Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. IND080301. Harold W. Hopp, Judge. Affirmed.
Shawn M. Weatherup, in pro. per., for Appellant.
No appearance for Respondent.
OPINION
MILLER J.
Appellant Shawn M. Weatherup (husband) appeals the trial court’s award of $90,000 in attorney’s fees to respondent Shawna L. Weatherup (wife). We hold that the court acted within its discretion and therefore, affirm the judgment in full.
FACTUAL AND PROCEDURAL HISTORY
Husband’s factual and procedural recitation in his opening brief is abbreviated, giving us only a narrow perspective of the facts as they relate solely and specifically to the proceedings regarding the motion for attorney’s fees he challenges on appeal. Since wife did not file a brief, the broader facts regarding the general status of proceedings beforehand, recited herein, are the best we can glean from a review of the register of actions.
In April 2004, wife filed a petition to dissolve the marriage. They had one child together. Husband filed his response the following November. Husband failed to appear at a subsequent evidentiary hearing and was ordered to reimburse wife for fees incurred for the court reporter. For the duration of the proceedings, wife apparently lived in California while husband lived in Florida. Trial on the custody dispute began on September 1, 2005, and on September 2, 2005, the court awarded temporary custody of the minor to parents jointly, with primary physical custody going to husband. The court later granted wife’s motion to bifurcate the issues of custody and visitation for trial. The marriage was terminated on March 27, 2006.
On November 20, 2006, the court granted wife’s request to bar husband from evicting her from her residence on Willow Circle. A nine-day court trial on custody began on April 16, 2007. The court granted primary physical custody of minor to wife. On July 3, 2007, the court granted a motion for sanctions in the amount of $540 against husband. In October 2007, husband filed a statement of disqualification of the judge; the court struck the statement.
Husband’s “belief” that the trial court’s order of attorney’s fees against him was in retribution for his filing of a request to disqualify finds no support in this record.
On November 21, 2007, wife filed a motion for attorney’s fees requesting the amount of $200,000; $125,000 towards wife’s past, current, and future attorney’s fees and $75,000 towards past, current, and future private investigator and expert fees and costs, including the expense of a forensic accountant and real estate appraisals. In her attached declaration, wife’s attorney, Wendy Rossi, declared that wife had already incurred almost $100,000 in attorney’s fees. Wife had already paid $80,000 towards that amount.
At the hearing on the motion held on December 28, 2007, husband asserted that he had filed a response to the motion 10 days earlier. However, husband’s response had apparently been rejected. Nevertheless, the court obtained a copy of the response and entertained objections regarding the document by wife’s counsel. Thereafter, the court read and considered the document for purposes of the hearing. The court ordered husband to file a copy with the court; nonetheless, no copy of the response appears in the record and the register of actions does not reflect that one was filed.
The court granted wife’s motion, awarding $35,000 as sanctions (Fam. Code, § 271) and $55,000 based on need (§ 2030) for a total of $90,000. The court reasoned that the amount of sanctions was “justified... because I think they were incurred because of [the] conduct of [husband], [husband’s] counsel.” As to the amount based on need, the court stated that “I think taking everything into consideration, ability to pay, and the ability to or sort of trying to give each side sufficient resources to retain counsel, that’s an appropriate amount.”
All further statutory references are to the Family Code unless otherwise indicated.
DISCUSSION
A. Sanction Award
The trial court may award attorney fees and costs as sanctions after a party has been given notice and opportunity to be heard. (§ 271, subd. (b).) The award may be based 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.” (§ 271, subd. (a).) The sanctions may be granted without regard for financial need on the part of the party requesting sanctions, but the court cannot impose a sanction “that imposes an unreasonable financial burden” on the party against whom the sanction is requested. (Ibid.) We review the family court’s decision for abuse of discretion. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 399; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)
Here, the trial court acted within its discretion in awarding wife $35,000 in attorney’s fees as sanctions because there was evidence before it that husband had increased the costs of the litigation by being uncooperative during the proceedings. According to wife’s attorney, the attorney’s fees in the case were abnormally high because husband’s attorney rarely responded to communications and opposed any request; thus, even the most routine of matters required the filing of motions. Three hearings were required on an ex parte request to return the minor child to California; husband ultimately failed to respond to the court’s order. Wife’s attorney declared that expenditures were incurred to thwart wife’s eviction from her residence. Furthermore, husband failed to produce requested documents when he appeared at a deposition.
Moreover, the amount does not appear to impose an unreasonable financial burden upon husband. Husband’s most recent income and expense report, dated October 19, 2007, reflected that he earned $12,200 in the last month and averaged $9,800 a month. He additionally earned $2,650 in investment income from rental properties the preceding month, but averaged $3,850 a month in such income. Husband’s total earnings, as reported to the IRS for 2004 were $228,718, for 2005 were $92,269, and for 2006 were $270,994. Although, husband alleged that payments on his investment properties totaled $8,138 a month, and that his wife lost her job the previous month, he claimed a total net worth of $98,000. Thus, even if all his investment properties were foreclosed upon, husband generated sufficient monthly income and had a reserve net worth which would not make the court’s sanction order an unreasonable burden. Therefore, the court acted within its discretion in awarding $35,000 as a sanction.
B. Need-based Award
“[T]he 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... 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....” (§ 2030, subd. (a)(1).) The amount ordered “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.” (§ 2030, subd. (a)(2).)
An award of attorneys’ fees and costs is thus permitted when it is “just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “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.” (§ 2032, subd. (b).) Section 4320 sets forth the various circumstances to be considered by the court in awarding spousal support, including the needs, obligations, and assets of each party, and the ability of the supporting spouse to pay. (§ 4320, subds. (c) & (e).) The court should also consider “[t]he balance of the hardships to each party” (§ 4320, subd. (k)) and “[a]ny other factors the court determines are just and equitable” (§ 4320, subd. (n)).
Of course, “[f]inancial 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.” (§ 2032, subd. (b).) “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.” (Ibid.) “‘A disparity in the parties’ respective circumstances may itself demonstrate relative “need” even though the applicant spouse admittedly has the funds to pay his or her fees.’ [Citations.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315.) “‘In assessing one party’s relative “need” and the other party’s ability to pay, the court may consider all evidence concerning the parties’ current incomes, assets, and abilities, including investment and income-producing properties.’ [Citations.]” (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630.)
The trial court’s determination will not be disturbed on appeal absent a clear showing of abuse of discretion, i.e., that no judge could reasonably have made the order considering all the evidence viewed most favorably in support of the order. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) However, the decision must reflect “an exercise of discretion and a consideration of the appropriate factors.” (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219.)
The evidence contained in the parties’ respective income and expense reports reasonably demonstrated that wife’s ability to pay attorney’s fees was substantially less than that of husband. Husband relies upon wife’s 2005 and 2006 statements of what appear to be distributions of insurance benefits regarding her mother’s death in repeatedly asserting that wife had income substantially greater than he. However, nothing in the record indicates that those distributions continued in 2007. Moreover, wife asserted that she had depleted her assets and incurred substantial tax debt in order to regain primary custody of the minor. Indeed, wife averred payment of a total of $233,000 in attorney’s fees to-date and other expenses paid from her inherited IRA while incurring substantial tax penalties. Thus, the trial court could reasonably have determined that much of wife’s previous “income” from the insurance distributions had already been exhausted in prior expenses incurred in the present litigation. Even to the extent that wife retained additional reserves in her retirement account, the court could reasonably have determined that it would be unfair to require her to fund continued litigation with retirement funds subject to penalties upon withdrawal. (Compare In re Marriage of Olson (1993) 14 Cal.App.4th 1, 12-13 [abuse of discretion to base spousal support award on funds in payor’s retirement plan because of withdrawal penalty].)
Wife’s most recent income and expense report, filed on October 30, 2007, reflected that while she had completed four years of college, she had yet to obtain a degree. She was working four and a half hours a month as a “‘Guest Teacher’” and earned $475. Minor spent 95 percent of his time with wife, visiting with husband only at Christmas, during summer, spring break, and Thanksgiving. Wife alleged $3,985 in total expenditures each month including installment payments, health insurance, and child care for minor and three other children living with her from other relationships for whom she received no support. She alleged she still owed $32,000 to her current attorney whose hourly rate is $350. Husband relied on wife’s previous income and expense report in alleging that wife had $10,000 in monthly income; however, husband ignored wife’s most recent income and expense report in which she averred that the previous income and expense report erroneously listed $10,000 in monthly income: “I do not have any such income.”
In contradistinction, as discussed above, husband’s most recent income and expense report reflected that he earned $12,200 in the last month and averaged $9,800 a month. He additionally earned $2,650 in investment income from rental properties the preceding month, but averaged $3,850 a month in such income. Husband’s total earnings, as reported to the IRS, for 2004 were $228,718; for 2005 $92,269, and for 2006 $270,994. Although, husband alleged that payments on his investment properties totaled $8,138 a month, and that his wife lost her job the previous month, he still claimed a total net worth of $98,000. Husband was employed as a loan officer while his current wife was a mortgage broker. Wife’s attorney declared that husband owned a total of nine homes, some individually and others purchased with his new wife; seven of the homes were leased, one at a profit and six at a loss. Thus, husband had substantially greater income and assets with which to fund his side of the litigation when compared with wife.
Husband contends the award of $55,000 in attorney’s fees for prospective costs of litigation was inappropriate as the case was at its “final stages.” However, wife alleged a substantial variety of future litigation expenditures. Wife’s attorney declared that she would be required to prevent foreclosure on wife’s residence due to husband’s refusal to make the mortgage payments. Counsel also noted that a contempt trial was pending. Likewise, trial on the complex property issues remained: “I need to retain a forensic accountant to unravel all financing, bank funds, tax deductions and help trace [husband’s] use of [wife’s] inheritance to buy the approximately five (5) to seven (7) California and Florida properties he currently owns in his name or jointly with his new wife. I contacted a C.P.A. (forensic accountant) and a $10,000 retainer is estimated.” Wife’s attorney alleged that husband had obtained a $215,000 equity line of credit on a home in which wife had an interest in violation of standing restraining orders. Husband allegedly used the equity line of credit to finance his purchase of new properties. Counsel noted that the matter involved an accounting nightmare as husband and his new wife never segregated funds, did not hold security deposits separate, did not hold separate bank accounts, and no ledgers existed reflecting who made what payments from which account. Thus, contrary to husband’s assertion, the case was not in its final stages as a number of issues, some involving complex and expensive matters, remained to be resolved. The trial court’s award was, therefore, within its broad discretion.
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal.
We concur: HOLLENHORST Acting P. J., GAUT J.