Filed 12/20/19 Marriage of Fiore and Jimenez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ARCANGELO FIORE and MARCIA JIMENEZ.

ARCANGELO FIORE,

Respondent,

v.

MARCIA JIMENEZ,

Appellant.

D074927

(Super. Ct. No. DS38156)

APPEAL from an order of the Superior Court of San Diego County, Sharon L. Kalemkiarian, Judge. Reversed and remanded with directions.

Marcia Jimenez, in pro. per. for Appellant.

No appearance for Respondent.

In this marital dissolution action between Marcia Jimenez and Arcangelo Fiore, Jimenez appeals from a postjudgment order awarding her need-based attorney fees and costs under Family Code section 2030, for the purpose of prosecuting her appeal and defending against Fiore’s appeal from various postjudgment orders set forth in a statement of decision. We have addressed those appeals in related case No. D073228 (the underlying appeal). Jimenez contends that the court’s award of $5,000 for attorney fees was insufficient to allow Jimenez to retain counsel for the underlying appeal. Jimenez also suggests, but does not expressly contend, that the court erred by not granting her requests for sanctions against Fiore under section 271 and Code of Civil Procedure section 128.5. Finally, Jimenez contends that the court’s award of discovery sanctions against Fiore in the amount of $1,000 under Code of Civil Procedure section 2030.290, subdivision (c) is insufficient.

We reverse the $5,000 attorney fees award and remand the matter for the court to reconsider Jimenez’s request for attorney fees. We affirm the order awarding Jimenez $1,000 in discovery sanctions. On remand, Jimenez may ask the court to rule on any other requests for sanctions that were before the court, but not addressed, in the appealed order.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background relevant to the underlying appeal is set forth in our opinion in the underlying appeal. The procedural facts relevant to the present appeal are as follows:

On September 5, 2017, the trial court filed a statement of decision after conducting a court trial on two postjudgment motions that Jimenez had filed. The motions sought adjudication of various assets that were omitted from the dissolution judgment, compensation for Fiore’s alleged breaches of fiduciary duty, modification of child support, attorney fees, and sanctions. In its statement of decision, the court awarded Jimenez $162,300 from the sale of an omitted real property asset in Italy known as Via Landini, but denied Jimenez’s other omitted asset claims and her claim for breach of fiduciary duty. The court granted in part Jimenez’s requests for modification of child support and payment of missed support, and declined to augment a $20,000 award of attorney fees under section 2030.

Fiore filed a notice of appeal from the statement of decision on November 1, 2017, and retained counsel to represent him in the appeal. Jimenez’s trial counsel, Ronza Rafo, withdrew from further representation of Jimenez because Jimenez was unable to pay attorney fees. However, after consulting with her former counsel, Jimenez filed a notice of cross-appeal, in propria persona (pro per), from the statement of decision on November 21, 2017.

Jimenez was unable to afford appellate counsel. However, in consultation with appellate attorney Rupa G. Singh, on December 7, 2017, she filed a request for order (RFO or motion) that Fiore pay her reasonable attorney fees and costs so that she would be able to timely retain counsel for the appeal. She simultaneously filed an ex parte application to shorten time for the hearing on the RFO. On December 7, 2017, the court denied Jimenez’s ex parte application and ordered her RFO to be heard “in due course” on the ground that it was “not an emergency.”

Jimenez believed that the court may have denied her request to shorten time because she failed to sufficiently explain the need to shorten time to hear her request when she appeared in pro per. She retained Singh for the limited purpose of preparing a second ex parte application to shorten time for the RFO hearing. Singh agreed to appear at the ex parte hearing and to represent Jimenez on appeal if Jimenez were able to secure the necessary funds to pay attorney fees and costs. On December 12, 2017, Singh filed an ex parte application to have Jimenez’s RFO “heard urgently—by [the end of] January 2018, well before the soonest available date of April 24, 2018—to retain appellate counsel and comply with dispositive deadlines on appeal.” On December 13, the court granted the application and advanced the hearing date on the RFO to February 6, 2018. Fiore was present at the December 13, 2017 hearing.

Jimenez’s counsel filed an amended RFO on January 19, 2018, that gave notice of the hearing on February 6, 2018. The amended RFO requested an award of attorney fees and costs in the range of $60,321 to $73,321. The requested amount included $48,309 to $60,309 for attorney fees and costs for Jimenez’s appeal, and $12,012 in attorney fees and costs “incurred from the beginning of representation until now[,]” including $1,160 owed to Jimenez’s trial counsel and a $10,100 loan from Jimenez’s sister for attorney fees. Fiore did not file a response to the amended RFO and did not respond to interrogatories and requests for documents concerning his present income that Jimenez served on December 18, 2017.

Although Fiore had retained appellate counsel, he appeared in pro per by telephone at the RFO hearing on February 6, 2018. The trial court noted that Fiore had not responded to Jimenez’s RFO, although it appeared that he had notice of the hearing date. Fiore represented that he had not received the moving papers that Jimenez had served on him by e-mail. Jimenez’s counsel informed the court that Fiore had used the service e-mail address to respond to other e-mail messages and to serve discovery responses after Jimenez sent her motion documents to that address, and Fiore confirmed that fact. However, Fiore refused to consent to electronic service, stating that he wanted to be served at his permanent address in Italy. The court concluded that it could not force Fiore to accept service by e-mail.

The court continued the hearing to March 26, 2018, authorized Jimenez to serve Fiore by regular mail at his address in Italy, and directed Fiore to serve his response to the RFO by e-mail no later than March 12, 2018. The court advised the parties: “I am going to need to make orders one way or the other. I am not going to continue this [past March 26]. I need to have a complete income and expense declaration from Mr. Fiore. This motion is going to be based primarily upon income of each party and the costs of the appeal, both fees and costs. [¶] I will let Ms. Singh know now I don’t want to relitigate the fee decision I made already.” The court put Fiore on notice that he could be subject to sanctions for actions that increased the cost of the litigation.

Despite the trial court’s admonitions, Fiore did not file an opposition to Jimenez’s RFO prior to the March 26, 2018 hearing and did not submit an income and expense declaration. Jimenez’s counsel filed a “reply declaration” on behalf of Jimenez (capitalization omitted) in which she requested an award of attorney fees and costs in the total amount of $65,559, consisting of “fees on appeal of $47,350.00, plus costs on appeal of $902, and additional fees of $15,750.00 for briefing and arguing the ex parte and this RFO, plus related costs of $1,557.00.” In a reply memorandum of points and authorities, Jimenez argued that Fiore should be sanctioned under section 271 and Code of Civil Procedure section 128.5 for manipulating the law and causing bad faith delays and increased litigation costs.

March 26, 2018 hearing

Fiore appeared at the hearing on March 26, 2018 without counsel. Fiore and Jimenez were both sworn in, and the court admitted in evidence account activity summaries for three Chase Bank credit card accounts and a Chase checking account that Jimenez had subpoenaed. The account statements showed that Fiore owed $21,288.29 in credit card debt and that he had made average monthly deposits of $8,670.68 into the checking account over a period of nine months. Jimenez’s counsel argued that the Chase checking account was “just one bank account in the United States that we know of. We know that Mr. Fiore has bank accounts and businesses in Italy and Germany and Bulgaria so this is incomplete.”

Fiore testified, and had previously stated in response to a special interrogatory, that his gross monthly income was approximately $9,000. Jimenez’s counsel, noted that Fiore had represented in an interrogatory response that he had quarterly expenses of $54,000, including mortgage payments on a property in California, rent he pays for his daughters, and other expenses. Counsel argued that Fiore’s statement of quarterly expenses indicated that he was understating his monthly gross income. Counsel contrasted Fiore’s income with Jimenez’s situation, stating: “[Jimenez] . . . in her moving declaration and reply declaration has made the showing that she stopped working as a radio announcer in Mexico when she was married to raise 18-year-old twin daughters. She has not had any job for the first 14 years of the marriage. Since the couple divorced she has found minimum wage jobs taking care of developmentally disabled children for a few hours a week, but even with that she’s not able to make ends meet and she is on public assistance. She has also taken personal loans from her sister and friends and pawned jewelry.”

Jimenez’s counsel noted that Fiore had not disclosed various business interests and other income and expense information, and that the credit card statements that Jimenez had subpoenaed included expenses for travel, hotel stays, multiple gym memberships, luxury restaurant meals, and car payments that indicated Fiore had “a lot more money flowing through here than [he] has represented.”

Fiore testified that his Chase account was his only bank account in the United States and that he did not “have several bank accounts. Only one.” He stated that he had only one “individual company in Italy under [his] name.” He said that he had closed a business in Bulgaria the previous year because it was not profitable.

Fiore disputed that Jimenez had been unemployed for 14 years during the marriage. He claimed to have evidence that Jimenez earned approximately $1,000 per month in 2011 and $1,500 per month in 2015 working at a radio station. He also claimed that he had a declaration from Jimenez’s mother stating that Jimenez’s sister had given Jimenez “about $2,200 every month for all her expenses . . . .” He testified that he financially supported his daughters “100 percent” because Jimenez “kicked them out” when they turned 18.

Fiore further testified that he ate in restaurants when he traveled for work, stating, “When I travel I have to eat somewhere. I don’t understand the meaning of luxury restaurants.” He presented four credit card statements that showed that he owed approximately $30,000 on his credit cards. He argued that the $60,000 in attorney fees that Jimenez was requesting was “an insulting figure” and was “way, way too inflated.” The trial court asked him how much he had paid his appellate counsel so far for the appeal. Fiore responded that he had paid his counsel approximately $6,000 to $7,000 to date.

Fiore informed the court that he had filed tax returns in Italy rather than the United States since 2017, and that his monthly gross income in Italy for 2017 was $9,000. He said that his income was inconsistent because he was “in sales.” The court responded, “Understood. Your annual average, you’re saying that’s where the 9,000 gross comes from?” Fiore responded, “Gross after deducting taxes and expenses.”

Jimenez’s counsel objected to the admission of Fiore’s Chase statements and the trial court declined to admit them “because they’re not timely.” However, the court added that “because I have to make an ability to pay determination, I’m going to take whatever evidence I can get on that.”

In response to Fiore’s testimony and argument, Jimenez’s counsel stated, “This [c]ourt really cannot credit what Mr. Fiore says. When we find something [online] or get subpoenaed documents, Mr. Fiore admits to portions of it. We cannot be investigators and figure out all of Mr. Fiore’s businesses, all his accounts, all his income especially when, despite the pendency of this RFO for more than four months he has failed to produce an income and expense declaration and failed to produce the taxes. I understand the need to delay payment sometimes. . . . [B]ut typically any authority that delays payment of taxes requires an estimated payment based on an estimate of gross income. Mr. Fiore hasn’t even produced that.” Counsel then noted that Fiore had not yet paid Jimenez the $162,300 that the court had awarded her from the sale of Via Landini and that Fiore had filed the underlying appeal without posting a bond or requesting a “stay on that judgment.”

Jimenez’s counsel later referred to “circumstantial evidence that Mr. Fiore is a very successful entrepreneur and he may or may not have several businesses beyond the subpoena powers of Ms. Jimenez and beyond discovery. Without voluntary compliance or cooperation in this process it is impossible to give any credence to Mr. Fiore sitting here today and saying his income is minimal.” Counsel argued that Fiore was “somebody who is . . . capable of deception, very practiced at it who can show this [c]ourt only what he wants this [c]ourt to know and that should give this [c]ourt severe doubt about what he’s saying today and the relevance of that.”

The trial court announced that it was ready to make an order but that it was “still reserving jurisdiction over any further requests regarding fees in the appeal as long as that appeal is still going on.” The court noted that because Fiore had not filed an income and expense declaration or a response to Jimenez’s RFO, the court could “only go by his testimony today as well as the documentation from Ms. Singh to try to determine whether he has an ability to pay [Jimenez’s attorney fees].” The court found that Fiore “has an ability to pay something. I don’t think he has an ability to pay yet at this point from what I see the 65,000 [that Jimenez requested] so I’m going to make an order of 15,000 in fees payable directly to Ms. Singh. That’s without prejudice to any future requests.” The court ordered Fiore to pay three $5,000 installments directly to Jimenez’s counsel.

The trial court explained that it was basing its fees award on Fiore’s monthly gross income evidenced by his testimony and bank statements. The court did not “see a level of expenses that would indicate that he is living a luxury lifestyle[.]” The court noted “there are [credit card] balances carried forward which somebody would not do if they could pay the balance off 100 percent. It’s just financially not something you do at the rate of the credit cards. I also note that there are many expenses which are being paid for the daughters in the United States which are reflected in both the bank account and credit card statements, but clearly he’s making more than she is and he has been able to come up with fees for his own attorney, both in the underlying action and the appeal. So I think 15,000 is a reasonable estimate of what he may end up spending.”

Jimenez’s counsel told the trial court that the $15,000 award would barely cover her fees for the RFO and that she might have to ask Jimenez to find other counsel for the appeal. The court responded, “I understand. This is the problem. I have to make a judgment based on ability to pay, and from what I have and from his testimony today, I do understand you feel he’s not truthworthy [sic], but I also went through a long [spate] of litigation and I looked at a lot of financial information. I think he does well. I don’t think he has an ability to pay $65,000. As he pays his attorney, she’s going to pay hers. That’s pretty much how I see it going forward.” The court added that if the $15,000 award did not “go far enough to get her to her appeal, she will have to come back. She should take heed with what I’m finding today. I know she believes he’s got gobs of money. I don’t see it. I see that he’s successful and I see he’s paying for the girls. . . . I don’t see the wealth that she thinks is there.”

Jimenez’s counsel noted that Fiore “doesn’t comply with discovery so we have absolutely no way of knowing.” Counsel argued that the $9,000 figure that the court used for Fiore’s gross monthly income was “just his representation.” Counsel asked the court to order Fiore to file an income and expense declaration and his “current taxes.” The trial court stated that it would continue the matter and ordered Fiore to file an income and expense declaration, and “to bring with you to the court your tax returns for 2016 and 2017. That’s required under the code.” However, rather than set a date for the continued hearing, the court directed Jimenez to file another RFO if she wanted to request additional “fees for the next stage of litigation[.]”

July 24, 2018 hearing

Jimenez filed an RFO in pro per on April 2, 2018, noticing a hearing date of July 24, 2018. In her RFO, Jimenez requested additional attorney fees for the appeal and orders compelling discovery responses, imposing sanctions, and directing “payment of judgment”—i.e., the $162,300 award representing her share of the proceeds from the sale of Via Landini. In her supporting declaration, Jimenez requested that the court order Fiore to pay additional attorney fees in the range of $35,350 to $47,350.00, plus costs on appeal, and attorney fees and costs that she still owed from the previous RFO. She filed an income and expense declaration in which she reported that her average monthly income was $546, and that she had no investment income or assets.

Jimenez maintained that Fiore’s career had greatly expanded during the marriage, and that he had “established his wholesale brokerage companies West Trading SRL in Italy, Fria USA Inc. and CLF Companies Inc. in . . . California, and has a consulting service. His business is now thriving, with his paper company Fiore Paper LTD in Bulgaria plus domestic products websites. In exchange, [Jimenez] sacrificed her education and employment, dedicating herself exclusively to the family, which greatly contributed to [Fiore’s] career.”

Jimenez noted that it was “difficult to estimate [Fiore’s] assets given that there are significant assets located in Europe which [he] has refused to disclose.” She asserted that Fiore’s real estate assets had “an estimated total value of at least $700,000, including the Via Sabatini property in Italy and the Bristol Court property located in Bonita, California.” She further maintained than Fiore held “a number of bank accounts in Europe and other investments which he [had] not disclosed.” She estimated Fiore’s “current assets to be at least $1.5 million.”

Jimenez averred: “[Fiore] lives an inflated lifestyle. He takes numerous trips a year, often mixing business and pleasure. He has/had a 2014 Piaggio Motorcycle, 2003 Porsche 911, 2010 Ford F150 truck, and a 2016 BMW. He has several credit cards he uses for convenience. With plenty of income for investments, expenses, vacations, and entertainment, [Fiore] has no financial worries and indulges himself.”

On the other hand, Jimenez represented that she had “no liquid assets, with basically $0 in her bank accounts, and $2,079 credit card debt in collection . . . .” She owned no real property, had little cash, and “during 2016 had to pawn $11,415 in jewelry to survive.” She earned an average of $546 per month and received public assistance of $352, and could not “afford to pay for any attorney’s fees and costs for the present proceedings nor for the appeal proceedings.”

Jimenez requested that the trial court sanction Fiore for delaying the RFO proceedings and “for his failure to follow the law by twice not responding to the previous RFO, his failure to file a current [income and expense] declaration, and his failure to produce his 2016 and 2017 corporate and individual tax returns from whatever country they were filed in.” She asked the court to further sanction Fiore if he failed to produce a current income and expense declaration and authenticated 2016 and 2017 tax returns for the RFO hearing. She also requested that if Fiore failed to adequately respond to further discovery requests, the court “compel him to produce further responses or if not sanction him for his failure to do so.”

Jimenez subsequently filed an amended declaration in which she asserted that Fiore “earns more than $9,000 per month because he has bank accounts in Italy and elsewhere in Europe which he has refused to fully disclose.” She estimated that Fiore earned “between $15,000 and $20,000 per month, and up to $250,000 per year.” She had subpoenaed Fiore’s checking and credit card statements from Chase bank for the present RFO hearing and reported that “[t]he checking account statements for the six months from December 2017 through May 2018 show that [Fiore] deposited a total of $76,415, or an average of $12,736 per month, even more than the $9,000 per month which [she] previously discovered and which [Fiore had] acknowledged.”

Jimenez represented that Fiore had made a settlement offer to pay her $80,000, plus the $15,000 for attorney fees and costs that the court ordered on March 26, 2018, in lieu of the $162,300 that the court had ordered him to pay her for her interest in Via Landini. She argued that “[t]his further shows that [Fiore] clearly has substantial financial resources which he has not disclosed and therefore has the ability to pay both his attorney’s fees and costs and my own.”

Jimenez filed “reply” papers in which she noted that Fiore had not filed a response to her RFO. She argued that “[a]bsent a showing of an extremely good cause reason for his failure to respond [Fiore] should be deemed to have forfeited any procedural or substantive opposition to [her] RFO[,]” and that the court should sanction him for his failure to respond. She also argued that the court should sanction Fiore for failing to respond to her discovery requests relating to the July 24 RFO hearing.

Fiore filed an income and expense declaration on July 24, 2018, the day of the hearing on Jimenez’s RFO. He stated in the declaration that his monthly gross income (before taxes) was $5,000 and estimated that Jimenez earned $2,500 per month from “rent collected in Mexico at various properties owned by [Jimenez] and her family.” (Some capitalization omitted.) He had $3,000 in cash and real property valued at $270,000. He stated that he had paid his appellate counsel for the underlying appeal $28,793 for attorney fees and costs and that he owed his counsel an additional $4,943.

Jimenez and Fiore both appeared at the July 24, 2018 hearing without counsel and were sworn in. Jimenez informed the court that the $15,000 award from the March 26 hearing was not enough to pay Attorney Singh to represent her at the present hearing. She stated that she was still unemployed and “barely surviving,” whereas Fiore “had no trouble paying the $15,000.” She argued that Fiore was “using several tactics to frustrate the legal process, which [had] increased [her] litigation expenses[,]” noting the necessity of the “extra hearing” on March 26. She asserted that Fiore’s “business is all based in Europe” and that he deposited only a small part of his income in the United States. She characterized Fiore as “a smart, successful business broker [who] speaks four different languages[,]” but “[h]e plays the dumb, the ignorant, the poor, and he wants to get away [with] saying he’s Italian and [doesn’t] understand the law.”

Fiore complained that he had already replied to Jimenez’s questions about his income “three or four times” and that Jimenez was “just repeating herself over and over again.” As a result, he was “confused” and did not “know what to say anymore.” The court asked Fiore whether he had brought a list of his commission sales, which Jimenez had requested in discovery. Fiore stated that he had responded to that request by explaining that he did not have the records “because the file is so big by now that I can’t carry that anymore. It has been already replied several times. [Jimenez] knows precisely the situation that I’m in.” He informed the court that he had brought to the hearing his income and expense declaration, a declaration from his accountant in Italy, and his tax returns for 2016 and 2017.

Jimenez complained that Fiore’s income and expense declaration was from the trial the previous year and was “too late,” and that Fiore “always lied” about his income and never provided any evidence to support his representations about his income. The court took a recess to allow Jimenez an opportunity to review the documents that Fiore had brought to the hearing.

After the recess, Jimenez disputed statements in Fiore’s declaration pertaining to his income and complained that Fiore still had not provided any proof “about Italy, which is the main, main, main, main money that he makes there. He is not showing the real picture. He is not showing any proof to support his testimony.”

Fiore asserted that he had responded to interrogatories in December by e-mail to Jimenez’s counsel and that “[o]bviously, [counsel] didn’t pass the information to Ms. Jimenez.” In response to questioning by the trial court, Fiore stated that he had not brought a copy of his responses with him and did not recall the date on which he sent them.

Fiore explained that he did not file tax returns in the United States because he was an Italian citizen, and his corporation in the United States was “deleted in 2015, because [his] business visa expired.” He owned two houses, including a house that he rented out in Bonita. His monthly net income from that rental was $1,800 after paying management fees and other expenses. He asserted that Jimenez was lying about earning only $532 per month because it was not possible to live in San Diego on that income. He insisted that she had assets in Mexico that she had not disclosed—specifically, that she was a “shareholder in many properties in Tijuana.” Fiore suggested that if Jimenez had no money but had properties in Mexico that were not providing any benefit, she could sell them.

The trial court stated that it was not convinced that it had accurate information from either party. The court observed that Fiore had “a lot of credit card debt [and] logically, there would be no reason for him to carry that credit card debt, which costs him a lot of money, if . . . he was meeting all of his expenses.” The court awarded Jimenez $5,000 for attorney fees and $1,000 in discovery sanctions, explaining: “I think [$5,000] is enough for Ms. Jimenez to at least file some kind of a reply or response to the appeal. I don’t have . . . enough information, based upon Mr. Fiore’s representation, that he did respond to [Jimenez’s] special interrogatories and the request for production and I have no response. I will issue another $1,000 in sanctions. So a total of [$]6,000 payable forthwith.” The court ordered the sanctions under Code of Civil Procedure section 2030.290, subdivision (c).

After the court ruled, Jimenez stated to the court: “[The award] is not going to preserve the right to have an appeal attorney. [¶] You know, . . . section 2030 says, in order to award the amount, it has to be a disparity of—” At that point the court interrupted Jimenez and stated: “Ma’am, I’m really familiar with what it says.” Jimenez reiterated that $6,000 was insufficient to retain appellate counsel and the court responded: “Here is the court’s analysis. Since we have a record, I will put it on the record. I don’t believe either party has totally presented me with an accurate picture of their income. I do recall when I last looked at the income information for Ms. Jimenez I didn’t believe it was accurate. I also recall Mr. Fiore allegedly had more income than that he disclosed. However, based on the information I have before me, Mr. Fiore has a lot of debt and he is basically servicing debt. That information is credible. Even though his income is superior, and I understand that, to Ms. Jimenez, each of them have assets and each of them has in the past managed to find a way to proceed with this litigation. [¶] So there is always an opportunity after an appeal, should you prevail, Ms. Jimenez, to come in and ask the court to award an award of fees as the prevailing party. It is not usual for the court to make pendente lite . . . awards [of] fees before the appeal. [¶] At this point, I would have made $21,000 in an award. This isn’t the first award to have your appeal. I don’t manage how you use that money. I have awarded 21,000 in total. Frankly, in the court’s mind, that should be enough, as the responding party. He already spent close to 30 something thousand, but he is the moving party, so there is a greater burden on him, in terms of getting the record and moving forward.[ ] I believe this is a reasonable award.”

The written order reflecting the court’s rulings at the July 24, 2018 hearing was entered on October 9, 2018. The order stated that the court would “not consider a further RFO for attorney’s fees and costs until post-appeal.”

DISCUSSION

I.

Jimenez’s Self-Representation In The Underlying Appeal

Does Not Render The Present Appeal Moot

Jimenez contends that the trial court erred in awarding her attorney fees of $5,000 under section 2030 for the underlying appeal because that amount was insufficient for her to be able retain counsel to represent her in the underlying appeal.

As a preliminary matter, we consider whether this appeal is moot in light of the fact that Jimenez is self-represented in the underlying appeal, which has been fully briefed. If Jimenez had done all of the work in defending against Fiore’s appeal and prosecuting her own appeal without any assistance from counsel, her request for attorney fees for the underlying appeal would be moot because she would not have incurred any attorney fees for the appeal. (See Beyor v. Beyor (Conn. 2013) 76 A.3d 293, 294 [Husband’s appeal from order awarding wife attorney fees to obtain appellate counsel to prosecute an appeal was dismissed as moot because wife was self-represented and had incurred no attorney fees in the underlying appeal, which had been dismissed on the ground it was not taken from a final appealable judgment].)

The present appeal is not moot, however, because Jimenez indicates in her opening brief that she had “undisclosed representation” in the underlying appeal; her briefs in the underlying (and present) appeal appear to have been prepared by an attorney, and not by Jimenez in pro per. The record reflects that because Jimenez’s command of English is limited, she would not be capable of drafting the documents filed in this appeal and in the proceedings in the trial court. In a declaration that she filed for the February 6, 2018 hearing, Jimenez explained: “I must now retain and pay a family law appeals attorney. I cannot represent myself because I have limited knowledge of the law and procedure; Spanish is my primary language; and my English is insufficient to make any oral argument to the Court of Appeal.” The court minutes and written order after hearing for the July 24, 2018 hearing state that a Spanish interpreter was present at the hearing. It appears to this court that the briefs that Jimenez filed in the underlying and present appeal, as well as the papers that she filed in support of her July 24, 2018 RFO, were prepared by someone who is proficient in English and has professional legal skills.

The record does not reveal the terms or conditions under which Jimenez had the assistance of counsel in preparing her briefs in the underlying appeal, but even if an attorney provided legal services to her pro bono—i.e., with no obligation to pay for those services—Jimenez would be entitled to a reasonable award of attorney fees under section 2030 to compensate counsel for the services rendered. “[I]t has been generally agreed that a party may ‘incur’ attorney fees even if the party is not personally obligated to pay such fees. ‘A party’s entitlement to fees is not affected by the fact that the attorneys for whom fees are being claimed . . . agreed to represent the party without charge.’ ” (Lolley v. Campbell (2002) 28 Cal.4th 367, 373.) “Our appellate courts have repeatedly affirmed awards of attorney fees under various fee-shifting provisions for legal services provided at no personal expense to the client.” (Id. at p. 374; In re Marriage of Ward (1992) 3 Cal.App.4th 618, 623-626 [attorney fees may be awarded to legal services organizations that represent clients pro bono].) Thus, to the extent Jimenez can establish in the trial court that she prosecuted the appeal with the assistance of counsel and that the requirements for a fee award against Fiore under sections 2030 and 2032 are satisfied—including Fiore’s ability to pay her attorney fees, she is entitled to an award sufficient to pay the reasonable value of the services that she received from counsel.

II.

Relevant Legal Principles

Section 2030 authorizes the trial court in a dissolution proceeding to order one party to pay for the other party’s attorney fees and costs. (§ 2030, subd. (a)(1).) Section 2030, subdivision (a)(2) provides that when a party requests attorney fees and costs, “the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” The findings required by section 2030, subdivision (b) must be explicit. (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050.)

Subdivision (c) of section 2030 provides that “[t]he 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.” Section 2030 reflects the public policy of providing, ” ‘ ” ‘consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.’ ” [Citation.]’ [Citation.] The purpose ‘is not the redistribution of money from the greater income party to the lesser income party,’ but rather ‘parity: a fair hearing with two sides equally represented.’ ” (In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 164 (Sharples).)

“In ruling on a request for fees and costs under section 2030, the court is guided by section 2032, which provides that an award of fees and costs under section 2030 may be made ‘where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.’ [Citations.] In determining what is just and reasonable, ‘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 . . . .’ (§ 2032, subd. (b).) In addition to the parties’ financial resources, the court may consider the parties’ trial tactics.” (Sharples, supra, 223 Cal.App.4th 164-165.)

Section 2032, subdivision (b) requires the court to consider, “to the extent relevant,” the parties’ circumstances described in section 4320 concerning spousal support. “Section 4320 presents a near-exhaustive list of factors that are to go into a spousal support award, and a party’s expenses (under the headings of ‘obligations and assets’) are among them. (§ 4320, subd. (e); see also subd. (k) [‘balance of the hardships to each party’].) . . . [N]ot all section 4320 factors will be relevant all the time (hence the ‘to the extent relevant’ language in section 2032). But obviously a number of section 4320 factors will usually bear on a pendente lite fee order. These . . . include earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k)).” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 253.)

“An award of attorney fees under Family Code section 2030 is reviewed for abuse of discretion, and we therefore must affirm unless no judge reasonably could make the order.” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) ” ‘[A]lthough the trial court has considerable discretion in fashioning a need-based fee award [citation], 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 Falcone & Fyke (2012) 203 Cal.App.4th 964, 975; Sharples, supra, 223 Cal.App.4th at p. 165.)

The attorney fee award was unreasonably low

We conclude that the trial court abused its discretion in awarding Jimenez $5,000 to retain counsel to defend against Fiore’s appeal and to prosecute her own appeal, where the court, in its formal order after hearing, found that Fiore had, or was reasonably likely to have, the ability to pay Jimenez’s attorney fees, the record established that the court’s previous attorney fee award to Jimenez had been entirely consumed by trial court proceedings prior to the July 24, 2018 hearing, and Fiore had paid his own attorney more than $30,000 by the time of the July 24, 2018 RFO hearing to represent him in the underlying appeal.

The court expressly found on its form order from the July 24 hearing that “[a]n award of attorney’s fees and costs is appropriate because there is a demonstrated disparity between the parties in access to funds to retain or maintain counsel and in the ability to pay for legal representation[;] that “[Fiore] has or is reasonably likely to have the ability to pay for legal representation for both parties[;]” and that “[t]he requested attorney’s fees [were] reasonable and necessary.” However, the court’s fee award of $5,000 was grossly insufficient to pay Jimenez’s attorney fees for Fiore’s appeal and her appeal, and was therefore tantamount to an order denying attorney fees for the appeal. The court’s decision to award $5,000 to Jimenez while expressly recognizing that Fiore “had already spent close to 30 something thousand” on the underlying appeal was contrary to section 2030’s public policy purpose of achieving parity in the parties’ ability to obtain legal representation in dissolution proceedings to ensure a fair hearing with equal representation on both sides. (Sharples, supra, 223 Cal.App.4th at 164.)

Jimenez’s counsel’s declaration for the February 6, 2018 hearing estimated that attorney fees for Jimenez’s RFO, only, would be “$11,200 . . . (not including costs Ms. Jimenez has incurred to serve discovery, pleadings, and subpoenas; file and serve documents; and retain a court reporter . . . .” Counsel estimated that her fees for responding to Fiore’s appeal and prosecuting Jimenez’s appeal would be between $35,350 and $47,250. In a declaration for the continued March 26, 2018 hearing, counsel estimated “an additional $4,550 in fees relating to this RFO, bringing the prior $11,200 estimate to a total of $15,750” for just the two RFO’s. Counsel believed that it was “reasonable to request fees on appeal of $47,350, plus costs on appeal of $902, and additional fees of $15,750 for briefing and arguing the ex parte and this RFO, plus related costs of $1,557.00.”

After the court announced its attorney fees award of $15,000 at the March 26, 2018 hearing, Jimenez’s counsel told the court: “The $15,000, with all due respect, is going to only barely cover my RFO and I may have to ask Ms. Jimenez to find another counsel.” The court stated that it would reserve “jurisdiction over any further requests regarding fees in the appeal as long as that appeal is still going on,” and that, “If that doesn’t go far enough to get her to her appeal, she will have to come back.” The court’s reservation of jurisdiction over future requests for attorney fees for the appeal and its directive to “come back” if the $15,000 award did not “go far enough to get her to her appeal,” indicate that at the July 24, 2018 hearing, the court was aware, or should have been aware, that the $15,000 award was insufficient to cover Jimenez’s reasonable attorney fees and costs for the appeal. Jimenez appeared in pro per at the July 24 hearing and informed the court at the beginning of the hearing that the $15,000 award was not enough to pay attorney Singh “to be here to request the attorney fees.” Thus, although the court was apprised that the $15,000 in attorney fees that it had awarded Jimenez was insufficient even to cover the attorney fees that she had incurred for her RFO through the March 26 hearing, and that Fiore had already spent more than $30,000 for representation on appeal, the court awarded Jimenez only $5,000 at the July 24, 2018 for the underlying appeal.

The record further demonstrates that the court’s exercise of discretion in awarding Jimenez $5,000 for the appeal was based, in large part, on the erroneous view that Jimenez would be the respondent in the appeal and that she would not file her own appeal from the September 5, 2017 statement of decision. However, Jimenez’s counsel’s declaration for the February 6, 2018 hearing informed the court that her “responsibilities on this appeal to date include assisting Ms. Jimenez with preparing and designating the record, both as respondent and as cross-appellant; filing her notice of cross-appeal and civil case information statement; and representing her on a limited scope basis in seeking fees and costs on appeal.” (Italics added.) Counsel set forth her time estimates for representing Jimenez on appeal and included “approximately 45 and 59 hours to review the record for, do research on, brief and argue Ms. Jimenez’s cross-appeal . . . .” (Italics added.) In addition, Jimenez’s counsel’s “reply” declaration for the March 26, 2018 hearing stated: “[Fiore’s] appeal and [Jimenez’s] cross-appeal in this action to the California Court of Appeal, Fourth Appellate District, Division One, Case No. D073228, are still awaiting preparation of the record that the parties designated.” (Italics added.) At the March 26 hearing, the court referenced counsel’s declaration and stated that it had reviewed it.

Despite the references to Jimenez’s status as an appellant in the papers that she filed in support of her RFO, at the July 24, 2018 hearing, the court expressed the view that Jimenez was appearing in the underlying appeal solely as a respondent to Fiore’s appeal. The court stated, “I will make an award of 5,000, because I think that is enough for Ms. Jimenez to at least file some kind of a reply or response to the appeal.” (Italics added.) In response to Jimenez’s argument that the award was insufficient, the court responded, “At this point, I would have made $21,000 in an award. total. This isn’t the first award to have your appeal. I don’t manage how you use that money. I have awarded 21,000 in total.[ ] Frankly, in the court’s mind, that should be enough, as the responding party. He already spent close to 30 something thousand, but he is the moving party, so there is a greater burden on him, in terms of getting the record and moving forward. I believe this is a reasonable award.” (Italics added.)

The court’s suggestion to Jimenez that she could request attorney fees after the underlying appeal, if she were to prevail in the appeal, and its express order stating that it would “not consider a further RFO for attorney’s fees and costs until post-appeal” were improper under section 2030, subdivision (c), which requires the court to augment or modify an original award of attorney’s fees “as may be reasonably necessary for the prosecution or defense of the proceeding . . . .” The approach of limiting any future attorney fees award for the appeal to a postappeal award is unreasonable if the result is that the party seeking need-based fees will be without counsel on appeal. (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408 [“Unless there was an award of fees prospectively, [former wife] would have been without means to present her case in [the appellate] court.”].)

It is unlikely that appellate counsel would be willing to take on an appeal like the underlying appeal without some assurance that he or she would be reasonably compensated for the representation. As explained in In re Marriage of Green (1989) 213 Cal.App.3d 14 (Green), ” ‘[t]he basis for awarding attorney’s fees is that each party must have access to legal representation in order to preserve all of his or her rights.’ [Citation.] ‘To tell a woman who wishes in good faith to appeal a judgment in a divorce action and who is without funds to pay necessary counsel fees that no such fees will be allowed except possibly on an application for a final decree is practically equivalent to denying her the right to appeal unless her attorney is willing to act without compensation or for the mere possibility that some attorney’s fee may be awarded later.’ [Citation.] This is even more true as to protecting a favorable decision of the trial court on appeal.” (Id. at p. 27.)

In Green, the trial court denied the former wife’s motion for attorney fees and costs “in the belief it could just as well make such an order when the appeal concluded.” (Green, supra, 213 Cal.App.3d at p. 27.) Rejecting that approach, the Green court stated: “[The wife] is indeed fortunate to have been able to obtain highly competent appellate counsel willing to represent her on this basis, but it should not have been necessary. As we said in the context of a refusal to make an initial order for attorney fees on account, ‘It is a fact of life that attorneys representing clients in family law cases frequently do not receive payment of full and adequate compensation for the services they perform. The approach suggested by the trial court would make things even worse. It would compel the attorney to finance the litigation by deferring receipt of payment for services until months or years after they are performed, while the attorney would have to personally advance the costs of overhead attributable to the case. . . . Banks and finance companies are licensed for the purpose of lending money; lawyers are not.’ ” (Ibid.)

Further, it was improper to condition a future award of attorney fees on Jimenez prevailing in the underlying appeal. Jimenez may be awarded need-based attorney fees under section 2030 regardless of whether she is the prevailing party in the underlying appeal. “Because of the importance of ensuring that the parties both have the ability to present their cases effectively, [section 2030] attorney fees may be awarded against a prevailing party in family law proceedings.” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.)

It was also an abuse of discretion for the court to base its orders on Jimenez’s motions for attorney fees and costs on Fiore’s testimony and documentary evidence that Fiore presented to Jimenez and the court for the first time on the day of the motion hearings, after he had repeatedly failed to respond to discovery requests or file written responses to her motions, and failed to timely file his income and expense declaration and tax returns, as the court had ordered him to do. Although the trial court did ultimately award Jimenez discovery sanctions of $1,000 at the July 24, 2018 hearing, Fiore was effectively rewarded for flouting the discovery process and the basic rules of motion practice. Fiore was able to successfully resist Jimenez’s request for sufficient attorney fees to pay appellate counsel after being allowed to present his opposition evidence on the day of the hearing, without prior notice to Jimenez, thus depriving her of an opportunity to meaningfully investigate or challenge the credibility and completeness of his evidence. Jimenez presented substantial circumstantial evidence that Fiore held undisclosed business interests in Europe and that he earned substantial undisclosed income from such interests, but she was consistently thwarted in her efforts to obtain direct evidence of Fiore’s income and assets because those assets were outside the United States and Fiore repeatedly failed to respond to discovery requests and comply with court orders to provide income and expense declarations.

“[F]ull disclosure of marital [income and] assets is absolutely essential to the trial court in determining the proper dissolution [sic] of property and resolving support issues. The statutory scheme for dissolution depends on the parties’ full disclosure of all assets so they may be taken into account by the trial court.” (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 42.) “Where a party unlawfully withholds evidence of his income and assets, he will not be heard to complain that an order is not based on the evidence he refuses to disclose.” (In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 458 (Hofer).) Accordingly, Fiore cannot be heard to complain if, on remand, he continues to withhold evidence and the trial court orders him to pay substantially more than $5,000 for Jimenez’s attorney fees for the underlying appeal.

The trial court in Hofer ordered the husband to pay the wife $200,000 in attorney fees and costs under section 2030 and the husband appealed, contending that there was insufficient evidence of his financial condition to support the award. (Hofer, supra, 208 Cal.App.4th at pp. 456, 458.) The Hofer court dismissed the husband’s appeal under the disentitlement doctrine because he had “steadfastly refused to comply with [the wife’s] legitimate discovery requests and the orders of the court.” (Id. at p. 458, 459-460.)

Hofer illustrates that on remand, the trial court has discretion to impose sufficient attorney fees to compensate Jimenez’s undisclosed appellate counsel in the face of any continued failure by Fiore to make required disclosures of his assets and income. In the words of the Hofer court, “[in] light of [Fiore’s] refusal to respond to discovery demands, there is little reason for the trial court to find anything he says about his finances credible.” (Hofer, supra, 208 Cal.App.4th at p. 460.) The court’s decision to award Jimenez $5,000 for the underlying appeal while recognizing that Fiore had spent approximately $30,000 on the appeal to date, contravened the public policy goal reflected in section 2030 of parity between spouses in their ability to obtain effective legal representation.

DISPOSITION

The portion of the July 24, 2018 order awarding Jimenez attorney fees in the amount of $5,000 is reversed and the matter is remanded with directions to the trial court to reconsider Jimenez’s request for attorney fees for the underlying appeal in case

No. D073228 in accordance with the views expressed in this opinion. The portion of the order issuing sanctions in the amount of $1,000 payable by Fiore to Jimenez is affirmed.

On remand, Jimenez may request that the court rule on any other requests for sanctions that were before the court but not addressed in the appealed order. Jimenez is awarded her costs on appeal.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.