Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 103-FL116312
Premo, J.
The instant matter involves two of the 13 appeals or writ petitions filed in this dissolution case by Kathey Fyke, the respondent below.
In case No. H032396, Kathey purports to appeal from an order denying her oral motion for temporary attorney fees. (Fam. Code, § 2031, subd. (b)(1).) Her motion was, in substance, a motion to reconsider a prior order denying an identical motion. Since an order denying a motion to reconsider is not appealable (see Morton v. Wagner (2007) 156 Cal.App.4th 963, 968-969), we shall dismiss the appeal.
Following our custom in this and other family law cases, we refer to the parties by their given names for purposes of clarity and not out of disrespect.
Further unspecified statutory references are to the Family Code.
In case No. H032482, Kathey challenges the trial court’s order awarding sanctions of $23,680 under section 271, to her former husband, Richard Falcone. The sanctions represent fees and costs incurred by Richard in defending appellate proceedings by which Kathey had unsuccessfully challenged the status-only judgment and orders denying her motions to quash service of summons and to disqualify Richard’s attorney. We conclude that the evidence before the trial court was sufficient to support a finding that Kathey’s appellate tactics were part of her overall strategy of delay and of increasing the cost to Richard such that the sanctions order was within the trial court’s discretion. Accordingly, we shall affirm that order.
I. Section 2031 Attorney Fees Motion--Case No. H032396
A. Factual and Procedural Background
In March 2007, the trial court granted Kathey’s motion for new trial on a prior oral motion for attorney fees pendente lite. The trial court’s order set a briefing schedule that required Kathey to file an income and expense declaration, and any other evidence she believed was pertinent to her motion, on or before April 13, 2007. Kathey did not file any financial information until May 10, 2007, after Richard filed his opposition and nearly a month beyond the date set by the court. Citing Kathey’s failure to comply with the court-ordered filing schedule, the trial court denied the attorney fees motion in an order filed on May 23, 2007. Kathey filed written objections to the order, arguing, among other things, that her tardy filing was Richard’s attorney’s fault. Kathey also filed a notice of appeal from the May 23, 2007 order, which generated case No. H031792 in this court. As she did in her written objections to the order, Kathey argued that Richard’s counsel had caused her to file her papers late. We have since affirmed the May 23, 2007 order, finding no error in the court’s denial of her request for fees. (In re Marriage of Falcone & Fyke (Mar. 5, 2009) H031458, H031792 [nonpub. opn.].)
On the court’s own motion, we have taken judicial notice of case No. H031792 and Kathey’s other appellate matters cited herein.
Meanwhile, on June 19, 2007, 26 days after the trial court issued the May 23, 2007 order, and shortly before Kathey filed her notice of appeal in case No. H031792, Kathey appeared at a combined case management conference and judicial custody conference. The judicial custody conference had been set to take place earlier that spring and had been continued at least twice. The judge presiding that day was the Honorable Patricia M. Lucas, the same judge who had issued the May 23, 2007 order denying Kathey’s request for attorney fees. Kathey commenced her presentation by telling the court that she had recently filed two notices of appeal, which, she said, “kicks in some automatic stays,” and, for that reason, she did not want to participate in the custody conference. After the trial court held that the appeals did not stay the proceedings, Kathey stated, “Well, then I would like to request attorney fees and make an oral motion and request a continuance if we’re going to proceed on custody.”
Kathey was presumably referring to cases H031458 and H031524, both of which involved, among other things, the trial court’s orders made toward the end of 2006 denying other oral motions for attorney fees.
The court asked Kathey for the basis of her oral motion and Kathey cited “the Uniform Parentage Act” and section 2030. At this point, Richard’s counsel interjected that she had offered to advance $70,000 to each party from the proceeds of the sale of the parties’ real property ($1.9 million) that was being held in counsel’s trust account. It seems that Kathey had rejected the offer because she was afraid that accepting part of the proceeds would prevent her from appealing the court’s order that the property be sold.
The trial court then asked Kathey, “Do you have any evidence on which you wish to base your oral motion?” Kathey replied, “There are filed I and E’s.” The court asked her the dates of the documents to which she was referring and, after some argument, Kathey responded, “Mr. Falcone’s was on May 4th, and mine was on May 10th of this year. [¶] I’d like to say something else for the record, Your Honor. I understand that you denied my last request for attorney fees, but I also want to point out that on April 11th [Richard’s counsel] sent me a letter which was before the due date of those documents, and she writes in her letter ‘finally since the judicial custody conference and your motion for fees have been continued to May 17th, the deadlines previously imposed by the Court should be revised.’ I listened to what she said and that’s why my income and expense report was not submitted by your deadline.”
The trial court decided, “This oral motion is--it seems to me a request for reconsideration which is not based on any different facts. So I’m denying it.” The written order denying the motion was filed on September 17, 2007. Just as she did with the May 23, 2007 order, Kathey filed written “objections” to the September 17, 2007 order and also filed a notice of appeal.
B. Discussion
Richard asks us to dismiss the appeal as having been taken from an order denying a motion for reconsideration, which is not appealable. Kathey responds that hers was not a motion for reconsideration of the May 23, 2007 order but an entirely separate motion and that under In re Marriage of Hobdy (2004) 123 Cal.App.4th 360 (Hobdy), the court’s denial of the motion is appealable. Under the circumstances of this case, Richard has the better argument.
Section 2030, subdivision (a)(1) provides that “the court shall ensure that each party has access to legal representation to preserve each party’s rights” by ordering one party to pay to the other party, “whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” Subdivision (c) of section 2030 provides, “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.” A party may move for “a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both” under section 2031, subdivision (a)(1). Section 2031, subdivision (b)(1) allows such a motion to be made orally, without notice, “[a]t the time of the hearing of the cause on the merits.”
It is clear from the statutory language that a party may bring more than one motion for attorney fees under sections 2030 and 2031. Section 2031 refers to temporary orders “augmenting, or modifying” an attorney fees award, and section 2030, subdivision (c) provides that the court may augment or modify the original award “as may be reasonably necessary.” What is reasonably necessary at one point may be different than what becomes reasonably necessary as the litigation progresses. Thus, the clear intent of these provisions is that a party is not limited to but one motion for fees.
In Hobdy, supra,123 Cal.App.4th 360, the trial court granted the wife’s second motion under section 2030 after denying the first. On appeal, the husband argued that the trial court did not have jurisdiction to rule on the second motion as it was a motion for reconsideration that did not conform to the jurisdictional requirements for reconsideration motions found in Code of Civil Procedure section 1008. (Hobdy, supra,at p. 364.) The appellate court rejected the argument, holding that section 2030 prevailed over the more general statute so that subsequent fee motions need not comply with Code of Civil Procedure section 1008. Hobdy did not hold that need-based attorney fees motions can never be construed as motions for reconsideration.
It is generally true that an order pertaining to a request for pendente lite attorney fees “possesses the essential elements of a final judgment,” which is appealable under Code of Civil Procedure section 904.1, subdivision (a). (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) On the other hand, an order denying a motion for reconsideration is not appealable. Such a motion is not listed as appealable under Code of Civil Procedure section 904.1. Public policy considerations militate against allowing appeals from such orders. In Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1161 (overruled on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602), the appellate court explained, “The same policy reasons for determining that denials of motions to vacate judgments and motions for new trial are not appealable are applicable to denials of motions for reconsideration: namely, to eliminate the possibilities that (1) a nonappealable order or judgment would be made appealable, (2) a party would have two appeals from the same decision, and (3) a party would obtain an unwarranted extension of time to appeal.” (Accord, Morton v. Wagner, supra,156 Cal.App.4th at pp. 968-969.)
Since section 2030 allows the court to augment or modify an order for fees as “reasonably necessary,” a renewed motion seeking fees that have become reasonably necessary would not, strictly speaking, be a motion for reconsideration of a prior order so that the court’s ruling as to it would be appealable for the reasons described in In re Marriage of Skelley, supra,18 Cal.3d at page 368. But where a party reasserts a prior motion, under the same circumstances, merely because she is unhappy with the court’s original order, the motion is, in substance and effect, a request that the court reconsider its prior ruling. (See City & County of S.F. v. Muller (1960) 177 Cal.App.2d 600, 603 [“The nature of a motion is determined by the nature of the relief sought, not by the label attached to it”].) Even if Hobdy is correct that Code of Civil Procedure section 1008 does not deprive the trial court of jurisdiction to rule upon such a motion, where the trial court refuses to reconsider its prior decision, the court’s order is still an order denying a motion for reconsideration. Allowing the litigant to appeal the ruling would give her two appeals from the same order.
Kathey made her motion for fees in circumstances identical to those under which she made the prior motion, asking the court, in effect, “to reconsider the matter and modify, amend, or revoke” the May 23, 2007 order. (Code Civ. Proc., § 1008, subd. (a).) The oral motion was not different in any way from the prior motion. It was not triggered by the occurrence of a different proceeding. Indeed, the judicial custody conference at which she made the oral motion had been scheduled and continued along with her prior fees motion. When the trial court asked if she had any evidence to support her request, Kathey referred to the same documents upon which she had based the prior motion and urged the court to consider those untimely filed documents for the same reason she set forth in her written objections and in her appeal from the May 23, 2007 order, namely that Richard’s attorney had caused her to file her papers too late.
Kathey argues, somewhat circularly, that the oral motion presented new facts because it urged the court to consider the substance of the untimely filed income and expense declaration it had refused to consider the first time around. The argument is self-defeating because it demonstrates that, in substance, the oral motion Kathey made on June 19, 2007, was a motion for reconsideration of the May 23, 2007 order. Kathey has already appealed the May 23, 2007 order. In that appeal, she argued, among other things, that her papers were late because Richard’s attorney misled her. She makes the same argument on the merits in this case. If the trial court’s denial of Kathey’s June 19, 2007 motion were appealable, Kathey would, in effect, have two appeals from the very same order. We conclude, therefore, that the trial court’s denial of the June 19, 2007 motion was the denial of a motion for reconsideration and is not appealable. The appeal in case No. H032396 must be dismissed.
II. Section 271 Sanctions Appeal (H032482)
A. Factual and Procedural Background
The background for case No. H032482 begins on July 2, 2007, when Richard filed a motion under section 271 to recover fees and costs incurred in connection with earlier proceedings Kathey had filed in this court. Kathey had filed both a writ petition (case No. H029372) and an appeal (case No. H029424) from the trial court’s order denying her motion to disqualify Richard’s attorney Lynne Yates-Carter. Kathey had also filed a petition for writ of mandate challenging the denial of her motion to quash service of summons (case No. H030599), and an appeal from the status-only judgment (case No. H029924). Kathey had been unsuccessful in all four of these proceedings. In her declaration in support of the section 271 motion, attorney Yates-Carter declared that her fees for assisting appellate counsel with these matters were $3,280. Appellate counsel, Bernard Wolf, declared that appellate fees and costs for defending the writ petition pertaining to Kathey’s motion to quash, the appeal from the order denying her motion to disqualify attorney Yates-Carter, and her appeal from the status-only judgment were $29,400. In addition, counsel anticipated that Richard would incur further fees and costs of $35,000 in defending other pending matters.
Kathey appeared at the hearing, having filed no opposition to the motion. The court allowed her two weeks to submit written opposition and thereafter took the matter under submission. In its written order filed September 14, 2007, the trial court described nine matters that Kathey had, by then, filed with this court, noting that four were pending and the other five had been decided against Kathey. The court observed, however, that section 271 was not a loser-pays provision and that the court “looks beyond the results to determine whether [Kathey] has frustrated the policy of the law to reduce the cost of litigation.” The court concluded that Kathey had frustrated that policy by seeking appellate review “of virtually every decision of the trial court.” Her notices of appeal were “laundry lists of every trial court order, appealable or not, in which [she] has not completely prevailed. [Kathey] has appealed from the same decision multiple times in different notices. This scorched-earth approach has substantially increased [Richard’s] costs of litigation.” The court also found that Kathey’s activities had caused substantial delay; thereby frustrating the policy to promote settlement and to encourage cooperation between the parties.
The nine appellate proceedings to which the trial court referred were:
The trial court rejected most of Kathey’s procedural objections to Richard’s motion but agreed to strike his declaration because he had not personally signed it. The court rejected Kathey’s argument that the sanctions would amount to an unreasonable burden on her, noting that Kathey had relied upon her most recent income and expense declaration, which identified substantial assets (assets in excess of $600,000) that could be used to pay the sanctions.
The trial court awarded Richard $23,680 for fees and costs incurred in defending Kathey’s earliest appeals and writ petitions but denied, without prejudice, his request for fees to defend the pending appeals. This appeal followed.
B. Contentions
Kathey argues that Richard’s notice of motion was improperly verified and that it failed to give her adequate notice of Richard’s contentions. She maintains, in effect, that the evidence was insufficient to support the trial court’s sanctions order and that the order imposes an unreasonable burden on her. Finally, she argues that one of her pending appeals automatically stayed the proceedings below such that the trial court had no jurisdiction to rule on the sanctions motion. We address the final contention first.
C. Discussion
1. The Effect of the Pending Appeal
With exceptions not pertinent here, Code of Civil Procedure section 916, subdivision (a) provides that perfecting of an appeal “stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” Kathey maintains that Richard’s sanctions motion was “embraced” or “affected” by her appeal from the denial of one of her requests for need-based attorney fees (case No. H031458) and, therefore, that proceedings on Richard’s sanctions motion were automatically stayed.
As our Supreme Court explained not long ago: “ ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [Code of Civil Procedure section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ ” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) Trial court proceedings are not stayed unless they directly or indirectly seek to enforce, vacate or modify the order being appealed or substantially interfere with the appellate court’s ability to conduct the appeal. (Ibid.) “By contrast, an appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal.’ ” (Id. at p. 191.) “A postjudgment or postorder proceeding is also ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal.” (Ibid.)
In case No. H031458, the appeal that Kathey claims automatically stayed proceedings on the sanctions motion, Kathey argued that the trial court erred in refusing to order Richard to give Kathey money to retain a lawyer. Richard’s motion for sanctions was collateral to Kathey’s requests for money to pay an attorney and would not have affected this court’s determination of the merits of that issue. Furthermore, Richard could have filed the sanctions motion regardless of our determination of that appeal. Therefore, proceedings on the sanctions motion were not automatically stayed by the appeal.
Where the appellate result could have some effect upon the subsequent proceedings a stay may be granted, but it is not automatic. (Reed v. Superior Court (2001) 92 Cal.App.4th 448, 454.) Kathey requested a stay in case No. H031458 (as she did in several other matters) and this court rejected the request.
2. Due Process
Relying upon In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, Kathey maintains that she was denied due process of law because Richard’s notice of motion failed to identify the appeals for which he was seeking fees. Quinlan involved a trial court’s written order granting an oral motion for sanctions under Code of Civil Procedure section 128.5. The sanctioned party had no priornotice of the grounds recited in the order. (In re Marriage of Quinlan, supra,at p. 1421.) Here, the notice of motion clearly stated that Richard was requesting “attorneys fees and costs incurred by him for having to defend against [Kathey’s] non-meritorious appeals.” Counsel’s declarations described the two appeals and the writ petition for which fees were sought. Kathey did not lack notice.
3. Richard’s Failure to Verify the Moving Papers
The trial court struck Richard’s declaration on the ground he had not personally signed it. Kathey argues that the trial court should also have struck the moving papers because Richard had not personally verified them, either. Rather, his attorney had verified the notice of motion. This is the type of procedural objection Kathey has routinely used to frustrate the progress of this litigation.
Kathey raised the same objection in In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 825 (Falcone). We rejected the argument in that case for lack of prejudice.
Section 212 requires: “A petition, response, application, opposition, or other pleading filed with the court under this code shall be verified.” Kathey argues that the section expressly applies to an “application,” such as an application for an order, and that the corresponding Judicial Council form provides a signature line for verification by the “applicant,” which, she claims, implies that the application is to be verified by the party.
Even if section 212 applies to the moving papers at issue, and notwithstanding the format of the Judicial Council form, section 212 does not expressly require the party to verify every application. Furthermore, had the trial court rejected the entire motion based upon Kathey’s objection, Kathey would have succeeded only in delaying the inevitable. Assuming Richard had the requisite personal knowledge, he could simply have refiled the same motion with his signature. The facts contained in the application were within the attorney’s personal knowledge and, therefore, it was appropriate for her to verify them.
4. The Evidence
Kathey argues that there was no factual support for the trial court’s conclusion that her conduct warranted sanctions or that the sanctions would not impose an unreasonable burden. We disagree.
Section 271, subdivision (a), allows a trial court to base an award of attorney’s fees and costs on the extent to which a litigant’s conduct “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.” An award of attorney fees and costs under section 271, subdivision (a) is “in the nature of a sanction.” The requesting party “is not required to demonstrate any financial need for the award,” but the award shall not impose “an unreasonable financial burden on the party against whom the sanction is imposed.” (Ibid.)
“ ‘A sanction order under... section 271 is reviewed under the abuse of discretion standard. “ ‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order.’ ” ’ (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) In reviewing an award under section 271, we indulge all reasonable inferences to uphold the court’s order. (In re Marriage of Feldman, supra,at p. 1478.)
Given our standard of review, we are bound to reject a large part of Kathey’s argument, which disputes the facts recited by Richard’s counsel in her declarations below. We resolve all factual conflicts in favor of Richard. As to the balance of the evidence, it is sufficient to support the finding that Kathey’s conduct was designed to delay the proceedings or increase its costs. (§ 271, subd. (a).)
In her declaration discussing Kathey’s attempt to disqualify her, attorney Yates-Carter explained that after the trial court had found no basis for disqualification, Kathey twice objected to the form of order counsel prepared. The amended order that was eventually filed was identical to that which Kathey had rejected. In the meantime, the trial court had stayed the family law proceedings based upon Kathey’s representation that this court would issue a stay pending resolution of Kathey’s appeal from the order. Thereafter, Richard had to file his own motion, which Kathey opposed, to lift the stay. Kathey then applied for a stay with this court, which we denied. This plainly shows an effort to delay the proceedings. But it is not the only evidence.
The trial court had before it information pertaining to Kathey’s unsuccessful challenges in the five appeals and writ petitions that had been decided against her, including Kathey’s challenge to the trial court’s denial of her motion to quash service of process. This was a particularly egregious example of a meritless challenge to an unfavorable ruling since Kathey had litigated the substantive issues for well over a year, and allowed the court to make orders that benefitted her, such as orders for spousal support, then sought to negate everything based upon the claim that she had not been properly served with the summons and complaint.
The court also had the notices of appeal in the four pending cases, which contained an array of orders from which Kathey purported to appeal, including nonappealable orders denying her repeated attempts, by way of motions for a new trial and motions to vacate, to advance the arguments the trial court rejected in the first motions. That is, in many cases, Kathey reargued her point three and four times.
Kathey complains that some of this information was not in the declarations filed with the motion. But the court was entitled to take judicial notice of all the materials that would have been part of its file in the case. (Evid. Code, § 452, subd. (d).) The trial court was also entitled to rely upon the judge’s own knowledge of the case. When a judge evaluates facts to determine whether a party has acted reasonably or in good faith, “a factual component of decision, derived from the trial judge’s knowledge of the case, is inevitably involved. A trial judge’s perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431 [referring to the imposition of discovery sanctions].) The evidence before the trial court was sufficient to support the conclusion that Kathey’s litigation strategy was to delay the proceedings and run up the costs to Richard, which, in turn, is sufficient for an award of sanctions under section 271.
Kathey also argues that Richard failed to present any evidence that the section 271 award would not impose an unreasonable burden upon her. The trial court expressly concluded that the award would not impose an unreasonable burden, citing assets Kathey could use to pay the award. Kathey argues that the court ignored liabilities of more than $400,000 and that Richard, who earns a great deal of money, owes her more than $400,000 in child and spousal support arrearages. Kathey’s argument is unavailing. The sanctions award of less than $24,000 is a very small percentage of the more than $600,000 in assets her own evidence reveals. If Richard did owe Kathey as much as she claims, that is a separate issue.
Kathey made a similar argument in Falcone, supra,164 Cal.App.4th 814, in which this court upheld the trial court’s imposition of $64,500 in sanctions against Kathey.
Finally, while the sanctions award may be burdensome, the question for the trial court was whether the burden would be “unreasonable.” The trial court concluded, in light of Kathey’s obstructive conduct, that it was not. Kathey offers no basis for an alternate conclusion. Indeed, Kathey had ample warning that her uncooperative conduct would lead to such sanctions. The trial court warned her of exactly that in February 2005 when Kathey refused to stipulate to recalendaring a hearing: “But the problem is, Ms. Fyke, that by not agreeing that it can be put on the next hearing, you’re just making work. You’re making work for [Richard’s attorney], which will end up being attorney’s fees for [Richard] which could end up being paid by you because that’s the way these things work. If the one person is drumming up attorney’s fees, they can end up paying for the other person’s attorney’s fees.... I can make [Richard’s attorney] file a new motion. But by doing that, we’re just grinding paper and making more work. And so a little agreeableness about process goes a long way.” Kathey stated that she understood, but, “I don’t know how I do it, but I do object.”
Given the evidence and the trial court’s own knowledge of the case, the trial court did not abuse its discretion in requiring Kathey to pay for some of the attorney fees and costs Richard incurred in connection with a small handful of Kathey’s appellate activities.
In her notice of appeal Kathey purports to have appealed from the order denying her motion to vacate but she has not challenged that order in her briefs. We, therefore, deem the appeal from that order to be abandoned. Her briefs also mention that she was entitled to an “opportunity to be heard” but include no discussion or argument on the point implicit in that statement. Accordingly, we have not considered it. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [the absence of argument allows this court to treat the point as waived].)
III. Disposition
In case No. H032396, the appeal is dismissed.
In case No. H032482, the order on petitioner’s motion for sanctions pursuant to Family Code section 271, filed September 14, 2007, is affirmed.
Respondent Richard Falcone is entitled to his costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.
Case No. H029372, petition for writ of mandate challenging denial of attorney disqualification motion, summarily denied November 21, 2005;
Case No. H029424, appeal from order denying attorney disqualification motion, affirmed March 22, 2007;
Case No. H030599, petition for writ of mandate challenging denial of motion to quash, summarily denied October 5, 2006;
Case No. H029924, appeal from judgment of dissolution, affirmed August 16, 2007;
Case No. H031524, appeal from denial of Kathey’s attorney fees and contempt motions and grant of sanctions against her, pending at the time of the trial court’s ruling in this case;
Case No. H031706, petition for writ of mandate challenging order compelling sale of real property, summarily denied July 2, 2007;
Case No. H031458, appeal from denial of Kathey’s attorney fees motion, pending at time of trial court’s ruling in this case;
Case No. H031792, appeal from denial of Kathey’s attorney fees motion, pending at the time of trial court ruling in this case;
Case No. H031892, appeal from order setting the date of separation, pending at the time of trial court ruling in this case.