Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. DN146261, Jeannie Lowe, Commissioner.
O'ROURKE, J.
Michael Singer appeals from a judgment of dissolution and division of property following a bench trial in which the family court, among other things, ordered Michael to pay Jeanne spousal support, found a first mortgage and line of credit on the community home to be community obligations, and equally divided the community's interest in Michael's 401k plan. Following a separate hearing, the court ordered Michael to pay Jeanne attorney fees. Claiming Jeanne breached her fiduciary duties by refusing to allow the release of Michael's 401k funds to prevent foreclosure of the community home, Michael challenges the court's distribution of the debts and liabilities, the spousal support award and the division of his 401k account. He also challenges the family court's order awarding Jeanne attorney fees. We lack jurisdiction to address Michael's attorney fee challenge, as he did not file a notice of appeal from the court's postjudgment order. Otherwise, we affirm the judgment.
As is common in family law proceedings, we use the parties' first names for clarity. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476.)
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in July 1989 and separated on February 14, 2007. Michael initiated proceedings to dissolve their marriage in April 2007.
In August 2008, the family court commissioner ordered Michael to pay Jeanne interim spousal support and attorney fees. In April 2009, Michael unsuccessfully sought to modify the spousal support order. We later affirmed the commissioner's order denying his motion to modify. (In re Marriage of Singer (June 21, 2010, D055392) [nonpub. opn.].)
In August 2009, the matter proceeded to a two-day bench trial. In his trial brief, Michael stated he sought to litigate issues including the distribution of various loans, debts, and assets, including $307,051 in foreclosed home mortgage debt, $78,172.58 in home equity line of credit debt, a $16,898.91 loan from his 401k, a $43,701.64 boat loan, and a $25,000 loan from Jeanne's mother. He sought Epstein (Marriage of Epstein (1979) 24 Cal.3d 76)credits for payments he had made on some of those loans between December 2006 and December 2007. Pointing out their former residence was foreclosed with substantial residual debt, Michael contended Jeanne should bear the increase of additional losses due to her refusal to allow Michael to borrow from his 401k or cooperate in a short sale to prevent the foreclosure.
Both Michael and Jeanne testified at trial, and numerous documents were admitted into evidence. Thereafter, the family court entered a judgment of dissolution and order resolving the disputed issues and reserving certain issues for a later hearing, including Jeanne's request for attorney fees. The judgment set forth the family court's findings and conclusions including findings under Family Code section 4320. The court ordered Michael to pay Jeanne specified spousal support and divided the parties' personal property, retirement plans, a 401k loan, and other debts. As for the parties' real property loans, the judgment provides: "The court finds that the first Trust Deed with Chase Bank and the Home Equity Line of Credit with Chase Bank are community property and that... Husband and Wife are each liable for one-half of the obligation to the extent one exists. Either party may seek remedies independent of the other, including, but not limited to, tax offers of compromise or bankruptcy."
All statutory references are to the Family Code unless otherwise indicated.
On October 20, 2009, the court considered the reserved issues, including spousal support arrears and attorney fees. On October 26, 2009, it granted Jeanne's request for attorney fees in part, ordering Michael to pay Jeanne $25,000 in attorney fees.
On November 20, 2009, Michael filed a notice of appeal stating he was appealing a judgment after court trial entered on "8/21/2009 filed 10/5/2009."
DISCUSSION
I. Principles of Appellate Review
We set forth established principles of appellate review. We review for substantial evidence the family court commissioner's factual findings, viewing the evidence in the light most favorable to the prevailing party. We resolve all conflicts in the prevailing party's favor, and indulge all legitimate and reasonable inferences so as to uphold the court's finding if possible. (See In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.) We defer to the family court's resolution of evidentiary conflicts and credibility assessments, and recognize its broad discretion to determine the manner in which community property is divided to accomplish an equal division. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056; In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631.) We presume the judgment is correct and draw all inferences in favor of the court's decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "Thus, even if there is no indication of the trial court's rationale for [its ruling], the court's decision will be upheld on appeal if reasonable justification for it can be found. 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." ' " (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 710.)
The appellant should set out a careful assertion of legal error with meaningful argument and discussion of authorities. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 193, fn 3.) "One cannot simply say the court erred, and leave it up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) And " 'error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, we will not presume prejudice from an error. It is an appellant's burden to persuade us that the court erred in ways that result in a miscarriage of justice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.)
Michael's opening brief, which Michael filed while self-represented, does little to assist our review. His introduction and "Statement of the Case and Facts" sections summarize facts favoring only his position, ignoring appellate standards that require him to fairly summarize all of the material evidence, including that damaging to his case. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Ajaxo Inc. v. E* Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; Brockey v. Moore (2003) 107 Cal.App.4th 86, 96; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:71, pp. 8-34.) And in a sufficiency of the evidence review, this court begins with the presumption that the record contains evidence to sustain every finding of fact. (Foreman, supra, 3 Cal.3d at p. 881.) In view of Michael's failure to provide a fair and complete summary of the evidence in favor of the family court's judgment, he has forfeited any contentions regarding the sufficiency of the evidence. (Ibid.; see Ajaxo, at p. 50; Nwosu v. Uba, at pp. 1246-1247.)
As Michael is aware, self-represented litigants are held to the same standards and rules of procedure as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
Additionally, many of Michael's asserted facts are entirely unsupported by a citation to the record, not supported by the record citation provided, or mere argument. The absence of record citations in violation of court rules (Cal. Rules of Court, rule 8.204(a)(1)(C)) allows us to deem unsupported points forfeited. (See In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888.) Michael intersperses his purported factual recitation with accusations against the family court commissioner of bias and unfairness in admitting or excluding evidence. We disregard these undeveloped contentions, which are made without separate headings. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Teachers Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1038, fn. 6.)
For example, Michael recites the following as facts: "The Respondent's attorney committed fraud and filed false information by [sic] did not state the community debt, under reported [sic] the Respondents [sic] income, and did not serve the Appellant till after the hearing[.]" "Respondent and opposing attorney reneged and made a unilateral decision to let the community property go into foreclosure on March 2009 despite a stipulated agreement between both parties and signed off by Commissioner Lowe on 4/28/2008... and a bank approved shortsale." "The Appellant attempted two times to settle before the foreclosure in July 2008 and after the foreclosure in April 2009.... The Respondent who had two attorneys did not make a offer [sic] to settle till May 2009 and offered to defraud the IRS and the Respondents attorney [sic] would not agree to payment of the community debt... and till it falls into judgment...."
Michael's "Statement of Appealability" section contains additional unhelpful argument, including unsupported and undeveloped assertions concerning purported violations of the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.). The section appears primarily to be intended as a summary of Michael's appellate contentions without discussion of the relevant standard of appellate review. The remainder of Michael's briefing consists of "Argument" and "Standard of Review" sections (subheaded with such points as "Spousal Support/Duration/Credit Damage/Tax Liability" or "Break in fiduciary duties and unfair distribution of community property") that repeat and intermingle Michael's various points without meaningfully summarizing or suggesting the thrust of his appellate contentions. The governing rule requires that each point must be stated "under a separate heading or subheading summarizing the point, " and that it must be supported "by argument and, if possible, by citation of authority[.]" (Cal. Rules of Court, rule 8.204(a)(1)(B).) "The purpose of requiring headings and coherent arguments in appellate briefs is 'to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' " (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4, see also, In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Michael's reply brief, apparently prepared with counsel's assistance, makes Michael's contentions more clear. Importantly, Michael concedes that by his appeal he does not contest the family court's factual findings. Thus, we accept all of the trial court's factual findings as true, including as to Michael's and Jeanne's respective incomes. We will exercise our discretion to consider as many of the points made in his brief as possible to ensure substantial justice occurred in the ordering of spousal support and division of community assets. However, we will not address points raised for the first time in Michael's reply brief. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Also, it is not our role to disturb rulings that were derived from the court's credibility assessments and other factual conclusions.
II. Spousal Support Order
The family court commissioner ordered Michael to pay Jeanne $800 in monthly spousal support as of September 1, 2009, 34 percent of his performance incentive plan pay and bonuses starting in 2010, and $14,190.43 from his previous performance incentive plan awards.
In his opening brief, Michael contends the court used too high a standard when calculating spousal support, miscalculated his income and earning potential, and ordered support without considering section 4320, subdivision (c) as to his unearned income, which was at "extreme risk." Michael asserts the court excluded evidence showing he was at risk of losing his job and, as a result of its rulings on the community debts, also put the parties in jeopardy of being subjected to liability under the Uniform Fraudulent Transfer Act. Michael also challenges the court's order that he maintain a life insurance policy of $320,000, pointing out Jeanne had only requested a $160,000 policy. In his reply brief, Michael does not respond to Jeanne's points; he merely asks that we order the court to reconsider the spousal support order "in light of all debt Michael assumed due to the superior court's failure to recognize and allocate the house debt."
"As a general rule, we review spousal support orders under the deferential abuse of discretion standard. [Citation.] We examine the challenged order for legal and factual support. 'As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld "as long as its determination is within the range of the evidence presented." ' " (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.) An abuse of discretion is shown only " ' "where, considering all of the relevant circumstances, the court has 'exceeded the bounds of reason' or it can 'fairly be said' that no judge would reasonably make the same order under the same circumstances." ' " (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1366; see also In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753 ["We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order"].)
Here, the judgment identifies section 4320, and sets forth numerous factual findings in accordance with those factors. The court stated it considered all of the section 4320 factors, including the parties' debts and potential debts, and the judgment made specific findings as to Michael's and Jeanne's income and needs. It acknowledged Michael was employed but contrary to Michael's contention specifically found based on his testimony, "he has concerns regarding his ongoing employment." Given Michael's concession in his reply brief, we shall not disturb the family court's factual findings. Michael does not otherwise make any reasoned argument that the court erred in its evidentiary rulings excluding documents pertaining to his employment, and his arguments fail to acknowledge that the court heard Michael's testimony regarding the written and verbal warnings he had received from his employer and the uncertainty of his future employment.
"The [section 4320] factors include the supporting spouse's ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property; and any other factors pertinent to a just and equitable award. (§ 4320, subds. (c)-(e), (n).) 'The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor.' " (In re Marriage of Blazer, supra, 176 Cal.App.4th at pp. 1442-1443.)
On the support issue, it is not our province to reweigh the evidence or to substitute our judgment for that of the trial court. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204.) Under that standard, and on this record, we find no basis to conclude the court abused its discretion in awarding spousal support. (In re Marriage of Slivka (1986) 183 Cal.App.3d 159, 162 [" ' "It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact." [Citations.] [Husband's] contention herein "requires [him] to demonstrate that there is no substantial evidence to support the challenged findings" ' "].)
III. Epstein Credits
We see no grounds to reverse the judgment on Michael's undeveloped and passing claim that he did not receive Epstein credits for his mortgage and 401k loan payments. The family court had broad discretion to award Epstein credits in whatever amount. (Hebbring v. Hebbring (1989) 207 Cal.App.3d 1260, 1272.) On that issue, the court found: "[B]ased on Husband and Wife's agreement as testified to [by] each party, that each party was responsible for certain payments after the date of separation and that as a result neither party is entitled to Epstein credits for payments made on community property obligations through December 31, 2007."
This finding is supported by substantial evidence. At trial, Michael testified that between December 2006 and April 2007, when he and Jeanne refinanced their home, the mortgage and HELOC payment were made out of a joint bank account with joint monies. He testified that he and Jeanne had reached oral agreements about the house payments; that he would pay the first mortgage, HELOC, and 401k loan payment in lieu of spousal support, and Jeanne would make the boat and car payments, and repay her mother's loan "until [they could] get things worked out." Jeanne testified similarly as to those oral agreements. Michael did not make payments on the mortgage or HELOC in 2008. Jeanne did not receive an order for spousal support until April 2008; that order was retroactive to March 1, 2008.
The awarding of an Epstein credit is " 'not... automatic[ ]....' " (Epstein, supra, 24 Cal.3d at p. 84, quoting In re Marriage of Smith (1978) 79 Cal.App.3d 725, 747; In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 624-625 (Feldner).) Thus, a spouse seeking the credit must take action to obtain it. (Feldner, at p. 624.) The Feldner court explained: "[J]ust because a spouse may have a right to request reimbursement does not mean the family law court has a sua sponte duty to consider the possibility. With regard to the use of postseparation earnings to, in effect, preserve a community asset [ ], reimbursement... involves the consideration of such a variety of factors [citation] that the onus must necessarily be on the paying spouse to specifically request reimbursement." (Id. at pp. 624-625.) The appellate court pointed out that section 2640 specifically governs the right of reimbursement when separate property funds are used to reduce the principal on loans for the acquisition of community property. It concluded: "[E]ven reimbursement under section 2640... requires the paying spouse to trace contributions to a separate property source. If the paying spouse simply sits back and does nothing, there will be no reimbursement." (Feldner, at p. 625.) Michael does not direct us to any evidence at trial establishing he traced his payments to a separate property source.
Further, Epstein makes clear that reimbursement is inappropriate " 'where the payment on account of a preexisting community obligation constituted in reality a discharge of the paying spouse's duty to support the other spouse....' " (Epstein, 24 Cal.3d at pp. 84-85.) The court obviously relied on Michael's testimony concerning the parties' agreement to support its ruling that reimbursement under Epstein was not proper because Michael's debt payments were specifically made in lieu of paying spousal support to Jeanne.
IV. Life Insurance
As for Michael's challenge to the court's order that he maintain a certain level of life insurance, his contentions are entirely unsupported by authority and thus forfeited. Even disregarding the forfeiture, the contention is premised on his claim that Jeanne breached her fiduciary duty, which we reject below as meritless.
V. Contentions Regarding Jeanne's Asserted Breach of Fiduciary Duty and Distribution of Community Property
Michael contends Jeanne breached her fiduciary duties in various ways. As best we can glean from his briefing, he maintains she and her attorneys made "unilateral decisions" to let their community residence go into foreclosure rather than through a short sale, which were acts that "increased the community debt and decreased... community assets...." He asserts that as a result, his credit was ruined, he lost his job, and certain tax liabilities arose stemming from the bank holding the loans having "issued a 1099A... to [sic]the amount of $596,410.26...." Michael further argues the court abused its discretion by ignoring the law, violating "IRS Foreclosure Handbook 4861" and "not recognizing the community HELOC and IRS debt...." He asks that the "entire debt of the foreclosure" be allocated to Jeanne under section 1101.
Michael's arguments on these issues are preliminarily forfeited by the absence of coherent or reasoned legal argument. Other than citing statutes and case law for the general proposition that spouses owe each other fiduciary duties in managing community property, Michael does not provide reasoned explanation or analysis, with a discussion of relevant authorities as applied to the present facts, as to how Jeanne's actions or inaction constitute a breach of her duties. "Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate." (Cryoport Systems v. CAN Ins. Cos. (2007) 149 Cal.App.4th 627, 633.) Under these circumstances, we may " 'treat the points as waived, or meritless, and pass them without further consideration.' " (See H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
We acknowledge Jeanne's assertion that Michael's claim of breach of fiduciary duty was forfeited because he did not raise it in his trial brief, closing argument or request to the family court for a statement of decision. While Michael did not use the phrase "fiduciary duty, " his trial brief did point out their former residence was foreclosed with substantial residual debt, and Michael argued Jeanne should bear the increase of additional losses due to her refusal to allow Michael to borrow from his 401k or cooperate in a short sale to prevent the foreclosure. Because the substance of Michael's fiduciary duty claim was raised in the trial court, we decline to conclude he raises it for the first time on appeal. Nevertheless, as we will explain, Michael's contention is forfeited for other reasons.
Further, Michael's assertion that the court did not recognize the debts is contradicted by the record, which shows the family court specifically acknowledged it was considering the community property loan debt and characterized the loans as community obligations. In his reply brief, Michael argues the court erred by allocating one-half of the house debt obligation because it did not acknowledge evidence that Jeanne and her attorneys violated a "court approved" stipulation and Jeanne's duty to preserve the community assets, which assertedly increased the debt to the community. In making this argument, Michael advances some facts without support (e.g., "All parties agreed the short sale was in the community's best interest" and "Jeanne's attorney admitted they [sic] did not, despite Michael's request, withdraw the joiner [sic]") and other facts supported only by citation to his trial brief (e.g., "The evidence was that if the short sale had gone through, the community would have been liable only for approximately $160,000 on the first and $7,000 on the second (HELOC)"). Unsworn arguments by a party are not evidence. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454.)
There was no dispute at trial that in April 2008, the parties stipulated, and the court ordered, they would withdraw $17,000 from Michael's 401k plan "to be used to cure the defaulted loan against the parties' jointly owned residence...." At trial, Michael testified he did not withdraw the funds, but that he and Jeanne made attempts to negotiate a "short sale" of the house (a sale for less than the amount of the first trust deed loan). He explained that the first offer was rejected by the bank and the second was accepted by the bank but the buyers withdrew. Thereafter, with a notice of foreclosure pending, Michael contacted Jeanne's attorneys about using the 401k money to keep the house out of foreclosure. After Jeanne's counsel responded, he acknowledged it would take far more than $17,000 to cure the default. Jeanne testified that she provided whatever the realtor needed to further the short sale and did not delay signing any document related to that sale. The court was entitled to conclude from this evidence — and in the absence of a request for a statement of decision we shall infer it did (Hebbring v. Hebbring, supra, 207 Cal.App.3d at p. 1274;see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-60) — that Jeanne did not breach any fiduciary duty to preserve community assets and the foreclosure of the community home was not the result of any refusal by Jeanne or her counsel to lift an administrative hold on Michael's 401k account.
As for Michael's claim that the court ignored provisions of an IRS Foreclosure Handbook, he provides no indication he identified or sought to admit such a handbook at trial, nor does he point to any record citation where he raised that specific issue to the family court. He has forfeited the point for failing to raise it below. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 221, fn. 15; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 & fn. 11.)
Michael makes repeated references to IRS tax liability in his brief. His assertions, however, have no support in the trial evidence. Michael's repeated references to Chase Bank having issued him a "1099A" are accompanied not by any record citation, but by parentheticals reading "future exhibit" or "future act" (capitalization omitted). At trial, the court pointedly asked Michael what he proposed the court do with regard to the debts on the community house that was lost to foreclosure. Michael responded: "In regards to the first [loan], ... I mean, I don't know what Chase is going to do. I don't know if they are going to come after me for the full amount, because it was a non-recourse loan, there was nobody living in the house at the time, it was not a primary residence. [¶]... [I]f they issue me a 1099, that makes the community liable for taxes at approximately — I'm going to take a guess — a hundred and thirty thousand dollars." Later, the court explained to Michael that it was not ignoring potential tax liability of the first and second loans on the community home. He later conceded no district attorney or any other prosecutorial agency had yet contacted him about any tax fraud or other criminal allegations pertaining to the real property loans. Presuming the correctness of the family court's judgment as we must, we do not perceive, and Michael has not shown, any error on the court's part in its distribution of the community debts or liabilities.
In reply, Michael's counsel refers to this page of the reporter's transcript and asserts: "[Michael] has been issued a 1099A and is now liable for a large amount of taxes." (Emphasis added.) Plainly, Michael's speculation at trial about the possibility of receiving a 1099A is no support for these unequivocal statements. We admonish Michael's appellate counsel to use particular care in reviewing the record so as not to make unfounded factual assertions like this one.
VI. Division of 401k and Retirement Accounts
As to Michael's 401k, the judgment provides: "The community's interest in Husband's 401k with JP Morgan, a defined contribution plan[, ] shall be divided equally between the parties. If no order is issued so that Wife's interest in the benefits is paid directly to Wife, Husband shall pay to Wife one-half of the community's interest in the retirement benefits received by Husband during his life within 48 hours of his receipt of a single sum distribution or each benefit installment. [¶]... The community's interest in the Plan shall be determined by taking the balance in Husband's account as of December 14, 2007, the date of separation, and adding any employer and/or employee contributions paid after that date but resulting from services rendered prior to that date, and adjusting the balance for all gains, accruals and losses thereon as of the date of division."
The December 14, 2007 date appears to be a typographical error. The court elsewhere found the parties' date of separation was February 14, 2007.
Michael challenges the family court's distribution of his 401k account as "in clear contradiction of the law." As we understand his contention, he maintains that due to a significant decrease in value in the account in 2008 and 2009, and the loan balance against it, the court's order constitutes an unequal distribution under section 2120. He also argues Jeanne and her attorneys would not cooperate in allowing him to move assets from high risk stocks into lower risk stocks to minimize losses. At trial, Michael had asked the court to assign a greater portion of the loss to Jeanne, because he had asked to reallocate funds but was unable to as a result of a "lock" on the account. In his reply brief, Michael appears to back off these arguments, stating only in a footnote that the court erred in not including the parties' stipulation that the investment loss in the 401k would be shared equally among them.
We are required to infer the family court found that Jeanne did not breach any fiduciary duty to maintain community assets by her actions or inaction with regard to Michael's 401k account. (Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at p. 60; Hebbring v. Hebbring, supra, 207 Cal.App.3d at p. 1274.) Given that inference, Michael's contentions fail. Michael's arguments merely rehash his trial positions (and raise unsupported and undeveloped claims under the Uniform Fraudulent Transfer Act) without coherent or reasoned legal argument; he has not meaningfully challenged the sufficiency of the evidence on this finding or demonstrated a clear abuse of discretion on the part of the family court.
VII. This Court Lacks Jurisdiction to Address Michael's Challenge to the Family Court Commissioner's October 26, 2009 Attorney Fees Order
Michael challenges the court's order awarding Jeanne $25,000 in attorney fees. He maintains Jeanne should be held responsible for her attorney fees because she engaged in a breach of her fiduciary duty, as well as intentional non-disclosure, fraud, malice and oppression.
We lack jurisdiction to address Michael's contentions because his notice of appeal does not identify the family court commissioner's October 26, 2009 attorney fee order. To be sufficient, the notice of appeal must "identif[y] the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) Notices of appeal are liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from and so long as the respondent could not possibly have been misled or prejudiced. (Luz v. Lopes (1960) 55 Cal.2d 54, 59; D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361.) In the absence of a sufficient notice of appeal, there is no appellate jurisdiction. (See Beets v. Chart (1889) 79 Cal. 185; Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)
Michael argues that because the judgment "actually determined Jeanne's right to fees, " his challenge is properly before us. He cites Grant v. List & Lathrop (1992) 2 Cal.App.4th 993 (Grant), for the proposition that he need not separately appeal from the attorney fee order where the appealed-from judgment granted fees and provided for a later determination of the amount. But unlike the present case in which the court reserved the matter of attorney fees for a later hearing, the judgment appealed from in Grant specifically awarded attorney fees as costs, but left the amount of the award blank for later completion. (Id. at p. 996.) Also, the notice of appeal in Grant expressly challenged the propriety of awarding fees. (Id. at p. 997.) The court held it had jurisdiction over the issue, stating "when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award." (Id. at p. 998.)
Under the heading of "Reserved Issues, " the October 5, 2009 Order after Hearing provides: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the issues of spousal support arrears, repayment of arrears, PIP repayment, and payment of the Jan Nooner debt and attorneys fees are reserved to hearing on October 6, 2009[, ] at 1:45 p.m."
This court and others have thus limited Grant to situations not present here, in which the original judgment expressly determines the entitlement to attorney fees, leaving only the amount of the fees to be determined. (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172; Silver v. Pacific American Fish Co., Inc., supra, 190 Cal.App.4th at pp. 691-694; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 44 ["The issue... is not whether fees were ultimately recovered 'as costs' but whether the entitlement to fees was adjudicated by the original judgment, leaving only the amount for further adjudication"].)
As explained in Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d 35, an award in the original judgment of costs and disbursements or costs and fees does not encompass subsequently awarded attorney fees because the party's entitlement to those fees is not determined until the later proceeding. (Praszker, at p. 46, fn. 4.) Such an interpretation would subsume the rule that postjudgment orders on attorney fees must be separately appealed because virtually all judgments provide for costs to the prevailing party. (Ibid.; see also Silver v. Pacific American Fish Co., Inc., supra, 190 Cal.App.4th at pp. 693-694.) Under the authorities discussed above, the postjudgment order awarding attorney fees was separately appealable and thus required Michael to file a separate, timely notice of appeal. His failure to do so deprives this court of jurisdiction over his purported appeal from that order and mandates dismissal of that portion of his appeal. (Silver, at p. 694.)
DISPOSITION
Michael Singer's appeal from the order awarding attorney fees to Jeanne is dismissed for lack of jurisdiction. The judgment from which he appeals is affirmed. Jeanne is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).).
WE CONCUR: McCONNELL, P.J., McINTYRE, J.