Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL020718
NEEDHAM, J.
In this marital dissolution proceeding, respondent Peter D. Moody (husband) brought a motion for entry of judgment based on his previously-recited settlement agreement with appellant Nancy Dow Moody (wife). (Code of Civ. Proc., § 664.6.) The trial court entered judgment and ordered that wife pay husband $10,000 in attorney fees and costs under Family Code sections 271 and 2030. Wife contends the trial court abused its discretion in awarding these fees. We affirm.
Further statutory references are to the Family Code unless otherwise indicated.
I. BACKGROUND
On June 22, 2007, husband and wife entered into an oral settlement of their case before the trial court. They agreed that it would be committed to writing in a final judgment and would be judicially enforceable under Code of Civil Procedure section 664.6. The parties’ settlement was a lengthy and comprehensive resolution of issues relating to the division of real and personal property, spousal support, child support and the payment of their teenage son’s educational expenses.
Given our resolution of the issues, it is unnecessary to detail the provisions of the agreement or the specific points about which the parties disagreed.
Wife’s then-attorney, Rachel Castrejon, agreed to prepare the formal written judgment. She did not do so. Husband’s attorney, Sandra Acevedo, contacted Castrejon but was unable to obtain a draft stipulated judgment from her. On August 22, 2007, Acevedo received a faxed copy of a proposed judgment that had been prepared by Samuel Kornhauser, an attorney friend of wife’s who was not then her counsel of record. Acevedo believed that certain portions of the proposed judgment did not conform to the settlement agreement they had set forth on the record. On September 6, 2007, Acevedo sent a revised version of the proposed judgment to Castrejon, who was still wife’s attorney of record.
Mr. Kornhauser is now representing wife in this appeal.
On September 10, 2007, Castrejon emailed Acevedo to tell her that wife was not in agreement with some of the proposed changes and that someone representing wife would be contacting her shortly. On September 20, Acevedo submitted the two versions of the proposed judgment (Korhauser’s and her own) to the court along with a cover letter indicating their disagreement. Castrejon’s motion to withdraw as wife’s counsel was granted on September 25 and the matter was continued until October 23 to address issues related to the judgment.
Meanwhile, the parties were required to exchange the names of potential neutral experts to determine whether husband had an ownership interest in certain real property in Massachusetts. Husband provided the names of his proposed experts to wife, but wife provided no names to husband and did not make an attempt to agree on an expert. Wife then sent a letter to the court naming her proposed expert without copying husband’s attorney. When husband’s attorney learned of this correspondence, she objected to the expert on the ground that his firm had represented wife throughout the proceedings and was not neutral. The court ultimately appointed husband’s proposed expert.
Robert Cleek became wife’s attorney of record. On October 22, 2007, he wrote a letter to Acevedo setting forth some proposed changes to the judgment. Acevedo replied in writing on October 29, sending Cleek a draft judgment that incorporated the changes acceptable to husband and including some additional changes proposed by husband. Cleek’s office mistakenly sent Acevedo a letter on November 6 setting forth additional proposed amendments, but those changes had not yet been approved by wife. Acevedo responded that the proposed changes were unacceptable and materially altered the agreement. On December 6, Acevedo sent Cleek a proposed judgment that included changes both parties had agreed to. Wife did not approve that version of the judgment.
On December 27, 2007, husband filed a motion for entry of judgment under Code of Civil Procedure section 664.6. He requested that wife pay him $19,000 in attorney fees plus an additional $5000 in sanctions pursuant to section 271. Attorney Cleek filed one responsive declaration and wife filed another, using Cleek’s name. Cleek notified Acevedo that wife had filed documents under his name that had not been prepared by his office and that he planned to seek an ex parte order allowing him to withdraw. The conflict was apparently resolved, because Cleek continued to represent wife.
On February 8, 2008, following a hearing on the matter, the trial court issued an Order re Entry of Judgment setting forth the disputed issues and their resolution. Concluding that neither party had accurately memorialized their agreement, the court prepared its own judgment. It also ordered wife to pay Acevedo $10,000 for husband’s attorney fees and costs, under the authority of section 271 (authorizing a fee award as a sanction) and 2030 (authorizing a fee award based on a party’s need). The court denied wife’s motion for reconsideration of the fee award.
II. DISCUSSION
Wife argues that the trial court’s order awarding husband $10,000 in need based attorney fees under section 2030 must be reversed because (1) the evidence did not support a finding that husband lacked the ability to pay those fees, (2) the record does not demonstrate that $10,000 was a reasonable amount for the legal services rendered and (3) the settlement agreement required the parties to bear their own fees and costs through the entry of judgment. We reject each of these claims.
Wife’s arguments focus on the propriety of need based fees under section 2030, but the court’s order was alternatively based on section 271, which provides, “(a) Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction.” Wife does not argue in her opening brief that the award was unjustified as a sanction under section 271, and her failure do so waives the issue on appeal. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345, fn. 6.) Although she does raise the argument in her reply brief, her challenge comes too late as we will disregard issues not properly raised in the opening brief. (Aviel v. Ng (2008) 161 Cal.App.4th 809, 821.)
Because wife has waived any challenge to the court’s fee award under section 271, the court’s decision to award fees and costs to husband may be affirmed on that basis alone. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126 [judgment affirmed where alternative ground for summary judgment not challenged on appeal].) Moreover, we would find no error if we considered the order under section 271 on its merits.
We review a sanction order under section 271 for abuse of discretion and review any factual findings forming the basis of the award for substantial evidence. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478-1479.) “ ‘[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 . . . .’ [Citations.]” (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106.)
The court found that sanctions were justified because wife had needlessly protracted and complicated the preparation of the formal judgment, had delayed the selection of experts to appraise the property in Massachusetts by failing to comply with deadlines, had improperly written to the court without sending a copy of the correspondence to husband’s attorney, and had sent documents to the court under her attorney’s name. These findings were supported by substantial evidence, and the court did not abuse its discretion when it determined that this conduct frustrated the policy of promoting settlement and justified sanctions under section 271.
Nor has wife established that the amount of the award was unreasonable. Husband’s counsel submitted a declaration in support of the motion to enforce the judgment in which she outlined over $19,000 in fees incurred by husband since the time the settlement was read into the record. While counsel did not include an itemized breakdown of the time spent on the case, her declaration, which was credited by the trial court, was sufficient to support the award of $10,000.
Wife’s final argument is that any fee award was barred by the following provision of the settlement agreement and judgment: “Each party shall pay his or her own attorneys’ fees and costs of suit through entry of judgment. However, if either party brings legal proceedings to enforce any of the terms contained in this agreement, the prevailing party shall be entitled to receive reasonable attorneys’ fees and costs of suit to be paid by the other party.” This provision cannot be reasonably construed to encompass fees and costs awarded under section 271 as a sanction for the other party’s subsequent improper conduct. Indeed, an award of sanctions under section 271 is not necessarily constrained by the amount of fees actually incurred by the opposing party. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [interpreting former Civ. Code, § 4370.6, the predecessor to Fam. Code, § 271 ].)
Because we conclude that the fee award may be upheld under section 271, it is not necessary to consider wife’s argument that the fees were unsupportable under section 2030. We note, however, that an award of need based fees under section 2030 requires the court to consider “(A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay.” (§ 2030, subd. (a)(2).) Husband’s income and expense declaration reflected average dividend income of $250 per month plus average self-employment income of $2,040 per month and assets of over $850,000. By contrast, wife reported an average income of $8,338 per month and assets of over $1 million. Given the disparity in monthly income, we cannot say the court abused its discretion in awarding need based fees to husband. (See In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) The insinuations in wife’s briefs that husband actually earned more income than he reported amount to little more than a request that we substitute our own evaluation of the evidence for that of the trial court’s.
III. DISPOSITION
The judgment (order awarding attorney fees) is affirmed. Wife shall pay husband’s costs on appeal.
We concur. SIMONS, Acting P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.