Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FL126882
RUSHING, P.J.
I. Statement of the Case
Petitioner Linda Shao (Shao) appeals from an order entered after the entry of judgment of dissolution between her and Respondent Tsan-Kuen Wang (Wang). The post-judgment order resolved issues raised in Shoa’s motion to enforce the judgment and Wang’s motion to determine the parties’ rights and responsibilities concerning various ongoing child-related expenses. The order directed each party to pay the other specific amounts. (Code Civ. Proc., § 904.1, subd. (a)(10); Fam. Code, § 3554 ; In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1251; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 735-736.)
All unspecified statutory references are to the Family Code.
On appeal, Shao claims the underlying judgment is void. She claims the court abused its discretion in failing to set aside a part of the judgment, refusing to find that Wang’s attorney breached his fiduciary duty, and accepting Wang’s determination of the amount he still owed her as support. She also claims the court erred in denying her motion to continue the hearing on Wang’s motion. Last she claims the court abused its discretion in granting the relief Wang sought and ordering her to reimburse him for her share of their children’s medical and dental expenses, tuition, and extracurricular activities.
We reject most of Shao’s claims but reverse the order and remand the matter for a redetermination of the amounts that the court ordered each party to pay the other.
II. Background
In 2005, after almost 18 years of marriage, Shao and Wang separated. They have two children, Louis and Lydia. Shao, an attorney, opened her own practice in 1996 and since 2007 has represented herself. Wang is an engineer in the high tech field. Their litigation over child custody, property, and support issues has been prolonged and highly contentious.
In 2008, the trial court noted that the record comprised 21 volumes.
In 2006 and 2007, the trial court entered orders establishing custodial rights and setting forth Wang’s obligations for child and spousal support. Wang’s custody increased incrementally and by 2007, the parties shared equal custody. At that time, Wang sought to decrease child support to reflect the fact that he now had the children half of the time. He also sought to have income imputed to Shao, whose practice had waned due to medical problems that arose during and after Lydia’s birth. The court declined to reduce support but found that Shao was capable of increasing her income and directed her to rebuild her practice or seek employment. The court reserved jurisdiction to retroactively modify support if she failed to do so.
In May 2008, Shao and Wang reached a judicially-supervised comprehensive settlement agreement (the Agreement) before Family Court Judge Pro Tem Edward Mills concerning, among other things, the division of property, spousal support, child custody and support, support arrearages, the payment of the children’s unreimbursed medical and dental expenses, and Lydia’s schooling. The parties and Judge Pro Tem Mills signed the Agreement, and Judge Mills filed it as his order on May 9, 2008. Thereafter, the Agreement was incorporated into the judgment of dissolution (Stipulated Judgment), and on May 28, 2008, the judgment was filed.
Neither party appealed from the Stipulated Judgment. However, on November 13, 2008, Shao filed a motion to “enforce” the judgment. As best as we can determine from the motion and supporting declaration, Shao claimed that she was entitled to substantial additional support based on arrearages that had been accruing from bonuses that Wang had received from 2007 to April 30, 2008, the date of the Agreement. In this regard, she sought to have the court clarify or set aside paragraph 16 of the Agreement (Paragraph 16) which provided, “Each party agrees that support is current through April 30, 2008; the parties agree that there are no overpayments or underpayments as of that date, expect for payments deducted but not yet received.” (Italics added.)
The trial court opined that it was difficult to discern from Shao’s moving papers what she wanted. We too find Shao’s pleadings difficult to follow. We further observe that the voluminous pleadings and documents that Shao has filed during the litigation and included in the record on appeal are so dense with unfiltered and factually detailed assertions, accusations, and argument that it is difficult to clearly understand what happened in this case. Finally, Shao’s opening brief is also a gush of facts, complaints, and argument which continues the confusion concerning what she claimed and makes it difficult to follow her claims on appeal.
Shao appeared to seek an order directing that Lydia be enrolled in a Montessori school. She also sought, among other things, orders requiring Wang to pay all of the children’s medical and educational expenses; finding that Wang’s attorney, David Sussman (Sussman), had breached his fiduciary duty in managing the trust account and failing to provide an accounting; and awarding her attorney fees.
Shao stated that she recently registered Lydia at a Montessori School in Cupertino, but Wang “planned to deter her from going to that school.” Shao opined that the school would provide Lydia with “great education opportunity.”
Wang responded to Shao’s motion and filed his own motion. He conceded that he might owe Shao $842 in additional child support and $920 in additional spousal support based on bonus income that he received after the date of the Agreement. He then sought a declaration of the parties’ rights and responsibilities for certain child-related expenses. In particular, he sought a determination that the parties were to equally share the cost of (1) the children’s unreimbursed medical and dental expenses, including insurance premiums; (2) Lydia’s tuition; and (3) the children’s extracurricular activities. Because he had already paid $1,718.22 in unreimbursed medical and dental expenses, $1,025 for Lydia’s tuition after July 2009, and $2,243.85 for Louis’s extracurricular activities, he sought an order that Shao pay half of these amounts. He sought an order continuing Lydia’s current educational placement at The Learning Child (TLC). He too sought attorney fees based on allegations that Shao had litigated the case in an unreasonable, uncooperative, and unnecessarily wasteful manner.
Shao filed a number of additional pleadings, including a supplemental declaration the day before the hearing on the parties’ motions. Among other things, Shao sought a continuance to respond to Wang’s motion.
The hearing on the two motions was held on August 25, 2009. At the hearing, Shao reiterated her request for a continuance. She said she had not had time to prepare because Wang had not properly served his motion and knew that she was unavailable because she was moving to a new residence. However, Shao admitted that she resided at one of the addresses where the motion was served. Sussman further pointed out that Shao had had enough time to prepare additional motions and a supplemental declaration. The court denied Shao’s motion to continue. When Shao continued to protest that she was unprepared, the court said it would hear any objections she had in connection with Wang’s motion.
The transcript of the hearing is consistent with the entire record in this case as well as Shao’s brief, in that it is at times difficult to follow and know what she is saying.
The court did not rule on the parties’ motions at that time but took under submission. On November 25, 2009, the court issued the order from which Shao appeals.
The court denied Shao’s request to set aside Paragraph 16 of the Agreement or order Wang to pay substantial bonus support arrearages. In this regard, however, the court accepted Wang’s concession that he owed additional child and spousal support. The court adopted Wang’s statement of the amounts he owed and ordered him to pay them.
The court rejected Shao’s breach-of-fiduciary-duty claim. It credited Sussman’s testimony at the hearing concerning his alleged malfeasance and the distribution of funds and accepted his explanation that because of a typographical error, he had sent checks for too much to both parties resulting in a discrepancy in the trust account that in turn caused Shao’s check to be returned for insufficient funds. Nevertheless, the court ordered Sussman to provide an accounting of the discrepancy and overpayments.
At the hearing, Shao had asked the court to make Wang set up custodial accounts for the children to match those she had set up and then have the parties pay expenses out of those until they were exhausted. In its order the court observed that the Agreement already controlled the payment of the children’s unreimbursed medical and dental expenses and considered this an adequate protocol. It found no reason for additional accounts and directed the parties to exchange statements of expenses and to reimburse each other.
Concerning Wang’s motion, the court noted that under the express terms of the Agreement, the parties were to share the expense of the children’s unreimbursed medical and dental expenses. The court found that this included the cost of the children’s insurance. The court made additional orders requiring Shao to reimburse Wang for amounts he had already paid and directing them to share future unreimbursed expenses.
The court found that Lydia was doing well at TLC and ordered that she remain there until she reached highest grade that they accommodated. The court ordered the parties to share the expense of TLC from July 2009 onward even if they increase from current cost. The court accepted Wang’s statement concerning the cost of tuition after that date and, in effect, ordered Shao to reimburse him for half the amount he said he had already paid. The court denied Wang’s request that Shao share the cost of registration fees.
The court opined that extracurricular activities were important to a child’s development and ordered that the parties share the costs of the activities to which they agreed. The court cautioned each party not to schedule activities during the other’s custodial time or when other activities had been scheduled unless the parties met, conferred, and agreed to such scheduling. The court accepted Wang’s statement concerning the amount he had spent on Louis’s activities and ordered Shao to reimburse Wang for half the amount.
Last the court denied the parties’ requests for attorney fees. However, it reserved the issue and directed the parties to cooperate with each other.
III. Contentions
Shao makes the following contentions on appeal: (1) the judgment entered on May 28, 2008 is void; (2) the trial court erred in denying her motion to set aside Paragraph 16, adopting Wang’s representation concerning the amount of addition support that he owed her, and finding that Wang’s attorney did not breach his fiduciary duty; (3) the trial court abused its discretion in granting Wang’s motion to modify the support procedure and finding that she had violated section 271; and (4) the trial court violated her right to due process by refusing to continue the hearing on Wang’s motion.
IV. Discussion
A. Validity of the Stipulated Judgment
Shao contends that the child and spousal support provisions incorporated by reference in the Stipulated Judgment are void because they do not comply with the procedural requirements of sections 4065, subdivision (c); 4056, subdivision (a); and 2105, subdivision (d). Thus, because the post-judgment order is based on the Stipulated Judgment, ” it too is void and must be reversed.
As noted, Shao did not appeal from the Stipulated Judgment, and the time for such a direct challenge has long since passed. (Cal. Rules of Court., rule 8.104.) Our jurisdiction here is limited by Shao’s notice of appeal and the order from which it is taken. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Since Shao appealed from the post-judgment order, the only issue before us is the propriety of that order. (E.g., Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47.)
Moreover, “[i]n an appeal from a postjudgment order... ‘the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment. [Citation.] “The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.” [Citation.]’ [Citations.]” (P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053.)
This observation is especially pertinent here. Shao is an experienced attorney. She can be expected to know the rules and procedures that govern support orders, and her brief on appeal reflects intimate familiarity with the Family Code sections concerning support obligations. Moreover, Shao has represented herself throughout the latter parts of the dissolution, including opposing Wang’s 2007 motion to modify the support order. Shortly thereafter, she personally negotiated the Agreement containing the very provisions she now seeks to directly challenge. The alleged defects she now raises are those that she easily could have prevented. However, she did not bother to raise them before entering the negotiations for the Agreement. She did not raise them when she negotiated the support provisions. She did not raise them after signing the Agreement. And she did not appeal from the Stipulated Judgment. On the contrary, she moved to enforce the very judgment she now attempts to challenge on appeal.
Under the circumstances, we reject Shao’s belated attempt to avoid the consequences of her Agreement and directly challenge the Stipulated Judgment on appeal from a post-judgment order.
B. Denying Shao Relief
1. Paragraph 16
Shao claims the court erred in denying her motion to set aside Paragraph 16. Repackaging her previous claim, she argues that the court should have granted her request because Paragraph 16 was void or voidable in that (1) it violated the procedural requirements of sections 4065 subdivision (c) and 4056, subdivision (a); (2) it impermissibly terminated child support arrearages; (3) it is ambiguous; and (4) she was induced to accept it by misrepresentation or mistake.
“An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... [¶]... [¶]... Often... the explanation [for this rule] is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458-459.) Similarly, the failure to raise a claim in the trial court forfeits that claim on appeal. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.)
In her motion below, Shao sought to set aside Paragraph 16 only on the grounds of excusable neglect and mistake. She did not challenge the provision on any of the other grounds she raises in her opening brief, the trial court did not rule on them. Therefore, we decline to address them. (Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 117.)
We observe that Shao’s motion did not specify the statutory basis for relief due to excusable neglect or mistake. However, we note that section 2122, subdivision (e) provides that in a dissolution action, a party may move to set aside a judgment or part thereof on the ground of mistake within one year after entry of judgment. Furthermore, Code of Civil Procedure section 473, subdivision (b) provides that where a party seeks relief within six months after entry of a judgment or order, a court may relieve a party from that judgment or order “taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Section 2122 and Code of Civil Procedure section 473 “now coexist, operating as alternative bases for relief, depending on when the application is filed. Within the six-month time limit under section 473, a litigant may seek relief from a family law judgment under either the statute’s mandatory provisions (where the litigant’s attorney is willing to swear to his own fault) or its discretionary provisions (where the court ‘may’ relieve a party of the consequences of his or her own mistake, inadvertence, surprise, or excusable neglect). Alternatively, the litigant may seek relief under any of the specific grounds specified in Family Code section 2122. However, after the six months pass, the litigant is limited to just the grounds specified in section 2122.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32, fn. omitted.)
Here, the order based on the Agreement was filed on May 9, 2008. However, Shao did not file her motion and seek relief from Paragraph 16 until November 13, 2008, more than six months after the order. Accordingly, her request for relief due to excusable neglect was untimely.
As to mistake, Shao asserted in her declaration that after the Department of Child Support Services (DCSS) assumed responsibility to enforce Wang’s support obligations, she complained that he owed support arrearages based on bonus income. Just before she signed the Agreement, Shao told Deborah Kratky, the DCSS administrator, that Wang had also not paid support from bonuses he received before April 30, 2008, and that the DCSS had not processed those support payments. Ms. Kratky did not respond until after the Agreement was signed. As noted, however, Shao agreed to Paragraph 16, in which the parties agreed that there were no arrearages before April 2008. In her declaration, Shao claimed that when she signed the Agreement, she believed that despite the express language of Paragraph 16, she was still entitled to unprocessed accrued arrearages.
In support of her declaration, Shao submitted a brief excerpt from a transcript of the settlement discussions related to Paragraph 16. At the time, she asserted that notwithstanding Paragraph 16, she was still entitled to some outstanding, unprocessed support arrearages. In response, Judge Pro Tem Mills clarified the provision. He said, “May I attempt to clarify. My understanding is that it is possible that some payments for child and/or spousal support under the existing order may have been intercepted or withdrawn from Mr. Wang’s pay but have not yet been paid to you so that those sums are due and payable and have no impact or effect on the agreement.” (Italics added.)
Shao notes that after the Agreement was signed, Kratky informed her that the DCSS had not processed any bonus support arrearages. Later Kratky informed Shao that it would not be processing any arrearages. Citing Paragraph 16, she told Shao that the DCSS was setting its accounts at zero as of April 30, 2008, and only collecting support from Wang that accrued after May 1, 2008.
Given her allegedly mistaken belief that Paragraph 16 did not extinguish previously accrued but unprocessed bonus support, Shao sought to have Paragraph 16 set aside.
The court declined to do so. The court found that the Agreement in general and language of Paragraph 16 reflected a negotiated settlement on issues of support and reimbursement.
The court’s ruling implies that it disbelieved Shao’s claim of mistake. The court was not bound to believe her claim. The brief colloquy between Shao and Judge Pro Tem Mills during the course of lengthy settlement negotiations does not conclusively, let alone clearly or convincingly, establish that when she ultimately accepted the unambiguous Paragraph 16, she believed it did not affect her entitlement to substantial and as yet unprocessed bonus support arrearages going back to 2007. This is especially so given Shao’s experience as a lawyer, her intimate familiarity with the history of the case, and her personal participation in negotiating her own Agreement; and given that Judge Pro Tem Mills’s clarification did not suggest that Shao’s view was correct. He said that she would still receive money that had already been intercepted or withdrawn from Wang’s pay. He did not suggest that despite the language of the paragraph, the DCSS would still process arrearages that had allegedly accrued before April 2008. Under the circumstances, the court reasonably could conclude that the parties intended language of the paragraph to mean what it said because it reflected a comprehensive settlement of disputes, including prior arrearages, and an agreement to move forward anew under the terms of the Agreement.
“An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the court's ruling exceeds the bounds of reason. [Citations.]” (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 285; In re Marriage of Carter (1971) 19 Cal.App.3d 479, 494; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
Shao has not sustained her burden to prove, and the record does not unequivocally show, that the trial court’s refusal to set aside Paragraph 16 exceeded the bounds of reason.
In her brief, Shao claims the court should have set aside Paragraph 16 because it was coercive and fraudulently induced. Even assuming that Shao based her motion on those grounds, we would not find an abuse of discretion. As noted, the trial court found that the Agreement was the result of negotiations between the parties. Shao does not cite any evidence outside her own declaration to show what Wang, his attorney, or Judge Mills might have done that could have unfairly or improperly “coerced” an experienced attorney to sign an agreement against her will.
2. Amount of the Bonus Support
As noted, Wang conceded that he might owe additional support for bonus income he had received after the Agreement. He declared, “Paragraph 14 of [the Agreement] provides in relevant part, ‘For the months of June through September 30, 2008, the current support order remains as set and shall be nonmodifiable in amount or duration.’ This language is unfortunate in that it was my intention (and expectation) the amount of support I would be paying was $5,100 through September 30, 2008, which amount included my obligation for spousal support. [Shao’s] position is that she is entitled to a portion of the bonus I received in July 2008. This may have merit. My calculation of the amount due her based on the existing order may be $842 in child support and $920 in spousal support. I will bring my checkbook to the hearing and pay as the Court orders.”
Paragraph 14 of the Agreement provides: “For the months of June through September 30, 2008, the current support order remains as set and shall be nonmodifiable in amount or duration. Spousal support terminates for each party effective May 31, 2008, except for payments set forth in the terms of this Order. Each party hereby waives the payments of spousal support and the right to receive spousal support in the future, effective as of the date stated, and jurisdiction of the court to order the payment of spousal support in the future is terminated effective this date. The parties have been informed that this provision means that effective upon the signature of this order, it forever terminates the right to receive spousal support or the ability of the Court to order the payment of spousal support from one to another, without regard to the need or the ability to pay of either party.”
In accepting Wang’s concession, the court implicitly found that there was an arrearage for support based on bonus income Wang had received from June through September 2008. As a result it ordered him to pay the amounts of additional child and spousal support that he said he owed.
Shao claims the court erred in simply accepting Wang’s statement of how much he owed. She argues that there was a factual dispute concerning the amount, and therefore, the court erred in failing to hold an evidentiary hearing at which it could determine the correct amount based on documentary evidence concerning the bonus income that he received.
In her supplemental briefing before the hearing, Shao did not respond to Wang’s concession. And at the hearing, she sought a continuance so she could respond to Wang’s motion. Although the court denied the continuance, it invited her to raise any objections she might have. We note that near the end of the hearing, Shao reiterated her claim for additional bonus support arrearages, and the court asked how much she thought he owed. At that time, she demanded that Wang provide the information concerning his bonuses that would allow her to respond. The court asked Sussman about this, and he referred to the amount stated in Wang’s declaration. Shao complained that Wang had refused to produce his pay stubs. She then argued that there was a factual issue concerning the amount of bonus support arrearages, which, she again claimed, included amounts owed from 2007.
In our view, Shao’s statements and request for documentary proof constituted, in effect, a claim that Wang’s declaration alone did not establish the amount he owed and an objection to the court’s reliance on it alone to make a finding.
Credibility is an issue for the trier of fact, and as a general rule, the testimony of a single witness is sufficient to provide substantial evidence to support a factual finding. (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170-171.)
Here, the only evidence of the amount owed was Wang’s declaration. The record reveals that by the time of the post-judgment pleadings and hearing, all semblance of amicability between the parties had evaporated and been replaced with contention and animosity. With this as a backdrop, we note that Wang simply stated the amount he owed as a conclusion. He did not provide the amount of bonus income that he had received and for which he owed additional support. Nor did he explain how he calculated the amounts he said he owed. Under the particular circumstances here, we conclude that his declaration is not sufficient to support the court’s finding. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267 [declaration containing conclusory assertions of fact was insufficient where it failed to disclose evidentiary facts to support the assertions]; United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018 [a declaration consisting of only a recitation of legal conclusions and ultimate facts, without any evidentiary facts, was insufficient to establish a triable issue of fact to defeat summary judgment]; see also Hayman v. Block (1986) 176 Cal.App.3d 629, 640 [declarations containing “general and vague charges” do not qualify as “competent or credible evidence”].)
Accordingly, the matter must be remanded for a determination of the amount of bonus support that Wang still owes.
3. Breach of Fiduciary Duty
Shao contends that the court erred in declining to find that Sussman breached his fiduciary duty by mismanaging the trust account and failing to provide a full accounting. She claims there is no evidence to support a finding that he did not breach his duty. In effect, Shao claims the evidence conclusively established a breach, and the court reasonably could not have found otherwise. In support of her claim, she has compiled a list of “facts” that, she implicitly claims, were undisputed or conclusively proved and that established a breach as a matter of law.
First, Shao asserts that Sussman refused to provide an accounting for 22 months and as a result she had “no idea how money was being expended.” Shao’s only record citation at this point in her brief refers us to statements she made during the hearing. At that time, she was not testifying under oath as a witness but speaking as her own attorney and making allegations about Sussman. The trial court was not obligated to accept her assertions concerning what Sussman did or did not do, and neither are we.
Shao asserts that as a result of Sussman’s mismanagement, the bank charged the trust account with an overdraft penalty, and she did not learn about it in a timely fashion. Her record citation is again to a statement she made during the hearing. At that time, she complained that both she and Wang had received checks for $545.12. Although Wang cashed his, hers was rejected for insufficient funds.
At the hearing Sussman testified under oath and explained the two checks and the overdraft problem. He said that at one point, he made a mistake about the amount of money in the account to be distributed. There was less than he thought. He sent out two checks for $545.12, which exceeded the balance in the account. Wang cashed his check, leaving insufficient funds to cover Shao’s check. Shao waited six months to cash her check, and when she did it was returned. Sussman said upon discovering this, he sent Shao a check for her share of what had been the correct amount in the account. Sussman agreed to provide Shao with an accounting of the mistake if the court so ordered. He did not know if Wang actually returned the amount he was overpaid, but he said that there was an accommodation in his bill that accomplished the same result. Sussman emphasized that, all in all, Shao ultimately got the correct amount as her share of the balance and no less than she was entitled to. Sussman further stated that the parties were not charged for the overdrafts.
The court credited Sussman’s testimony but ordered him to provide an accounting and reserved jurisdiction over the issue pending receipt of Sussman’s accounting. Under the circumstances, Shao’s “evidence” concerning the checks does not establish a breach of fiduciary duty.
For this reason, we reject Shao’s claim that the evidence established a breach because Sussman “overpaid” Wang.
Shao asserts that Sussman breached his duty when he used her Social Security number to open the trust account. According to Shao, overdrafts on the account due to his mismanagement degraded her credit worthiness, and as a result, a bank later declined her application to open an account.
Shao’s record references refer only to her unsworn statements at the hearing and a reference to a bank statement showing overdrafts. She does not provide references to support her allegation of damage to her credit or inability to open an account. We note, however, that at the hearing, Sussman testified that in response to Shao’s complaint that he had used her Social Security number. He explained that in his experience banks opened trust accounts under only one Social Security number. Because he doubted Shao would agree to use Wang’s number, he used her number. Again, Sussman asserted that the parties were not charged for any overdrafts.
The evidence that Sussman used Shao’s Social Security number to open the trust account, standing alone, does not prove a breach of fiduciary duty or compel such a finding.
Shao asserts that Sussman intentionally delayed distributing money to her for 14 months in violation of an express order that all funds be disbursed by May 19, 2008. Shao’s record citations refer to her assertions during the hearing that (1) $5,000 remained in a trust account long after it should have been distributed, (2) Sussman did not tell anyone about the money until Judge Pro Tem Mills asked about it at a settlement conference, and (3) only after she moved to enforce the judgment did Sussman distribute some money.
At the hearing, Sussman responded to her allegation that funds remained in the account after the distribution date. First, he did not know what “order” Shao was talking about. He also did not know what $5,000 she was talking about. Later, he admitted that a bank statement showed a balance of $4,184.78 as of August 31, 2008. He conceded that at that time, he may have mentioned the balance to Judge Pro Tem Mills. However, he explained that the $5,000 figure was wrong because he had misread the bank statement. Nevertheless, he stated that he did not remember why things were done in a certain way. He said he had felt a responsibility to the court and the parties to ensure that funds were distributed appropriately, and he testified that Shao got all of the money to which she was entitled, and there was now no money in the trust account, which was closed.
We presume she was referring to the Agreement, which provided, “4. Parties split the remaining proceeds in trust equally by May 19, 2008.”
The record does not establish when the money that still remained in the account as of August 2008, however much it was, went into the account or whether it was there on May 19, 2008, and thus could have been distributed. Moreover, the record does not suggest, and the court did not find, that Sussman knowingly, intentionally, and improperly had delayed paying Shao her share of the balance that remained in the account. Nor does the record establish that Shao did not ultimately receive her share of all funds that were ever in the account. Under the circumstances, we do not find that the court was required to find a breach of fiduciary duty.
Shao claims that Sussman breached his duty because he “unilaterally overpaid... Dr. Newton” over her objection. Her record citation, however, reveals only that during the hearing, she charged Sussman with sexual discrimination because he referred to her as “this woman.” However, we observe that at another point in the hearing, Shao complained that Sussman had paid court-ordered sanctions to Dr. Newton and had added 10 percent interest over her objection. In response, Sussman explained that the court had authorized him to pay the sanctions. He added interest because all judgments are entitled to interest. Sussman offered to personally refund the interest if the court thought that he improperly paid it.
Apparently, in 2006, during the litigation between the parties over child custody, Dr. Steve Newton, Ph. D., a psychologist, was appointed by the court to evaluate custody issues and prepared a report that was submitted and considered by the court. It further appears that the court awarded discovery sanctions to Dr. Newton against mother in connection with her efforts to investigate some allegedly improper relationship between him and Sussman.
Again, the circumstances do not compel a finding that Sussman breached his duty, and Shao offers no pertinent authority suggesting that they do or that the court erred in not finding so.
Shao claims Sussman breached his duty by commingling “the trust funds with his client’s funds[.]” However, she provides no record citations to support a claim of commingling.
Shao complains that a $1,000 discrepancy between the amount Sussman allegedly said he paid Wang as his share of the funds remaining in the account—$138,136—and the amount of a check that was written on the account—$139,136—establishes a breach of duty. In support, she cites Sussman’s letter and his explanatory spreadsheet which state that (1) the balance in the account was $346,457; (2) each party’s share was $173,228; and, (3) with pertinent deductions and/or additions, Shao’s net share was $202,561 and Wang’s net share as $138,136. Shao notes, however, that a bank statement shows that a check was drawn for $139,136, not $138,136.
The record refutes her claim. Sussman’s spreadsheet contained two mistakes that Sussman apparently discovered before issuing the check. He transposed the wrong number from one place to another; and he made an error in subtraction. But for the errors, the spreadsheet would have shown Wang’s net share to be the amount of the check that was drawn on the account.
Finally, Shao claims that Sussman “misused the trust fund” to pay for services provided by two people: Ms. Sims and Ms. Hungsinger. The record reveals that although Shao may have objected to these payments at the time, her objections alone do not establish that the two persons were not owed money, that the parties were not responsible to pay them, or that it was improper for Sussman to pay them from the trust before distributing the balance to the parties. Moreover, even assuming the court found some errors in the payment of relatively small amounts from trust, such a finding does not conclusvely established a breach of fiduciary duty.
In sum, the record does not establish that Sussman breached his fiduciary duty as a matter of law, and Shao does not convince us that the trial court abused its discretion in failing to find that he did or to otherwise sanction him for allegedly acting improperly or in bad faith. What the record does show is that Shao aggressively disliked Sussman.
C. Denial of a Continuance
Shao claims that the court erred in denying her a continuance to prepare a response to Wang’s motion. We review the denial for abuse of discretion. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 314.)
It is undisputed that Shao was served and received Wang’s pleadings and had them for more than two weeks before the hearing. In that time, she prepared and filed motions and a supplemental declaration. Finally, we note that compared with her own confusing and lengthy pleadings, Wang’s pleadings were simple, direct, and clear concerning his positions and what relief he sought. As a result, it would not have been particularly difficult or time consuming for Shao to submit a written response and prepare for the hearing, especially given her familiarity with everything about this case. At a minimum, she could have raised the sort of objections to the relief Wang sought that she asserts on appeal. Accordingly, we do not find that in denying a continuance, Shao was denied any meaningful opportunity to respond or that the court abused its discretion.
D. Granting Wang Relief
Shao contends that the court’s order constituted a modification of the support order. As such, she claims the modification was improper because Wang failed to show changed circumstances to justify a modification of his support obligation. She claims the court “abuse[d] its discretion in ignoring enormous disparity of income by deducting from mother the below guideline support she received other expense without adjusting the support to guideline support that caused mother to virtually receive no child support.” (Bold type omitted.) She claims the court committed “reversible error in failure to set guideline support or in conformity with guideline support pursuant to Family Code §§ 3651, 4053 and failure to make the statement of reasons mandated by Family Code § 4056.” (Bold type omitted.) And she claims the court erred in requiring her to pay half of the children’s insurance premiums.
We initially observe that Shao raises all of her claims for the first time on appeal. Although Wang’s pleadings clearly sought a determination of the parties’ responsibilities concerning unreimbursed medical and dental expenses, including insurance premiums, Lydia’s daycare, and the children’s extracurricular activities, Shao did not raise any of these issues in her written response to Wang’s motion to ensure that the court proceeded in accordance with the law. She did not raise them at the hearing on the parties’ motion. And most importantly, she did not seek reconsideration on any of these grounds after the court issued its order. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469 [discussing authority to have court reconsider family law rulings].)
1. Modifying the Basic Support Order
It is settled that a party seeking a modification in the basic child or spousal support order must present evidence of changed circumstances, and there must be changed circumstances to support an order that modifies such support. (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287-1288; In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76-77.)
The Agreement established Wang’s basic support obligations. “14. For the months of June through September 30, 2008, the current support order remains as set and shall be nonmodifiable in amount or duration. Spousal support terminates for each party effective May 31, 2008, except for payments set forth in the terms of this Order. Each party hereby waives the payment of spousal support and the right to receive spousal support in the future, effective as of the date stated, and jurisdiction of the court to order the payment of spousal support in the future is terminated effective this date. The parties have been informed that this provision means that effective upon the signature of this order, it forever terminates the right to receive spousal support or the ability of the Court to order the payment of spousal support from one to another, without regard to the need or the ability to pay of either party. [¶] 15. Child support: $2,500 per month commencing October 1, 2008 (non-guideline) through June 30, 2009; $1,200 thereafter until older child reaches 18, then to $600 per month. Child support as set forth in this Paragraph shall continue as to each child until further order, the death of the child, or when terminated by operation of law.”
The court’s order addressed Wang’s request for a statement of the parties’ duties and responsibilities concerning unreimbursed medical and dental expenses, allocation of the cost of Lydia’s daycare, and the obligation to pay for extracurricular activities. As noted, the primary thrust of Shao’s claims is that the court’s order on these issues modified the support provisions in the Agreement and Wang’s support obligation.
a. Unreimbursed Medical Expenses
The court directed Shao to pay half of the children’s unreimbursed medical and dental expenses, including insurance premiums, and ordered her to reimburse Wang for the amount of these expenses that he had already paid over and above his share.
This part of the court’s order was a response to Wang’s claim that Shao was violating paragraph 17 of the Agreement because she denied responsibility to pay half of these unreimbursed expenses, including insurance premiums for the children. Paragraph 17 provided, in relevant part, “The parties shall each pay one half of unreimbursed medical and dental expenses according to proof in the future. Prior reimbursements waived in consideration of terms of agreement.” This provision reflects the parties’ intent to share those expenses and pay their half shares. It further reflects the parties’ intent to make the obligation to pay their individual shares, whatever they might be, separate from and in addition to the support obligations in the other paragraphs. Thus, Wang sought a determination that the obligation to share unreimbursed expenses applied to insurance premiums.
Interpretation of a stipulation entered into in a marital dissolution proceeding is a question of law and follows the general rules of contract interpretation. (See Forgy v. Forgy (1976) 63 Cal.App.3d 767, 772 [general rules governing interpretation of contracts apply to interpretation of separation agreement].) One of the most fundamental rules is that a party to a contract, including a settlement agreement, is bound by its terms. (Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th 1526, 1536, disapproved on other grounds in Village Northridge Homeowners Ass’n. v. State Farm Fire and Cas. Co. (2010) 50 Cal.4th 913, 929, fn. 6.) A second basic principle is that interpretation of a contract must give effect to the mutual intention of the parties. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) “ ‘ “The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense, ’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ ([Code Civ.], § 1644), controls judicial interpretation. (Id., § 1638.)” [Citations.] A [contract] provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.’ ” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 647-648.)
The phrase “medical and dental expenses” is unqualified, and its plain meaning is broad enough to encompass the cost of medical and dental insurance. Paragraph 17 implies that some of the children’s medical and dental expenses might be reimbursed through insurance. Thus, the Agreement contemplates that there might be insurance to cover the children expenses. Given the general provision that “unreimbursed medical and dental expenses” would be shared and the absence of a specific allocation of the cost of insurance to Wang, the court reasonably could conclude that insofar as the party paying the cost of insurance was not reimbursed, paragraph 17 provided that that cost would be shared equally. Indeed, absent competent and persuasive evidence indicating a contrary intent, we do not find paragraph 17 reasonably susceptible to the interpretation that Wang is solely responsible for the unreimbursed cost of the children’s medical and dental insurance premiums.
We further find that when read in light of the Agreement and Wang’s pleadings, the court’s order that the costs be shared is self explanatory and its reasoning obvious. Thus, because the court’s interpretation merely effectuated a provision of the Agreement that was negotiated at the same time as the support provisions, we reject Shao’s claim that this aspect of the court’s order modified the existing support order or the parties’ support obligations as set forth in the Agreement. Rather, when the parties negotiated their Agreement, they contemplated that notwithstanding the support obligations, each would pay half of those unreimbursed expenses, the amount of which might vary from year to year depending on the children’s medical and dental needs.
Concerning the payment of premiums, Shao further asserts that “the parties orally agreed on 5/9/2008 that Father take full responsibility of all other costs because of very low, extremely low payment of child support [citation] and Father maintain the children’s health insurance like what he did [those] years. [Citation.] Mr. Mills did not put down in the Judgment health insurance coverage to comply with the requirement by Family Code §3751(2).” (Fn. omitted.) She further argues, “There is no case law or other authority that may support the trial court’s decision that mother should reimburse half of the insurance premium of father. Judge Davila’s decision is contrary to §3753. He did this arbitrary order, despite mother testified at trial that father has tax benefit for the insurance premium. Health insurance payment is Father’s pretax benefit (RT420:12) Father also has flex spending program to take care of all insurance uncovered expenses as his tax benefit. Therefore, the trial court’s ordering mother to pay half of father’s health insurance premium should be reversed. [¶] In addition, father’s alleged medical fees include even saline solutions or contact lens solutions and bandage that are doubtful to be considered as medical expenses.”
Shao’s record references in this argument are to comments that Shao made at the hearing in connection with her discussion of the separate custodial accounts that she had for the children and her request that Wang set up similar custodial accounts. At that time, she proposed that after those accounts were exhausted, Wang be ordered to pay “all other costs” including insurance premiums. She also made various assertions about health insurance being “his pretax benefit.”
We find Shao’s argument at the hearing on this point disjointed and confusing. Her comments do not establish that there was an agreement concerning the payment of insurance premiums or that Wang ever agreed to assume sole responsibility for paying them. Nor do those comments clearly or persuasively establish that the court erred in construing paragraph 17 and enforcing that interpretation.
Shao’s claim that the Agreement failed to comply with Family Code provisions concerning the payment of insurance premiums is yet another attempt to directly attack the Agreement and stipulated judgment. As discussed above, their propriety is not before us in this appeal.
Finally, Shao’s claim that the court’s order is contrary to section 3753 is not supported by a comprehensible argument, and we summarily reject it. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700 [“[w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [when appellant raises contention “but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117 [failure of appellant to advance any pertinent or “intelligible legal argument” forfeits claim of error].) Similarly, we disregard the assertions of fact that she makes concerning Wang’s pretax benefit and flex spending program. The court made no findings in this regard; and either her citations to the record do not establish the factual assertions or she fails to provide citations that do so. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)
In addition to interpreting the provision for sharing the cost of unreimbursed medical and dental expenses, the court ordered Shao to pay half of the unreimbursed expenses that Wang had already paid from May through December of 2008, which totaled $1,718.22. The court ordered Shao to pay half the insurance premiums for 2009, but required Wang to provide Shao with invoices showing the total amount for premiums. Finally, the court ordered Shao to pay her share of other 2009 unreimbursed expenses after Wang provided invoices showing what they were.
The court based its order on Wang’s declaration and an explanatory spreadsheet. In his declaration, Wang stated that he paid $1,718.22 for unreimbursed expenses from May through December of 2008. The spreadsheet listed dates, amounts, and the various medical and dental expenses, including premiums.
Shao generally complains that Wang provided no proof of payment or invoices to support the amounts she was ordered to pay as reimbursement for any of the various things, including unreimbursed medical and dental expenses, daycare, and extracurricular activities. Giving her the benefit of the doubt, we read this complaint as an implicit claim that there is insufficient evidence to support the amounts that the court ordered her to pay.
The order that Shao must pay for future insurance premiums and unreimbursed expenses recites certain amounts, but it directed Wang to provide Shao with invoices showing the expenses as a prerequisite or precondition to payment. Thus, as to the specific amounts specified in the order, they are qualified and conditional, and we do not find insufficient evidence to support them. If Wang fails to provide documentary evidence to support the specified amounts, then the order does not require Shao to pay them. If he does, then the order is, in effect, supported by substantial evidence.
However, the court did not require Wang to provide similar documentary proof of past unreimbursed expenses. It simply accepted Wang’s declaration and spreadsheet. As with his statement of the amount he owed Shao as additional bonus support, the declaration and spreadsheet reflect conclusions and are not supported by documentary evidence.
For this reason and because we are remanding the matter for a redetermination of the amount of additional bonus support that Wang owes Shao, we consider it both appropriate and fair to have the court redetermine Shao’s share of the cost of past unreimbursed expenses based on the same sort of evidence that the court required Wang to provide Shao as prerequisite to reimbursement for future unreimbursed expenses.
b. Lydia’s Daycare and Expenses
Shao seemed to request an order directing that Lydia attend a Montessori school in Cupertino. In his motion, Wang asserted that Lydia had been attending TLC, where, he asserted, she and the staff have developed a “deep and real affection.” He said that he had registered Lydia at TLC and urged the court enter an order that she remain there until and unless the parties mutually agree otherwise.
The court declined Shao’s implicit request. It accepted Wang’s representations concerning Lydia and TLC, found that removing her at this time would not be in her best interests, and ordered that she remain there until the court ordered otherwise or until Lydia has reached the highest grade level at TLC. This ruling did not modify or even implicate the support order.
In addition, Wang sought an order, retroactive to July 2009, directing Shao to pay (1) half of the TLC educational expenses, which he estimated to be $1,025 per month after July 2009 and (2) half of Lydia’s summer school fall registration fees, which amounted to $350.
Separate from and in addition to the support provisions, the Agreement provided that “Respondent [Wang] shall pay 100% of Lydia’s tuition at TLC through June, 2009.” However, it further provided, “The issue of Lydia’s school/daycare starting July, 2009, shall be reserved.” Read together, these provisions establish that the court reserved for later determination the allocation of costs for Lydia’s schooling after July 2009.
In response to Wang’s request, the court ordered that each party pay half of the cost of TLC retroactive from July 2009. The court accepted Wang’s estimate of the cost ($1,025) and set each party’s share at $512.50 per month. Given Wang’s assertion that he had already paid $1,025, the court, in effect, ordered Shao to reimburse Wang for $512.50. The court denied Wang’s request that Shao pay half the cost of Lydia’s registration fees.
The Agreement contemplated the possibility of a change in the allocation of responsibility for Lydia’s schooling after July 2009, and it authorized the court to revisit and decide that issue. Under the circumstances, we find that it was within the court’s authority to require the parties to share costs of schooling. Moreover, because the order related to a specific provision concerning Lydia’s schooling, the order did not modify or implicate the support provisions or alter the parties’ basic support obligations under them.
Concerning the court’s implicit order that Shao reimburse Wang for half the amount of Lydia’s tuition that he had paid after July 2009—i.e., $512.50—the court relied on Wang’s declaration. Thus, the order does not differ from the order to pay past unreimbursed medical expenses suffers from essentially the same evidentiary deficiency. For this reason and because the matter is being remanded for similar purposes, we again consider it appropriate to have the court redetermine Shao’s share of the cost of Lydia’s schooling based on documentary evidence of the total cost.
c. The Children’s Extracurricular Activities
The Agreement is silent concerning the payment of extracurricular activities. In his declaration, Wang asserted that Shao refused to share the expenses for certain activities even though she insisted that the children participate in them. Wang explained that up to that time, each parent had paid for different activities, and their costs had been similar. However, he stated that from May through December 2008, he incurred $2,243.85 for Louis’s music-related activities, school lunches, and various fees. Again, he provided a spreadsheet for the activities and costs. He opined that the parties should share the cost of extracurricular activities, requested an order to that effect, and reimbursement for half of the $2,243.85 that he had paid.
The court ordered the parties to share the costs of future extracurricular activities. However, it required that they had to agree on those activities and their scheduling. The court further ordered Shao to pay Wang $1,121.92, as her share of the cost of Louis’s previous activities. In doing so, the court implicitly accepted Wang’s assertion that Shao had “insisted” that Louis participate but then refused to pay a share of them. The court expressly accepted Wang’s statement and spreadsheet concerning the amount he had paid.
Again, the court’s order, as with its other orders, did not modify the support provisions or alter the parties’ obligations under them. Furthermore, the record does not reveal that Shao ever objected to or disputed Wang’s assertion that she insisted that Louis participate in certain activities and then declined to pay a share of the costs, and Shao does not provide a record citation showing that she did object or dispute that assertion. Although she mentions extracurricular activities and challenges the order on other grounds in her brief, she does not dispute Wang’s assertions. Instead, her position, as it was below, is that Wang should have been ordered pay for all medical and dental costs, including insurance; all tuition for schools; and all costs for extracurricular activities. Short of that, the court should have directed him to set up custodial accounts for the children; ordered that the children’s expenses be paid from the parties’ custodial accounts; and when those accounts are exhausted, Wang should be required to pay all future costs.
Finally, we note that while it may have been reasonable for the court to accept Wang’s assertion that he paid for extracurricular activities that Shao insisted on but refused to pay a share of, the court ordered Shao to pay a specific amount based on Wang’s statement and spreadsheet listing the amount. Again, there was no documentary evidence to substantiate the expenses or their payment. As with the other specific amounts that the court ordered Shao to pay based solely on Wang’s declaration and spreadsheets, we conclude that the amount of Shao’s share of the cost of Louis’s past extracurricular activities should be redetermined based on documentary evidence.
2. Violation of Section 271
Shao contends that the court abused its discretion in finding that she violated section 271.
Section 271, subdivision (a) provides, “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. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.”
Toward the end of the hearing, the court addressed the issue of attorney fees. Sussman sought fees as a sanction because Shao had called him a liar in her pleadings. He argued that Shao had jumped to an erroneous conclusion and accused him of lying before she had examined the facts which reflected a mathematical error. In response to Sussman’s request, Shao argued that she had never seen anyone sanctioned for calling an opponent a liar. She conceded that it was not appropriate but argued that as long as there is a factual basis for doing so, the label was protected by the litigation privilege. She further argued that Sussman had not been sanctioned even though he had not responded to her requests, he had accused her of dishonesty and of not being a good mother, he had called her a liar, and “[h]e made many lies to the Court.”
The court observed that lawyers are usually able to take opposing positions without calling each other liars. Shao and Sussman traded last minute denunciations, and the court took the issue under submission.
In its order, the court found it incomprehensible that the parties were still bickering so long after they resolved the matter with the Agreement. The court acknowledged that there may be outstanding issues that require judicial resolution, but if and when this became necessary, the court expected the parties to conduct themselves professionally, ethically, and courteously.
The court explained that section 271 embodied a policy of encouraging cooperation and settlement and authorized sanctions against a party who frustrates that policy. The court opined that calling someone a liar does not does not promote cooperation and impairs the orderly, professional, and respectful functions of the court and parties. With that, the court put the parties on notice that if their conduct fell below the professional standard of decorum and practice, the court would not hesitate to impose sanctions. It expressly reserved the issue of attorney fees.
Simply put, the court did not find that Shao violated section 271 and did not impose a sanction for doing so. Thus, we reject her claim.
V. Disposition
The post-judgment order is reversed and the matter remanded. The court is directed to redetermine the amount that Wang owes Shao as additional bonus support and the amounts Shao owes Wang for her share of the children’s unreimbursed medical and dental expenses, Lydia’s tuition at TLC, and Louis’s extracurricular activities.
The parties are to pay their own costs on appeal.
WE CONCUR: PREMO, J.ELIA, J.
That Wang declined to file a respondent’s brief does not help matters. However, we do not treat his election “as a ‘default’ (i.e., an admission of error) but [must still] examine the record, appellant’s brief, and any oral argument by appellant to see if it supports any claim of error made by the appellant. [Citations.]” (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court., rule 8.220(a)(2).)
It is unclear what Shao’s claim of fraud is based on. It appears to be based on her unsupported statements that Wang had hidden assets and/or failed to provide accurate financial information at the time of the Agreement. The allegations of fraud do not prove themselves, and the court would not have been required to accept them.