Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1165965, Thomas P. Anderle, Judge
Joel P. Schiff; Kehr, Schiff & Crane, for Appellant.
Jacqueline Misho; Misho & Associates, for Respondent.
YEGAN, Acting P.J.
Alicia R. Lancashire (Wife) seeks relief from a June 16, 2009 order in this long running dissolution of marriage case awarding Christopher W. Lancashire (Husband) attorney fees of $75,000 as sanctions under Family Code section 271. We reach the merits of this order and affirm it. Wife also seeks relief from an order dated August 7, 2009, authorizing the sale of the parties' house, known as Terra Bella. Wife contends the trial court exceeded its jurisdiction when it made orders on March 12 and October 23, 2008, on which the August 7, 2009 order is based. We do not reach the merits of these claims. Wife did not appeal from an order dated April 7, 2009, that enforced the March 12, 2008 order. This is the key date in this series of dates. This was an appealable order and no appeal was taken therefrom. The time for appealing that order has long since expired. (Cal. Rules of Court, rule 8.104(a).). We cannot, therefore, review the merits of the March 12, 2008 order. The October 23, 2008 order is not subject to review because no action was ever taken pursuant to it. (Code Civ. Proc., § 906.)
All statutory references are to the Family Code unless otherwise stated.
On December 4, 2009, Husband moved to dismiss the appeal on the ground that it became moot when the sale of the house closed. We deferred ruling on the motion to dismiss pending completion of the briefing in this matter. We now deny the motion to dismiss.
Facts
The parties were married in 1986 and separated in 2005. They have three children. During the marriage, the parties established a Charitable Remainder Unitrust (CRUT). Under its terms, each party receives four percent of the principal value of the trust each year for his or her life. Upon the death of the first party, the survivor receives the deceased party's four percent in addition to the surviving party's four percent. Upon the survivor's death, the remainder goes to designated charities. After a trial on the issue, the trial court found that the survivor's benefit is a community property asset with a value of $3,467,571. It ordered Wife to make an equalizing payment to Husband in that amount or to have that amount, with interest, deducted from Wife's share of the proceeds from the sale of the family residence (the CRUT judgment). Wife appealed. We affirmed the CRUT judgment on May 25, 2010. (No. B209599.)
In February 2007, the parties listed their family residence, known as Terra Bella, for sale at $39,500,000. By March 2008, the house had been shown many times but the only offer received was for $20,500,000. Wife rejected the offer. Husband sought an ex parte order authorizing the sale. The trial court denied the application. Its March 12, 2008 order stated, "The court will not order the sale at this time over petitioner's objection. However, [Wife] will be required to guarantee/warrant that [Husband] will not receive less money for his interest in a subsequent sale. This includes his share of all carrying costs (e.g., mortgage, taxes, insurance, utilities, etc.) and related expenses pending close of a subsequent escrow. In any event the property will be sold within a reasonable time."
The property did not sell. In October 2008, Husband filed another application for an order authorizing a sale at $15,000,000. Wife opposed the motion, claiming to have received an offer at $21,250,000. The trial court continued the hearing on Husband's ex parte application, to permit the Wife's potential buyer to present proof that he or she was financially able to complete the purchase. The potential buyer submitted no such evidence. At Wife's request, the trial court continued the hearing a second time, because Wife represented that the potential buyer was going to deposit the entire purchase price into escrow that day. No deposit was ever made. On October 23, 2008, the trial court entered an order authorizing the sale of the house at $15,000,000 and granting Husband exclusive control over the sale.
Wife refused to sign the documents necessary to close the sale. Husband filed an ex parte application for an order compelling her to do so or permitting the clerk of the court to sign on her behalf. On October 31, 2008, the trial court granted that application. That same day, Wife filed a notice of appeal from the October 23 and October 31 orders.
On October 30, 2008, Husband filed a motion to confirm amounts due between the parties, pursuant to the CRUT judgment, the March 12, 2008 order and other orders. The first item on Husband's list was $2,583,000, "due from [Wife] to [Husband] per the March 12, 2008 Ex Parte Order...." At Wife's request, the hearing on this motion was continued several times. Wife argued that she was missing certain documents and later requested another continuance to present a competing accounting of the amounts due. By the time the motion was actually heard, in April 2009, Wife had offered to stipulate to Husband's accounting and had never filed one of her own. The trial court adopted Husband's analysis. Its April 7, 2009 order required Wife to pay Husband $260,000 "for paid Terra Bella carrying costs through March 10, 2009[, ]" and the $3,745,927 equalizing payment due under the CRUT judgment.
While both Husband's motion and the sale authorized in October 2008 were pending, Wife waged a campaign to delay or prevent the sale by threatening litigation against the title companies involved. The first title company refused to issue title insurance on the property. Husband engaged a second title company which refused to close escrow or issue title insurance until Husband obtained a court order directing the distribution of the sales proceeds. In December 2008, the trial court issued that order.
The next day, Wife recorded a lis pendens against the property. This halted the sale because the title company refused to proceed until the lis pendens was removed. Husband moved to expunge the lis pendens. Wife opposed the motion. It was granted. Wife filed a petition for writ of mandate challenging the order. We summarily denied the petition in February 2009. (No. B213168.) In the interim, however, the buyers withdrew their offer and canceled escrow. Wife opposed the return of their $450,000 deposit. The buyers filed an ex parte application for leave to file a Complaint for Intervention in which they sought return of their deposit, an order to show cause why Wife should not be held in contempt, and an order enjoining her from interfering in the sale. On March 5, 2009, the trial court granted the buyers leave to intervene. Wife then agreed to return their deposit.
On April 7, 2009, the trial court entered the order we described earlier, which settled the amounts due to each party under the CRUT judgment, the March 12, 2008 "indemnification" order and various other orders. On May 20, 2009, Husband filed a motion to recover $295,000 in attorney's fees as a sanction under section 271. The trial court awarded $75,000 in sanctions on June 16, 2009.
In July 2009, the same buyers made another offer to purchase Terra Bella, this time for $12.8 million. On July 28, 2009, over Wife's objections, the trial court authorized Husband to sell the house pursuant to that offer. On August 7, 2009, the trial court filed amended findings and an order authorizing the sale. This order directed that proceeds from the sale be deposited into a blocked account for distribution pursuant to further order of the trial court. Husband served Wife with notice of the entry of that order on August 11, 2009. The sale of Terra Bella closed on October 1, 2009.
Wife has filed three separate appeals in this matter: (1) No. B209599, challenging the CRUT judgment; (2) No. B211930, challenging the October 23 and October 31, 2008 orders authorizing the sale of Terra Bella pursuant to the $15 million offer; and (3) the instant matter, No. B217072, challenging the June 16, 2009 order awarding sanctions and the August 7, 2009 order authorizing the sale of the house pursuant to the $12.8 million offer. We affirmed the CRUT judgment. On May 25, 2010, we dismissed the appeal in No. B211930 because the sale authorized by those orders never closed. The instant matter involves two separate notices of appeal: a notice of appeal filed June 17, 2009 from the June 16, 2009 sanctions order, and a notice of appeal filed September 24, 2009 from the July 28 and August 7, 2009 orders.
Order Relating to the Sale of House
Although Wife purports to appeal from the August 7, 2009 order authorizing the sale of Terra Bella, she does not claim that the order was an abuse of discretion or unsupported by substantial evidence. Instead, Wife uses the August 7, 2009 order as a platform for challenging the trial court's March 12, 2008 "indemnification" order and the October 23, 2008 order granting Husband exclusive control over the sale of Terra Bella. Wife contends the March 12, 2008 order was in excess of the trial court's jurisdiction because the Family Code does not authorize an order requiring one spouse to indemnify the other for carrying costs or for a decrease in market value that occurs while community property is being sold. She further contends that the trial court abused its discretion when it declined Husband's offer to waive his rights under the March 12, 2008 order in exchange for approval of the contemplated October 2008 sale. The trial court also erred, Wife contends, when it granted Husband exclusive control over the sale because that order violated Wife's right to equal management and control over community assets. The order was also an abuse of discretion, she contends, because her conduct with respect to the sale was not arbitrary or unreasonable. Finally, Wife contends the trial court lacked jurisdiction to approve the sale in August 2009 because her appeal from the October 2008 orders was still pending.
With the benefit of hindsight, but even at the time of this contemplated sale, wife's decision was not a good one and husband's offer was more than fair.
Husband does not respond to any of these specific arguments. He contends that Wife's appeal is untimely to the extent it seeks review of the March 12, 2008 order and that the October 23, 2008 order is not appealable because the house was not sold pursuant to it. According to Husband, Wife forfeited review of the March 21, 2008 order because she did not file a notice of appeal from the April 7, 2009 order in which the trial court first ordered her to indemnify Husband by paying his carrying costs of $260,000.
We first consider Husband's contention that Wife waited too long to challenge the March 12, 2008 order. If that order was directly appealable, or could have been reviewed on appeal from another order, then it is no longer subject to our review. As our Supreme Court held in Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Id. at p. 56.) A party must therefore appeal at his or her earliest opportunity or forfeit appellate review entirely. " ' "If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review." [Citations.]' (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [269 Cal.Rptr. 228].)" (Maughan v. Google Technology Inc. (2006) 143 Cal.App.4th 1242, 1247, emphasis removed.) Thus, we have no jurisdiction to review the merits of an order that was not the subject of a timely appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109.) " 'The law of this state does not allow, on an appeal from a judgment, a review of any decision or order from which an appeal might previously have been taken. [Citations.]' (Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 648.)" (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119; see also, Code Civ. Proc., § 906 [statute defining appellate jurisdiction does not "authorize the reviewing court to review any decision or order from which an appeal might have been taken."].)
A post judgment order is appealable where it "affects the judgment or relates to its enforcement because it determines the rights and liabilities of the parties arising from the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656.) In a family law matter, this generally means that an order entered after the judgment of dissolution is appealable if it constitutes a final determination of an issue and directs either the payment of money or the performance of an act by one or both parties. (In re Marriage of Weiss, supra, 42 Cal.App.4th 106, 119.) Thus, for example, an order denying a motion to modify a child support order is appealable because it is a final determination of the request to modify and requires payment of support in the previously ordered amount. (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216.) By contrast, an order finding a community interest in health insurance benefits, but not evaluating or dividing that interest, is not immediately appealable because, "the order determines that the trial court has authority to evaluate and divide the [benefit], but is only preliminary to actually doing so." (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.) Similarly, an order confirming an arbitration award is not appealable where the award requires that an accounting be performed and that further judicial action be taken to determine the amounts due between the parties. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218.)
Here, as Wife correctly points out, the March 12, 2008 order was not itself immediately appealable. Although it determined that Wife would be required to indemnify Husband for his carrying costs and for any decrease in the ultimate sales price of the house, it did not require Wife to pay any money or take any action at that time. However, as Husband correctly points out, the trial court first enforced the indemnity obligation imposed by the March 12 order on April 7, 2009, when it ordered Wife to pay Husband's carrying costs of $260,000. Husband contends the April 7, 2009 order was immediately appealable and that such an appeal would have permitted review of the March 12 order on its merits. We agree with husband. April 7, 2009 was the first time the trial court ordered Wife to pay money pursuant to the March 12 order. Although the court and the parties certainly contemplated that additional amounts would become due under the March 12 order after the sale closed, the April 7, 2009 order directed the payment by Wife of Husband's carrying costs. It was an appealable order because it was a final determination by the trial court that Wife was responsible for those costs. Thus, the April 7, 2009 order "was neither interlocutory nor intermediate but a final determination. As an injured party [Wife] could have appealed; having failed to do so, [s]he cannot be heard to complain now." (In re Marriage of Padilla, supra, 38 Cal.App.4th at p. 1216.)
Wife has never filed a notice of appeal from the April 7, 2009 order. She filed her notice of appeal from the order to sell Terra Bella on September 24, 2009. That notice refers only to the July 28, 2009 and August 7, 2009 orders. In addition, it was filed more than 60 days after Wife was served with a copy of the April 7, 2009 order. As as a result, Wife's time to appeal the April 7, 2009 order, has expired. (Cal. Rules of Court, rule 8.194(a).) We therefore lack jurisdiction to review the merits of the April 7, 2009 and March 12, 2008 orders.
Wife's attempt to obtain review of the October 23, 2008 order meets a similar fate. Husband never used the authority granted to him under that order. When he received the buyers' final offer, he sought and obtained a new order authorizing him to close the sale. No action was ever taken pursuant to the October 23, 2008 order. Thus, it is not appealable because it does not "involve[] the merits or necessarily affect[] the judgment or order appealed from or... substantially affect[] the rights of a party...." (Code of Civ. Proc., § 906; see, e.g., Muao v. Grosvenor Properties, Ltd. (2002) 99 Cal.App.4th 1085, 1089 [order compelling arbitration not appealable because it does not involve the merits or necessarily affect the judgment entered on a separate cause of action not subject to arbitration].)
We lack jurisdiction to take any action other than to dismiss a purported appeal that is not timely or that is taken from an order that is not appealable. (Code Civ. Proc., § 906; Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373; In re Marriage of Eben-King v. King, supra, 80 Cal.App.4th at p. 109.) Here, however, the notice of appeal refers to the August 7, 2009 order, which was an appealable order. It is Wife's attempts to obtain review of the March 12 and October 23, 2008 orders that fail. She has not demonstrated that the August 7, 2009 order was in error because her contentions rely exclusively on prior orders that are not subject to appellate review.
Order Awarding Sanctions
The trial court awarded Husband $75,000 in attorney's fees as sanctions under section 271, based on Wife's conduct in delaying the sale of the house and avoiding her financial obligations under the CRUT judgment. It found, among other things, "plentiful" evidence that Wife refused to comply with the order requiring a prompt sale of the house and that she "consistently made affirmative efforts to thwart [the] sale." Wife contends the motion for sanctions was untimely and the award of fees was an abuse of discretion because her conduct was reasonable. She is incorrect on both counts.
Section 271 authorizes the trial court to award attorney's fees and costs "in the nature of a sanction" where a party's conduct "frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).) The statute itself contains no time limit within which a motion for sanctions must be filed. Section 271 sanctions may be awarded "during the course of the litigation when the uncooperative conduct arises in order to encourage better behavior as the litigation progresses." (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1495.) Alternatively, the trial court has discretion to award sanctions at a later stage of the proceedings because the statute "contemplates that sanctions be assessed at the end of the lawsuit, 'when the extent and severity of the party's bad conduct can be judged.' (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.)" (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.)
In re Marriage of Freeman, supra, held that former California Rule of Court, rule 870.2 (current rule 3.1702) established the time for filing a section 271 motion for attorneys fees. Because the sanctions at issue in Freeman were awarded for conduct that occurred on appeal, the Freeman court applied the time period for claiming attorney's fees on appeal, which is 40 days after issuance of the remittitur. (Id. at p. 7; Cal. Rules of Court, rule 3.1702, subd. (c)(1).) The moving party in Freeman had, however, waited 96 days to file his motion for sanctions. Accordingly, the court held his motion was untimely. (Id. at p. 9.)
In Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, by contrast, the court held that a party falsely accused of child abuse in a family law matter must move for sanctions within the time prescribed by rule 3.1702, e.g., "on or before the earliest of 60 days after the judgment or order exonerating him or her from such allegations is served, or 180 days from the entry of such judgment or order." (Id. at p. 1504.)
Relying on Freeman, supra, Wife contends Husband's motion for attorney's fees was untimely because it was filed more than 40 days after the trial court made any of the orders on which the sanctions are based. We are not convinced. First, we question whether California Rules of Court, rule 3.1702 applies at all. The fees at issue here were awarded for services rendered in the trial court after entry of judgment. Rule 3.1702 provides filing periods for motions to recover attorney's fees for services provided prior to judgment (rule 3.1702, subdivision (b)), and for attorney's fees on appeal. (Rule 3.1702, subd. (c).) It says nothing about post-judgment fees. At least one court has held that the rule "does not apply to fee applications for services rendered in the trial court after judgment...." (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 271.)
Assuming it applies, however, the motion at issue here is more similar to a motion for pre-judgment fees under subdivision (b) than it is to a motion for fees on appeal under subdivision (c). Husband requested sanctions for Wife's conduct in the trial court after entry of the judgment of dissolution and before entry of the order pursuant to which Terra Bella was actually sold. The order awarding section 271 sanctions has little, if anything, to do with Wife's conduct in the prior appeal. Thus, if any portion of rule 3.1702 governs the timeliness of this motion, it is subdivision (b), rather than subdivision (c).
California Rules of Court, rule 3.1702, subdivision (b) requires that a motion for attorney's fees be filed within the time for filing a notice of appeal, e.g., within 60 days after the judgment or order at issue is served or 180 days from the entry of such judgment or order. Here, the trial court awarded attorney's fees as a sanction for a lengthy and continuous course of conduct by Wife that was intended to delay or prevent the sale of Terra Bella and to avoid her obligation to make an equalizing payment under the CRUT judgment. That course of conduct began when Wife first refused to accept a reasonable offer for the sale of Terra Bella, on March 6, 2008, and it continued unabated through April 7, 2009, when the trial court entered its order confirming the amounts due between the parties. Husband filed his motion for section 271 attorney's fees 43 days later, on May 20, 2009. The motion was timely.
We further conclude the award of sanctions was not an abuse of discretion. As we have outlined above, Wife did everything she could to delay the sale and to avoid her financial obligations to Husband. Among other things, she filed a frivolous lis pendens, refused to execute documents necessary to close the sale of Terra Bella, and deliberately interfered with escrow and title after the trial court granted Husband sole control over the sale. Wife also refused to cooperate with Husband in confirming the amounts due between the parties under numerous orders including the CRUT judgment and the March 12, 2008 "indemnification" order. In response to her objections, the trial court delayed resolution of that matter for over four months, so that Wife could file her own accounting of the amounts due. She never did. Instead, she presented the court with a proposed "stipulation" that accepted Husband's original accounting but limited enforcement of her obligations and purported to allow her to file an untimely appeal of the March 12, 2008 order.
In response to Husband's motion for sanctions, Wife admitted that she rejected the $20 million offer for Terra Bella solely because she did not want to make the equalizing payment required under the CRUT judgment out of her share of the sale proceeds. She further admits that she opposed the sale at $15 million because she disagreed with the March 12, 2008 indemnification order and did not believe that Husband was motivated to obtain the best possible sales price.
The trial court reviewed this conduct and concluded that Wife had acted deliberately to delay the litigation and to thwart enforcement of its orders. These findings are supported by substantial evidence and demonstrate that the decision to award section 271 sanctions was not an abuse of discretion. (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178.)
Conclusion
The orders of June 16, 2009 and August 7, 2009 are affirmed. The matter is remanded to the trial court for a determination as to whether Husband, on noticed motion filed in the Santa Barbara Superior Court, is entitled to an award of attorney fees on appeal. We express no opinion whether such a motion should be filed, granted, or denied. Costs on appeal to Husband.
We concur: COFFEE, J., PERREN, J.