Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. DN 140837, Earl H. Maas III, Judge.
HALLER, J.
'Isileli Tupou Mana'ia Mataele (Mataele) appeals from a judgment on reserved issues in a dissolution matter. Mataele raises numerous contentions, primarily pertaining to the court's determination that his former spouse, Ashley Brittain (Brittain), shall have sole legal and physical custody of their child, and granting him only limited visitation. For the reasons explained below, we conclude Mataele's contentions are without merit and affirm the judgment.
FACTUAL SUMMARY
Under well-settled appellate principles, we view the factual record in the light most favorable to the court's findings and order. (See Achene v. Pierce Joint Unified School Dist. (2009) 176 Cal.App.4th 757, 761.)
Background Summary
Mataele and Brittain met while they were law students, and married in April 2005. Ten months later, the couple separated. At the time, Brittain was pregnant with the couple's child. The child, Charlotte, was born in September 2006. The court later entered a status-only dissolution judgment. During the next year, the couple engaged in highly contentious and protracted disputes over custody, visitation, and other related issues. Brittain was temporarily awarded sole legal and physical custody of Charlotte, and Mataele was permitted supervised visitation.
Custody and Protective Order Hearings
From November 2007 through March 2008, the court held several hearings on the issue of permanent custody and on Brittain's request for a protective order. Both parties were represented by counsel at these hearings.
At the initial hearing held in November 2007, Mataele called several mental health professionals and other witnesses who testified that Mataele did not present a danger to his daughter and should be given joint custody and/or unsupervised visitation. However, the evidence also showed there was substantial continued hostility between the two parents, and the couple could not cooperate in childcare decisions. A family services mediator recommended that the court award Brittain sole custody because of the "high conflict" situation between the parties. The mediator said that both parties were at fault for the conflicts, but that Brittain would be better able to care for Charlotte and would comply with visitation orders. A clinical psychologist opined that Brittain is very stable and an excellent caretaker, and would follow court rules "to the letter." An independent psychologist, Dr. Neil Ribner, evaluated Mataele and provided a report to the court, which was sealed at Mataele's request to protect his privacy.
Before the parties had the opportunity to present all of the evidence, the court continued the hearing for two months until January 4, 2008. Pending the continued hearing, the court issued an expanded visitation and holiday child care schedule for Mataele.
Brittain thereafter filed a request for a protective order under the Domestic Violence Prevention Act (DVPA), alleging that Mataele presented a danger to herself and her daughter. (Fam. Code, § 6200 et seq.) Brittain claimed that Mataele engaged in several acts of misconduct during the prior month. In opposition, Mataele filed a lengthy declaration denying each of Brittain's allegations, and explaining his version of the events. The court ordered the parties not to contact each other.
All statutory references are to the Family Code unless otherwise specified.
At a January 11 hearing, the court issued a temporary restraining order applicable to Brittain only (and not to Charlotte), based primarily on Brittain's allegations of Mataele's improper conduct during a custody exchange at a 7-11 store. The court scheduled a January 30 hearing to determine whether a three-year protective order under the DVPA was warranted.
At this same hearing, the parties continued their presentation of evidence pertaining to the permanent custody issues. Mataele testified he wanted primary physical custody and joint legal custody, stating that he would ensure full visitation and claiming that Brittain was not involving him in childcare decisions and was making visitations difficult. The court then scheduled a March 20 hearing to complete the permanent custody/visitation hearing.
Brittain thereafter filed a supplemental declaration claiming Mataele had engaged in additional misconduct. Brittain said that Mataele created a false profile on a social networking website, and she responded to the profile, not knowing that it was Mataele, and that the two "communicated over a short period of time...." Brittain later discovered Mataele was the person with whom she had been communicating.
At the January 30 hearing on the three-year protective order, Mataele submitted a copy of a 7-11 surveillance video to counter Brittain's claims that he acted inappropriately during the prior custody exchange. After viewing the video, the court concluded the video did not fully support Brittain's version of the events, but found that Brittain did not intentionally misrepresent the facts. The court also stated it was unable to determine with certainty whether Mataele acted appropriately during the exchange. After reviewing the parties' e-mail exchange and considering the entire history of the parties' relationship and Mataele's repeated violation of court orders, the court issued a protective order under the DVPA, ordering Mataele to have no contact with Brittain for three years, except for approved communications relating to child custody issues.
Mataele appealed from this order, and this court affirmed the order in an unpublished decision. (In re Marriage of Mataele & Brittain (May 8, 2009, D052842 (Mataele I).)Weheld the trial court did not err in finding that Mataele's actions constituted "abuse" within the meaning of section 6203. (MataeleI.) We explained that the statute does not require a court to find there has been prior domestic violence, or that there is a likelihood of physical abuse in the future. (Ibid.) We further reasoned that the court's reliance on the e-mail communications was appropriate when viewed in context of Mataele's activities throughout the proceedings. (Ibid.) We concluded Mataele's conduct supported the court's issuance of the protective order. (Ibid.)
In March 2008, the family court held the continued and final hearing on the permanent custody issues. At this hearing, the court heard additional testimony from Mataele, Brittain, and Kevan Brady, who supervised Mataele's visitations.
Brady testified that Mataele was always appropriate and attentive with his daughter during visitations, and the father-daughter interaction was "warm,... happy, affectionate." Consistent with this evidence, Mataele requested overnight visits with Charlotte for two weekends per month. He stated that he would "do everything" to make certain Charlotte has "the best life she can" and that he wanted her to "grow up healthy and in a loving environment" with strong ties to the church. He acknowledged that he has been diagnosed with attention deficit disorder, but stated that he felt more than capable to parent Charlotte and generally does not have a problem with his attention span. Mataele also testified about problems with Brittain, including that Brittain once did not give him sufficient notice that she and Charlotte would be going out of town for several days.
In her testimony, Brittain stated that she believed providing her sole custody of Charlotte was in Charlotte's best interests, and confirmed that she had always cooperated to allow Mataele to exercise his visitation rights and would ensure that Mataele remains involved in Charlotte's life. She testified that it was "important that [Charlotte] maintain a relationship with her dad," but expressed concern about Mataele's ability to care for Charlotte for extended periods, and concerns about whether Mataele had appropriate accommodations for overnight visits. Brittain claimed that Mataele frequently used poor judgment, including when he was with Charlotte.
At the conclusion of this hearing, the court allowed the parties to file written closing arguments. After each party filed an opening and responsive brief, the court issued a tentative statement of decision, awarding Brittain sole custody with limited visitation rights for Mataele. After making several changes based on Mataele's objections, the court issued a final judgment on August 27, 2008.
Final Judgment
In the final judgment, the court awarded Brittain sole legal custody of Charlotte. The court explained this custody decision as follows: "While the evidence establishes that [Mataele] loves the minor child, and [Brittain] concedes that [Mataele] would not do anything intentional to harm the minor child, the Court finds that the evidence developed before and during the trial establishes that [Mataele's] decision making skills are poor and he fails to foresee the consequences of his actions beyond the immediate circumstances with which he is faced. The Court further finds that the existence of the Restraining Order prohibiting contact between the parties makes joint decisionmaking impossible at this juncture. Additionally, prior attempts to have the parties communicate have repeatedly led to conflict, which is detrimental to the child. [¶] The court finds that the evidence presented supports that [sole custody to Brittain] is in the best interests of the minor child as her needs will be well served by [Brittain's] decision making. [Mataele] acknowledges that he has no dispute with [Brittain's] decisions regarding the medical treatment for the child to date. Further the Court finds [Brittain] is willing to assure visitation consistent with the Court's orders. While [Mataele] disputes that [Brittain] will encourage visitation, the evidence submitted in Court and during the litigation of the matter establishes that conflict develops primarily when [Mataele] presses for greater visitation than the Court has ordered."
The court also emphasized Mataele's "lack of judgment and poor decision-making skills" throughout the litigation and identified several examples, including: (1) recording court and other related proceedings after being told that this was improper; (2) "pressing" Brittain for " 'more time' " than he had been provided by the court; (3) dismissing professional supervisors without the court's permission; (4) improperly contacting Brittain on the Internet through the use of a "false persona" and then "pressing" Brittain for "personal details"; and (5) contacting Brittain after a temporary restraining order had been issued. The court stated that by engaging in these actions, Mataele "only showed remorse at being caught, and never for his actions" and "did not seem to learn from his actions." Based on its evaluation of the entire record, the Court found it was "in the best interests of the minor child that [Brittain] have sole legal custody and so orders."
With respect to Mataele's visitation rights, the court ordered that Mataele continue to be provided three visits per week for two hours each, and then ordered the visits to increase to four hours per visit the next month when Charlotte turned two years old (in September 2008). The court explained that the "reports of Family Court services, as well as the reports of Dr. Ribner, suggest that the child should have grown and matured to the extent that [Mataele's] time should be extended without creating increased danger to the minor child." The court also specified the days and times for the visits, and imposed strict rules about the procedures for visitation exchanges to prevent friction between the parties.
As explained in more detail below, the court also resolved the parties' dispute as to the selection of Charlotte's last name, stating that it was in Charlotte's best interests to use the surnames of both parents in a hyphenated manner. The court further ordered Mataele to pay $22,500 in attorney fees to Brittain based on the parties' relative economic positions and on Mataele's conduct in engaging in unnecessary adversarial litigation in the case.
The court thereafter denied Mataele's motion for new trial and to vacate the judgment.
DISCUSSION
I. Sufficiency of the Evidence to Support Sole Custody Award
Mataele challenges the sufficiency of the evidence to support the court's decision to award sole custody to Brittain.
Mataele waived this contention by failing to present a summary of all of the evidence presented at the custody hearings. "Failure to set forth [all of] the material evidence on an issue waives a claim of insufficiency of the evidence." (Brockey v. Moore (2003) 107 Cal.App.4th 86, 96.) Parties challenging the trial court's decision based upon the absence of substantial supporting evidence "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) By discussing only evidence tending to support his position, Mataele waived his right to challenge the sufficiency of the evidence to support the court's conclusions. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Brockey v. Moore, supra, 107 Cal.App.4th at pp. 96-97.)
We have additionally reviewed the relevant portions of the record, and conclude the court's custody order was fully supported on its merits under the deferential review standard applicable to custody decisions.
When making an initial permanent custody order, trial courts have the "widest discretion to choose a parenting plan that is in the best interest of the child." (§ 3040, subd. (b).) The "best interest of the child" includes the child's "health, safety, and welfare." (§ 3020, subds. (a), (c).) We must uphold a court's custody order if it can be "reasonably concluded that the order... advance[s] the 'best interest' of the child." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 (Burgess).) " ' "An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of the trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judge's discretion and not that of the appellate court which must control." ' " (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)
In reviewing a custody order, the trial court's credibility determinations are binding on an appellate court. (In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 1488, disapproved on other grounds in Burgess, supra, 13 Cal.4th at p. 38, fn. 10.) "Where there is conflicting evidence, the evidence that supports the order is accepted as true, and that evidence which is unfavorable is discarded.... We may neither reweigh the evidence nor reevaluate the credibility of witnesses." (Ibid.)
Under these standards, the court's custody order was not an abuse of discretion. Generally a child's best interests are served by joint custody to permit the child to have a full and involved relationship with both parents. However, the inability of the parents to engage in cooperative decisionmaking, and a finding that the parents' conflicted relationship would cause detriment to the child's well-being, are valid grounds for awarding sole custody to one parent. (See § 3040, subd. (b); In reMarriage of McLoren (1988) 202 Cal.App.3d 108, 114 [parents' "severe hostility towards each other" and "virtual absence of any communication" foreclosed possibility of joint legal custody].)
The evidence in the record supports the court's conclusion that joint decisionmaking in this case was unworkable, and that as between Brittain and Mataele, Charlottes' best interest would be served by awarding sole custody to Brittain. The court's oral comments and written orders made clear that it understood the applicable legal standard and fully evaluated the parties' testimony and the evidence in the record to determine a custody arrangement that would serve the best interests of Charlotte.
Mataele contends that the court's factual conclusions were unsupported because they were not based on specific expert testimony. However, Briana Crysler, a family services mediator, who met with Mataele and Brittain and spoke with several of the involved mental health professionals, agreed that Mataele did not appear to pose a risk of harm to Charlotte, but recommended that sole legal custody be given to Brittain. She explained that because of the "high conflict" situation between the parents, she did not believe a joint legal custody arrangement would be in Charlotte's best interests. She stated that both parties appeared to contribute to the conflict, but that because of the conflict only one parent should be appointed sole custody. Other professionals opined that Brittain appeared to be the better choice because of her ability to care for the child and questions about Mataele's decisionmaking skills. Crysler also testified that Brittain was "definitely complying with the" visitation plan and Brittain's therapist testified that she would follow the court's orders "to the letter." This evidence supported the court's conclusions.
A court is permitted to additionally rely on its own observations and assessments of a parent's judgment and decisionmaking abilities to conclude that it would be better for the child for custody to be awarded to the other parent. (See In re Marriage of DeRoque (1999) 74 Cal.App.4th 1090, 1096.) Despite repeated warnings in this case, Mataele continuously refused to follow court orders and directions, and his conduct reflected his belief that he was not subject to the court's authority. Although this conduct may have been merely a function of Mataele's youth and lack of maturity, the court was entitled to consider such evidence to determine which parent would best provide proper care and guidance to this young child.
Mataele additionally argues that Brittain created the conflicts and made visitation difficult in numerous ways. However, there was substantial evidence to support the court's conclusion that Mataele was primarily responsible for escalating the conflicts and that Brittain would ensure visitation consistent with the court's orders. The court's finding that Brittain was willing to assure visitation was supported by Brittain's testimony and conduct, and by the testimony and reports of other professionals. The court expressly rejected Mataele's argument that Brittain discourages visitation, and noted that conflict "develops primarily when [Mataele] presses for greater visitation than the Court has ordered." As a reviewing court, we are required to defer to the trial court's factual findings.
Mataele contends the court erred in excluding the testimony of his expert, Dr. Don Campbell. However, Dr. Campbell testified at length at the November 8 custody hearing, and Mataele does not cite to any portion of the record showing that the court later excluded this evidence.
Mataele contends that a custody order cannot be based solely on the fact that a restraining order was previously issued. We agree with this contention. (See Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1055.) Although there is a rebuttable presumption against custody to a person subject to a DVPA restraining order (§ 3044, subd. (a)), this presumption "may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent. (§ 3044, subd. (b)(1).)" (Keith R., supra, at p.1055.) But this principle is of no help to Mataele in this case because the court did not reject Mataele's request for sole or joint custody based solely on the restraining order. Rather, the record shows the court considered the totality of the circumstances in reaching its conclusion.
In this regard, Mataele's argument that the court improperly considered the 7-11 custody exchange evidence is misguided. There is no showing the court relied on evidence that Mataele acted inappropriately during this incident to reach its custody determination. The court specifically recognized that Brittain's version of the events was not fully supported by the evidence. Moreover, to the extent that Mataele is seeking to relitigate the restraining order, the issue is not properly before us. In our prior appellate decision rejecting Mataele's challenge to the court's imposition of the restraining order, we found the evidence supported the court's conclusions. (Mataele I, supra.)
In a related argument, Mataele contends the court's ruling is improperly based solely on his e-mail activities on the social networking site. This contention is unsupported. The court reached its conclusions based on all of the facts and circumstances before it, including each parent's relationship with their daughter, each parent's ability to care for their daughter, the high-conflict relationship between Mataele and Brittain, and Mataele's behavior during the litigation. As part of this overall custody evaluation, the court could properly consider Mataele's inappropriate conduct in engaging in deceptive communications with Brittain and seeking private information from Brittain during a time that the court had ordered him not to contact Brittain.
Mataele argues the court erred because it did not make a specific finding in the final statement of decision with respect to Brittain's earlier allegations that Mataele had abused Charlotte. The argument is waived because Mataele never objected to the statement of decision on this basis. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) Further, the court previously indicated it did not believe earlier claims suggesting that Mataele had harmed his child. At a prior hearing, the court found the evidence did not show that Mataele had caused injuries to his daughter, or that any injuries were caused by his inexcusable neglect. In the judgment, the court noted that "the evidence establishes that [Mataele] loves [Charlotte], and [Brittain] concedes that [he] would not do anything intentional to harm the minor child...." The court's concerns instead were directed to Mataele's judgment, decisionmaking skills, and his inability to "foresee the consequences of his actions beyond the immediate circumstances...." In this regard, Mataele's reliance on Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500 is misplaced. Robert J. concerned a father's sanctions motion under section 3027.1 against the mother and her attorney for false child abuse allegations, and the deadlines for filing this motion. (Robert J., supra, at p. 1515.) Those issues were not before the court in this case.
II. Visitation
Mataele additionally contends the court abused its discretion in its visitation orders.
The court granted Mataele unsupervised visitation for two hours on three days per week, and then extended that time beginning the next month (when Charlotte turned two years old) to four hours three times each week. The court based this visitation schedule, in part, on opinions of Dr. Ribner, a supervising psychologist at the Center for Applied Behavioral Services, whose office performed an independent psychological evaluation of Mataele. After a full assessment by Dr. Ribner and a psychology intern, Dr. Ribner found that Mataele has many qualities that would contribute to his being a successful father and did not test as an abusive or neglectful parent, but expressed concern with Mataele's ability to care for a very small child for lengthy periods.
In challenging the visitation schedule, Mataele argues that Dr. Ribner's report was inadmissible hearsay. However, the parties stipulated that the report would be admitted into evidence, and, at the end of the final hearing, Mataele's counsel stated he had no objections to the court taking judicial notice of this document. Although Mataele sought, and obtained, an order sealing Dr. Ribner's report to protect his privacy rights, Mataele never objected to the court's consideration of the report. Instead, he agreed that Dr. Ribner's report could be submitted to the court for the court's review.
Under section 3100, "the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child...." (§ 3100, subd. (a).) Under this code section, liberal visitation is the general rule, but visitation may be restricted if the court determines this would be in the child's best interest. (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1487.) We apply a highly deferential abuse of discretion standard in reviewing a court's visitation order. (Burgess, supra, 13 Cal.4th at p. 32.)
In this case, the court did not abuse its discretion in ordering two-hour (and then four-hour) visitations three times per week, with potential increased visitation time as Charlotte becomes older. Based on its consideration of the evidence, the court had a reasonable basis to ensure Charlotte's well-being by requiring Mataele's unsupervised visits be short while she was still very young. In reaching this conclusion, we note that the evidence showed that Mataele and Charlotte have a happy and positive relationship, and it would be beneficial to continue and nurture that relationship. The court appeared willing to modify the visitation order if the circumstances changed and Charlotte's best interests supported a change in the visitation schedule.
III. Charlotte's Surname
Each parent wanted Charlotte to use only his or her surname. Because of this disagreement, the parties presented the issue for the court's resolution. After considering the evidence, the court found that it was most appropriate for Charlotte to use both names in a hyphenated fashion.
Challenging this order, Mataele argues that "[t]he evidence is overwhelmingly in support of Charlotte's interest being served by her paternal surname." Mataele cites to an opinion by his therapist that keeping Mataele's Tongan surname would be an important part of Charlotte's cultural identity. However, Mataele's therapist did not suggest that this goal could not be achieved if Charlotte also used her mother's surname. Further, the Family Court Service mediator opined that Brittain should have sole responsibility to choose the last name if she were granted sole custody. The court disagreed with this recommendation, and decided that a hyphenated name using both parents' surnames would best ensure that Charlotte "bond with and 'feel a connection' with" each parent.
When parents dispute an appropriate surname for their child, the court's decision is "based on the legal standard of the child's best interest." (In re Marriage of Schiffman (1980) 28 Cal.3d 640, 647, italics omitted.) The court correctly applied this legal test, and its finding was not an abuse of discretion.
IV. Statement of Decision
Mataele contends the court erred in failing to make appropriate legal and factual findings for its decision as required under Code of Civil Procedure section 632.
Under Code of Civil Procedure section 632, on a timely and proper request, "a trial court is required to render a statement of decision addressing the factual and legal bases for its decision as to each of the principal controverted issues of the case. [Citation.] A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision. [Citations.] '[A] trial court... is required to state only ultimate rather than evidentiary facts because findings of ultimate facts necessarily include findings on all intermediate evidentiary facts necessary to sustain them.' " (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125.)
The court's detailed statement of decision met these statutory standards. The legal and factual basis for the court's rulings is clearly set forth in the court's statement. Mataele's challenges to the absence of specific findings on additional issues were waived by his failure to assert such objections below.
V. Alleged Bias of Trial Judge
As he did in his prior appeal, Mataele contends the trial judge was unfairly biased against him. In support, Mataele asserts several disagreements with the court's rulings. For example, he objects to the court's findings as to Brittain's credibility and its rulings on attorney fees issues.
As we explained in our prior decision, these arguments are not a proper basis for disqualification or to show bias. (Mataele I.) "An opinion formed by a judge as the result of a judicial hearing, even though it is adverse to a party, does not amount to bias." (Guardianship ofL.V. (2006) 136 Cal.App.4th 481, 500; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.) "[R]ulings against a litigant, even when numerous and continuous, do not [support] a charge of bias and prejudice." (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) The record shows the court understood the legal standards, considered the relevant evidence, and reached a reasonable conclusion. There is nothing in the record showing the court was biased against Mataele or based its decision on irrelevant or improper factors.
VI. Strict Scrutiny
Mataele next contends that the judgment was based on his "disability and culture" and therefore the ruling is subject to a "strict scrutiny" review. However, there is no showing that the court's decisions were based on Mataele's claimed disability (i.e., his attention deficit disorder diagnosis) or Mataele's culture (which he identifies as Tongan).
We are also unpersuaded by Mataele's argument that we are required to apply the strict scrutiny review standard because the custody decision violated his constitutional right to parent his child. The strict scrutiny standard does not apply to a custody dispute between two parents of a minor child. (Enrique M. v. Angelina V. (2009) 174 Cal.App.4th 1148, 1153-1157.)
Mataele's reliance on Troxel v. Granville (2000) 530 U.S. 57 is misplaced. The Troxel plurality reaffirmed that the "Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Id. at p. 66.) But in a custody dispute, courts are required to balance the rights of two fit parents, both of whom have the same constitutional right to custody of their children. (Enrique M., supra, 174 Cal.App.4th at p. 1156.) Thus, " 'while parents do have a natural right to care and custody of their children,... this does not mean that parents have a "fundamental right" to "equal placement periods" after divorce.' " (Id. at p. 1157.) Troxel, which involved nonparental (grandparent) visitation, does not compel a substantive due process analysis in resolving custody disputes between parents. (See Enrique M., supra, at pp. 1156-1157.)
VII. Attorney Fees Order
Mataele contends the court erred in ordering him to pay $22,500 of Brittain's attorney fees under sections 2030 and 271.
Although the court did not specifically identify these statutes, it is clear from the court's statements and reasoning that it based its fee award on these statutes. Because Mataele did not object to the proposed statement of decision on this basis, we are entitled to imply legal and factual findings supportive of the order.
Under section 2030, a trial court has broad discretion to award attorney fees based on a consideration of the parties' respective incomes and needs, and any other facts affecting the parties' ability to pay. (§ 2030, subd. (a)(2).) The attorney fees award must be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) Under section 271, a trial court may base an attorney fees award "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." (§ 271, subd. (a).) Thus, without regard to need, section 271 authorizes an attorney fees award as a penalty for obstreperous conduct. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226; In re Marriage of Quay (1993) 18 Cal.App.4th 961, 969.)
A court has broad discretion to award attorney fees under these code sections. In the absence of a clear showing of abuse, we will not disturb the trial court's determination. An appellate court will overturn the trial court's order only if, considering all the evidence viewed most favorably in support of the order, no judge could have reasonably reached the same conclusion. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; see In re Marriage of Corona, supra,172 Cal.App.4th at pp. 1225-1226; In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478; see also In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178.)
In ordering Mataele to pay a portion of Brittain's attorney fees, the court stated: "The court finds that a significant portion of the time required for resolution of this matter was due to [Mataele's] extensive briefing, returning matters to court, and becoming focused on minutiae to the exclusion of significant issues. The Court finds that based upon his earning ability and history, and the relative positions of the parties' economic situation, including his ability to represent himself during much of the proceedings, contribution in the sum of [$22,500] to [Brittain's] attorney's fees is appropriate. This is based in part on [Brittain's] declaration that she has incurred in excess of $80,000, in attorney's fees and costs of which the Court finds at least 25 percent should have been avoided and was directly attributable to [Mataele's] actions." The court also stated that "this case has been over-litigated to the detriment of all concerned" and that "[Mataele] in particular has made this case more complicated than it need[ed] to be, monopolizing the scarce resources of the Court in an effort that proved to be counter-productive to [Mataele's] own interests...."
Substantial evidence supported the court's findings, and these findings justified the attorney fees award under sections 2030 and 271. In challenging the fee award, Mataele merely expresses disagreement with the court's factual conclusions. For example, he argues that Brittain was "the source of the conflict and protracted litigation." However, as an appellate court, we are do not reweigh the evidence or second guess the court's factual conclusions.
Mataele also argues the court should have recalculated child support payments when it awarded the fees. However, there is no showing Mataele raised the issue of a child support modification at trial. It was not listed as an issue by either party in their trial briefs, and no testimony was offered on the specific issue. Mataele did not file an updated Income and Expense Declaration before the March 2008 hearing as required when financial issues are before the court. To show the support issue was raised below, Mataele cites only to his counsel's question to the court at the end of a November 2007 hearing as to whether "[i]ssues of support" was "something we should talk about in January?" But there is no showing Mataele raised this issue again or specifically presented evidence showing the need for a change in support payments before the court entered the August 2008 judgment.
VIII. Additional Arguments
Mataele contends that "new facts" presented in a contempt proceeding after the court entered the August 2008 judgment requires that we reconsider our prior decision in the prior appeal. The argument is without merit. It is a fundamental principle of appellate law that our review of the trial court's decision must be based on the evidence before the court at the time it rendered its decision. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1057, fn. 1.) Moreover, a final appellate decision cannot be challenged after the time for rehearing or reconsideration has passed.
We also reject Mataele's argument that Brittain was not entitled to custody because her conduct shows she had unclean hands. Assuming Mataele raised this issue below, the court had a reasonable basis to reject the argument. The court specifically found that Brittain acted appropriately and an award of sole custody to her was in Charlotte's best interest. This decision was not an abuse of discretion.
Mataele further argues that the court erred in denying him a new trial. Mataele does not provide factual citations to the record to support this argument. On our own review of the record, we conclude the court did not err in denying the new trial motion.
DISPOSITION
Judgment affirmed. Appellant to pay respondent's costs on appeal.
WE CONCUR: BENKE, Acting P. J.IRION, J.