Filed 10/21/20 Marriage of Tearse CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of ANNE TEARSE and JAMES TEARSE.

ANNE TEARSE,

Appellant,

v.

JAMES TEARSE,

Respondent.

A155541, A156019

(San Mateo County

Super. Ct. No. FAM0122314)

In these consolidated appeals, Anne Tearse contends the trial court’s orders denying her request for attorney fees under Family Code section 2030 must be reversed. We find no error and therefore affirm.

I. BACKGROUND
II.
A trial to resolve the issues in the marital dissolution action between Anne and James Tearse was initially set for July 12, 2018. On June 8, 2018, four days before the discovery cutoff date, Anne filed a request seeking $100,000 in attorney fees under section 2030. A hearing on the request was set for August 3, 2018. Anne submitted her income and expense declaration, which showed she received $2,796 in income based on an hourly wage of $19.50, $1,445 in spousal support, and had $18,773 in expenses. Anne alleged the amount she sought “is available to James and is very quickly earned by him” and that she “cannot come up with the money necessary for litigating [her] side of [the] dispute about property.”

Anne also filed a declaration from her attorney, Ester Adut, who stated Anne needed $54,810 to engage Ms. Adut’s services for trial. Ms. Adut stated that, alternatively, Anne would require attorney fees were she to retain a new attorney, as Ms. Adut was unwilling to represent Anne at trial due to scheduling conflicts. Anne also sought fees to retain an accountant.

On July 6, 2018, Anne submitted an ex parte request to advance the hearing on her request for attorney fees; bifurcate the trial to hear child custody and the parties’ financial issues separately; continue trial; take certain trial dates off calendar; hear James’s request for punitive damages before trial on financial issues; and amend a prior May 2015 order.

On July 9, 2018, James filed an opposition to the ex parte request.

That same day, the trial court ruled on the ex parte request stating, “OST [order shortening time] Denied, motions will be heard on only ex parte papers submitted.” The court did not address any of the other requests Anne had made in her ex parte application.

On July 23, 2018, James filed papers opposing Anne’s June 8 request for fees. He argued Anne failed to prove that her request was reasonable and he asked for an evidentiary hearing. James also attached a table identifying 168 instances in which Anne had needlessly delayed the litigation, failed to comply with prior court orders, or had breached her fiduciary duties. James’s attorney, Vivian Kral, filed a declaration stating her belief that most of the fees James had incurred were “totally unnecessary and were caused by the obstreperative conduct of [Anne] and her counsel in order to delay the case, delay the trial, and delay resolution of this litigation.”

In addition, James filed an income and expense declaration. It showed he earned an average of $30,007 per month from his medical practice, $2,710 in dividends or interest from another eye surgery center, and $113 in royalties. James reported his monthly expenses were $23,949, which included support payments to Anne. Approximately $14,000 of his expenses included payments towards the mortgage and rent for his residence. James also stated that he had used his income and savings, a loan, and $175,000 in family inheritance to pay his attorney fees. At that point he had paid $325,368 and still owed $63,400.

On July 26 and 27, 2018, Anne filed further documents supporting her request for fees. Among other things, she claimed she needed $39,000 to retain four experts to counter the experts James planned to call at trial. She also added that “[t]he anticipated remaining attorney’s fees are $82,620.” Anne argued she was entitled to those fees because there was a disparity in the parties’ incomes and James had the ability to pay.

The trial court issued a tentative ruling and conducted a hearing on Anne’s fee request on August 3, 2018. James’s attorney Ms. Kral appeared, but Anne’s attorney Ms. Adut did not. That same day, the court issued a minute order denying Anne’s request. The court did not explain its ruling and did not attach the earlier tentative ruling. On August 6, 2018, Anne filed a notice of entry of the order denying the request and attached a copy of the court’s tentative ruling.

On October 2, 2018, Anne filed a notice of appeal from the August 3, 2018 order. The appeal was assigned to this division as case number A155541.

On November 8, 2018, the court issued an order that explained its reasons for denying Anne’s request for fees and James’s request for an evidentiary hearing. The explanation in the order was nearly identical to the court’s written tentative ruling of August 3, 2018.

First, the court weighed the factors set forth in California Rules of Court, rule 5.113(b), and found there was good cause to refuse to hold an evidentiary hearing.

Then, turning to the issue of attorney fees, the court explained “that the parties’ income and expense declarations demonstrate a substantial disparity in income between [them].” It noted Anne earned $3,380 from her job and received $2,511 in child support. She also was entitled to spousal support in the amount of $5,022, from which James was permitted to deduct payments for Anne’s half of the mortgage ($2,937.35) and overdue mortgage payments ($500), for a total of $1,584.65. James, on the other hand, averaged $30,007 per month in self-employment income and received $100 in royalties and $2,710 in investments in another company.

The court concluded James’s monthly expenses totaled $12,255, excluding the amount of support he paid to Anne and Anne’s half of the mortgage payment on the family home. Although the court questioned a monthly maintenance and repair expense of $2,006, it found that James’s other self-reported expenses were not unreasonable. It explained, “[u]sing the average monthly figure of $30,007 in gross income, [James’s] net monthly income is just sufficient to pay his monthly expenses—which include his half of the community mortgage debt on a home he does not occupy in addition to rent paid for his own living expenses.” Thus, while the court found a disparity in income and a need for funds by Anne, James’s “income after payment of support and living expenses is not sufficient to pay the $100,000 in attorney’s fees requested by [Anne].”

The court also found that an award of $100,000, including $39,000 to retain experts, was not “ ‘reasonably necessary’ to level the playing field.” It explained that Anne did not file her motion until four days before the discovery cut-off date and did not retain or seek to retain experts before that date. The court further found that awarding fees so that Anne could retain experts would not be a “reasonable expenditure” because Anne had already rested her case-in-chief.

Anne filed a notice of appeal from the November 8, 2018 order. The appeal was also assigned to this division as case number A156019. Upon the parties’ stipulation, we subsequently consolidated the appeals from the August 3 and November 8, 2018 orders.

While these appeals were pending, Anne and James separately filed motions for sanctions against each other.

III. DISCUSSION
IV.
Anne challenges the trial court’s order denying her request for attorney fees. She contends the court erred when it declined to hold an evidentiary hearing on her fee request, misapplied the factors set forth in section 2030, and failed to consider the factors set forth in section 4320. We disagree on all counts. We turn first to her challenge to the lack of an evidentiary hearing.

A. Ruling Without Holding an Evidentiary Hearing
B.
Anne contends the trial court erred when it declined to hold an evidentiary hearing on her request for attorney fees. We agree with James that Anne has forfeited this argument, because she failed to request an evidentiary hearing or to object to the lack of a hearing. “[T]he right to live testimony may be forfeited.” (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127 [failure to request to present live testimony forfeited right to obtain relief on appeal]; Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 687 [same].)

Anne argues her submission on the court’s tentative ruling on her fee request does not forfeit the contention on appeal. This argument misses the mark. Anne has forfeited the argument because she failed to raise it at any point before the trial court; indeed, she did not even appear at the hearing on her fee request.

Anne also attempts to avoid the forfeiture rule by invoking the exception that when the issue on appeal presents a pure question of law, it can in some circumstances, be raised on appeal. (See In re Marriage of Priem (2013) 214 Cal.App.4th 505, 511.) While it is true this court has the discretion to address an issue even though it was not raised in the court below, we decline to exercise that discretion here because the issues Anne advances are not purely legal. Indeed, Anne expressly stated in her opening brief that “[t]he facts were in dispute.”

We turn now to the merits.

C. The Trial Court Did Not Abuse Its Discretion by Denying Anne’s Fee Request
D.
1. Applicable Law and Standard of Review
2.
Sections 2030 and 2032 govern the award of need-based attorney fees and costs in marriage dissolution proceedings. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111.) The purpose of need-based attorney fees “is not the redistribution of money from the greater income party to the lesser income party,” but rather parity between spouses in their ability to obtain effective legal representation. (§ 2030, subd. (a)(1); Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251–252 (Alan S.).)

An award under section 2030 is permitted only “where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320 [the factors for determination of permanent spousal support].” (§ 2032, subd. (b).) “Financial resources are only one factor for the court to consider.” (Ibid.) “The trial court may also consider the other party’s trial tactics.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975 (Falcone & Fyke).)

We review an order for attorney fees under section 2030 for an abuse of discretion. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.) When deciding whether the trial court abused its discretion, we must consider (1) whether the trial court’s factual findings are supported by substantial evidence, (2) whether the trial court followed applicable legal principles, and (3) whether the trial court reasonably exercised its discretionary authority—that is, whether any judge reasonably could have made such an order. (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1039.) “The trial court’s order ‘will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.’ ” (Smith, supra, 242 Cal.App.4th at p. 532.) The burden falls upon the appellant to persuade this court such an abuse occurred. (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 644.) We conclude Anne had failed to carry this burden and therefore affirm the denial of her fee request.

3. Analysis
4.
In this case, the trial court found, and the parties agree, that the income and expense declarations of both parties established a disparity in income between them. The court, however, denied Anne’s fee request because it found that payment of monthly expenses and child and spousal support left James with insufficient funds to pay the $100,000 in fees she sought. The court also concluded that the fees requested were not “ ‘reasonably necessary.’ ” Anne disputes the legal and factual bases for the court’s findings. We first address the court’s determination on James’s ability to pay fees.

a. James’s Ability To Pay Attorney Fees
b.
Anne argues for the first time in her reply brief that “James’s expenses are not relevant” and “not . . . a circumstance that the trial court was to consider.” Because Anne did not raise this argument in her opening brief, she has forfeited the right to raise it on appeal. “ ‘ “ ‘[P]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.’ ” ’ ” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) Here, “[t]here is absolutely no sound reason this issue could not have been raised in [Anne’s] opening brief” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542), given that the court expressly based its finding of James’s inability to pay on his reported monthly expenses.

Even if Anne did not forfeit the argument, it is not meritorious. Section 2032, subdivision (b) states that “the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” (Italics added.) As explained in Alan S., supra, 172 Cal.App.4th 238, “Expenses are relevant to pendente lite attorney fee orders” and to disregard one’s expenses in an income and expense declaration “is error.” (Id. at p. 253.) In addition, section 4320 expressly lists as factors to consider “[t]he obligations and assets . . . of each party” (§ 4320, subd. (e)) and “[t]he balance of the hardships to each party” (§ 4320, subd. (k)). Clearly it is proper to consider a party’s expenses when determining whether to award attorney fees under section 2030. (See, e.g., In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 658 [no abuse of discretion in denying mother’s section 2030 fee request because the “evidence revealed that both parties have considerable indebtedness and, although Father clearly has greater income than Mother, he also has greater expenses”].)

Furthermore, to the extent Anne is arguing the trial court’s findings were not supported by substantial evidence, that challenge fails as well. Anne claims the court erred when it failed to consider $35,730 James reported he had in cash or in checking and savings or other deposit accounts when assessing his ability to pay. Because Anne never raised this argument in the trial court, she has forfeited it. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [appellant foreclosed from challenging the computation of child support award by failing to raise it below]; In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 143–144 [same].)

In any event, the argument is unconvincing. James stated in his income and expense declaration that he used his “[i]ncome, [s]avings, [i]nheritance, [and a] loan from [his] 401k [account]” to pay $325,368 in attorney fees, of which $63,400 he still owed. Viewing the evidence in the light most favorable to the order, it is reasonable to infer that the $35,730 James had in his checking or savings accounts was already used to pay his own attorney fees and therefore it was not a potential source for Anne’s fees.

Also unpersuasive is Anne’s reliance on James’s profit and loss statements from his medical practice. Anne states that whereas James’s income and expense declaration reported an average gross monthly income of $30,007, James’s profit and loss statements show his net income from his medical practice was $443,559.36 or $36,963.28 per month in 2017, and $191,193.79 for January through May 2018 or $38,238.76 per month. As with her other contentions, Anne did not raise these issues in the trial court and therefore has forfeited the right to raise them on appeal. (Kevin Q. v. Lauren W., supra, 195 Cal.App.4th at pp. 644–645 [“a party waives objections to an opposing party’s income and expense declaration by failing to object below”], citing Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1239.)

Even if we were to consider the argument, it is unconvincing. The income and expense declaration instructed James to attach either “a profit and loss statement for the last two years or a Schedule C from [his] last federal tax return.” James complied with this instruction by attaching both sets of documents. James’s last filed Schedule C from 2016 indicated his medical practice earned a net profit of $362,102 annually or $30,175.17 per month. The Schedule C provided a sufficient evidentiary basis for a proper computation of his annual gross income. (See In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332 (“[a] parent’s gross income, as stated under penalty of perjury on recent tax returns, should be presumptively correct”].) The $30,007 reported in the income and expense declaration falls within the range of the federal tax returns. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197 [“To the extent that a trial court’s exercise of discretion is based on the facts of the case, it will be upheld ‘as long as its determination is within the range of the evidence presented.’ ”].) Thus, the court was within its discretion to credit the reported $30,007. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822 [under the substantial evidence test, “[o]ur sole inquiry is ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the court’s finding”].)

Assuming arguendo, as Anne contends, James’s average monthly income from his practice was instead $37,338.42 (or $33,041.42 after support payments) based on the profit and loss statements, it is not reasonably probable the court would have reached a different conclusion. Aside from James’s claimed home maintenance and repair expense of $2,006, which the court also questioned, Anne does not dispute James’s other self-reported expenses, which approximated $21,943 after excluding the maintenance and repair expense. Whether based on the income and expense declaration or the profit and loss statements, the court was within its discretion in concluding James had insufficient funds to pay the $100,000 in requested fees after payment of monthly expenses and support to Anne.

Also unpersuasive is Anne’s argument that James’s hiring of experts demonstrated he had the ability to also pay for Anne’s experts. Indeed, had the court included James’s legal fees in assessing his monthly expenses, it would have determined that James had even less ability to pay for Anne’s fees.

In sum, we conclude the court did not abuse its discretion in finding that James lacked the ability to pay for the legal representation of both parties.

c. Reasonableness of the Fees
d.
Anne next argues that even if James’s income “was not enough to pay $100,000,” “the court had the duty to ensure that Anne had ‘whatever amount [was] reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding.’ ” (§ 2030, subd. (a)(1).) She claims that because awarding her no fees “is not a reasonable amount,” “the court should have awarded [her] some money” in the very least. We disagree.

As Anne suggests, “there are additional limitations on recovery of fees from the opposing spouse—including not only that the opposing spouse has the ability to pay, but also that the fees be ‘reasonably necessary,’ and that payment of the fees by the opposing spouse is ‘just and reasonable’ under the relative circumstances of the respective parties.” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870–871, citing §§ 2030, 2032.) Accordingly, a fee award “should be the product of a nuanced process in which the trial court should try to get the ‘big picture’ of the case.” (Alan S., supra, 172 Cal.App.4th at p. 254.) “[D]etermination of a pendente lite attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test.” (Ibid.)

“Notwithstanding the parties’ relative economic circumstances, an award under section 2030 et seq. is properly denied if a case has been overlitigated or if the fees otherwise were not ‘reasonably necessary.’ (§ 2030, subd. (a)(1).” (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 112.) “Indeed, it is an abuse of discretion to award fees ‘without making any inquiry into the reasonableness of those fees.’ ” (Ibid.)

The court’s denial of Anne’s request for section 2030 fees was not predicated solely on the parties’ financial resources. It also found that an attorney fee award of $100,000 was not “ ‘reasonably necessary’ to level the playing field.” It explained that Anne did not file her fee request until four days before the discovery cut-off date and did not retain or seek to retain experts before that date.

The situation is similar to that in Falcone & Fyke, supra, 203 Cal.App.4th 964. There, the wife made an oral motion for fees at the “11th hour” during in limine proceedings before trial. (Id. at p. 970.) The court of appeal affirmed the trial court’s denial of the motion, observing: “At no point did she explain why she had not used her own resources to hire an attorney who could prepare for trial on the date set for trial as well as seek need-based attorney fees on her behalf. She instead waited until trial to make a motion that, if granted, would require a trial continuance to hire an attorney and allow the attorney to prepare. Thus, the trial court’s remark reflects its view that the 11th-hour nature of [wife’s] motion was a factor in denying the motion rather than a procedural barrier to making the motion.” (Id. at p. 976.)

Likewise, here, Anne brought her fee request at the “11th hour” with no explanation of her delay. She also failed to comply with the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.), which includes the provisions mandating that discovery be completed 30 days before trial (id., § 2024.020, subd. (a)) and the exchange of written information about expert witnesses (id., § 2034.260, subd. (a)). Her noncompliance frustrated the purposes of the discovery act “to give fair notice of what an expert will say at trial” and “allow[] the parties to assess whether to take the expert’s deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area.” (Bonds v. Roy (1999) 20 Cal.4th 140, 146–147.) We conclude the court did not abuse its discretion in finding that the timing of Anne’s request rendered an award of fees unreasonable.

e. Consideration of Section 4320 Factors
f.
Anne further argues that the trial court erred by failing to address the factors set forth in section 4320. This contention lacks merit. The court was required to consider the section 4320 factors only to the extent they were relevant. (§ 2032, subd. (b).) “[N]ot all section 4320 factors will be relevant all the time (hence the ‘to the extent relevant’ language in § 2032).” (Alan S., supra, 172 Cal.App.4th at p. 253.) Although the court did not explicitly refer to the section 4320 factors in its orders, its remarks reflect it considered “[t]he obligations and assets . . . of each party” (§ 4320, subd. (e)). Anne does not establish how the other section 4320 factors were relevant to the court’s analysis or that the failure to consider them was erroneous. Anne simply restates her argument that the parties had a disparity in income. But, as explained above, the court did consider such disparity.

Viewing the evidence “ ‘most favorably in . . . support [of its order] and indulging all inferences in its favor,’ ” we cannot say that “ ‘no judge could reasonably make the order.’ ” (Falcone & Fyke, supra, 203 Cal.App.4th at p. 995.)

Assuming the court erred, Anne fails to show prejudice. (Cal. Const., art. VI, § 13; In re Marriage of Morton, supra, 27 Cal.App.5th at p. 1051 [“an appellant . . . establishes an error was prejudicial by showing there is ‘a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached’ ”].) As discussed above, Anne does not show how the court’s purported errors, such as the failure to consider certain evidence of James’s income or the factors under section 4320, could lead to any different result for her request for attorney fees.

Anne also claims she was prejudiced because she could not obtain necessary expert evidence or pay her attorney at trial, and therefore was not at a level playing field with James. Had Anne brought her fee request and disclosed her intent to retain experts, with appropriate supporting evidence, early enough in the case to allow sufficient time for discovery, she might have been in a position to claim prejudice resulting from error. Under the circumstances that exist, she is not. Accordingly, Anne has failed to establish reversible error.

E. Request To Reverse the Judgment
F.
In this appeal, Anne also “requests reversal of the judgment entered on the basis of the trial at which she had no funds to litigate her side of the controversy.” Anne does not clarify the judgment to which she refers; her opening brief states there is a “judgment terminating . . . marital status” (Tearse v. Tearse, supra, A151500) and a “judgment on financial issues” (Tearse v. Tearse (A158068, app. pending)). In any event, each of those judgments is or has been the subject of a separate appeal. (See ante, fn. 6.) Neither is within the scope of this appeal. As such, the validity of those judgments is not properly before us. To the extent Anne invites us to review either of those judgments or reconsider anything we have previously decided, we decline to do so.

G. Motions for Sanctions
H.
We finally address James’s and Anne’s separate motions for sanctions. In James’s motion, he contends that some of the arguments raised in Anne’s appeal are frivolous and meritless. An appellate court may impose sanctions for filing a frivolous or dilatory appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) An appeal is frivolous “only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “California courts apply both objective and subjective standards to determine whether an appeal indisputably has no merit.” (Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 22.) “The subjective standard looks to the motives of the appellant and his or her counsel.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 649.) “The objective standard” assesses “ ‘whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.’ ” (Ibid.)

Here, we are unable to discern improper motives of Anne or her attorney to harass James or delay the effect of the judgment through the filing of the appeal. Nor do we find that Anne’s appeal is indisputably and totally devoid of merit. The legal points in Anne’s briefs at issue are at least arguable on their merits. We therefore deny James’s motion for sanctions.

As for Anne’s motion, she argues the arguments James makes in his respondent’s brief are misleading and unsupported. Appellate courts have authority to assess sanctions against a party or attorney who has committed an unreasonable violation of the California Rules of Court on appeal. (Cal. Rules of Court, rules 8.276(a)(2) & (4).) Anne contends the argument in James’s brief violates section 6068 of the Business and Professions Code, which imposes a duty on attorneys not to present false statements of fact or law to a court. (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 193.) We simply disagree. We are not convinced the arguments James has advanced are based on any false facts or false statements of the law. We deny Anne’s request for sanctions.

V. DISPOSITION
VI.
The August 3, 2018 and November 8, 2018 orders are affirmed. James is entitled to his costs on appeal.

STREETER, Acting P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.