Filed 9/29/17 Marriage of Rice CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, John L. Flynn, Judge. Affirmed.

Law Offices of Hollie A. Lemkin and Hollie A. Lemkin for Appellant.

No appearance for Respondent.

* * *

Jacqueline Rice appeals from the trial court’s order denying her request for attorney fees and costs. We conclude no abuse of discretion occurred and affirm the postjudgment order.

I

FACTS

Jacqueline and Jon married in March 1996 and separated in November 2008. In November 2013, the trial court entered a judgment of dissolution on the parties’ stipulation. Among other things, the stipulation included a provision allowing either party to file a noticed motion to enforce the child support orders and providing that “the court may award filing costs and reasonable [a]ttorney’s [f]ees if it finds that either party acted without reasonable cause regarding his or her obligations pursuant to [t]his order.”

On May 16, 2014, the trial court found good cause to reduce the amount of child and spousal support. It also determined Jacqueline had a need for an award of attorney fees but that Jon had no ability to pay them. The court’s findings and orders after hearing were entered in September 2014.

The next month, Jacqueline moved to modify the child and spousal support orders. She asserted that Jon’s income and expense declaration failed to disclose he was living with his girlfriend, who paid his living expenses. According to Jacqueline, this nondisclosure misled the trial court to believe Jon did not have sufficient funds to pay her a greater amount of support or attorney fees and costs.

In November 2014, Jacqueline filed a motion to enforce orders to pay the child and spousal support, additional support based on a percentage of Jon’s excess income (a Ostler & Smith order),[1] payment of arrears, childcare expenses, unreimbursed medical expenses, and accrued interest. Jacqueline argued Jon’s recent raise and $700.00 monthly car allowance should be included in the calculation of the Ostler & Smith order payments.

Jacqueline sought attorney fees and costs in connection with both motions. She argued attorney fees were warranted under Family Code section 3557[2] because this was the second time she had to bring a motion to enforce the court’s orders regarding child care, unreimbursed medical expenses, and support arrears. Although the trial court did not award attorney fees and costs in its May 16, 2014 order with regard to her first motion to enforce, Jacqueline asserted she needed such an award in order to bring the second motion. She also asked that attorney fees and costs be awarded as a sanction under section 271 for committing fraud in not disclosing his cohabitation with his girlfriend and other alleged misconduct.

In April 2015, the trial court determined the amount of Jon’s gross income inclusive of the car allowance, and income from investments, a retirement account and other sources. It also found Jon’s assets included an Employee Stock Option Plan (ESOP), a Savings and Investment account, a car, a motorcycle, and free monthly living expenses.

The trial court increased the amount of child and spousal support and ordered Jon to pay unreimbursed medical and childcare expenses. The court determined section 271 sanctions were inappropriate and denied Jacqueline’s request.

In June 2015, the court heard Jacqueline’s opening statement on the issue of attorney fees and costs. The hearing was continued to July 31, to allow Jon an opportunity to properly respond to Jacqueline’s request for attorney fees plus 10 percent interest under “Code of Civil Procedure section 685.7.”[3] The court was concerned about the complexity of the issues and Jon’s lack of legal representation. It allowed Jon to file an opposition and Jacqueline to file a reply.

In his opposition, Jon argued that Jacqueline had a “greater net spendable income” than he did after he paid his support obligations and he could not afford to pay her attorney fees inasmuch as he did not have sufficient funds to retain his own attorney. He also asserted the statutes cited by Jacqueline, including Code of Civil Procedure sections 685.040 and 685.070,[4] were inapposite.

Jacqueline replied an award of attorney fees was warranted because Jon failed to disclose his ESOP, retirement savings account, and ownership of a motorcycle. According to Jacqueline, all three assets could be used to pay an award of attorney fees and costs. Jacqueline maintained she was entitled to an award of attorney fees and costs under sections 2030 and 2032, as well as under Code of Civil Procedure sections 685.040 and 685.070.

At the continued hearing on July 31, the trial court declined to consider Jon’s untimely surreply and proceeded to hear oral argument. Jacqueline argued that under sections 2030, 2031, and 2032, she was entitled to attorney fees and costs, which Jon had the ability to pay based on his earnings, ESOP plan, retirement savings account, and the liquidation of his motorcycle. Jacqueline asserted section 3557 and Code of Civil Procedure section 685.040 authorized an award of attorney fees and costs because she had been required to bring the motion to enforce.

Jacqueline did not provide the trial court with any authority showing Code of Civil Procedure section 685.040 applied to a family law case. She argued instead that there was nothing “in that code section that says it does not apply.” The court rejected Code of Civil Procedure section 685.040 as a basis for recovery of attorney fees, and concluded such an award was authorized only under sections 271 or 3557, both of which required a finding Jon had the ability to pay. The court determined he did not and denied an award of attorney fees and costs under both statutes.

II

DISCUSSION

A. Standard of Review

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We review the trial court’s denial of attorney fees and costs for an abuse of discretion: “In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] ‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.’” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314-315.) “An abuse of discretion occurs when the trial court exceeds the bounds of reason; even if we disagree with the trial court’s determination, we uphold the determination so long as it is reasonable. [Citation.] We do not reverse unless a trial court’s determination is arbitrary, capricious, or patently absurd.” (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163.)

B. Forfeited Arguments

We first address contentions forfeited by Jacqueline’s failure to raise them in the trial court. She contends she should have been awarded attorney fees and costs under section 290, Civil Code section 1717, or Code of Civil Procedure sections 1032 or 1033.5, subdivision (a)(10). But she has not cited to, and we have been unable to find, any document in which she ever asserted these statutes as a basis for such an award.[5] Her failure to raise the issues below forfeits them on appeal. (Wood v. Santa Monica Escrow Co. (2007) 151 Cal.App.4th 1186, 1192.)

C. Stipulated Judgment

Jacqueline argues she was entitled to receive attorney fees and costs because she and Jon had stipulated to their recovery in the event either party brought a motion to enforce the court’s orders. The stipulation, however, provides that “the court may award filing costs and reasonable [a]ttorney’s [f]ees.” (Italics added.) “Generally speaking, ‘the word “may” is permissive—you can do it if you want, but you aren’t being forced to . . . .’” (Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 208.) Because the provision is permissive, we reject Jacqueline’s claim the stipulation mandated an award of fees and costs because it was contractual. Although the court could have awarded attorney fees under this provision, it was not required to. Jacqueline has not shown otherwise.

D. Code of Civil Procedure Sections 685.040 and 685.070

Jacqueline summarily claims the trial court improperly disregarded Code of Civil Procedure section 685.040, which she cited in her moving papers. She also makes a bare assertion that she is entitled to attorney fees and costs under both Code of Civil Procedure sections 685.040 and 685.070. Jacqueline’s failure to present any argument, reasoned or otherwise, or citation to authority, forfeits her contentions. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) “‘We are not bound to develop appellants’ arguments for them.’” (Ibid.)

E. Sections 3557 and 271

Under section 3557, “(a) Notwithstanding any other provision of law, absent good cause to the contrary, the court, in order to ensure that each party has access to legal representation to preserve each party’s rights, upon determining (1) an award of attorney[] fees and cost under this section is appropriate, (2) there is a disparity in access to funds to retain counsel, and (3) one party is able to pay for legal representation for both parties, shall award reasonable attorney[] fees to any of the following persons: [¶] (1) A custodial parent or other person to whom payments should be made in any action to enforce any of the following: [¶] (A) An existing order for child support. . . .”

Section 271, in turn, allows a trial court to award attorney fees and costs as a sanction where a “party . . . 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. . . . In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney[] fees and costs is not required to demonstrate any financial need for the award.”

The trial court denied Jacqueline’s request for attorney fees and costs under sections 3557 and 271, finding Jon did not have adequate funds to pay. As to section 3557, Jacqueline argues the “[c]ourt failed to look at all aspects of Jon’s circumstances to determine if there was any possible feasible way . . . to be able to award attorney[] fees and costs to” her. Specifically, she contends the court did not consider Jon’s failure to disclose his ESOP or his cohabitation with his girlfriend, which reduced his expenses, in ruling on her request for attorney fees and costs. She repeats this argument again later in her opening brief, expanding it to include his savings account. In a similar vein, Jacqueline asserts the court erred in denying sanctions under section 271 because Jon failed to disclose the existence of his ESOP and the benefits he received due to his cohabitation with his girlfriend.

We are not persuaded. The trial court considered these issues and properly exercised its discretion in denying an award of attorney fees and costs.

At the July 31, 2015 hearing on the attorney fees and costs motion, the trial court stated it had reviewed the papers filed by the parties, which included those filed by Jacqueline on the issues of Jon’s ESOP, cohabitation, and savings account. The court also heard Jacqueline’s argument to the same effect at the attorney fees hearing.

In denying Jacqueline’s request for attorney fees and costs, the trial court looked at the May 16, 2014 order in which the prior judge on the case had found that despite her need, Jon had no ability to pay her attorney fees. Additionally, it “note[d] that the husband’s income has changed since the original finding of inability back in May 16th of 2014, and that [there] was a basis for the modification of the child support and spousal support.” Although it did not specify what that basis was, we observe that in modifying the support orders, the court mentioned Jon’s free living expenses not once or twice but three times. Given the court’s focus on Jon’s free living expenses, we infer that was at least part of what it considered at the attorney fees and costs hearing when it talked about “a basis for the modification.”

The trial court continued, “However, when we look closely at the current status of the findings, not much has really changed since Judge Miller looked at it. We have the ESOP. We have that 401K, which husband can’t access for some period of time and under certain conditions. A review of his savings does not show savings and . . . with the orders in place, . . . we show him supporting a large percentage of costs throughout.” Based on its review of the file and the information before it, the court found that Jon, “as a matter of fact, does not have adequate funding at this time for which fees could be paid, and . . . without an adequate source of funding, the court will, at this time, deny the request for [section] 271 fees and fees under . . . section 3557.”

During oral argument, Jacqueline contended the trial court refused to consider awarding attorney fees under section 271. The record belies her claim. The court considered both of the factors Jacqueline asserts as a basis for contending the trial court erred in denying sanctions under section 271, i.e., Jon’s failure to disclose his ESOP and the benefits he received from cohabitating with his girlfriend. It simply concluded Jon did not have sufficient funds at the time to pay attorney fees under either section 271 or 3557.

Jacqueline’s brief appears to ask us to conduct a de novo, or independent, review of her request for an award of attorney fees and costs. However, that is not our function on appeal. Rather, in applying the abuse of discretion standard of review, we must “resolve all evidentiary conflicts in favor of the judgment and determine whether the court’s decision ‘“falls within the permissible range of options set by the legal criteria.”’” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771.) We cannot substitute our judgment for that of the trial court and must affirm its ruling absent a showing the court abused its discretion. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.) Jacqueline has not carried her burden to show the trial court acted outside the bounds of reason. Accordingly, we affirm the order denying Jacqueline attorney fees and costs.

III

DISPOSITION

The postjudgment order is affirmed. The parties shall bear their own costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.