774 plus 10 percent interest, payable at the rate of $4,000 per month. Donald was ordered to execute a promissory note in that amount, to be secured by Agape Transportation (the formerly community property business awarded to Donald) and certain real property. The court made specific findings regarding Agapes adjusted net income for the years 1995 through 1999. Donald was ordered to pay $13,000 to the court-appointed accounting firm at the rate of $250 per month. Finally, Donald was ordered to pay Nordas counsel $18,500 at the rate of $250 per month.
The $13,000 was included in the equalization payment of $315,774 owing from Donald.
On June 29, 2001, Norda filed a notice of appeal from the judgment of May 2, 2001, as well as the court orders of November 18, 1996, December 18, 1996, September 28, 1999, October 19, 1999, November 22, 1999, "and all the previous orders of the Court."
discussion
I. Retroactive Modification of Support
Norda attempts to address on appeal temporary support orders dating as far back as November 1996 and November 1999, in which the trial court denied her requests for modification of child and spousal support retroactive to March 1, 1995. She contends that these were merely interim orders which may be corrected up until final judgment, and that the court specifically reserved jurisdiction to reconsider the support orders retroactively. She requests equitable relief because the orders were the result of extrinsic fraud. We find no merit in these contentions.
Pursuant to Family Code section 3600, courts are authorized to award temporary (pendente lite) child and spousal support. Orders for temporary child and spousal support are in the nature of final judgments, and so are directly appealable. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 [spousal support]; In re Marriage of Skelley (1976) 18 Cal.3d 365 [same]; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 [child support].) Norda could have appealed from these orders, but having failed to do so in timely fashion, she cannot be heard to complain now. We are without jurisdiction and cannot consider these orders in the present appeal.
At the time the orders at issue were made, section 3600 provided: "During the pendency of any proceeding for dissolution of marriage . . ., the court may order (1) the husband or wife to pay any amount that is necessary for the support of the wife or husband, or (2) either or both parents to pay any amount necessary for the support of the child, as the case may be."
She did appeal from the November 18, 1996 order denying retroactive modification of the support orders and the subsequent denial of her motion for reconsideration, however, she did not do so in a timely manner. We dismissed the appeal from both orders as untimely. (In re Marriage of Freeman (B109568).)
Norda points to an order regarding temporary support announced by the trial court on August 7, 1995, and entered December 1, 1995, in which the court "reserve[d] jurisdiction to modify this order retroactive to March 1, 1995." She claims that this reservation of jurisdiction remained valid throughout the pendency of the case. We disagree.
The court could not indefinitely reserve the right to modify Donalds support obligation retroactive to the date of the filing of the petition for dissolution (or in this case, weeks before the petition was even filed). A court may not make a provisional award of temporary support, subject to change if it subsequently determines the facts upon which the award was based were inaccurate or incomplete. (See In re Marriage of Murray, supra, 101 Cal.App.4th 581, 593-594.) As recognized by the Supreme Court in County of Santa Clara v. Perry (1998) 18 Cal.4th 435, Family Code section 3653 "permits an order modifying or terminating a support order to be made `retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate . . ., except as provided by federal law (42 U.S.C. Sec. 666(a)(9)). (Italics added.) Section 666(a)(9) of Title IV-D applies to the modification of an existing child support order and limits the accrual of arrearages to the date the noticed motion or order to show cause is served. Thus, the `practical impact of subjecting retroactivity to [federal law] is that orders modifying child support (as opposed to original orders of support) may be made retroactive only to the date of service of the [order to show cause] or notice of motion for modification. (Hogoboom & King, Cal. Practice Guide: Family Law 1 (The Rutter Group 1997) ¶ 6:511, p. 6-148.6; In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 843 . . . .)" (County of Santa Clara v. Perry, supra, 18 Cal.4th at p. 441. See also In re Marriage of Murray, supra, 101 Cal.App.4th 581, 595 [regarding temporary spousal support, "filing date [of notice of motion or order to show cause to modify or terminate support] establishes the outermost limit of retroactivity."].)
Finally, aside from having failed to timely appeal from the orders complained of and the lack of authority to enter the orders she requested, Norda contends that she is entitled to equitable relief to set aside the denials of retroactive modification of support because, she argues, the orders were based on extrinsic fraud. In summary, she argues that Donald repeatedly submitted fraudulent and inaccurate income and expense declarations, and failed to produce his tax returns. She contends that his withholding of accurate income information was tantamount to extrinsic fraud in that he denied her a fair adversary hearing by fraudulently preventing her from presenting her claim.
"The most common ground for . . . equitable relief is extrinsic fraud, which essentially means that `a party has been denied by his opponent or otherwise an opportunity to be heard or to fully present a claim or defense. (In re Marriage of Brennan (1981) 124 Cal.App.3d 598, 603 . . . .) In Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471 . . ., our Supreme Court discussed extrinsic fraud as follows: `Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been "deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense." [Citation.] "Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his clients interest to the other side—these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing." (United States v. Throckmorton (1878) 98 U.S. 61, 65-66 . . . .)" (In re Marriage of Grissom (1994) 30 Cal.App.4th 40, 46.)
In this case, although it was apparently a struggle for Norda to obtain accurate financial information from Donald, she at all times made the trial court fully aware of her skepticism regarding the income information he was providing. Indeed, the trial court at times shared her skepticism and did not take at face value the information provided by Donald. But Norda was repeatedly given the opportunity to present evidence in support of her requests for retroactive modification, for example, on November 18, 1996, when she brought to the courts attention Donalds 1994 income tax returns which purportedly showed that he had presented false information in the past regarding his income. In its minute order, the trial court noted that it could not rely on the 1994 numbers because Donald had explained that Agape lost substantial clients, and Norda had not offered any evidence to refute that. The court also found, however, that the 1994 tax return and the income and expense numbers presented by respondent were unreliable and confusing, and instead based its support orders on Donalds total monthly expenses. Thus, Norda was not simply kept in ignorance. She had a full and fair opportunity to present her case that Donald had provided inaccurate information.
Similarly, in her order to show cause seeking retroactive and prospective modification of child and spousal support filed in September 1999, Norda pointed to Donalds 1995 business income tax return, which she presented to the court, to argue that Donalds June 1995 income declaration was inaccurate. She also brought to the courts attention the preliminary report of the court-appointed forensic accountant. Thus, Nordas claims of fraudulent concealment of information were fully aired, along with her countervailing evidence. If the trial courts ruling based on its consideration of this evidence was in error, Nordas relief was by way of appeal. Her time to appeal from the orders complained of has long since passed. Accordingly, the purported appeal from the court orders of November 18, 1996, December 18, 1996, September 28, 1999, October 19, 1999, November 22, 1999, "and all the previous orders of the Court" are rejected as untimely.
The appeal from the judgment of May 2, 2001, was timely. However, to the extent Norda again requested at trial retroactive modification of support dating back to March 1, 1995, for the reasons discussed above, that request was properly denied.
II. Appointment of a Receiver
Norda presents as an issue on appeal the question of whether the trial court abused its discretion by denying her repeated requests for the appointment of a receiver for the former family business, Agape Transportation. She cites no legal authority or argument in support of her contention.
On appeal a judgment or order of the trial court is presumed correct. All intendments and presumptions are indulged in to support it on matters as to which the record is silent, and the burden of affirmatively demonstrating error is on the appellant. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1989) ¶ 8:15, p. 8-4 (rev. #1, 2002).) We are not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record. (Kim v. Sumitomo Bank of California (1993) 17 Cal.App.4th 974, 979.) We may disregard issues not properly addressed in the briefs, treating them as having been abandoned. (See Eisenberg et al., supra, ¶ 9:21, p. 9-5 (rev. #1, 2002), citing e.g., Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
III. Division of Community Assets
A. 1994 Income
Norda contends that the trial court erred by not awarding to her half of the community net income for 1994, and by allocating as her sole and separate debt the remaining 1994 federal and state income taxes in the approximate amount of $110,000.
Norda poses the following as established fact: Donalds income in 1994 was $519,000, consisting of $208,000 in salary and $311,000 in shareholders distribution. He also made $74,000 in non-taxable perquisites. He first filed a joint tax return for 1994 but later filed separately, declaring half of the 1994 income. Norda was audited by the Internal Revenue Service and requested to pay $100,694 in taxes, based on her 50 percent share of the $519,000 income. Donald did not give her money to pay the taxes. Norda contends that during 1994 the parties expenses totaled no more than $34,000, a sum supported by Donalds declaration filed April 17, 1995.
In fact, all the declaration says is that the parties did not live a luxurious lifestyle while married as Norda had claimed, and did not spend $1,000 per month on clothing and $1,000 per month on groceries and food.
Based on the above asserted facts Norda concludes, "It is clear that Respondent misappropriated the rest of the community income, of about $564,000.00." She contends therefore the court erred because it did not divide the 1994 community income, and gave Norda as her sole and separate debt the remaining 1994 federal and state income taxes "at a value of offset."
This argument—which in essence is a claim of insufficient evidence to support the courts finding—fails, however, because Norda presents only a one-sided recitation of the evidence. As Donald points out in his respondents brief, the court had before it evidence that the parties 1994 income was expended during 1994, prior to their separation in March 1995. Norda does not direct us to any evidence that supports her contention that Donald misappropriated $564,000.
Nordas deficient presentation of evidence results in a waiver of any claim of insufficient evidence. "`It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. [Citations.] [Appellants] contention herein `requires [appellant] to demonstrate that there is no substantial evidence to support the challenged findings. [Citations.] A recitation of only [appellants] evidence is not the `demonstration contemplated under the above rule. [Citation.] Accordingly, if, as [appellant] here contend[s], `some particular issue of fact is not sustained, [she is] required to set forth in [her] brief all the material evidence on the point and not merely [her] own evidence. Unless this is done the error is deemed waived. [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
B. World Savings Bank Accounts
Norda next contends that the trial court erred by failing to divide funds held in two accounts at World Savings Bank. She points to Donalds admission that he transferred the funds (about $110,000) into the account for Agape Transportation, the family business, and immediately thereafter wrote himself a $120,000 check from the business.
Donald argues in his respondents brief that the testimony showed that the money from the accounts was "used to shore up the declining revenues of Agape, the communitys primary asset, during the 1995-1997 business decline." Our review of the record reveals that such testimony was given.
Nordas counsel argued in closing that either Donald appropriated the money to his own use, or the money was still in the corporation and Donald was awarded the corporation. The court ruled that the testimony showed that the money went not into Donalds own pocket, but rather went to the corporation to pay bills. The court also noted that Agape was assigned a value as a business, and was awarded to Donald, with an appropriate equalizing payment to Norda.
"Where a challenge is made on appeal to the sufficiency of evidence in the trial below, the appellants burden is a heavy one; [she] must show that there is no substantial evidence whatsoever to support the findings of the trier of fact. [Citation.] The reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. [Citation.] The power of the appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citation.] Substantial evidence means evidence which is of ponderable legal significance—evidence which is reasonable in nature, credible and of solid value. [Citation.] The trier of fact is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; is the sole judge of the credibility of the witnesses; may disbelieve them even though they are uncontradicted if there is any rational ground for doing so, one such reason being the interest of the witnesses in the case; and, in the exercise of a sound legal discretion, may draw or refuse to draw inferences reasonably deducible from the evidence. [Citation.] `". . . [T]he appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." (6 Witkin, Cal. Procedure [2d ed. 1971] § 249, at p. 4241.) (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 . . . .)" (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1098-1099.)
We will not interfere with the trial courts ruling with regard to where the money was spent. It is clear from the record that the court did not merely overlook the funds in the World Savings Bank accounts, but rather found Donalds testimony credible that the money was used for business purposes and was taken into account in the valuation of the business.
C. Agape Net Income for 1995 Through 1999
Norda contends that the trial court erred in its computation of the adjusted net income for Agape Transportation for the years 1995 through 1999. She bases her argument on the fact that the court denied her request to extend the appointment of the forensic accountant to complete an evaluation for the years 1998 and 1999, and instead relied on the testimony given by Donalds forensic accountant. She extrapolates from the figures for 1995 through 1997 in the report prepared by the court-appointed forensic accountant (dated December 7, 1998) to argue that the court undervalued the 1998 and 1999 income.
Donalds accounting expert testified at trial, and his appraisal report regarding Agape Transportation was entered into evidence. The court presumably relied on that testimony and report in concluding that Agapes adjusted net income for the years 1998 and 1999 was $45,998 and $77,730, respectively. Norda suggests no reason, other than the fact the accounting expert was hired by Donald, why the information relied on by the court was not credible or accurate. It is not our role to reevaluate the strength of the testimony. Indeed, as Norda concedes, the report of the court-appointed forensic accountant (upon which she urges should have formed the basis for the courts ruling) was subject to cross-examination. Our review of the record reveals that the report was thoroughly discredited by Donalds accounting expert. Norda has offered no reasoned basis upon which we might find the court erred in crediting the testimony of the latter.
D. Pre-Judgment Interest on Agape Net Income
Norda argues on appeal that the Agape adjusted net income for 1995 through 1999, of which she was awarded 50 percent, was money available for Donalds use, and thus she should have been awarded prejudgment interest on her share, citing Civil Code section 3289.
As Donald argues in his respondents brief, Civil Code section 3289 by its terms applies to damages in actions for breach of contract. Whereas Norda has failed to state an applicable legal basis for such an award of prejudgment interest, and indeed has not demonstrated that she requested an award of such interest in the trial court below, we decline to entertain the request on appeal.
IV. Spousal and Child Support After Trial
In awarding spousal and child support, the court imputed a monthly income to Norda of $2,064 ($1,964 net) based on her earning capacity, not on her actual earnings. Contrary to Nordas contention on appeal, substantial evidence was presented to the court to the effect that Norda was able to work, and indeed had worked as a bank clerk at the imputed salary level, but voluntarily left that position. Thereafter she primarily engaged in only unpaid volunteer work. As Donald points out with regard to imputation of income, "Any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court." (Philbin v. Philbin (1971) 19 Cal.App.3d 115, 119.) We find no lack of sufficient evidence to support the trial courts ruling in this regard.
The court also ruled that Nordas needs are in excess of Donalds ability to provide.
The court found Donalds monthly income to be $18,118 ($10,894 net). Donald was ordered to pay to Norda $2,912 in child support per month and to maintain his existing hospital and medical insurance coverage for the children. He was also ordered to pay $500 in spousal support per month.
The trial court relied on the testimony of Donalds forensic accountant that Donalds gross cash flow available for support is $18,118 per month.
On appeal, Norda contends that the amount of support awarded was erroneous. We disagree. Norda argues that based on Donalds gross income and appellants imputed income, the Dissomaster® computer program used to calculate support awards results in a child support award of $3,023 per month and spousal support of $3,687 per month. Family Code section 4055, upon which the Dissomaster® program is based, makes clear that child support is calculated using the net disposable income of the parents as a basis, not the gross income. Applying the formula set forth in section 4055, we conclude that the trial courts calculation of the monthly child support award was entirely accurate.
In addition, in setting the amount of long-term spousal support, wide discretion is vested in the trial court. (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 916.) The court may order a party to pay spousal support to the other in any amount, and for any period of time, that the court deems just and reasonable. (Fam. Code, § 4330.) The court must consider the criteria listed in Family Code section 4320, and may not simply use support guidelines. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 527 [trial court erred in calculating spousal support using a computer program designed to calculate temporary spousal support].) Thus, Norda errs in suggesting that the Dissomaster® program is used to calculate the spousal support award in just the same way as child support is calculated. We find no basis to reverse the child and spousal support orders made by the trial court.
V. Accelerated Payment on Equalization of Community Assets
The court ordered Donald to pay Norda $4,000 per month toward equalizing the division of community property assets. Norda argues on appeal that Donald should be ordered to pay more than that amount per month. Her argument is again based on unsupported accusations that Donald has hidden assets. We cannot reweigh the evidence presented to the trial court where sufficient evidence exists, as here, to support the courts factual findings regarding the amount of income earned by Donald since the separation, and the amount available to him as disposable income per month. As Donald points out in his respondents brief, he was found to have monthly net disposable income of $10,894. He was ordered to pay monthly $3,412 in child and spousal support, $200 in support arrears, $250 per month in attorney fees, and $4,000 toward equalization, for a total of $7,862, leaving him with $3,232 on which to live. We agree with Donald that Norda has shown no viable source from which larger payments could be made, and will not disturb the trial courts exercise of discretion.
The total payment due was $315,774, plus 10 percent interest, and Donald was ordered to execute a promissory note in that amount, to be secured by Agape Transportation and certain real property.
VI. Attorney Fees
Finally, Norda contends that the trial court erred in ordering Donald to pay only $20,000 in attorney fees for the efforts expended by Nordas counsel, Nick A. Alden, to be paid at the rate of $250 per month. She argues that most of her attorney fees "would not have been incurred but for Respondents misconduct, (1) hiding income and filing false Income/Expense Declaration[s]; (2) refusing to produce documents or appear at his deposition, necessitating two depositions, a motion to compel and a motion to appoint a referee; (3) setting motions on calendar and failing to appear."
The trial court heard extensive evidence about the conduct of the parties in litigating this case. We need not repeat all of that evidence here. Suffice it to say that the record reveals much of the effort expended by Nordas counsel was unremarkable at best, including the repeated requests for retroactive modification of the support orders, for which there was no legal basis, and the filing of an untimely appeal. Appellant simply reargues her position that Donalds conduct was fraudulent and reprehensible, asking us to ignore the trial courts findings regarding credibility. That is not our role. In the absence of any showing that the trial court abused its discretion in awarding attorney fees, we will leave that portion of the judgment undisturbed. Obviously Nordas request for attorney fees on appeal is denied.
VII. Donalds Request for sanctions
Donald contends that Nordas claims on appeal are frivolous, warranting the imposition of legal fees and sanctions. We would be inclined to award sanctions on the basis that the appeal is utterly lacking in merit (In re Marriage of Flaherty (1982) 31 Cal.3d 637), but decline respondents request as he failed to file the requisite motion and supporting declaration. (Cal. Rules of Court, rule 27(e)(1); see Committee to Save the Beverly Highland Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273.) We also decline to raise the issue on our own motion and to entertain further briefing on the issue.
disposition
The judgment of dissolution of marriage is affirmed in full. Appellant Norda R. Freeman is to bear the costs on appeal.
We concur: EPSTEIN, J. and CURRY, J.