Filed 10/16/18 Marriage of Y.S. and E.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Y.S. and E.S. |
|
|
Y.S.,
Respondent,
v.
E.S.,
Appellant.
| D072885
(Super. Ct. No. D541249) |
APPEAL from a judgment of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Affirmed.
E.S., in pro. per., for Appellant.
Marcus Family Law Center and Ethan Marcus, Erin K. Tomlinson for Respondent.
E.S. appeals a family court order awarding attorney fees to his former wife, Y.S., in a dissolution of marriage case. E.S. contends the court should not have granted the award because under Family Code[1] section 4320, subdivision (i), he was a victim of domestic abuse. With no citation to the record, he claims he is financially unable to pay the award because he has been unable to work in the last eight months due to a work-related injury requiring surgery. He adds that his business failed because he suffered stress from being the sole custodian of three minor children and having to "keep up with mounting spousal support fees, attorney fees for himself and [Y.S.], and financial support for his children as well as a stable environment to raise them." He also argues Y.S. has failed to become self-supporting following their divorce. We affirm.
BACKGROUND
In February 2017, Y.S. moved for attorney fees and costs under sections 271, 3557, 3652, 6344, and 2030. She also sought fees incurred in obtaining a domestic violence restraining order against her son. She argued in her motion: "At the time of the February 2014 order, [Y.S.] had unpaid attorney fees of $30,227. Since that date, [Y.S.] has incurred over $200,000 in additional fees and costs. The bulk of the litigation has occurred since that February 16, 2014 order, and no other attorney fee orders have been made."
Following oral arguments held in April 2017, the court limited its fee award to the 2015 to 2017 period and concluded that under section 271,[2] it would reduce the total award from $83,587 to $65,000 after balancing its concerns for sparing E.S. financial burden and avoiding E.S. benefiting further from his not timely paying court-ordered child support.[3]
DISCUSSION
E.S. in his opening brief fails to comply with California Rules of Court, rule 8.204 (a)(1)(C), which requires an appellant to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Moreover, E.S. discusses no statute or case law to support his arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority]; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) The rule applies to self-represented parties, who are entitled to the same consideration as other litigants and attorneys. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We therefore disregard his recitation of the history of domestic violence between him and Y.S. Those incidents also are not relevant to our resolution of this appeal. For the same reason, we also disregard E.S.'s assertion that his income and expense declarations as well as other financial documents support his claim.
In any event, E.S.'s claim fails on the merits. As set forth in detail above, the court specifically considered E.S.'s financial ability to pay the attorney fees and sought to avoid burdening him. Further, E.S. relies on section 4320, subdivision (i)—which states that in ordering spousal support, the court shall consider, among other things, documented evidence of any history of domestic violence between the parties. However, the court based its ruling exclusively on section 271.
DISPOSITION
The judgment is affirmed. Y.S. is awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
[1] Undesignated statutory references are to the Family Code.
[2] Section 271 authorizes an award of attorney fees and costs as a sanction for uncooperative conduct that frustrates settlement and increases litigation costs. It states: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. 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's fees and costs is not required to demonstrate any financial need for the award."
[3] The court's oral ruling states in full: "Going through the attorney's fees, I focused on the time period of 2015 to the present, and when I went through and added the attorney's fees for that period of time that I thought were appropriate to the issues here that warranted the sanctions, that totaled $83,587. So that was the number that I was working with. And under [] section 271, we have to balance the action engaged in that frustrated the policy of settling cases, trying to decrease litigation by looking at the behavior, but at the same time the assessment cannot be unreasonable. It cannot be an unreasonable financial burden.
"In this case, we had a house which was sold. We had funds which resulted from the house being sold, the proceeds of sale after costs were assessed. And those have remained—were placed in trust with the idea that each party was entitled to half of those. They remained in trust with specific distributions pursuant to court order, and a bunch of the funds that would have been part of [E.S.]'s share of the proceeds from the sale of the house were paid to [Y.S.] as and for support, and that is because [E.S.] has refused to pay any support as ordered by the Court in quite some time. So those funds have been dissipated because he has not paid his support, his court ordered support.
"He also—So when weighing the financial burden issue in [section 271], what the Court had to consider was the fact that at this point there are not many funds still existing from which to pay an attorneys fee award, and therefore the financial burden might be quite significant on [E.S.], and that might potentially violate [] section 271 and that balancing provision.
"However, the Court also has to consider the fact that [E.S.] has had the benefit of the extra funds in his pocket because he has not paid support. And so in point of fact, but for the fact that he did not pay the Court ordered support, he would have been receiving a significant distribution of funds from the proceeds of the house sale that were to be held in the trust.
"So it seems inequitable to the Court that [E.S.] would benefit by not paying his support and then therefore not having funds from which to support the financial burden of a [section] 271 award. And so having considered that, the Court does not feel as if it is appropriate to not award sanctions because the facts warrant it as discussed last time.
