Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-03-FL116312.
Premo, J.
This is the 13th appellate proceeding initiated by Kathey Fyke, the respondent in a marital dissolution action initiated by her former husband Richard Falcone in 2003, and the fourth in which she appeals from an order denying her oral motion for pendente lite attorney fees pursuant to Family Code section 2031.
We disposed of the prior four appeals from such orders in one published and two unpublished decisions. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814; In re Marriage of Falcone & Fyke (Mar. 5, 2009) H031458, H031792 [nonpub. opn.]; In re Marriage of Falcone & Fyke (May 1, 2009) H032396, H032482 [nonpub. opn.].)
All further unspecified statutory references are to the Family Code.
Kathey argues that the family court abused its discretion by failing to consider the relative financial circumstances of the parties and their respective ability to pay attorney fees.
“As is customary in family law cases, we will refer to the parties by their given names for purposes of clarity and not out of disrespect.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549, fn. 1.)
We find that there was no abuse of discretion and shall affirm.
I. Factual and Procedural Background
On September 9, 2008, the parties appeared for a hearing before Judge Patricia M. Lucas, on Kathey’s motion to compel discovery and her motion to vacate an order regarding the return of certain property to Kathey. At the outset of the hearing, Kathey made an oral motion for pendente lite attorney fees. She handed the court a copy of an income and expense declaration that she had filed on September 8, 2008.
Richard’s counsel (“counsel”) objected that she had not seen this document prior to the hearing, and complained of “being sandbagged” by Kathey. Counsel also noted that Richard had repeatedly offered to allow Kathey to withdraw funds from the trust account which held the proceeds from the sale of certain marital property in Saratoga (“the Saratoga property”), but that Kathey had rejected that offer.
Judge Lucas impliedly overruled the objection raised by Richard’s counsel and asked to explain what had changed between the current hearing date and the date of Kathey’s last request for such fees. Kathey explained that her September 8, 2008 income and expense declaration includes a $524,000 tax liability on the sale of the Saratoga property and $32,000 of unreimbursable medical expenses. In addition, Kathey had attached a copy of Richard’s Propertizer in which Richard expressed his position that he was entitled to the entirety of the proceeds of the sale of the Saratoga property, whereas Kathey should only be allowed to keep her 18-year-old car and the condominium in Sunnyvale where she lives, subject to a $320,000 equalizing payment to Richard.
Kathey advised Judge Lucas that she had a courtesy copy of Richard’s income and expense declaration “from May 11th” if the judge wished to review it, as well as copies of her taxes. She said that her “debts... [have] increased by $643,000, ” and that she wanted “$65,000 to hire an attorney both at the appellate level and at the trial level.”
With respect to Richard’s offer to allow her to take an advance from the trust account holding the proceeds of the sale of the Saratoga property, Kathey noted that “according to [his] own Propertizer I have no interest in those funds. And, secondly, this goes back to [In re] Marriage of Fonstein [(1976) 17 Cal.3d 738], and that if I touch those funds directly I will waive my right to appeal.”
In response, counsel disputed that Kathey’s financial circumstances had changed, other than that Kathey had lost the child support because the child moved in with Richard. Counsel also asserted that Kathey’s expenses, as shown on her income and expense declaration, “are grossly exaggerated... [and] similar to what was presented... at trial.” Specifically, counsel noted “the auto expense claimed of $2,096 a month for her alone... [and] the claim of maintenance and repair on the condominium of $1,920.” According to counsel, Richard “ha[s] never received any documentation of any expenses claimed by [Kathey] despite requests for discovery.” Counsel explained that the Propertizer reflected Richard’s argument to Judge Cain regarding how the property should be allocated, and that they “know there will be changes.”
According to Kathey’s income and expense declaration, the $1,920 she pays for maintenance and repair to her condominium is also a monthly expense.
Kathey then explained that her condominium and car are both “old” and thus require lots of maintenance. Kathey’s medical costs also “keep growing and growing.” Finally, she claimed that Richard owed “back support” in the amount of $615,000.
After the parties argued the merits of the motion to compel and the motion to vacate, Judge Lucas ruled on those two motions and then denied Kathey’s oral motion for pendente lite attorney fees. In a subsequent written order, Judge Lucas indicated that “the Court heard and considered evidence presented by [Kathey] in support of her oral motion for need-based attorney[] fees.” The order continues, as follows: “The Court notes that [Kathey] has attempted to renew this motion at nearly every court appearance, most recently on August 13, 2008 during trial before the Honorable Thomas Cain. The request was denied on that date and on numerous other occasions. The Court notes that [Richard] offered to stipulate to a disbursement for the purpose of enabling [Kathey] to obtain legal counsel, and [Kathey] has refused to accept it. [Kathey]’s motion for need-based attorney[] fees is denied.”
Kathey timely appealed.
II. Discussion
A. Need-based attorney fees
Kathey argues that the trial court erred in denying her oral motion for attorney fees because it improperly failed to consider the relative financial circumstances of the parties as required by section 2032, subdivision (b). She contends that the undisputed evidence presented at the hearing conclusively established that she had a negative net worth whereas Richard had ample assets, and thus the motion should have been granted. We discern no error in the record.
Section 2032, subdivision (b) reads, as follows: “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. 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. Financial 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.”
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 well-established “that trial courts enjoy broad discretion in awarding attorneys’ fees in marital proceedings.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) But “the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
Based on this record, we find no abuse of discretion. Judge Lucas allowed Kathey to argue her oral motion for attorney fees at length, repeatedly urged her to explain what was different about this request as opposed to the one she made before Judge Cain and gave her ample opportunity to respond to counsel’s arguments in opposition to the motion. The record makes clear that Judge Lucas reviewed and considered the arguments presented by the parties and reviewed the income and expense declaration Kathey filed with the court the day before the hearing. Judge Lucas was not obligated to resolve the issue in Kathey’s favor and her failure to do so does not mean that she abused her discretion in denying the motion.
In her opening brief, Kathey complains that Richard did not “provide his income and expense declaration” as required by the local rules of court, and argues that her motion for attorney fees should not be prejudiced by this “failure, ” since that would “thwart the intended purpose” of the statute to provide attorney fees to the financially disadvantaged spouse. Had this been a noticed motion, Richard’s failure to file a current income and expense declaration in response would be more problematic. However, Richard cannot be faulted for not having an updated income and expense declaration at the ready every time he appears in court in anticipation of Kathey making an oral request for attorney fees.
B. Section 3557 attorney fees
As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal. Appealing parties must adhere to the theory or theories on which their cases were tried. (Ernst v. Searle (1933) 218 Cal. 233, 240-241; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) This rule is based on the notion that it would be unfair to both the trial court and the opposing litigants to permit a change of theory on appeal. (Brown v. Boren, supra, at p. 1316.) The appellate court may deviate from the general rule and address new theories on appeal “when the issue presented involves purely a legal question, on an uncontroverted record and requires no factual determinations....” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) The appellate court is not required to apply this exception and consider a new theory based on a pure question of law. Whether to do so is within the appellate court’s discretion. (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810.)
For the first time, Kathey argues that she is entitled to an award of attorney fees under section 3557. She did not raise this statute below, and we decline to consider it for the first time on appeal.
Section 3557 provides, as follows: “(a) Notwithstanding any other provision of law, absent good cause to the contrary, the court, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all the party’s rights, shall award reasonable attorney’s fees to any of the following persons: [¶] (1) A custodial parent or other person to whom payments should be made in any action to enforce any of the following: [¶] (A) An existing order for child support. [¶]... [¶] (2) A supported spouse in an action to enforce an existing order for spousal support.”
C. Motion for sanctions
Richard has filed a motion for sanctions in the amount of $30,000 pursuant to Code of Civil Procedure section 907 and rule 8.276 of the California Rules of Court. He argues that the instant appeal is entirely without merit and that it is brought to harass him and cause further delay in concluding the dissolution proceedings. He seeks $15,000 to reimburse him for the costs of actual and anticipated costs incurred by his appellate counsel in this proceeding, as well as $15,000 “to deter Kathey from engaging in future misuse of the appellate process.”
When it appears that an appeal is “frivolous or taken solely for delay, ” Code of Civil Procedure section 907 authorizes the Court of Appeal to “add to the costs on appeal such damages as may be just.” Rule 8.276(a) of the California Rules of Court specifically permits the appellate court to impose sanctions on a party for “(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal’s determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules.”
In In re Marriage of Flaherty (1982) 31 Cal.3d 637, the California Supreme Court cautioned that any definition of “frivolous” must be applied “so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (Id. at p. 650.) Sanctions are to be imposed “most sparingly to deter only the most egregious conduct.” (Id. at p. 651.)
We recognize that Kathey has instituted many appellate proceedings and we have previously upheld a total of nearly $90,000 in sanction awards against her. (See In Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830 [affirming total award of $64,500 in sanctions under section 271 and Code of Civil Procedure section 128.7]; In Marriage of Falcone & Fyke (May 1, 2009) H032396, H032482 [nonpub. opn.; affirming award of $23,680 in sanctions under section 271].) Although we have found Kathey’s appeal in this case to be without merit, we do not consider it frivolous. Therefore, the motion for sanctions is denied.
Given these circumstances, it seems unlikely that additional sanctions of $15,000 or even $30,000 would act as much of a deterrent.
III. Disposition
The order is affirmed.
Respondent Falcone is entitled to his costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.