Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. D01-01257
Jenkins, J.
This is an appeal from several post-judgment orders by the trial court in marital dissolution proceedings involving appellant Joni Wolf and respondent Martin Wolf. The challenged orders include the trial court’s denial of Joni’s motion for temporary spousal support, her renewed motion for modification of spousal support, and her request for attorney fees and costs incurred in connection with an earlier appeal of her original motion for modification of spousal support. For reasons set forth below, we affirm.
For clarity and convenience, we refer to the parties by their first names, intending no disrespect.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second appeal by Joni arising from the dissolution of her nearly 16-year marriage to Martin to come before this court. On January 31, 2011, we affirmed a trial court order denying a motion by Joni for modification of spousal support in a nonpublished decision. (In re Marriage of Wolf, 2011 Cal.App.Unpub.LEXIS 740 (Jan. 31, 2011) (A126557).) Much of the factual and procedural background of these proceedings was set forth in detail in this recent nonpublished decision. As such, in the name of efficiency and where appropriate herein, we paraphrase and quote at length from our earlier decision.
Joni and Martin were married in 1985 and have two daughters, both of whom are now adults. A petition to dissolve their marriage was filed in 2001. Pursuant to the subsequent dissolution order, Joni received community assets totaling approximately $1,048,230, including $285,413.12 in cash, a family residence worth $1,390,000 with a $718,457 mortgage, and approximately $400,000 in retirement benefits.
In 2002, Joni, then 45 years old, was evaluated by a vocational expert for purposes of these proceedings. The expert’s final report noted, among other things, that while Joni had a successful broadcasting career before marriage, broadcasting “is not a realistic reentry path for an older woman who has been out of a very competitive field for a significant period of time.” Instead, the report identified real estate appraisal or possibly paralegal work as realistic employment paths based upon Joni’s expressed interests and qualifications.
On February 27, 2004, a final judgment was entered by Judge Judith Craddick, which ordered spousal support as follows: From January 1, 2003 through December 31, 2005, Joni would receive $4,600 per month in spousal support. From January 1, 2006 through January 1, 2008, Joni would receive $3,100 per month in spousal support. After January 1, 2008, Joni would receive no further spousal support, but the trial court would retain jurisdiction over this issue, and could order additional spousal support if Joni could establish that, despite good faith efforts to become self-supporting, she continued to need such support.
“With respect to the step-down spousal support order, Judge Craddick made several findings relating to Joni’s needs and her capacity to be self-supporting. In particular, Judge Craddick found that Joni had been repeatedly warned of her legal duty to make reasonable efforts to become self-supporting, yet had ignored these warnings for nearly two years. Judge Craddick also found that, according to [the] 2002 vocational report, Joni’s annual income should increase to $70,000 by January 2008, at which time support would be reduced to zero subject to a reservation of jurisdiction so long as she diligently pursued employment. [¶] Joni did not appeal Judge Craddick’s 2004 decision and judgment, which therefore became legally binding on the parties.” (In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, * 3-4.)
In March 2008, after her spousal support was reduced to zero under the judgment, Joni filed a motion to modify spousal support, which later became the subject of her first appeal. As grounds for her motion, Joni offered evidence that, among other things, her extensive efforts to gain full-time employment since the divorce had failed due primarily to her many years spent providing in-home care for the couple’s daughters, her ongoing, serious medical problems, and her financial hardship stemming from the high costs of maintaining the family residence and meeting the needs of her teenage daughters. Martin, in the meantime, had been very successful running a mergers and acquisitions business started during their marriage.
After hearing several days of evidence and considering all the statutory factors relevant to spousal support under Family Code section 4320, Judge Barry Goode denied Joni’s motion in May 2009. In doing so, Judge Goode acknowledged that, after filing her motion and four and a half years after the judgment, Joni had finally found full-time employment as a legal assistant paying $58,000 annually. Nonetheless, Judge Goode added, “[f]rom February 2004 until shortly before July 3, 2008, Ms. Wolf made no serious efforts to obtain employment that might lead to self-sufficiency. She did virtually none of the things that were recommended in [the expert’s] vocational evaluation report. For some time she continued to dabble in (sometimes) sporadic and part-time employment.... At other times, she simply did not work. For long stretches of time she made no serious attempt to become self-sufficient. [¶] Ms. Wolf testified at great length about these matters. Her testimony was little more than an effort to make minor, haphazard efforts appear to be something they were not. [¶]... Ms. Wolf never took seriously the need to seek employment that might lead to self-sufficiency.” (In re Marriage of Wolf, 2011 Cal.App. Unpub. LEXIS 740, *2-3.) Judge Goode further added that Joni had “mismanaged and dissipated” a substantial portion of her share of the community property, and had otherwise failed to prove any material change in circumstances warranting modification of Judge Craddick’s spousal support order. (In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, *3-6.)
As noted above, in January 2011, we accepted the trial court’s reasoning and affirmed the order. (In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, *3-6.) However, before this occurred, in late 2009, Joni filed new motions in the trial court for temporary spousal support pending the appeal, for modification of spousal support based on her recent loss of employment as a legal assistant, and for attorney fees and costs on appeal. Joni subsequently filed amended motions for temporary spousal support and attorney fees and costs on appeal, as well as a motion to compel in connection with her motions seeking updated financial information from Martin. After hearing each of these motions, the trial court denied the motion to compel in February 2010, and the others in March 2010.
The trial court denied her initial fee motion without prejudice after finding her factual showing in support of it inadequate.
Judge Goode presided over these proceedings in the trial court until his reassignment in January 2010, at which time Judge Charles Treat was assigned to the case.
With respect to Joni’s amended motion for attorney fees and costs, the trial court’s denial was without prejudice. Specifically, the trial court found Joni was not entitled to attorney fees on appeal because her appeal lacked reasonable grounds. The trial court added, however, that, should this court view Joni’s appeal more favorably, Joni could refile her motion in the trial court at a later date.
Joni did not refile her attorney fee motion in the trial court following our January 31, 2011 decision. Instead, she filed a notice of appeal in this court of the trial court’s orders with respect to her motions for temporary spousal support, modification of spousal support and attorney fees on appeal.
DISCUSSION
Joni, representing herself, raises several issues on appeal. First, Joni seeks review of the trial court’s denial of her motion for temporary spousal support during the pendency of her first appeal. Second, Joni challenges the trial court’s denial of her renewed motion to modify spousal support based on alleged changed circumstances (to wit, her loss of employment). Third, Joni seeks review of the trial court’s denial of her request to recover attorney fees and costs incurred in connection with her first appeal. Fourth, Joni challenges the trial court’s imposition of sanctions against her former attorney for discovery abuse, and asks this court to in turn sanction Martin and his attorney for discovery abuse and failure to disclose certain financial information in connection with her spousal support and attorney fee motions. Finally, Joni asks that we disqualify Judge Charles Treat from presiding over any issue in this matter on remand based on his alleged lack of impartiality. We address each of these contentions below.
I. Order Denying Joni’s Motion for Temporary Spousal Support.
Joni contends the trial court erred by denying her motion for temporary spousal support during the pendency of her first appeal of the May 2009 order denying her motion to modify spousal support. In rejecting her motion for temporary spousal support, the trial court found it lacked authority to grant such support at this point in the proceedings and that, in any event, Joni had failed to make the necessary showing to warrant it.
Family Code section 3600 authorizes the trial court to award temporary spousal support “[d]uring the pendency of any proceeding for dissolution of marriage” as is necessary for the support and maintenance of either spouse. (§ 3600.) “An award of temporary spousal support ‘ “ ‘is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ [Citation.]” ’ (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 [124 Cal.Rptr.2d 342].) Such awards rest within the broad discretion of the trial court and will not be reversed on appeal absent a showing of a clear abuse of discretion. (In re Marriage of Wittgrove [2004] 120 Cal.App.4th [1317] at p. 1327.)” (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 337.)
As an initial matter, we disagree the trial court lacked authority to award temporary spousal support pending Joni’s appeal of the order denying her earlier motion to modify spousal support. “[C]ourts have long recognized that trial courts retain jurisdiction to award or modify temporary spousal support during an appeal. (See, e.g., Bruce v. Bruce (1911) 160 Cal. 28, 29-30 [116 P. 66]; Bohnert v. Bohnert (1891) 91 Cal. 428, 431 [27 P. 732]; Bain v. Superior Court (1974) 36 Cal.App.3d 804, 807-808 [111 Cal.Rptr. 848].) These cases have relied upon statutes specifically authorizing an award of spousal support during the pendency of divorce or dissolution proceedings and upon Code of Civil Procedure section 1049, which has provided in pertinent part since 1872 that, ‘An action is deemed to be pending from the time of its commencement until its final determination upon appeal...’ ” (In re Marriage of Van Hook (1983) 147 Cal.App.3d 970, 982 [footnote omitted].)
Nonetheless, we hasten to add that an award of temporary spousal support is clearly a matter left to the trial court’s sound discretion, and is not subject to reversal on appeal absent a clear abuse of discretion. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) In this case, we find no abuse of discretion in the trial court’s denial of such an award.
Relevant to this conclusion, an award of temporary spousal support is “based on ‘a showing of two conditions: the moving party’s needs, and the other party’s ability to pay....’ (Citation.)” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 [noting temporary spousal support awards are discretionary and may be ordered in any amount “subject only to the moving party’s needs and the other party’s ability to pay, ” whereas permanent support “is constrained by numerous statutory factors set out in [Family Code] section 4320 (Citations)”].) In exercising its broad discretion to fix the amount of temporary spousal support, the trial court is “not restricted by any set of statutory guidelines... [and] [¶] ]... may properly consider the ‘big picture’ concerning the parties’ assets and income available for support in light of the marriage standard of living.” (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Here, the trial court looked at the “big picture” regarding the parties’ respective needs and abilities, and ultimately decided to deny Joni’s request for temporary support pending her appeal of Judge Goode’s May 2009 decision denying her request to modify spousal support. In doing so, the trial court incorporated the reasons set forth in Judge Goode’s earlier decisions denying Joni both temporary and permanent spousal support after her support was reduced to zero under the 2004 judgment. These earlier decisions, one of which we affirmed in our January 31, 2011 nonpublished decision, do indeed contain facts sufficient to support the trial court’s denial of Joni’s request. Without completely rehashing our earlier analysis, we simply note that three separate trial judges have now rejected Joni’s numerous and ongoing requests for spousal support after finding she had in the decade since her divorce failed to make reasonable efforts to become self-supporting and mismanaged and dissipated her share of marital assets through her excessive spending and decision to remain by herself in the large former family home. (See In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, * 5-6 (Jan. 31, 2011).) Under these circumstances, the trial court’s decision to deny temporary spousal support for Joni pending her appeal was a proper exercise of discretion.
For example, Judge Goode’s decision, which we affirmed, noted evidence that Joni had dissipated hundreds of thousands of dollars in assets, spending $203,100 in 2005, $229,705 in 2006, and $131,728 in 2007. Judge Goode further noted that, if Joni had promptly heeded the trial court’s warnings to attain self-sufficiency at the time of the initial award of permanent spousal support, she could have been earning at least $70,000 per year, which, considered together with the “very substantial assets” she received when the marriage dissolved, would have adequately met her needs. Judge Goode thus concluded that “[i]t is simply not fair for Ms. Wolf to have frittered away her assets recklessly, failed to heed the Gavron warning she received even post-judgment, and then ask Mr. Wolf to subsidize her misjudgments and extravagances.” (See In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, *5-6 (Jan. 31, 2011).)
II. Order Denying Joni’s Renewed Motion to Modify Spousal Support.
Turning now to Joni’s renewed motion to modify spousal support, we note that, as with her motion for temporary spousal support, the trial court relied on Judge Goode’s May 2009 decision denying her previous motion to modify spousal support. According to Joni, the trial court’s decision in this regard was an abuse of discretion, particularly in light of the trial court’s refusal to hold another hearing on the statutory factors relevant to spousal support that are set forth in Family Code section 4320. We again disagree.
Whether to grant or deny a motion to modify spousal support based, as here, on an alleged material change of circumstance is a matter again left to the sound discretion of the trial court, and the ultimate decision will not be reversed on appeal absent a clear showing of abuse of discretion. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412; In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) Further, in deciding whether a changed circumstance is material such that modification of a prior support order is warranted, the trial court may consider the overall case rather than merely events occurring subsequent to the prior order. (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 812 & fn. 8 [noting that, “[i]nherent in the [modification] process is that courts cannot be limited to arbitrarily short intervals if it means blinding them from facts and patterns which transcend those intervals”].) This broad approach was in fact taken by the trial court here in denying Joni’s motion.
Specifically, in readopting Judge Goode’s May 2009 decision and analysis, the trial court explained that all the relevant statutory factors under Family Code section 4320 were considered at length in connection with Joni’s earlier modification motion, and that the only changed circumstance that she relies upon – her job loss – was not of such significance to warrant a different result. Thus, rather than refuse to consider the section 4320 factors, the trial court simply found a long-cause hearing on those factors was unnecessary because they had not changed in any significant way since the last long-cause hearing. In particular, the new fact that Joni had recently lost her job did not change the preexisting facts that she had, over the course of the decade, repeatedly failed to make reasonable efforts to become self-supporting and had mismanaged and dissipated her share of the quite substantial marital assets.
We conclude the trial court’s decision and findings on this issue were within its discretion. As we reminded Joni in our nonpublished affirmance of Judge Goode’s May 2009 denial of her previous modification motion, “[t]he standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order [citation] was designed to prevent repeated attempts to modify support orders without justification, not to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. [Citation.]” (In re Marriage of Schaffer, supra, 69 Cal.App.4th at pp. 803-804.) While we greatly sympathize with Joni’s recent loss of employment, we do not believe at this point the responsibility for her financial support necessarily must fall back on Martin. On a positive note, we acknowledge Joni’s admirable and apparently quite successful efforts to become a certified paralegal. As the program director of Joni’s paralegal studies program stated in a declaration filed with the trial court in connection with her motion, Joni has received very good grades and can reasonably expect, given her maturity and mix of journalism and legal skills, to secure a new paralegal job in the Bay Area paying about $45,000 per year.
III. Order Denying Joni’s Motion for Attorney Fees and Costs on Appeal.
With respect to Joni’s request for attorney fees and costs incurred in pursuing her appeal of Judge Goode’s May 2009 decision, the following legal principles govern. “[T]rial courts... have a duty at the conclusion of the case to make a just and reasonable award of attorney fees and costs, considering the circumstances of the parties.” (In re Marriage of Green (1992) 6 Cal.App.4th 584, 593.) To that end, “section 2030 permits the trial court to order payment of attorney fees and costs as between the parties based upon their ‘ability to pay’ and their ‘respective incomes and needs’ in order to ‘ensure that each party has access to legal representation to preserve all of the party’s rights.’ (Fam. Code, § 2030, subd. (a).) ‘The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.’ [Citation.] The trial court may award attorney fees under section 2030 ‘where the making of the award, and the amount of the award, are just and reasonable under relative circumstances of the respective parties.’ (Fam. Code, § 2032, subd. (a).)” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) In addition, the “court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.” (Fam. Code, § 2030, subd. (c) [emphasis added].)
Joni was previously awarded $25,000 in fees in connection with her 2008 motion to modify spousal support, an amount augmented by $9,253 in July 2009.
A motion for attorney fees and costs in marital dissolution proceedings “ ‘is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.]” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) “[W]hile the court has considerable latitude in fashioning or denying a pendente lite fee award its decision must reflect an exercise of discretion and a consideration of the appropriate factors. [Citations.]” (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219.) Where an award is sought for fees incurred in prosecuting an appeal, these factors include the requesting spouse’s need for the award, the paying spouse’s ability to pay it, and the extent to which the appeal was brought in good faith and based on reasonable grounds, although it need not actually have been successful. (In re Marriage of Davis (1983) 141 Cal.App.3d 71, 78. See also In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 966 [“there is no requirement that attorney fees be awarded only to prevailing parties, as they may be awarded against a prevailing party in family law proceedings”].)
Here, the trial court denied Joni’s motion for attorney fees and costs after concluding there were no reasonable grounds for her appeal of the order denying her motion to modify spousal support. However, the trial court’s decision was without prejudice to Joni’s ability to renew the motion in the event this court were to “take a more generous view of the appeal.”
The trial court, however, expressed agreement with “Judge Goode’s conclusions about the abusive nature of [wife’s] continued attempts to seek support in the face of prior orders [denying her requests], ” and left open the possibility of sanctions against her.
As this record thus reflects, the trial court’s ruling remained tentative, rendering review by this court premature. “Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.” (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015; see also Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718 [“The term ‘without prejudice, ’... means that there is no decision of the controversy on its merits, and leaves the whole subject... open to another application.... [Citations.]”]; Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1587, disapproved on another point in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785, fn. 7.)
Here, while this court rejected Joni’s first appeal, as noted above, a requesting spouse need not actually prevail on appeal to recover attorney fees. (In re Marriage of Davis, supra, 141 Cal.App.3d at p. 78.) And based on the record we reviewed in her first appeal, while perhaps a close call, we cannot conclude Joni lacked all reasonable grounds for pursuing it. In any event, we leave the subject of Joni’s recovery of attorney fees on appeal for the trial court to decide in the first instance based on the relevant legal principles set forth above, assuming of course she files a renewed motion.
For example, Joni argued in her first appeal that the trial court improperly declined to conduct a full analysis of the spousal support factors set forth in Family Code section 4320. In doing so, Joni correctly pointed out that the trial court initially stated that she would have to prove she had made reasonable efforts to become self-supporting before it would consider the other section 4320 factors. However, as we stated in our opinion, regardless of the trial court’s initial intention, the court ultimately did consider all relevant section 4320 factors before denying her motion, thereby properly exercising its discretion. (See In re Marriage of Wolf, 2011 Cal.App.Unpub. LEXIS 740, *4-5 (Jan. 31, 2011).)
IV. Sanctions.
Joni also challenges the trial court’s imposition of a $2,500 sanction against her former attorney for discovery abuse in connection with her motions to compel discovery of certain financial information and for temporary spousal support pending appeal. In addition, Joni asks this court to sanction Martin and his attorney for discovery abuse and failures of disclosure in connection with her motions. Specifically, Joni contends Martin and his attorney violated Family Code sections 2100, 3552 and 3667, by failing to disclose, among other things, updated information regarding Martin’s assets, income and liabilities.
First, with respect to Joni’s challenge to the trial court’s imposition of a sanction against her former attorney we agree with Martin that her challenge necessarily fails for lack of standing. Joni’s attorney, not Joni, is the party aggrieved by the court’s order, and thus is the proper party to challenge it. (Code Civ. Proc., § 902; Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42-43 [“Absent any attempted appeal by the sanctioned party, the sanction ruling is not presently reviewable”]; see also Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1586 [an attorney subject to a sanctions order has a separate right to appellate review].)
We likewise reject Joni’s request for sanctions pursuant to Family Code section 271 against Martin and his attorney for alleged discovery and disclosure violations. Below, the trial court found Martin’s stipulation that he could pay any reasonable spousal support order negated the need for the extensive discovery of financial information sought by Joni in connection with her motions for support and attorney fees. The trial court added that Joni’s discovery requests were “manifestly overbroad, over detailed and harassing even as to the spousal support motion and greatly more so as to an attorney’s fees motion even without [Martin’s] stipulation.” The trial court thus declined to order Martin to respond to Joni’s requests as then drafted, while leaving open the possibility that she could in the future seek discovery “much more closely tailored to any future issues such as, for example... as to the amount of the petitioner’s attorneys fees on appeal.”
Section 271 provides in relevant part: “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.” (Fam. Code, § 271, subd. (a).)
We conclude the trial court’s rulings with respect to Joni’s discovery requests were reasonable, particularly in light of Martin’s stipulation. Moreover, on this record, we find no support for Joni’s contention that Martin and his attorney violated mandatory disclosure rules or otherwise engaged in dilatory or uncooperative conduct, such that sanctions would be warranted. (See Fam. Code, § 271, subd. (a).) Accordingly, Joni’s sanction request fails.
V. Disqualification of the Trial Judge.
Finally, Joni asks this court to disqualify Judge Treat from presiding over these proceedings on remand due to his alleged lack of impartiality. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii) [“A judge shall be disqualified if any one or more of the following are true: [¶]... [¶] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”].) However, in support of her argument, Joni fails to make any factual showing whatsoever that would suggest a reasonable person could doubt Judge Treat’s impartiality. As such, we reject her disqualification request on waiver grounds without further discussion. (Dahms v. Downtown Pomona Property & Business Improvement Dist. (2009) 174 Cal.App.4th 708, 719.)
DISPOSITION
The challenged orders of the trial court are affirmed. Joni’s requests for sanctions and for disqualification of the trial judge are denied.
We concur: Pollak, Acting P. J.Siggins, J.