Opinion
A130895
11-30-2011
In re the Marriage of NANCY DOW MOODY and PETER MOODY. NANCY DOW MOODY, Appellant, v. PETER MOODY, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. FL020718)
In a scenario all too familiar to bench officers who have dealt with family law matters, the former spouses who are parties here have been involved in ongoing litigation which now exceeds the duration of their marriage. This case is before us for the fifth time. In this most recent chapter, appellant Nancy Dow Moody (wife) appeals, for a second time, an award by the trial court of postjudgment attorney fees and costs to her former spouse, Peter Moody (husband). We affirm.
The parties to the dissolution action were married on September 11, 1993, and separated on November 3, 2001. (See In re Marriage of Moody (Jun. 24, 2010, A124962) [nonpub. opn.] (Moody III).) Their dissolution action was filed on February 11, 2002.
I. BACKGROUND AND PROCEDURAL HISTORY
On June 22, 2007, husband and wife reached a settlement in their dissolution case and appeared in the Marin County Superior Court to place the terms on the record (settlement/judgment). They agreed the settlement would be judicially enforceable under Code of Civil Procedure section 664.6. They were, however, unable to agree on the contents of a written judgment memorializing their settlement. The trial court granted husband's motion for entry of judgment and ordered that wife pay husband $10,000 in attorney fees and costs under Family Code sections 271 (allowing fee award as sanctions) and 2030 (allowing fee award based on financial need). Wife appealed the award of fees and costs to husband, and this court affirmed in an opinion issued March 11, 2009. (In re Marriage of Moody (Mar. 11, 2009, A121691) [nonpub. opn.] (Moody I).)
All further statutory references are to the Family Code unless otherwise indicated.
While that first appeal was pending, husband obtained an order requiring wife to pay him $15,000 in pendente lite attorney fees and costs under section 2030 based on his financial need. Wife appealed from that order as well, and we affirmed in an opinion issued June 23, 2009. (In re Marriage of Moody (June 23, 2009, A123034) [nonpub. opn.] (Moody II).)
The 2007 settlement/judgment contemplated further proceedings to resolve issues relating to ownership of certain real property in Massachusetts, including an evidentiary hearing, if necessary. On wife's motion, the court held a hearing on "property valuation/ownership" under paragraph 2 of the settlement/judgment, resolved the disputed issues in husband's favor, and ordered wife to pay husband a total of $93,285.08 in attorney fees and costs based on a prevailing party clause in the settlement/judgment. Wife again appealed, challenging the trial court's resolution of the property ownership issues and the attorney fee award. (Moody III, supra, A124962.) In an opinion filed June 24, 2010, we affirmed the court's ruling on the property ownership issues, as well as husband's entitlement to fees as a prevailing party, but reversed the fee award because the evidentiary record was insufficient to establish its reasonableness. We remanded the case for a new hearing regarding attorney fees and costs. (Ibid.)
Paragraph 15 of the settlement/judgment contained a general clause regarding attorney fees: "Each party shall pay his or her own attorneys' fees and costs of suit through entry of judgment. However, if either party brings legal proceedings to enforce any of the terms contained in this agreement, the prevailing party shall be entitled to receive reasonable attorneys' fees and costs of suit to be paid by the other party."
While the appeal was pending in Moody III, husband obtained an order from the trial court awarding him $26,650 in pendente lite attorney fees and costs under section 2030 to defend that appeal. Wife appealed and we affirmed. (In re Marriage of Moody (June 22, 2011, A128515) [nonpub. opn.] (Moody IV).)
Proceedings on Remand
Following the issuance of the remitittur in Moody III, on September 3, 2010, the trial court ordered a briefing schedule for a further hearing on husband's application for attorney fees and costs. Husband was ordered to submit any declarations by October 1, 2010; wife was to file a response by October 22, 2010; and husband was to file a reply by November 5, 2010. On September 29, 2010, husband filed a new notice of motion for attorney fees and costs.
Husband's trial counsel, Sandra Acevedo, presented a detailed declaration describing her services in this case on a month by month basis (Feb. 13, 2008 through Jan. 12, 2009), her hourly rate and that of her staff, and her costs. Attached to the declaration were copies of her itemized bills. Husband requested $69,725.86 for his attorney's professional services and $727.50 in costs. Acevedo also requested cost awards for expert witness fees: $3,439.50 for Avery & Associates (real estate appraisers), $1,250 for Michael G. Levine, MRA (real estate appraiser), and $2,415 for Larry Salem of Gould Title Company (title expert). The attorney who represented husband in Massachusetts in connection with wife's real property claims, Theresa Capobianco, submitted a declaration seeking an award of $19,611.27 in attorney fees and costs. Capobianco identified the hourly rates of the lawyers and staff in her firm and attached copies of her itemized billing statements, with a detailed description of services performed. Wife filed no responsive papers. The trial court held a hearing on the motion on November 15, 2010. The court granted wife's motion to take judicial notice of her reply to husband's previous request for attorney fees and costs.
Wife's counsel objected to a hearing based on declarations, citing Elkins v. Superior Court (2007) 41 Cal.4th 1337. The trial court overruled the objection, finding that Elkins did not apply to a postjudgment motion. Wife raises this issue only tangentially in this appeal and provides no discussion or reasoned argument. (See In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294 [arguments not stated under a separate heading may be treated as forfeited]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may deny claim on appeal that is unsupported by legal argument applying legal principles to the particular facts of the case on appeal]; Cal. Rules of Court, rule 8.204(a)(1)(B).)
On November 22, 2010, the court issued a written "Order on Submitted Matter" (Order). The trial judge scrutinized Acevedo's unredacted billing statements and found that the time spent by husband's counsel was necessary and reasonable, noting that she had presided over the vigorously contested hearing on the property issues. The trial judge also found that counsel's rates were reasonable, citing her familiarity with the hourly rates charged by family law practitioners in the area, her experience as a family law attorney for over 28 years (and as a certified specialist in family law), and her experience serving in the Marin Superior Court's family law division. The court disallowed fees for amounts it found were not related to the Massachusetts property at issue in the trial, awarding fees and nonexpert costs totaling $54,729.82. The court further disallowed the requested $1,250 cost reimbursement for Michael Levine, but granted cost reimbursements for Avery & Associates ($3,439.50) and for Larry Salem ($2,415). The court granted the full amount of the requested award of $19,611.27 for the services of Massachusetts counsel, noting that extensive discovery had been conducted in Massachusetts, that the hourly rates charged appeared to be reasonable, and that Capobianco's declaration in support of the claim was uncontradicted. The court expressly awarded fees only pursuant to the contractual attorney fees provision of the 2007 settlement/judgment and Civil Code section 1717, and not under sections 271 or 2030. The total award was $80,195.59.
Husband's new posttrial motion sought fees on these additional grounds.
On January 13, 2011, wife filed a timely appeal from the Order.
II. DISCUSSION
Wife argues that the trial court abused its discretion and made its award to husband "without substantial evidence to support an award of excessive, duplicative and unnecessary attorneys fees and costs." She also insists that husband is precluded from contesting this appeal under the doctrine of "disentitlement," since he is allegedly in default under a separate term of the settlement/judgment requiring him to pay half of the parties' son's educational expenses and medical insurance. Neither argument has merit. A. Abuse of Discretion
Husband suggests that we should dismiss wife's appeal as frivolous. We address the appeal on the merits, but view it as a close question whether the appeal is frivolous in the first instance.
When reasonable attorney fees are authorized by contract or statute, the amount of those fees is addressed to the sound discretion of the trial court. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 303.) " 'The appellate court should interfere [with the trial court's determination] only if it finds that, under all the evidence viewed most favorably in support of the trial court's decision, no judge could reasonably have made the challenged order.' [Citation.]" (Marsh v. Mountain Zephyr, Inc., at p. 304.)
Wife provides a one sentence acknowledgment of this standard of review in her opening brief, but offers no further discussion of how the court abused its discretion in this instance. Instead she attempts to re-argue the evidence before the trial court. To the extent that wife is contending that the court's express findings that the fees were reasonable and necessary are unsupported by substantial evidence, she fails to observe a basic precept of appellate review. "[A]ppellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived." [Citations.]' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246, italics omitted.) Wife makes no effort to do so here. Her challenges to the credibility of the evidence are likewise unavailing. We do not reweigh the evidence or reconsider credibility determinations made by the trial court. (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.)
Substantial evidence supports the Order in any event. In our prior decision in Moody III, we reversed the award of fees because the materials submitted in support of the fee claim had failed to supply the hourly rate of the individual attorneys, and to identify the amount and nature of services performed. We noted that "Ms. Acevedo presented no evidence that would have permitted the court to discern her hourly rate or the time she actually spent on the case, let alone on each individual task. The trial court lacked the information it needed to exercise its sound discretion when determining the reasonableness of Ms. Acevedo's fees." (Moody III, supra, A124962.) We also found that Capobianco's declaration "provides a scant basis for determining the nature of the work actually performed or assessing the reasonableness of her fees." (Ibid.) On remand, the declarations submitted provided the requisite information, and an experienced trial judge carefully considered that evidence, making express findings based on that evidence.
The trial court did not abuse its discretion. B. Disentitlement
Wife alleges that husband has "failed and refused to abide by the support terms of the same final judgment pursuant to which he seeks legal fees." Therefore, she argues, husband is barred from seeking the assistance of an appellate tribunal. She cites MacPherson v. MacPherson (1939) 13 Cal.2d 271 (MacPherson).) In MacPherson, the appellant husband sought review of an attorney fees order after he had secluded his children in a foreign country and had violated both his agreement with the wife and the provisions of the interlocutory and final decrees of divorce. (Id. at p. 277.) The court also found that he willfully and purposely evaded legal processes and "contumaciously defied and nullified every attempt to enforce the judgments and orders of the California courts, including the very order from which he seeks relief by this appeal. Such flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal. A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]" (Ibid.) MacPherson and the other cases cited by wife stand for the proposition that an appellate court has the power to stay or dismiss the appeal of any litigant who has contumaciously defied the orders of the superior court. (See Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1682-1683; Stone v. Bach (1978) 80 Cal.App.3d 442.) " 'The rationale upon which [appellate] relief is denied is that it would be a flagrant abuse of the principles of equity and of the due administration of justice to consider the demands of a party who becomes a voluntary actor before a court and seeks its aid while he stands in contempt of its legal orders and processes.' " (Stone v. Bach, at p. 444.)
The only evidence wife cites of husband's noncompliance with trial court orders is a reference made to clerk's minutes from a hearing on February 6, 2009, finding husband in contempt for failure to pay his share of his son's medical insurance for a period of eight months. As husband observes in his reply brief here, wife never raised this issue in the trial court and presented no evidence on this question. Even were we to assume that the rule of disentitlement would have application to a party responding to an appeal, and that we would therefore have the authority to strike an opposing brief (a proposition unsupported by any authority cited by wife), we would still find no "flagrant abuse of the principles of equity" that would persuade us to exercise that power. Moreover, we would find no substantive merit in wife's appeal even if it were unopposed.
She also references a letter from her counsel to husband's counsel which is included in her appellant's appendix, alleging that as of May 2011, husband had not paid the amount he owed at the time of the contempt order and that he had not paid his share of accrued college and medical insurance expenses since that order. The self-serving letter was never part of the record before the trial court, and is not properly part of the appellate record here. We ignore it.
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III. DISPOSITION
The trial court's November 22, 2010 order awarding attorney fees and costs is affirmed. Husband shall recover his costs on this appeal. The matter is remanded to the trial court to determine the amount of husband's appellate attorney fees.
Bruiniers, J. We concur: Simons, Acting P. J. Needham, J.