Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of San Diego County, No. D483710, Lisa A. Foster, Judge.
O'ROURKE, J.
William Shannahan appeals from a postjudgment order in which the family court ruled certain entities were omitted assets within the meaning of Family Code section 2556 and ordered that he pay $25,000 in attorney fees to Saracia's counsel. We dismiss the appeal to the extent it challenges the family court's omitted asset determination, as the March 10, 2010 order finding certain entities to be omitted assets is an interlocutory, unappealable order. We affirm that portion of the order awarding attorney fees under section 2030.
All statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
This court set out some of the pertinent background facts in our unpublished decision on William's prior consolidated appeals (In re Marriage of Shannahan (Dec. 1, 2010, D053701, D955292)). For purposes of this appeal, the important facts are these: In August 2008 the family court entered a judgment in which it found, among other things, two properties — the "Virginia Way" property and "Brookmead" property — to be community property and that William had breached his marital fiduciary duties to Saracia in connection with the transfer of those properties to other entities without her specific knowledge, written consent or adequate compensation to the community. The family court found that William was "the one common denominator and alter ego in all of these other entities" but that his conduct was "neither fraudulent nor illegal."
On William's ensuing appeal, and the appeals of Virginia Way and Saracia, we affirmed the family court's postjudgment orders that William pay Saracia certain attorney fees and affirmed the judgment in part, reversing only that portion denying Saracia's requests for attorney fees and sanctions under sections 1101, subdivision (g) and 271. (In re Marriage of Shannahan, supra, D053701, D055292.)
Thereafter, Saracia filed an order to show cause to adjudicate omitted assets (§ 2556 ) and for other relief. Specifically, Saracia asked the court to adjudicate assertedly undisclosed entities by the name of Kolmar LLC, MM Children's Trust, Virginia Way LLC, and Brookmead Partners LP, as well as a new retirement plan formed by William referred to as the "Super Trust." She argued William was using these entities as a shield against the August 2008 judgment. In a supplemental brief, Saracia asked for an award of attorney fees under section 2030 "for the ongoing work needed to accurately and equitably enforce the judgment, and place before the court all of the assets that should have been in front of it had William disclosed their existence pre trial [sic]or at least pre Judgment [sic]."
Section 2556 provides: "In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability."
In opposition, William argued the family court had no jurisdiction over several of the subject assets, and that the assets were not undisclosed, but rather were adjudicated in the underlying dissolution action and/or were the subject of other, pending actions. He maintained the creation of some of the entities and transfers of assets to them were matters of public record, giving Saracia actual or constructive knowledge of their existence.
Following oral arguments, the family court granted in part and denied in part Saracia's motion. In March 10, 2010 findings and an order after hearing, it found Kolmar LLC, Virginia Way LLC, and Brookmead Partners LP were omitted assets. As to the MM Children's trust, it denied the motion without prejudice, but ordered William to provide no later than April 30, 2010, an accounting to Saracia of the assets owned by the MM Children's trust and a copy of the trust documents. It reserved jurisdiction over whether Saracia was entitled to reimbursement from William for any community assets transferred to the MM Children's trust or to the renewal of her motion. As to the retirement trust, it ordered that William disclose to Saracia by April 30, 2010, whether certain assets listed in the August 2008 judgment had been transferred to the trust, and whether any of the assets held by those funds had been transferred to any other entity or fund. The court enjoined William from transferring any of the assets in the identified funds to any other entity or fund until further court order. It granted Saracia's request for attorney fees under section 2030 "in order to continue to enforce the Judgment and adjudicate the omitted assets described in this order, " finding $25,000 to be a reasonable amount of attorney fees for the postjudgment litigation.
The family court's order concludes: "This case will continue to be assigned to Judge Foster pending further order of the Court. Any future filings are to be in Department 27 with the Court clerk. The Court is setting a Case Management Conference for Friday, April 2, 2010, at 8:45 a.m. in Department 27 of the Central Courthouse at 220 West Broadway. At the Case Management Conference, the Court will set a schedule for the adjudication of the Brookmead insurance proceeds as well as the other omitted assets that were the subject of this Order."
On April 1, 2010, William filed a notice of appeal from the family court's postjudgment order.
DISCUSSION
I. Request to Dismiss Appeal as From an Interlocutory Order
Saracia contends we lack jurisdiction to decide the omitted asset issue, and William's appeal on that issue should be dismissed, because the family court's order is interlocutory and not an appealable final order. We agree.
We summarized the principles concerning interlocutory, nonappealable, postjudgment orders in In re Marriage of Corona (2009) 172 Cal.App.4th 1205 (Corona): " 'In "determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable... [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." ' [Citations.] A judgment [or order] is final ' " 'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' " ' [Citations.] ' "[W]here anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory" ' and not appealable." (Id. at p. 1216.)
We observed that nonappealable, interlocutory orders were involved in both In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 and In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403 (Ellis), which followed principles set forth by the California Supreme Court in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 (Lakin). "In Levine, the court dismissed an appeal from a postjudgment order relating to the sale of certain assets that was to result in a guaranteed receipt of a specified sum of money. [Citation.] Following disputes and the filing of an order to show cause, the family court entered an order in part specifying how the parties were to procedurally resolve additional disputes and reserving the issue of attorney fees and costs. [Citation.] The Court of Appeal held the order was not sufficiently final, which was an 'essential element of an appealable postjudgment order' under Lakin." (Corona, supra, 172 Cal.App.4th at pp. 1217-1218, citing Levine, at pp. 586, 587, 589.)
"In Ellis, [supra, 101 Cal.App.4th at p. 400], the Court of Appeal found not appealable a postjudgment order finding a community property interest in health insurance subsidy benefits. [Citation.] Relying on Lakin, supra, 6 Cal.4th 644 and In re [Marriage of] Levine, supra, 28 Cal.App.4th 585, the appellate court observed some postjudgment orders are not appealable because, ' "although following an earlier judgment, [they] are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal. [¶]... [¶]... [Such postjudgment orders lack] finality in that they [are] also preparatory to later proceedings." ' [Citation.] In Ellis, the family court's order determined that the court had authority to evaluate and divide the medical subsidy, but it was 'only preliminary to actually doing so.' [Citation.] Under those circumstances, the appellate court dismissed the appeal as from a nonappealable order." (Corona, supra, 172 Cal.App.4th at p. 1218, citing Ellis. at pp. 402-404.)
Here, as recounted above, the family court's March 10, 2010 findings and order determined only that certain entities were assets of the community estate and thus omitted within the meaning of section 2556. That section expressly contemplates that the family court "shall" at some point "equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability." (§ 2556.) The court did not reach that step, instead setting the matter for a case management conference in which it would set a schedule to eventually make that determination. Plainly, the March 10, 2010 order was preliminary to the court actually dividing those community assets.
William takes the position that in all of these cases — Lakin, supra, 6 Cal.4th 644, In reMarriage of Levine, supra, 28 Cal.App.4th 585, and Ellis, supra, 101 Cal.App.4th 400 — "there was no question but that the trial court at least had threshold jurisdiction over both the parties and the issues presented." He suggests that is not the case here, because he challenged the family court's jurisdiction to make any order that purported to rule on any entity that had not previously been joined in the litigation. William maintains the facts and legal issues here are more analogous to In re Marriage of Hixson (2003) 111 Cal.App.4th 1116 (Hixson), in which this court explained that a family court's power under section 2556 is "limited to assets which have not been previously adjudicated" and "also limited to community property and community liabilities; the statute gives the court no power to make an award with respect to a party's separate property or separate liabilities." (Id. at p. 1123.) William points out this court in Hixson did not reject the appeal as premature "even though issues relating to the community property remained unresolved."
These arguments are meritless. Hixson involved an appeal from an order in which the family court denied the petitioner any relief on her order to show cause and request for discovery with regard to her claim that certain community property had not been adjudicated. (Hixson, supra, 111 Cal.App.4th at p. 1119.) Because the court entered an order denying all relief, there were no further proceedings to take place with regard to those omitted asset or discovery issues. Hixson does not present, and this court did not address, any issue as to whether the family court's order was interlocutory. It plainly was not, and thus we proceeded to resolve the issues presented there: whether the petitioner was entitled to discovery with regard to a trust's stock transactions and whether respondent was required to share an investment opportunity with a particular venture capital firm after her after those investments of the community had been distributed. (Id. at pp. 1124-1126.)
Setting Hixson's inapplicability aside, William's appellate challenge to the family court's "jurisdiction" to act — based on a claim that the entities at issue are either separate property or unjoined parties and thus do not fall within the court's power to divide them under section 2556 — has no relation to the question of the interim or interlocutory nature of the order at issue. None of the cases cited by William rely on such a distinction, and we find no such distinction in them. In any event, William is not prevented from raising these issues on a later appeal from the final postjudgment order dividing the entities.
Though we have no jurisdiction to entertain this appeal, we do, as William points out, have the power to treat the purported appeal as a petition for writ of mandate. However, we exercise this jurisdiction only in unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) "A petition to treat a nonappealable order as a writ should only be granted under extraordinary circumstances, ' "compelling enough to indicate the propriety of a petition for writ... in the first instance...." ' " (Estate of Weber (1991) 229 Cal.App.3d 22, 25.) In Olson v. Cory, the Supreme Court held it appropriate to treat a purported appeal from a nonappealable order as a petition for an extraordinary writ when requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings, the briefs and record contained in substance the elements necessary for a writ of mandate, there was no indication the trial court would appear as a party in a writ proceeding, the appealability of the order was not clear, the issues had been thoroughly briefed and argued, and all parties urged the court to decide the issue rather than dismiss the appeal. (Olson, 35 Cal.3d at pp. 400-401.) The court concluded that dismissing the appeal rather than exercising its power to reach the merits would be " ' " unnecessarily dilatory and circuitous." ' " (Id. at p. 401.) In Ellis, supra, 101 Cal.App.4th 400, the respondent had not raised appealability in her brief on appeal and both parties agreed it was prudent and economical to bifurcate the issue of whether the community had an interest in a medical subsidy from its valuation. (Id. at pp. 404-405.)
We discern no such unusual or extraordinary circumstances associated with this purported appeal; in particular, William does not make any showing that an appeal would not provide an adequate remedy at law, one of the necessary elements for proceeding by way of a petition for writ of extraordinary writ. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1434-1435.) Thus, we decline to treat the matter as a petition for writ of mandate.
II. Attorney Fees
The family court's attorney fee order states in part: "The Court finds that there is a disparity in income between the parties. The Court finds William's Income and Expense Declaration, filed on December 3, 2009, to be misleading. William claims that his sole source of income is social security, but claims to be paying his expenses with a $200,000 loan from William P. Shannahan, APLC, his law practice, which was awarded to him as his separate property. If his law practice has $200,000 available to loan to William, [then] as a practical matter he has income whether he distributes it to himself as income or retains it in his practice and 'loans' it to himself. [Citation.] Because William has refused to comply with the terms of the Judgment, including the previous award of attorneys fees, despite the fact that he did not post a bond on appeal, and the Court cannot, as the Judgment is structured, force his compliance while the matter is on appeal, Saracia is without resources. The Court finds that a reasonable amount of attorney[] fees for the post[]judgment litigation in Family Court is $25,000. [William] is ordered to pay that amount forthwith directly to Saracia's counsel, Law Offices of Beatrice Snider, APC."
A. Standards
Under section 2030, a need-based award of attorney fees and costs is authorized to "ensure that each party has access to legal representation" during proceedings after the entry of judgment. (§ 2030, subd. (a) ; see In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 405-406; Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252.) The key considerations in making such an award are the recipient's need for the award and the obligor's ability to pay. (§ 2030, subd. (a)(2).)
At the time of the parties' December 11, 2009 hearing, section 2030, subdivision (a) provided: "(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward."
" 'The trial court is to decide "what is just and reasonable under the relative circumstances" [citation], taking into consideration "the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately.... The fact that the party requesting an award of attorney's fees and costs has resources... is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances" [citation].' [Citation.] 'In assessing the applicant's relative "need" and the other party's ability to pay, the court may take into account "all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties." ' " (In re Marriage of Dietz, at pp. 405-406; see §§ 2030, subd. (a); 2032, subds. (a), (b); In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629.) The trial tactics employed by the parties may also be considered in addressing an attorney fee motion. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.)
Section 2032, provides in part: "(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."
" ' "A motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal." [Citation.] Thus, we affirm the court's order unless " 'no judge could reasonably make the order made.' " ' " (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 406; In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.)
B. William Has Not Shown the Family Court Abused its Discretion in Awarding $25,000 in Attorney Fees for Postjudgment Litigation
William contends the family court abused its discretion in ordering him to pay $25,000 in attorney fees under section 2030. His first two arguments are merits-based: He first argues further litigation is unnecessary because there are no omitted community assets. Second, he maintains the postjudgment litigation involves entities in which he has no personal interest and which cannot possibly constitute community property; thus they cannot " 'involve matters which should have been litigated in the family law action in the first place.' "
Having held we possess no jurisdiction to review the interlocutory omitted assets order, we cannot reach William's arguments concerning the nature of those assets. But that does not require reversal of the family court's attorney fee order. The court's award of attorney fees for the postjudgment litigation is not limited to the omitted asset issue. William also filed postjudgment an order to show cause to reduce spousal support by ordering Saracia to vacate the residence in which she was living, to which Saracia was compelled to respond. The court specifically found Saracia was without resources due to William's noncompliance with the terms of the judgment, including the orders requiring him to pay attorney fees. Thus, postjudgment litigation would include Saracia's attempts to enforce the August 2008 judgment apart from the omitted asset matter. In short, William's first two arguments do not compel us to conclude that the family court's attorney fee order is an abuse of discretion.
We reject William's argument, based on his selective and incomplete citation to the family court's order, that the court improperly used the attorney fee award to punish him. As we read the order, the court was not basing its award on William's refusal to comply with the terms of the judgment. Rather, in referring to that circumstance, the court was pointing out why Saracia was without resources to pay an attorney. William does not challenge the family court's finding in that respect other than to say he was entitled to appeal the orders and that Saracia's remedy is to "pursue collection against him...."
William finally argues the family court abused its discretion by disregarding the parties' relative circumstances, needs and ability to pay. He maintains the totality of the circumstances — including the prior awards of attorney fees to Saracia, all of which as of the filing of his brief were pending on appeal — shows Saracia cannot demonstrate justification for the attorney fee award.
We are not convinced. Under section 2032, subdivision (b) (see footnote 5, ante), the family court was required to take into consideration William and Saracia's needs for sufficient financial resources to present their case adequately, and take into account, "to the extent relevant, " their circumstances as described in section 4320. (§ 2032, subd. (b).) Section 4320 lists the circumstances to be considered in determining spousal support, including the supported party's marketable skills, earning capacity, the supporting party's ability to pay spousal support, each party's needs, each party's obligations and assets, their age and health, and the duration of the marriage. Section 2032 makes clear that the court was not required to make explicit findings on all the 4320 factors where some of the factors were irrelevant (§ 2032, subd. (b)), and it possessed discretion to determine the weight of each factor in balancing them. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
Section 4320 provides: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence of any history of domestic violence... between the parties.... [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time.... [¶] (m) The criminal conviction of an abusive spouse.... [¶] (n) Any other factors the court determines are just and equitable."
William concedes that the family court had before it the parties' income and expense declarations from the other matters pending before it, and indeed, we conclude the court in fact considered them as it expressly found William's December 2009 income and expense declaration to be "misleading." Given William's failure to request a statement of decision, we will make all implied findings necessary to support the court's order to the extent those findings are not inconsistent with the record. (Cf. In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1361.) The record supports the reasonable inference that the family court considered the parties' respective incomes, expenses and assets in determining William's ability to pay Saracia's attorney fees. Thus, the fact Saracia did not submit an income and expense declaration in connection with her attorney fee request does not require reversal of the court's order.
In particular, Saracia's November 2009 income and expense declaration in the record reflects $268 in monthly income from pension or retirement payments, and approximately $9,200 in monthly expenses. She stated she had already paid her attorneys $369,283.17 in fees and still owed over $556,000 to her counsel. The record demonstrates Saracia needed representation in the postjudgment matters, was without resources to pay her attorneys, and William had the ability to pay as reflected by the court's finding he received income from his law practice, a finding William does not challenge. William's reference to his declaration containing self-serving statements as to his income and expenses does not satisfy his burden to demonstrate that the family court's implied findings are not supported by the evidence. Because we may overturn the family court's award only if no judge could reasonably have made it (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 406), we have no basis upon which to say on this record the court's ruling was unreasonable. Accordingly, we affirm the order that William pay Saracia's counsel $25,000 in attorney fees.
We note that, in addition to other evidence, William argues the record establishes that the family court "expressly found that Saracia was 'employable, ' but that she had not made any effort to become self-supporting...." In fact, according to William's declaration in the record, the court's finding was that " '... [Saracia] is employable, but [the court] does not have sufficient evidence to impute a specific amount of income at this time. She has had very sporadic employment in teaching, bookkeeping, as a flight attendant (primarily before marriage), and in sewing and decorating.' " We do not read this as a finding that Saracia had not made any effort to become self-supporting.
DISPOSITION
The appeal is dismissed as to the family court's order determining that Kolmar LLC, Virginia Way LLC, and Brookmead Partners LP are omitted assets, and ordering an accounting and specified disclosure by William concerning the MM Children's trust and his retirement "Super Trust." The order that William pay $25,000 in attorney fees is affirmed. Saracia shall recover her costs on appeal.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.