Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-04-FL122345
Premo, J.
James M. Seymour appeals from the trial court’s order awarding $10,000 in attorney fees pursuant to Family Code section 271 to Jane O. Halverson, the petitioner in the underlying marital dissolution proceeding. Seymour contends that this order must be reversed because the amount awarded is “outrage[ou]s” and runs contrary to the parties’ prior custody agreement, wherein they agreed to bear their own attorney fees. Seymour also claims that the trial court failed to give adequate consideration to the evidence he submitted in opposition to Halverson’s motion.
All further unspecified statutory references are to the Family Code.
We find no merit to any of Seymour’s arguments and shall therefore affirm.
I. Factual and Procedural Background
A. Section 271 motion
1. Supporting declaration
Halverson brought a motion for attorney fees pursuant to section 271, claiming that Seymour’s conduct was “substantially increasing the costs of litigation” by not complying with court orders, statutes and local rules, as well as failing to comply with “routine discovery requests.” The motion was supported by a declaration from Halverson’s counsel, which stated, among other things, that Halverson had paid approximately $45,000 in attorney fees and costs since the commencement of the case, and had incurred approximately $23,000 in fees and costs since October 2006 “as a direct result of [Seymour]’s DUI arrest.”
According to her counsel’s declaration, Halverson had exhausted her remaining liquid assets, and her expenses exceed her net monthly income by nearly $3,000. After Seymour was suspended from his employment nearly 12 months prior, child support was reduced to zero, so Halverson has been providing the sole financial support for their two children during that period.
In support of her motion, Halverson presented evidence indicating that Seymour was engaged in remodeling his home, despite having no declared income. Seymour also had deposited more than $46,000 into his bank accounts since January 2007 and had paid off $30,000 in credit card debt in March 2007.
In addition, Halverson asserted that Seymour had made no attempts to find alternative full-time employment over the past year, other than registering with one on-line employment agency. Though he had no regular employment, Seymour made inquiries regarding the purchase of a daycare facility, listed at $995,000, for his fiancée, and also made a $4,500 purchase at a jewelry store.
In June 2007, Halverson filed an order to show cause because Seymour failed to provide information regarding his efforts to obtain employment. Seymour had also not yet filed a responsive declaration or produced any evidence of his employment efforts by the August 7, 2007 hearing on the order to show cause. The parties entered into a stipulation and order at the hearing, pursuant to which Seymour agreed to produce his responsive declaration, income and expense declaration, proof of employment efforts and discovery responses by August 17, 2007. Though Seymour failed to provide the discovery requests on the agreed date, he finally did so after Halverson threatened to bring an order to show cause regarding contempt and a motion to compel. The responses provided, however, were “totally inadequate.”
2. Opposition evidence
In his responsive declaration, Seymour denied that his discovery responses were untimely, and asserted that he has sought to cooperate with Halverson at every juncture of the dissolution proceedings. However, he claimed that Halverson has rebuffed his attempts to avoid court involvement. He agreed to a child support order based on imputed annual income of $75,000 even though he was not working at the time and had been “immobilized for nearly two months due to a deteriorating hip joint.”
Seymour also objected that Halverson had failed to file her attorney fee statements in conjunction with her motion, and that even though she claims her attorney has charged her $23,000, her motion seeks an award of $25,000. He also complained that an award of $23,000 would be unreasonable since there had been no contested hearings or other expenses, such as depositions or investigators, which would justify such an amount.
Seymour claimed that an award of attorney fees would represent a significant hardship to him since he was suspended without pay after Halverson informed his employer that he was arrested for driving under the influence. For the past 10 months, Seymour had been living on his credit cards and funds borrowed from family and friends, whereas Halverson makes $120,000 a year in her employment.
Finally, Seymour denied having purchased an engagement ring for his fiancée. His fiancée purchased her own ring, for which Seymour will reimburse her once he is employed.
3. Hearing
At the outset of the hearing, Halverson’s counsel indicated that, after reviewing Halverson’s billing statements, the correct amount of attorney fees being sought should be $22,000, rather than $25,000 as set forth in the motion. Because Halverson’s monthly expenses exceed her net monthly income by nearly $3,000, including a mortgage payment of more than $4,000 per month, Halverson was making efforts to sell her home. She had already borrowed $30,000 from her retirement account and incurred over $40,000 in credit card debt. When asked by the court if there were any way for her to reduce her expenses, Halverson testified that she could possibly stop contributing $480 per month to her 401(k) retirement account, even though doing so would mean giving up her employer’s matching contribution.
Halverson’s counsel then noted that Seymour had somehow managed to deposit more than $46,000 into his bank account in the eight months from January to August 2007, and was able to pay off $30,000 in credit card debt in March 2007. Pursuant to an employment efforts order from December 2006, Seymour was obliged to provide Halverson with monthly statements to prove his efforts to obtain employment, but has only made three such productions in the past 10 months. In those productions, there were four emails from potential employers, but no emails from Seymour inquiring about employment. Despite having been unemployed for nearly a year, Seymour was apparently not registered with headhunters, was not attending job fairs or even networking. Halverson’s counsel then pointed the court to emails from Seymour expressing interest in purchasing a daycare center, listed at $995,000, for his fiancée. In that email, Seymour indicated that he had a “flexible schedule” because he was working on remodeling his residence.
Finally, Halverson’s counsel described how much effort she had expended to obtain documents and responses from Seymour, culminating in a motion to compel production of discovery responses.
In response, Seymour’s counsel informed the court that Seymour had been suspended without pay from his job with the federal government, but that he had not been terminated. The week before the instant hearing, Seymour received an email informing him that he could expect a response on whether he would be reinstated by the end of the week, though that response did not arrive as promised. Since Seymour had been employed as a CPA auditor with the federal government for 20 years, he is disadvantaged in finding private sector employment since he is unfamiliar with the software in use and the laws relating to accounting, such as Sarbanes-Oxley. Seymour is also not up-to-date on the laws relating to private sector accounting.
In addition, Seymour has been hampered by a bad hip, which required surgery in July 2007. Following the surgery, he was incapacitated, and could not go out and interview for jobs or otherwise pursue employment. His surgery also hampered his ability to get into his attic to obtain documents to respond to Halverson’s discovery requests.
Seymour is a licensed contractor and, at the time of the hearing, was studying for an electrical contractor’s license. Regarding the $995,000 daycare property, Seymour was actually attempting to find investors to purchase that or another property which could be renovated or remodeled and resold for a profit.
When asked by the court if he had had any job interviews, Seymour responded that he had two, one for a position at a CPA firm in February 2007 and the other was an interview by a headhunter.
Seymour’s counsel argued that the motion was premature and that Halverson had failed to show the kind of behavior which warrants the imposition of sanctions under section 271, especially as the motion to compel further discovery had not yet been heard. Seymour has not made outrageous settlement demands in the case and, to the contrary, has made every effort to reach a settlement with Halverson.
Halverson’s counsel provided the court with a copy of her billings, and the court took the matter under submission.
The trial court’s subsequent written order provided, in pertinent part, as follows: “[T]he court having read and considered the pleadings, and hearing and considering the statements and arguments of counsel and considering the needs and abilities of the parties, makes the following Order: [¶] [Seymour] shall pay attorney’s fees to [Halverson] in the amount $10,000.”
On July 15, 2008, Seymour filed for relief under Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of California. By order dated July 31, 2008, we stayed all proceedings in this court pending the disposition of the bankruptcy proceedings. On December 18, 2009, upon receipt of a copy of the final decree in bankruptcy, we vacated our stay and restored the appeal to active status.
II. Discussion
A. Noncompliant brief and inadequate record
Litigants are required to provide the appellate court with pertinent legal arguments and appropriate references to the record. (Cal. Rules of Court, rule 8.204(a); Renden v Geneva Development Corp. (1967) 253 Cal.App.2d 578, 591.) “The appellate court is not required to search the record on its own seeking error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Those requirements apply with equal force to parties representing themselves. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Here, Seymour’s brief contains exactly two references to the record, both of which appear in the section entitled “Discussion.” His brief contains no citation to any legal authority to support his claim that the trial court’s order should be overturned.
It is also well-settled that the “[appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) The record in this case is inadequate, since it does not contain the attorney fee bills submitted to Seymour’s counsel and the court by Halverson’s counsel, which bills presumably provided the basis for the award of sanctions. Without those bills, we cannot conduct a meaningful review of Seymour’s claim that the award of $10,000 in attorney fees is “outrageous.”
When a party fails to follow the rules of appellate procedure, the reviewing court may impose various consequences, including treating an appellate claim as abandoned, summarily affirming the trial court’s judgment, or striking the offending brief. (See, e.g., Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711 [treating appellate claim as abandoned]; Copfer v. Golden (1955) 135 Cal.App.2d 623, 634-635 [discussing summary affirmance]; Cal. Rules of Court, rule 8.204(e)(2)(B) [authorizing the reviewing court to “[s]trike the brief with leave to file a new brief within a specified time”].) Of course, we may also disregard the noncompliance, and we elect to do so here. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
B. Attorney fees pursuant to section 271
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.)
Our standard of review compels us to reject Seymour’s argument, which posits that the attorney fees awarded to Halverson by the trial court were outrageous and that the trial court failed to give adequate consideration to his responsive declaration. We resolve all factual conflicts in favor of Halverson, and the evidence set forth in the record is sufficient to support the finding that Seymour’s conduct was designed to delay the proceedings or increase its costs. (§ 271, subd. (a).)
Given the evidence presented below, coupled with the trial court’s own knowledge of the case, we find nothing in the record to suggest that the trial court abused its discretion in granting Halverson’s motion for attorney fees pursuant to section 271.
III. Disposition
The order on the motion for sanctions pursuant to Family Code section 271, filed November 7, 2007, is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.