Stuart J. Faber for Appellant. Brandmeyer Gilligan & Dockstader, John J. Gilligan for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VD082768) APPEAL from postjudgment orders of the Superior Court of Los Angeles County, Charles Q. Clay III, Judge. Affirmed in part, reversed in part, and remanded with directions. Stuart J. Faber for Appellant. Brandmeyer Gilligan & Dockstader, John J. Gilligan for Respondent.
Sue Nott (Sue) and David Nott (David)'s dissolution case came on for trial in March 2016. Sue failed to appear, and the trial court found her absence to be without good cause. The trial proceeded with her counsel present, but without Sue. At the end of trial, the court made orders for child custody, child support, spousal support, and the disposition of property. The dissolution judgment was entered in October 2016.
Because the parties share a last name, we refer to them by their first names. No disrespect is intended.
In the year after the trial, Sue filed a motion for a new trial, an ex parte application for adult child support, and two requests for orders modifying child custody, child support and spousal support and ordering adult child support, all of which the trial court denied. In denying the two requests for orders, the trial court concluded the requests were in effect improper motions for reconsideration of the trial orders and awarded $15,000 in attorney fees to David under Family Code section 271. Sue now appeals the denial of her requests for adult child support and modified spousal support, as well as the award of attorney fees. We affirm in part, reverse in part, and remand.
II. FACTUAL BACKGROUND
After eighteen years of marriage, David filed a petition for dissolution on November 7, 2013. At that time, the couple had two minor children, Ryan who was born in 1998, and S.N. who was born in 2002. The parties agree that Ryan suffers from muscular dystrophy, is disabled and not able to care for himself, and will need ongoing support.
During the proceedings leading to trial, Sue changed lawyers several times. On June 26, 2015, Sue's third attorney substituted in and filed a request for a trial setting stating that the case was ready for trial. On August 12, 2015, the court set a March 14, 2016 trial date, and the next day Sue's counsel served a notice of trial. By the time of trial, Sue was represented by her fourth lawyer.
On March 14, 2016, a Monday, Sue's counsel made an oral motion to continue the trial because his client was not present at court. He stated the previous Friday he had alerted David's counsel that Sue was asking for a continuance. He did not give a reason for Sue's absence or request for a continuance (apart from her absence). In opposing the request, David's counsel argued that with each new attorney representing Sue, the parties reached a settlement, David's counsel drafted a stipulated judgment, changes were made to the judgment, and then Sue refused to sign it and retained a new attorney. He argued that a continuance would not change the ultimate trial results but merely increase legal fees. Sue's counsel did not dispute these contentions, and the court denied the motion finding no good cause. The court noted Sue had a number of counsel and her current counsel did not dispute that a continuance was unlikely to change any outcome, stated her absence "seem[ed] to be a willful act on her part" and "this is a serious matter and I would expect that she would be in contact with her attorney if there was some legitimate reason that she were unable to be here today," and concluded a continuance would ultimately be detrimental to Ryan because increased legal expenses left less money available for his care.
The matter then proceeded to trial with David and counsel for both parties but without Sue. The court ordered joint legal custody and physical custody of the children to Sue, a parenting schedule for David, David to pay $400 per month of spousal support and $1,364 per month of child support ($501 for Ryan and $863 for S.N.), and the parties to each pay one-half of uninsured medical expenses for the children and child care costs. The court made property orders, allowed Sue to reside in the family home with the children, required Sue to pay the mortgage, tax and maintenance on the house, and reserved jurisdiction over the ultimate sale of the home. Finally, the court ordered the parties to pay their own attorney fees.
Of importance here, during the trial, David testified that because Ryan is unable to take care of himself, "child support is going to continue past the age of majority." Yet, the order required child support only "until further order of the court, or until the children marry, die, are emancipated, reach the age of nineteen, or reach age eighteen and is [sic] not a full-time high school student, whichever occurs first." The judgment, prepared and filed by David's attorney, did not include adult child support.
Two weeks after the trial, Sue substituted in her fifth attorney who represented her for two months. On May 20, 2016, Sue filed a motion for a new trial on the grounds that she was sick the morning of trial, the court should have granted the motion to continue the trial, and the cost of caring for Ryan had increased. On July 7, 2016, the day of the hearing on the motion for a new trial, Sue substituted in her sixth attorney. The trial court denied the motion. On September 12, 2016, Sue signed up her seventh attorney on a limited basis to finalize the judgment. Otherwise, after her unsuccessful motion for a new trial, Sue represented herself.
On September 23, 2016, Sue brought an ex parte application seeking adult child support for Ryan, whose eighteenth birthday was imminent. The trial court denied the ex parte application for lack of an emergency. A few days later, Sue filed a request for order requesting adult child support, which was set for hearing on November 13, 2016. In the request for order, Sue contended that Ryan was incapacitated, unable to work, and not capable of providing for himself. She requested an increase in support for Ryan to $2,000 per month.
While Sue's request for order was pending, the trial court entered a judgment of dissolution on October 12, 2016. The judgment tracked the orders the trial court made at trial, including requiring David to pay child support until "the children marry, die, are emancipated, reach the age of nineteen, or reach age eighteen and is [sic] not a full-time high school student, whichever occurs first."
David filed a responsive declaration on November 1, 2016, stating he opposed Sue's request for order but consented to "continue to pay support for Ryan as ordered in [the] October 12, 2016 Judgment." David contended Ryan did not need increased child support and could be eligible for state or federal financial assistance. David also requested an order for Sue to pay $30,000 of his attorney fees, arguing that Sue had not responded to his attempts to resolve disputes outside of court and had increased his legal fees with her court filings and delays. David claimed to "have incurred $83,945.79 as a result of Sue's bad faith tactics" to date. He did not specify the portion of fees incurred post-trial and did not specifically state that he was seeking the fees under Family Code section 271.
The request for order was heard on November 15, 2016. David's counsel argued the judgment already required him to continue paying child support for Ryan and Ryan should qualify for aid programs. The court decided to continue the matter so the parties could seek help from specialists about available aid for Ryan and for Sue "to clarify her request and flesh out specifically what the basis is for the request and the amounts that are being sought to the extent that it's beyond simply the request for adult support." The next date was March 22, 2017.
On February 21, 2017, Sue filed another request for order also set for hearing on March 22, 2017, this one asking for orders on custody, the parenting schedule, spousal support, child support, adult child support, and attorney fees, among other things. Sue asked for a change from primary physical custody to joint physical custody and an increase in David's parenting time with both children because she was exhausted. She claimed that over the previous six years, she had lost over $127,000 in income caring for the children and needed an increase in spousal support, including retroactive support orders reaching before the judgment date. She requested David pay over $43,000 of her attorney fees.
By this time, Ryan was eighteen and outside the court's custody jurisdiction. (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594.) That Ryan was not able to care for himself creates no exception. (Id. at p. 595 ["The Family Code, however does not authorize the court to order visitation between a party to a dissolution proceeding and a disabled adult child"].)
David filed his responsive declaration to the new request for order on March 8, 2017. He argued the request should be denied because an adult child support order was already in place, no change of circumstances justified modifying support, the judgment required the parties to pay their own fees incurred prior to the trial, and no bases existed for the other requests. Again, he requested the court order "Sue to contribute $30,000 to my attorney's fees incurred since our March 2016 trial based on her continuing bad faith tactics and abuse of the court system" but did not specifically refer to Family Code section 271.
On March 14, 2017, Sue filed a reply (denoted as a responsive declaration), asking the court to grant a new trial because David had committed perjury at the trial and the trial court's trial orders were unjust.
The trial court heard Sue's two requests for orders on March 22, 2017. Because the parties had not gone to mediation, the court took the custody request off calendar. The court denied Sue's requests for adult child support and to increase the child and spousal support amounts, finding no changed circumstances and that the parties had stipulated to the current child support order continuing as an adult child support order. The court also noted that Sue had not provided any legal authority for the court to increase child support above "the guideline order that is already in place." The court viewed Sue's requests for increased child and spousal support as "essentially a request for or motion for reconsideration" of the trial orders, and explained that if Sue had appeared at trial, she could have then offered the evidence that she later submitted with her post-trial requests for order.
Regarding the dueling requests for attorney fees, the court confirmed that David was seeking fees under Family Code section 271. The court noted Sue had filed two requests for order and a reply with a number of exhibits, which did not contain legal authority for the modifications she was seeking. The court found Sue's requests for order were "requests for reconsideration of the orders made at trial rather than a modification based on any change in circumstance," and her "filings are, if not entirely, but certainly largely frivolous again, being unsupported by law." The court imposed sanctions against her under Family Code section 271 in the amount of $15,000, payable from Sue's share of the proceeds from the eventual sale of the family house. David's attorney prepared and filed an order after hearing, signed by the trial court on April 24, 2017. The order does not mention adult child support.
Sue acknowledges she checked an incorrect box on her notice of appeal but argues David nevertheless had sufficient notice. David does not argue to the contrary.
Sue contends that the trial court erred by not ordering adult child support, denying her request to modify spousal support, and awarding Family Code section 271 sanctions against her. A. Standard of Review
A trial court's decision to award or modify adult child support or spousal support is reviewed for abuse of discretion. (In re Marriage of Drake (2015) 241 Cal.App.4th 934, 939 (Drake) ["The trial court's determination to grant or deny adult child support or to modify a support order is reviewed under the abuse of discretion standard."]; In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273 (Shimkus) ["'The trial court has broad discretion to decide whether to modify a spousal support order. [Citation.]'"].) A decision to award sanctions under Family Code section 271 is also reviewed for abuse of discretion. (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995 (Falcone).)
Under the abuse of discretion standard, '"we will overturn . . . an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.'" (Falcone, supra, 203 Cal.App.4th at p. 995.) Any findings of fact forming the basis for the order are viewed for substantial evidence. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479 (Feldman).) "'"'"In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in [order] to uphold the [finding] if possible."'"'" (Ibid.) To extent we must interpret a statute, "we apply a de novo standard of review." (Ibid.) B. Adult Child Support
The parties do not dispute that an order for adult child support for Ryan is warranted. "Under [Family Code] section 3910, [subdivision(a)], a parent's responsibility to support an adult child arises when two conditions are met: (1) the adult child is 'incapacitated from earning a living' and (2) the adult child is 'without sufficient means.'" (Drake, supra, 241 Cal.App.4th at p. 940.) The parties agree Ryan satisfies these conditions.
But for some reason, an adult child support order has never issued. At trial not long before Ryan turned 18, although David testified in favor of an adult child support order, the order did not make its way into the judgment. Later at the November 15, 2016 and March 22, 2017 hearings on Sue's request for adult child support, both David and the trial court were under the impression that an adult child support order was already in place. David's counsel argued "it's in the judgment that he's gonna pay adult child support." The trial court stated "the child support order is already and [sic] is in place" and "there was an existing guideline support order for Ryan as a minor, and that was stipulated to as a 3910 order that would continue as an adult." Again, the adult child support order was not included in the order after the hearing. Sue contributed to this problem by not objecting to the absence of adult child support in the proposed judgment or proposed order after hearing.
Sue is correct that she is entitled to an adult child support order. As she points out, David's statements that he will continue paying child support now that Ryan is an adult are not sufficient. For one thing, Sue cannot enforce a statement. Sue does not contend on appeal that the adult child support order should be any different than the child support order contained in the judgment. In her request for order, she asked for an increase in child support for Ryan from $501 to $2,000 per month, but on appeal she does not argue the trial court erred by not increasing the amount.
In any event, substantial evidence supported the trial court's conclusion that Sue had not shown a material change in circumstances or basis for increasing the child support amount above guideline. The record shows Sue's income had increased by 2017, David's health insurance covered a significant amount of the cost of Ryan's care, and Ryan was receiving Social Security benefits and had applied for other benefits to pay for home care services.
Accordingly, we reverse the denial of Sue's request for an adult child support order and remand for the trial court to enter an order that David is to continue to pay child support for Ryan as ordered in the judgment. Because David has consistently maintained that he would "continue to pay support for Ryan as ordered in [the] October 12, 2016 Judgment" and that "he has been paying adult child support since Ryan reached the age of majority," the adult child support order is to be effective as of Ryan's eighteenth birthday, and to continue until further court order. C. Spousal Support
Sue argues the trial court erred in denying her request to modify spousal support. "A prerequisite to modification or termination of spousal support is a material change of circumstances. [Citation.] '"Change of circumstances" means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all factors affecting need and the ability to pay.'" (Shimkus, supra, 244 Cal.App.4th at pp. 1272-1273.)
In her February 21, 2017 request for order, Sue claimed she needed increased spousal support because she had lost income the previous six years staying home to care for the children. She did not describe any change of income or other circumstances after the March 2016 trial justifying an increase in spousal support. The trial court ruled that her request was in effect a motion for reconsideration of the trial orders and that she had not shown a change of circumstances.
The trial court did not abuse its discretion in denying the request to modify spousal support. The evidence of Sue's income for the five years before trial is not evidence of a material change of circumstances after trial. For 2016 (including nine months after the trial), Sue's evidence showed her income was more than in the previous five years.
On appeal, Sue now claims circumstances changed after the March 2016 trial because Ryan had turned 18 and was no longer in school, he needed new medical equipment, his health was deteriorating and he needed full time care, Sue was not able to care for Ryan alone, and David was not caring for Ryan as much. While Sue made these arguments in her September 29, 2016 request for an adult child support order, she did not make them in her February 21, 2017 request for increased spousal support. Sue cannot pursue a new theory for spousal support on appeal that she did not raise in the trial court. (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 ["'"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. . . . [I]t would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal."'].") D. Section 271 Sanctions
Finally, Sue argues the trial court erred in awarding sanctions against her under Family Code section 271 because David did not comply with California Rules of Court, rule 5.14, she did not have adequate notice that David was requesting sanctions under that section, the court did not consider the financial burden on her, she did not over-litigate the case, and the court improperly based the sanction award on David's pre-judgment attorney fees. Section 271 allows the court to "base an award of attorney fees and costs on the extent to which the conduct of each party or attorney 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 between the parties and attorneys." (Fam. Code, § 271, subd. (a).) "Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction." (In re Marriage of Petropolous (2001) 91 Cal.App.4th 161, 177.)
Sue's first argument—that the trial court did not comply with California Rules of Court, rule 5.14 in awarding sanctions—is not well-taken because rule 5.14 by its own terms applies only to sanctions ordered "for failure without good cause to comply with the applicable rules." (Cal. Rules of Court, rule 5.14(c).) The rule states "[s]anctions must not be imposed under this rule except" if certain procedures are satisfied, including that the moving party must "[s]tate the applicable rule of court that has been violated." (Id., rule 5.14(d)(1)(A) [emphasis added].) The rule states that it provides for sanctions "[i]n addition to any other sanctions permitted by law," indicating that it is additive and not a limitation on other types of sanctions authorized elsewhere in the law. (Id., rule 5.14(c).) Nothing in rule 5.14 suggests that its procedures also apply to sanctions available under Family Code section 271. And nothing in the record indicates that David sought or the trial court awarded sanctions under rule 5.14.
2. Notice of Request for Sanctions
Sue's next argument—that she did not have adequate notice of the request for sanctions—fares no better. She asserts that David's responsive declaration requesting an award of attorney fees did not refer to Family Code section 271 and his filing of an income and expense declaration gave the impression that he was seeking need-based attorney fees. She claims that she might have hired an attorney if she had known that sanctions were possible.
Family Code section 271 requires "notice to the party against whom the sanction is proposed to be imposed. . . ." (Fam. Code, § 271, subd. (b).) It does not require the moving party expressly to state that sanctions are requested under that specific statute. If the moving party "make[s] clear" the other party's litigation conduct is at issue and "attorney fees as a punitive sanction are sought," the other party has adequate notice sanctions for that conduct may be imposed even if the statutory basis for the attorney fees request is murky. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 969-970 [examining sufficiency of notice for attorney fees award "apparently based on" predecessor statute to Family Code section 271].)
David's filings gave Sue adequate notice he was seeking fees as sanctions based on her conduct in the litigation and not for need-based reasons. His November 1, 2016 responsive declaration described her alleged bad conduct, including assertions that she "refused to negotiate in good faith," did not respond to attempts to settle disputes, and filed a motion and ex parte application that were denied, causing David to incur "unnecessary attorney fees." He asked the court to order Sue "to contribute $30,000 to my attorney's fees based on her continuing bad faith tactics and abuse of the court system." David's March 8, 2017 responsive declaration again detailed the grounds for his attorney fees request. The declaration repeated his earlier allegations and added Sue's two requests for orders "where the facts have not changed" since the trial as examples of her bad faith conduct. These filings do not mention need-based fees, and David's filing of an income and expense declaration does not suggest that he was seeking need-based fees. Sue's requests to modify child and spousal support required David to file an income and expense declaration. (Cal. Rules of Court, rule 5.260(a)(2) ["A party responding to a request for support orders must include a current, completed Income and Expense Declaration (form FL-150) with the Responsive Declaration to Request for Order . . . ."].)
Sue's March 14, 2017 responsive declaration reveals she knew David was seeking a significant award of attorney fees based on her conduct. In that filing, Sue argued David's request for fees should be denied because his bad faith conduct caused his fees, and her own, to increase. She had sufficient information, even though David had not referred to Family Code section 271, to know she faced the possibility of an attorney fees award against her and had sufficient time to hire an attorney.
3. Financial Burden on Sue
Sue contends the court did not consider the financial burden of sanctions on her. Family Code section 271 prohibits a sanction "that imposes an unreasonable financial burden on the party against whom the sanction is imposed." (Fam. Code, § 271, subd. (a).) Although the trial court did not expressly state it had considered the financial burden on Sue, we must "presume the trial court fully discharged its duty to consider all of the relevant statutory factors and made all of the factual finding necessary to support its decision for which there is substantial evidence" (Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1320), and we indulge all reasonable inferences in favor of the order. (Falcone, supra, 203 Cal.App.4th at p. 995.)
Nothing in the record rebuts the presumption that the trial court examined Sue's financial condition. At the first hearing, the court stated it had "read and considered the moving papers as well as the responsive declaration," which included her income and expense declaration. Also, the trial court's finding that Sue had not shown a change in circumstances calling for an increase in guideline child support indicates the court examined the parties' income and expense declarations to determine if their financial situations had changed. When "nothing in the record shows that the trial court was unfamiliar with and refused to consider the [income and expense] declarations," we "presume that the trial court considered these papers." (Falcone, supra, 203 Cal.App.4th at p. 977.)
The income and expense declarations disclose that Sue and David claimed real and personal property worth (estimated fair market value minus the debts) $826,700 and $650,000, respectively. The judge's order that Sue is to pay the $15,000 in sanctions from her share of the proceeds if and when the house eventually is sold indicates that he took Sue's current finances and the equity in the house into consideration and determined the financial burden on Sue was reasonable. In short, substantial evidence support a finding that the sanction amount is not an unreasonable financial burden on Sue. (In re Marriage of Pearson (2018) 21 Cal.App.5th 218 233 [no abuse of discretion where $50,000 sanction award was spread out over two years].)
4. Substantial Evidence Supporting the Imposition of Sanctions
Sue argues insufficient evidence supports the imposition of sanctions because her conduct posttrial was appropriate. She contends that because she was too sick to attend trial, her motion for a new trial was necessary to attack portions of the judgment she considered unfair or just. She argues that her requests to modify custody and support were necessary because circumstances had changed. Sanctions under Family Law section 271 may be warranted when one party files successive meritless motions requiring the other party to incur attorney fees in response. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82 [no abuse of discretion in assessing sanctions where motion for reconsideration did not present any new or different facts but obligated other party to respond, research and write a brief, and appear at another hearing].)
One part of Sue's request for adult child support had merit—her assertion that no adult child support order had ever issued. But that was a small part of Sue's posttrial litigation and should have been easily addressed via objections to the judgment or the order after the March 22, 2017 hearing by following the procedure in California Rule of Court, rule 5.125. Alternatively, Sue could have filed a simple request for order solely addressing the absence of an adult child support order.
Instead, Sue filed multiple requests, including the motion for a new trial and the two requests for order, raising many issues that had already been decided at the trial or required a showing of a material change of circumstances. She claimed that she was sick the Monday morning of trial, but her attorney told the court she had asked him the previous Friday to obtain a continuance, he did not give a reason for the request, and did not dispute that continuing the trial date was unlikely to change the result. The court could reasonably find that Sue was engaging in delay tactics and did not have good cause for her failure to appear for trial. Sue's requests to increase child and spousal support without evidence of materially changed circumstances, her reliance on her income for five years before the trial, and her arguments that David had committed perjury at the trial and the trial court's trial orders were unjust gave the trial court reason to conclude that Sue was trying to re-litigate the trial she had failed to attend without good cause. Sue's successive motions required David to incur attorney fees for responsive papers and three hearings on Sue's meritless contentions. All this is substantial evidence supporting a finding that Sue's posttrial filings caused an unreasonable increase in David's litigation costs.
This conclusion is not inconsistent with the fact that one part of Sue's posttrial filings was well-taken. Sue's request for an adult child support order occupied an insignificant part of her briefing and the hearings. And, the trial court awarded only half of the full amount of attorney fees David incurred in the posttrial proceedings, thereby not sanctioning Sue for the meritorious portion of her filings. In all, the trial court did not abuse its discretion in awarding sanctions.
5. Amount of Attorney Fees Incurred
Sue contends that in setting the sanction amount, the trial court improperly considered David's attorney fees from the beginning of the case, even though at trial the court had ordered the parties to pay their own attorney fees. "[T]he party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct." (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155.) "'[D]etailed billing records are not required to support an award'" of attorney fees. (Falcone, supra, 203 Cal.App.4th at p. 983.)
Sue bases her assertion on a family law form David filed with his request for attorney fees where he checked a box stating the requested amount of attorney fees included "attorney fees and costs incurred from the beginning of representation until now in the amount of ___" and filled "$30,000" in the blank. Sue's argument is not persuasive because David's responsive declaration stated more specifically the attorney fees he sought. There, he detailed Sue's posttrial conduct he alleged increased litigation costs and asked for a contribution of "$30,000 to my attorney's fees incurred since our March 2016 trial." David's responsive declaration offered sufficient evidence of the amount of fees he incurred posttrial for the trial court to award the $15,000 in attorney fees.
The April 24, 2017 findings and order after hearing denying Sue's request for an adult child support order is reversed and remanded, and the trial court is directed to enter an order that David is to continue to pay child support for Ryan as ordered in the judgment, effective as of his eighteenth birthday and continuing until further order of the court. In all other respects, the April 24, 2017 findings and order after hearing is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
BAKER, Acting P.J.