Opinion
A114961 A116750 A117270
4-22-2009
In re the Marriage of GILBERT II and AMY LYNN PAPAZIAN. GILBERT PAPAZIAN II, Respondent, v. AMY LYNN PAPAZIAN, Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
Appellant Amy Lynn Papazian separated from respondent Gilbert Papazian II in 2002. (We refer to the Papazians as Amy and Gilbert respectively.) In this consolidated appeal, she challenges three trial court orders. First, she contends that the trial court abused its discretion in denying her motion to set aside the Marital Settlement Agreement she entered into with Gilbert in 2003 and also challenges the court denial of her request to modify child support and granting Gilberts modification motion. As to the second order, she contends that the court abused its discretion in denying her request for attorneys fees and in granting Gilbert fees. She also argues that the court did not have the authority to impose discovery sanctions in this order against her and in favor of real parties in interest, Lucky Strike Farms, Inc., Papazian Properties Company, Margaret Papazian and Gilbert Papazian (referred to collectively as third parties in interest.)
Although Amy also brought a third appeal, A117270, from an order denying her request for fees on appeal, she has not briefed any issues arising from this appeal. At oral argument, Amys new counsel (see post, p. 4) referenced a paragraph in her opening brief that purportedly discusses the grounds for her appeal of this order. We find no such discussion. Amy has failed to show an abuse of discretion and, accordingly, we affirm this order.
The appeal from this order, dated June 7, 2006, is case No. A114961.
The appeal from this order, dated December 4, 2006, is case number A116750.
We disagree and affirm each of the orders.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Marital Settlement Agreement
Amy and Gilbert were married in 1994 and separated in 2002. They have twins, a boy and a girl born in 1998. On December 11, 2003, Amy and Gilbert entered into a marital settlement agreement, which was incorporated into a stipulated judgment filed on December 15, 2003.
The marital settlement agreement identified Gilberts separate property in several family-owned businesses (Lucky Strike Farms, Inc., Papazian Investment Company and Papazian Properties Company), and in property on Pepper Avenue in Hillsborough. This latter property was given an agreed-upon value of $1.98 million. The agreement also identified the couples community property.
Amy was awarded the couples community interest in property on Howard Avenue in Burlingame worth $703,363. She was also awarded cash in several bank accounts and stock and a car.
The parties also agreed to joint legal and physical custody of their children. Amys home was identified as their primary residence. Gilbert shared physical custody beginning at 30 percent of their available time.
Gilbert agreed to pay child support of $5,000 per month based on an annual income of $435,000. The parties also agreed that two years from the execution of the agreement, Amy would be "imputed with the higher of $40,000 per year or her actual earned income . . . ." Gilbert also agreed to pay additional child support in the amount of 10 percent of his yearly income over $435,000.
The parties agreed that, for the purposes of child support, Gilberts income would be defined as "income from any source except (1) phantom income reported to Husband as taxable flow through income which was not actually received by husband from his business interests, and/or (2) any distributions made by husband for payment of taxes owed as a result [of] his having to report said phantom income on his tax return, and/or (3) any distributions made to Husband or for his benefit to pay life insurance premiums on a policy to which the children are the beneficiaries, and/or (4) any distributions made to Husband or for his benefit to pay taxes on the childrens income."
Amy and Gilbert further agreed to share, on a 60-40 basis, the childrens health expenses. They each waived any claim to spousal support and Gilbert gave Amy his separate property interest in the Burlingame house in exchange for this waiver.
The parties each had independent counsel representing them while the agreement was negotiated and prepared, and each stated in the agreement that the contents and legal effect of the agreement had been explained to them. Amys attorney also certified that he had "advised and consulted with Amy . . . in connection with her property rights and . . . fully explained to her the legal effect of the foregoing Marital Settlement Agreement and the effect which it has upon her rights otherwise obtaining as a matter of law. . . ." He also certified that "Amy . . . after being fully advised by the undersigned, acknowledged to the undersigned that she understood the legal effect of the foregoing Marital Settlement Agreement and Amy . . . executed the same freely and voluntarily in the presence of the undersigned." Gilberts attorney made an identical statement. In addition, Amys independent forensic accountant, Michael Boerio, reviewed and evaluated the parties assets and Gilberts financial disclosures.
Almost exactly one year later, on December 14, 2004, Amy filed, in pro per, an order to show cause seeking to set aside the judgment incorporating the martial settlement agreement. She did so under Family Code sections 2120, et seq. and Code of Civil Procedure section 473.
All further statutory references are to the Family Code, unless otherwise noted.
She alleged, in a supporting declaration, that Gilbert did not disclose the value of his separate property interests, that he had hidden "information and intentionally underestimated the values and the extent of the holdings." She also alleged that some of the assets Gilbert identified as separate property were actually acquired with community assets and that his non-disclosure of this fact was done with the intent to deprive her of her share of marital property. She did not, in this declaration, identify any asset that had not been disclosed to her attorney and independent accountant. Amy also claimed that the provisions of the agreement were inequitable and unfair.
Following these events, Amy retained counsel, an attorney who was replaced a few days before oral argument in this appeal. Amy served her motion seeking to set aside the marital settlement agreement on Gilbert on July 11, 2005.
In his opposition to this motion, Gilbert stated that he had fully disclosed all community assets to Amy and fully answered all discovery she had propounded. He pointed out that Amy was represented by an attorney when she signed the marital settlement agreement. She was also assisted by an independent forensic accountant who valued Gilberts interests in Lucky Strike Farms, Inc., Papazian Properties Company and Papazian Investment Company, and also traced and assessed the income Gilbert had available for support.
Gilbert argued that Amy had not alleged any facts to support her claims. He pointed out that she had not presented any evidence of non-disclosure and her claim that she had been under duress was without merit, in light of her representation by an attorney. In short, Gilbert contended Amys actions in seeking to set aside the marital settlement agreement was nothing more than "buyers remorse."
At the hearing on Amys request to set aside the agreement, her attorney stated that the basis for Amys claim was that Gilbert was required to, and did not, disclose the identity and nature of the assets he claimed as separate property and should have disclosed to Amy whether she might have a community interest in those properties, as well as the value of such an interest. He did not, when directly questioned by the court, identify any assets Gilbert had failed to disclose.
B. Child Support Modification
On May 18, 2005, Gilbert filed a motion to modify custody and child support. He requested equal custody time sharing and a corresponding reduction in his support payment. He also asked the court to order Amy to pay for her portion of their sons uninsured medical expenses, as provided in their marital settlement agreement.
In her opposition, Amy sought sole physical custody and a decrease in Gilberts timeshare. She also sought an increase in child support, and fees under section 2030. She later filed a separate request for fees under section 271. In these requests, she alleged that Gilbert misrepresented his income to the court.
The court appointed a section 730 evaluator to conduct a custody update. The court awarded Amy, in an order dated October 13, 2005, $10,000 in attorneys fees and $ 5,000 for the cost of an accountant.
C. The Courts Orders on Amys Request to Set Aside Marital Settlement Agreement and Custody and Child Support Modification
On May 11, 2006, the court heard Amys request to set aside the marital settlement agreement and Gilberts request to modify custody and child support. On June 7, 2006, the court filed an order. The court denied Amys request to set aside the marital settlement agreement. The court found that Amy had failed to establish "any non-disclosure or other violative conduct . . . ." The court also adopted the recommendations of the section 730 evaluator and increased Gilberts timeshare. The court denied Amys request to modify child support and custody and the court decreased Gilberts child support obligation from $5,000 to $4,459.
Amy appealed this order in appeal number A114961.
D. Sanctions Order
During the negotiations that led to the marital settlement agreement, Gilbert produced to Amy, under a protective order, documents related to and belonging to third parties in interest, Lucky Strike Farms, Inc., Papazian Properties Company and Gilbert and Margaret Papazian.
Gilbert is the president of Lucky Strike Farms and owns a little less than 30 percent of the company. Papazian Properties Company is owned by Lucky Strike Farms, Inc., Papazian Investment Company and Gilbert and Margaret Papazian, who are Gilberts parents. Gilbert owns one third of Papazian Investment Company. The remaining two-thirds of the company are owned by his siblings.
On April 25, 2006, third parties in interest filed a motion seeking a new protective order concerning these documents, which they alleged had not been returned and were, possibly, being distributed more widely than originally agreed. In this motion, third parties in interest also sought return of all documents, return of unredacted documents inadvertently produced and the identities of all persons who had access to the documents or the information contained in them.
In response to this motion, Amy claimed she was not in violation of the protective order because the action was not concluded and she needed the documents to determine Gilberts actual income.
At the May 11, 2006, hearing on this motion, held at the same time as the motion to set aside the marital settlement agreement, Amys counsel indicated that he did have these documents but did not want to return them before the hearing on her motion to set aside the marital settlement agreement. The court did not rule on this motion at that hearing.
At a hearing on August 8, 2006, counsel for third parties in interest again raised the issue of Amys failure to return the documents as required under the original protective order. Amys attorney told the court he was ready to return them. He stated that the documents were not in court with him, but at Amys house, despite the fact that third parties in interest had requested that he bring the to the hearing.
The court ordered Amys counsels paralegal to get the documents from Amys house immediately. Amys counsel represented to the court that the documents he would return to third parties in interest pursuant to the protective order were "all originals and copies of the documents which are the subject of [third parties in interests] motion and that to the best of his knowledge no other person has any copies or originals of those documents," with the one exception being, possibly, their testifying CPA.
However, when the paralegal returned from Amys house he reported that he was only able to locate two documents. He stated that the rest must be at Amys counsels office in southern California. The court ordered that all documents be returned by August 18, 2006. The court took under submission the request by third parties in interest for sanctions in the amount of $3,500.
The documents were not returned on the date specified by the court. Third parties in interest requested sanctions and injunctive relief pursuant to Code of Civil Procedure sections 2017.020, subdivision (b), and 2023.030, subdivision (a), and the courts general equity powers on October 17, 2006.
Amy filed her opposition on the day of the hearing, briefly asserting that third parties in interest lacked standing. At the hearing, however, she did not raise this issue.
The court awarded sanctions to third parties in interest in the amount of $10,000. Amy has appealed from the order awarding sanctions. She has also appealed from orders denying her request for fees and granting Gilberts request. (This appeal is case number A116750.)
III. DISCUSSION
A. Motion to Set Aside The Marital Settlement Agreement
Amy argues the court erred in denying her motion to set aside the marital settlement agreement. She contends, in the most general of terms, that Gilbert failed to "fully disclose[] all material facts and information regarding the existence, characterization and valuation of all assets, for example real property bought during marriage with money earned during marriage, the Pepper Avenue house and the condominium in Hawaii" and that she was "denied equal access to information records and books that pertain to the value and character of those assets during marriage, as well as during pendency of the dissolution." Apparently conceding that the time limit within which to bring a motion to set aside the marital settlement agreement under Code of Civil Procedure section 473 has run, Amy appears to rely on section 2122 as the legal grounds upon which her motion to set aside is brought.
We say "appears to" because Amys briefing is a largely impenetrable thicket of legal citations disconnected from the facts and references to the record without any connection to the law. As the court recently pointed out in People v. Carrillo (2008) 163 Cal.App.4th 1028, 1035, an appellant who fails to discuss or analyze the applicability of the law to the facts, waives "their applicability and hence their efficacy" as issues. Amys largely unintelligible briefing of the issue of her motion to set aside the marital settlement agreement borders on such a waiver.
Section 2122 specifies the grounds upon and time limits within which a judgment may be set aside. These grounds include actual fraud (§ 2122, subd. (a)), perjury (§ 2122, subd. (b)), duress (§ 2122, subd. (c)), mental incapacity (§ 2122, subd. (d)), mistake of law or fact (§ 2122, subd. (e)), or failure to comply with disclosure requirements set out in section 2100, et seq. (§ 2122, subd. (f)). With regard to fraud, perjury, mistake and failure to comply with disclosure requirements, the motion to set aside must be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply. (§ 2122, subds. (a), (b), (e), (f)). With regard to duress and mental incapacity, the motion must be brought within two years from the date of discovery. (§ 2122, subd. (c) and (d).)
We review the trial courts decision for an abuse of discretion. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682-683.) "Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial courts exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.] `"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.] The burden is on the complaining party to establish abuse of discretion. [Citations.] The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion. [Citations.] [¶] Of course, the discretion of a trial court is not an uncontrolled power. A proper exercise of judicial discretion requires the exercise of discriminating judgment within the bounds of reason, and an absence of arbitrary determination, capricious disposition, or whimsical thinking. A court must know and consider all the material facts and legal principles essential to an informed, intelligent, and just decision in the particular case before it. [Citations.] `Discretion is abused in the legal sense "`whenever it may be fairly said that in its exercise the court . . . contravened the uncontradicted evidence." [Citations.] [Citation.]" (Id. at pp. 682-683.) In addition, we review for substantial evidence, any factual determinations made by the trial court. (Id. at pp. 685-686.)
Amys grounds for setting aside the marital settlement agreement are something of a moving target, but they appear to be (1) Gilberts alleged failure to disclose assets; (2) mistake and (3) fraud. We will consider each of these in turn.
First, Amy argues that the trial court abused its discretion when it concluded that there was no failure of disclosure. We disagree. During the hearing on this issue, the trial court stated it was "not following" Amys contention that something "was omitted, neglected, not disclosed." The court pointed out that "[b]oth sides engaged forensic accountants in the underlying action and Mr. Papazians interest in Lucky Strike Farms, including his compensation et cetera, were not only analyzed by Mr. Papazians forensic accountants, but by Mrs. Papazians forensic accountants." There is no dispute that this was, indeed, the case. Moreover, Amy has never pointed to any specific piece of information Gilbert failed to disclose. She has, therefore, failed to show that there is no substantial evidence on which the trial court could base its conclusion that she did not establish a failure to disclose.
We are unpersuaded by Amys argument that, in fact, she propounded discovery in order to ascertain the nature of these non-disclosures. Her discovery request was denied and she does not challenge the denial of that request. She cannot now complain that this information as somehow crucial to the showing she was required to make in order to set aside the marital settlement agreement.
In fact, what Amy really seems to be arguing is not a failure to disclose but, rather, a failure on her part to analyze the information provided to her by Gilbert in a way that she now argues would have been more favorable to her. Amys lawyer conceded as much at the hearing on the set-aside motion when he said, in response to the trial courts request that he give the court evidence of a failure to disclose, "Well, I think there was an inadequate analysis in 2003." An "inadequate analysis" of fully disclosed materials is not a ground on which to set aside a marital settlement agreement. Amy appears to now believe that the assets her former attorney and accountant agreed were Gilberts separate property are, in fact, community property. That issue was resolved when the marital settlement agreement was signed. We reject Amys effort to relitigate an issue that was settled by the parties, both of whom were represented by counsel and retained accountants to advise them before entering into the marital settlement agreement.
Second, Amy also appears to argue that the marital settlement agreement should be set aside on the ground of "mistake." She does not, however, identify the nature of this mistake, beyond asserting that it was "mistake from Gibs failure to disclose existence or value of community and separate assets." We have already determined that substantial evidence supports the courts determination that there was no failure to disclose on Gilberts part and, therefore, no "mistake" on which to base a motion to set aside the marital settlement agreement.
Finally, Amy argues that she was under "duress from having to support their children with no child or spousal support for over 18 months . . . ." There is, however, no evidence in the record, other than this bald statement, to support the contention that Amy signed the marital settlement agreement under duress. Moreover, substantial evidence supports the courts contrary conclusion. Amy was represented by counsel throughout the proceedings, and had the assistance of a forensic accountant, who analyzed the financial information provided by Gilbert. Amys attorney certified that Amy signed the marital settlement agreement only after he had "fully advised" her of its contents and after she acknowledged that she understood the legal effect of the marital settlement agreement.
On this record, we find no abuse of discretion. We do not, therefore, address Gilberts contention that Amys motion to set aside the marital settlement agreement was untimely filed.
B. Child Support Order
At the May 11, 2006, hearing, the trial court also considered Gilbert and Amys separate requests to modify child support and, in Gilberts case, for increased custody. In his motion, Gilbert sought equal custodial time share and a reduction in his support payment to reflect the increased custody. In addition, he asked the court to enforce a provision in the marital settlement agreement in which Amy agreed to pay a portion of the uninsured medical expenses incurred on behalf of their son.
Amy responded by opposing Gilberts request. She asked to be awarded sole physical custody, for Gilberts custodial time share to be reduced to 23 percent. She sought an increase in child support and attorney fees under section 2030. She claimed Gilbert was manipulating his income and that it was, in fact, far greater than he had disclosed. In addition to these requests, Amy also filed a separate request for fees under section 271 and filed an order to show cause to determine alleged arrears in child support. In this filing she again claimed that Gilbert was misrepresenting his income.
The court appointed a mediator to update it on the issue of custody and awarded Amy $10,000 in attorneys fees and $5,000 to hire an accountant. After a lengthy hearing, the trial court filed an order adopting the custody recommendation of the court-appointed mediator to increase Gilberts time share. The court denied Amys request to increase child support and, in fact, reduced Gilberts monthly support obligation from $5,000 to $4,459. On the issue of the parties income, the court noted that, as provided for in the marital settlement agreement, Amy would be imputed with $40,000 annual income beginning in December 2005 and that there would be no resulting change in Gilberts income. The court also found, as to Gilberts support obligation, that Gilberts so-called "phantom income" was income that the parties agreed, in the marital settlement agreement, would be excluded from Gilberts income for the purposes of calculating child support. The court also looked at other items Amy asserted should be considered income and rejected Amys arguments.
Amy now contends that, in granting Gilberts motion and in denying hers, the court abused its discretion. We disagree.
At the hearing, Matt Stolte, an accountant for Price Waterhouse Cooper who had, since 1982, worked on the Papazian familys account, testified that Gilbert is a part-owner of Lucky Strike Farms. Lucky Strike Farms became an "S" corporation in 1994. As an "S" corporation, Lucky Strike Farms imputes certain income to its shareholders, including Gilbert, who then pays taxes on this imputed income. Gilbert does not receive any of this income in cash.
A court will not modify a support award post-judgment without a showing that there has been a material change of circumstances. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548-549.) Under the terms of the marital settlement agreement income is defined as "income from any source except (1) phantom income reported to Husband as taxable flow through income which was not actually received by Husband from his business interests, and/or (2) any distributions made to Husband for payment of taxes owed as a result [of] his having to report said phantom income on his tax return. . . ." Thus, the phantom income Amy argues should be included as income for the purpose of calculating child support was specifically excluded in the marital settlement agreement. Amy has failed to show any such change in circumstances since she signed the agreement. Therefore, the trial court did not abuse its discretion in, essentially, requiring that the parties abide by the agreement they entered into.
Amy also takes issue with the courts decision not to include, as income, a distribution of $500,000 from Lucky Strike Farms to Gilbert as a non-taxable return of capital in the company. Gilberts accountant explained that this money was used to pay interest and principal on outstanding loans he had with Lucky Strike Farms and his parents, mainly to fund the construction on his home. This distribution was a one-time event, and there were no projections that it would occur in the future. The court specifically noted that "[t]he court has considered the capital payout in 2005 and the effect of any `perks received through Petitioners employment. The capital payout is accepted at this time as just that, rather than as a bonus." The court cautioned, however, that "if the payout becomes a regular patterns, or if it recurs in the future, the point would be revisited by the Court. For now, based on the testimony at the hearing, it will be characterized as a capital payout." The court imputed at least a portion of Gilberts "perks" as income and added it to his income for the calculation of child support. We conclude that, in light of the evidence before it with regard to the nature of the distributions to Gilbert, the court did not abuse its discretion in concluding that this one-time distribution of funds was income that could be used for child support purposes.
With regard to Amys challenge to the imputation of income to her, her argument ignores an essential fact: namely, that she agreed to this arrangement in the marital settlement agreement. In her briefing, however, Amy does not acknowledge that she stipulated to the imputation of income. Her reliance on cases that discuss the propriety of a trial court imputing income in the absence of any stipulation permitting the imputation of income is, therefore, entirely misplaced.
As Gilberts counsel pointed out at the hearing, the imputation of income to Amy "was specifically negotiated for and in fact there was a vocational evaluation that stated that Mrs. Papazian could have entered the work force at that time earning forty thousand or greater[. I]t was negotiated that Mr. Papazian would not seek to impute income to her despite her ability to work at that time for a period of two years. She expressed a desire to go to business school. She is currently in business school and has a significant amount of time left to complete that based on the class load that she is taking, but regardless, this was a negotiated item." Amy failed to show any material change in circumstances that would justify altering the terms of the marital settlement agreement. The trial court did not abuse its discretion in refusing to reevaluate this agreement.
Amy also argues that the trial court erred because it did not permit her adequate discovery prior to the hearing on the child support matters. We disagree. To the extent that the court did not rule directly on this issue, we presume the court denied her request. The documents Amy requested either predated the marital settlement agreement and/or were not relevant to the issue of child support. Therefore, the trial court did not abuse its discretion in denying Amys efforts to compel these documents. (Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772, 779.)
Amy also argues that the trial court relied entirely on the estimate of the mediator and failed to make an independent calculation of the appropriate timeshare, as required pursuant to In re Marriage of Hall (2000) 81 Cal.App.4th 313.) She is incorrect. The court had before it Amys calculation of the appropriate timeshare, along with Gilberts calculation, and the mediators recommendation. The court noted that it would "do the calculation myself" based on these materials. At another point in the hearing, the court again stated that it would look at Amys evaluation "when I do my calculations." 5/11/06 RT 53). Toward the end of the discussion of this issue, the court repeated that it would "do my own calculation" from the mediators reports. In light of the fact that the trial court stated, on three separate occasions, that it would be doing its own independent calculation of the appropriate timeshare, we must reject Amys contrary assertion.
Amy also argues that the court failed to provide a statement of decision, despite her written request for one. However, the court explicitly stated that its order would function as the requested statement of decision. Amys counsel stated that "if the court deems its order is also a statement of decision, certainly thats perfectly all right. I just want to be sure that we had one." Having agreed to this procedure, Amy has waived any claim of error.
C. Amys Fee Request
In an order dated December 4, 2006, the trial court denied Amys request for need-based fees under section 2030 and granted Gilberts request for fees under section 271. Amy argues the court abused its discretion in making this order. We disagree.
An award under section 2030, subdivision (a)(1), must be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) In In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1524, a trial court may deny fees in light of the requesting partys decision to overlitigate a case when the issues raised do not warrant that behavior. In this case, the trial court concluded that the fees requested by Amy were largely incurred because of trial tactics that were unreasonable and did not abuse its discretion in denying her fee request and in awarding fees to Gilbert.
At the hearing on the parties fee requests, "the fees and costs and handling of this case [are] just completely out of control." The court noted that Amy had incurred fees in the amount of $231,000 (she had paid only $75,000) and Gilbert had incurred fees that were "somewhat less, but theyre astronomical too." The court described the situation as "absurd." The court stated that "Im very troubled by how the case has been handled from respondents side. Id like to think shes not making these decisions, because we start out hoping shes well-intentioned, and is trying to do whats best for her kids . . . . But whether its her, or her counsel, or her paralegal, or some mix, this just cant be characterized as business as usual."
In its order, the court repeated its observation that Amys presentation of the case was "very troublesome." In denying Amys fee request the court stated: "There have been numerous requests for ex-parte relief just during the present calendar year, most or all of which have required a response and then been denied. Several other issues have been presented to the Court on noticed motions, almost all of which resulted in rulings favorable to Petitioner. Typical was Respondents request that joint legal custody be clarified to include her right to make all significant decisions regarding the parties son, hardly a definition of joint legal custody that any `other parent would accept. Significant time was wasted, and fees incurred by Petitioner, due to Respondents contradictory statements and actions regarding the return of financial records. Other concerns of the Court were stated on the record at the last hearing of this matter. It is also of concern that Respondents attorneys paralegal is in a romantic relationship with Respondent, which seems to have blurred proper lines of behavior in this case in that the paralegal appears to the Court to be working far more extensively than is necessary on this matter and also appears to be making many of the litigation decisions. [¶] The result of this is that Respondents own legal fees just for calendar year 2006, when this Department took over the assignment of this case, have totaled over $230,000, very much of it unnecessary, unsuccessful, and frustrating to any effort to resolve matters easily, yet Respondents attorney, at a recent hearing, made the astounding statement that this is `business as usual. During 2005 and 2006 her fees approach $400,000. A second result of this behavior is that Petitioner, during 2005 and 2006, has incurred over $220,000, again much of it unnecessary. At the same time she is incurring about $20,000 a month in fees, Respondent states she is unable to continue paying about one-tenth that amount to a highly respected parent coordinator appointed by the Court, who actually might have been able to accomplish some good for the parties and their children." The court also stated that "in contrast to the conduct of Respondents legal team, Petitioners attorney has taken reasonable positions in court, has been straightforward and professional in her conduct with the Court and has offered compromises and attempts to advance settlement and/or efficient litigation. Further, Petitioner himself, despite some behavior which is troublesome and which the Court has criticized, has either agreed with, or at least consented to his attorneys approach to the case, unlike Respondent, who has either agreed with, or at least consented to the legal approach described above."
In light of the courts observations, it is utterly unsurprising that the court denied Amys request for fees under section 2030. Nor did it abuse its discretion when it ordered Amy to pay one-third of Gilberts fees, as a sanction under section 271. In so doing the court was well within its discretion. Gilberts fees were incurred as a result of Amys litigation tactics, which "frustrate[d] the policy of the law to promote settlement . . . and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).)
Amys contrary arguments — that the court somehow refused to hear Amys request for fees, and that the court ignored "necessity and evidence" when it denied these fees — are specious. Nor has Amy shown the courts award imposed an unreasonable financial burden. Amys equity in the Howard Street house was substantial and the court did not err in imposing on her the obligation of paying $75,000 of Gilberts fees.
We affirm the order. In so doing, we also note that Amys appeal partakes of much of the behavior identified and criticized by the trial court. In addition to the three appeals that concern us today, she has filed at least three writ petitions and has at least one further appeal pending but not fully briefed. Her arguments in the current appeals border on the frivolous. Although at this point, we do not intend to impose sanctions for the filing of a frivolous appeal, we put Amy and her new attorney on notice that we have very little patience with this sort of behavior. Amy would do well to heed the trial courts implicit advice that she turn her energy and resources to other, more productive, endeavors.
D. Sanctions
The trial court awarded sanctions in the amount of $10,000 against Amy and her attorney for their behavior in failing to return documents subject to a protective order. On appeal, Amy argues the court erred in so doing because third parties in interest were not properly joined and therefore do not have standing to seek sanctions. She is incorrect.
We note first, however, that Amy did not raise the standing issue until the day of the hearing and did not argue it at the hearing, possibly because this argument is devoid of merit. As respondent points out, third parties in interest moved for a protective order pursuant to Code of Civil Procedure section 2017.020, subdivision (a), which authorizes a third party to seek such an order and, further, subdivision (b) authorizes the imposition of monetary sanctions against any person who opposes such an order, "unless it finds that one subject to the sanction acted with substantial justification" for doing so. (Code Civ. Proc, § 2017.020, subd. (b).) Amy had no such substantial justification and the court properly awarded sanctions against her. In so doing, the court acted within its discretion.
Amy points out that a December 6, 2006, version of the courts November 27, 2006, order appears to differ materially from the earlier order in that it imposes sanctions against her alone, rather than on her and her former trial counsel. Apparently, the December 6, 2006, order was either mistakenly filed by the clerks office or incorrectly prepared by the trial court. Third parties in interest state that they have no intention of attempting to secure enforcement of that order, a representation we trust will be adhered to by that counsel and overseen by the trial court. Nevertheless, we remand this matter to the trial court for the sole purpose of correcting the December 6, 2006, order to conform to the November 27, 2006, order.
IV. DISPOSITION
With the exception of the limited remand of this matter to correct the error regarding the courts December 6, 2006, order, the orders appealed from are affirmed. Costs on appeal are awarded to respondent.
We concur:
Lambden, J.
Richman, J.