Filed 10/18/17 Marriage of Guise CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Cindy Dobler Davis, Judge. Affirmed.

Moore, Schulman & Moore, Erik S. Moore and Tanya C. Sanscartier for Appellant.

Stephen Temko and Janis Stocks for Respondent.

This appeal arises from an order entered in a complex divorce case commenced in 2009 involving Jeffrey and Jacqueline Guise (hereafter, Jeff and Jackie). In an early temporary support order, Judge Lisa Schall ordered Jeff to pay fixed monthly amounts of child and spousal support based on his fixed salary, plus additional support payments based on specified percentages of any bonus income he received. (See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33 (Ostler-Smith).)[1] About six months later, when a health condition interfered with Jeff's ability to work, the parties stipulated that he would pay only a reduced, fixed monthly support payment that would be unallocated as between child and spousal support. The stipulation did not expressly address Jeff's bonus income. About eight months later, a different judge (Hon. William McAdam) modified support prospectively to a higher fixed monthly amount, but did not include a bonus component because the higher fixed amount incorporated anticipated bonus income. Jackie sought reconsideration or set-aside of the modification order, arguing she was entitled to a portion of Jeff's bonuses earned while the stipulation was in effect. Judge McAdam denied Jackie's requests for retroactive Ostler-Smith bonus percentages, but modified support prospectively to again capture a portion of Jeff's bonus income. Jackie appealed Judge McAdam's orders, but abandoned that appeal.

Years later, yet another family court judge (Hon. Cindy Davis) entered an order construing Judge McAdam's prior orders as finding that no Ostler-Smith percentages applied during the period the fixed-payment stipulation was in effect. Jackie requested that Judge Davis stay and set aside her order. Judge Davis denied that request.

Jackie now appeals Judge Davis's denial of this most recent stay/set-aside request regarding bonus percentages, as well as other rulings regarding attorney fees and spousal support. We find no error, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Overview

This case has been pending for about eight years. As of the time Jackie filed this appeal, the case had not progressed to a judgment of dissolution. One family court judge characterized the parties as "acrimonious" and "extremely estranged from each other." The case has been made more complicated by the fact Jeff earns a large percentage of his income in the form of periodic bonuses, and has filed for bankruptcy twice during the dissolution proceedings. Both parties have filed numerous motions to establish or modify child and spousal support. These motions were litigated vigorously, and often resulted in requests for reconsideration. We will discuss many of these motions in some detail below because they are necessary to provide context to the rulings at issue in this appeal. We summarize here the key rulings and events:

• July 2011 Order: Judge Schall ordered Jeff to pay child support of $3,926 per month plus 15 percent of any gross bonus payments he receives, and spousal support of $5,110 per month plus 20 percent of any gross bonus payments he receives.
• April 2012 Stipulation: The parties agreed that between February 1, 2012, and such time as the court revisits the issue, Jeff will make only a fixed monthly payment of $5,000, unallocated between child and spousal support. The stipulation provides that it is without prejudice to the court's prior orders, and reserves jurisdiction to the court to modify support retroactively.
• December 2012 Order: Judge McAdam ordered Jeff to pay child support of $7,991 per month and spousal support of $1,000 per month prospectively as of January 1, 2013. The order was not retroactive, and did not include Ostler-Smith bonus percentages because the higher monthly payments were intended to incorporate Jeff's anticipated bonus income. This order superseded the April 2012 Stipulation, thereby defining the stipulation's operative period as February 1, 2012 to December 31, 2012. This appeal largely revolves around whether Jackie is entitled to a percentage of Jeff's bonuses earned during that operative period, when the stipulation required that he make monthly payments of $5,000.
• June 2013 Order: Judge McAdam clarified his December 2012 Order after Jackie advised that Jeff's 2012 income was substantially higher than the reported income on which the court based its December 2012 Order. This order maintained the fixed monthly payments, but added Ostler-Smith bonus percentages on the income in excess of that on which the court based the fixed monthly payments.
• Jackie's 2013 Appeal: Jackie appealed the December 2012 Order and the June 2013 Order, but abandoned the appeal.
• August 2014 Order: Judge Davis denied on res judicata grounds Jackie's request to set aside Judge McAdam's December 2012 Order and June 2013 Order.
• June 2015 Order: When the special master who was determining support arrears asked the court for guidance on how to treat Jeff's bonus income during the period the April 2012 Stipulation was in effect, Judge Davis construed Judge McAdam's December 2012 Order and June 2013 Order as providing that Jackie was not entitled to Ostler-Smith percentages of Jeff's bonus income during that period.
• March 2016 Order: Judge Davis denied Jackie's request to set aside or stay the June 2015 Order. Judge Davis also denied Jackie's request for attorney/expert fees, and allowed Jeff to offset an overpayment of support he made against attorney fees he was required to advance to Jackie. This is the only order Jackie has appealed here.

Family Background

Jackie and Jeff were married in 1984, and had five children together. Jackie has a Ph.D. in neurobiology, but has worked as a homemaker since about 1986 when the couple began having children. Jeff has a Ph.D. in microbiology and a law degree, and is an intellectual property lawyer at a large law firm.

As a homemaker, Jackie had no income. Jeff's annual income consisted of a base salary of about $300,000; scheduled profit distributions of about $100,000 each in August, November, and December; and potential incentive profit distributions in December and the following January.[2] Jeff earned total income of about $1 million in each of 2006 and 2007, and total income of about $1.1 million in each of 2008 and 2009.

In 2008, the two older children were away at college, and the three minor daughters (ages 16, 11, and 9) lived at home with Jackie and Jeff. Jeff filed a petition for custody of the minor children based on Jackie's odd behavior in the presence of the children. Jeff initially received custody of the children and exclusive use of the family residence, and was ordered to pay spousal support of $5,000 per month. The couple separated in February 2009, and Jeff filed a petition for dissolution a month later.

Preliminary Support Order

In August 2009, Jackie filed an order to show cause (OSC) seeking child and spousal support. The court (Judge Lisa Foster) found Jeff's monthly income was $25,000, but reserved jurisdiction over his August 2009 bonus until Jeff provided an accounting to substantiate his claim he had spent it all on community liabilities. The court ordered Jeff to pay child support of $1,490 per month, and spousal support of $6,000 per month. The court declined to award Ostler-Smith percentages of Jeff's bonus income, but reserved jurisdiction to do so.

Judge Schall's July 2011 Order

In September 2010, Jackie filed an OSC seeking a retroactive modification of child and spousal support, and an accounting of Jeff's August 2009 bonus. Jackie argued that Jeff's current support payments were based on Judge Foster's prior finding that his income was $300,000, yet recently obtained employment records showed his total income (when including bonuses) was approximately $1.1 million in each of 2008 and 2009. Jackie further argued Jeff failed to substantiate his claim that his August 2009 bonus had been consumed by community expenses.

Jeff denied Jackie's accusations that he had not produced adequate documentation of his income. He explained his liabilities were dramatically increased by the 2003 breakup of his prior law firm, and by bad tax advice he and other partners of that firm had received that resulted in a $600,000 federal tax liability for Jackie and Jeff.[3] Jeff advised the court his ability to work would be temporarily impaired due to a scheduled back surgery to repair a ruptured disc. He asserted he paid substantial community obligations each month, such as college and private school tuition for the children. He also claimed the community had incurred additional liabilities when the family residence and a second home were lost to foreclosure due to Jackie blocking the listing of the properties for sale.

After conducting hearings in March and April, Judge Schall issued Findings and Order After Hearing (FOAH) on July 7, 2011 (the July 2011 Order). Going forward, based on his monthly base salary of $25,000, the court ordered Jeff to pay child support of $3,926 per month plus 15 percent of any gross bonus payments he receives,[4] and spousal support of $5,110 per month plus 20 percent of any gross bonus payments he receives. Judge Schall found Jeff had not defrauded the court regarding his 2009 bonuses, and denied Jackie's request to modify the support awards retroactively. The court reserved jurisdiction over Jeff's 2009 and 2010 bonuses.

Jeff sought reconsideration of the Ostler-Smith bonus percentage for his spousal support obligation, but Judge Schall denied his request.

The April 2012 Stipulation

On August 25, 2011, Jeff filed an OSC seeking modification of his support obligations and requesting that Jackie be required to contribute to community expenses. Jeff's "preference [was to] agree on a realistic amount of total support for the year and pay [a] fixed amount each month . . . ." Jeff explained he was on a reduced work schedule (60 percent) due to a second back surgery, which resulted in a 40 percent decrease in his income (to approximately $15,000 per month, totaling about $800,000 per year with bonuses). Jeff stated he had paid Jackie over $400,000 in combined support payments in 2011, and he suspected she had received over $100,000 in undisclosed distributions from her family.

In October 2011, Jeff filed for Chapter 7 bankruptcy protection.

Jackie opposed Jeff's request to modify his support obligations. She argued Jeff had made statements to the bankruptcy court that contradicted his claim in family court that his income had decreased due to his back surgery. She acknowledged her father "[s]ometimes" sent her checks, but she did not consider them income because they are "irregular, unannounced, and inconsistent." She stated that her father would "no longer be giving [her] any money whatsoever."

Pending a determination of Jeff's OSC on the merits, in February 2012 the parties reached the following stipulation regarding support:

"UNALLOCATED SUPPORT:

"1. Without prejudice to the support orders and subject to a retroactive order, effective February 1, 2012, Husband shall pay to Wife $5,000 per month unallocated support from Husband's monthly salary. The court shall reserve jurisdiction over the original child support, spousal support and the modification requests of August 25, 2011 to the next hearing. The Court, during the pendency of this Order to Show Cause, reserves the right to allocate Husband's payments to child and spousal support.

"2. The Court shall reserve jurisdiction over all matters contained in the original Order to Show Cause filed August 25, 2011, including making orders retroactive to the date of the original filing. The parties hereby stipulate to a waiver of the limitation of the Court's jurisdiction under In re Marriage of Gruen (2011) 191 Cal.App.4th 627."

Judge McAdam subsequently entered the stipulation as an order in April 2012 (the April 2012 Stipulation).

Judge McAdam's December 2012 Order

On March 9, 2012, Jeff filed an OSC seeking modification of child custody, visitation, and child support. His Chapter 7 bankruptcy had been discharged, but he stated he had many nondischargeable community debts and the trustee was seeking to "claw back" approximately $160,000 of Jeff's postbankruptcy earnings. Jeff still suffered from back pain, which was exacerbated by the international travel his work required.

Jackie opposed the request and filed her own request for order (RFO),[5] seeking a wage assignment based on Jeff's alleged inconsistent support payments.

The court heard the competing requests at two hearings in October 2012. During the hearings, Judge McAdam ordered that Jeff pay Jackie one-half of the net proceeds of his August and November 2012 bonuses. The court did not address the upcoming December 2012 bonus. The parties were directed to submit written closing arguments on their competing requests.

Jackie's closing argument acknowledged that the April 2012 Stipulation "reserve[d] jurisdiction [to the court] over all matters." She asked the court to "reinstate" Judge Schall's July 2011 Order or, in the alternative, to follow the Santa Clara County support guidelines and order child support of $3,299 per month plus 11 percent of bonus income, and spousal support of $3,297 per month plus 30 percent of bonus income.

Judge McAdam resolved the support issues in an order dated December 24, 2012 (the December 2012 Order). Based on a total projected annual income (including bonuses) of $724,258, Judge McAdam ordered Jeff to pay monthly child support of $7,991 and monthly spousal support of $1,000, both prospectively commencing January 1, 2013. Judge McAdam clarified that Jeff's support obligation was not retroactive, and did not include a bonus component because bonuses were already factored into the higher fixed monthly payments.[6]

Judge McAdam's June 2013 Order Clarifying the December 2012 Order

About two weeks after Judge McAdam issued the December 2012 Order, Jackie received documentation of Jeff's 2012 year-end bonuses, which showed he received total income of $1,014,599.61 in 2012. This was about 40 percent higher than the $724,258 on which Judge McAdam had based the support awards in his December 2012 Order. Based on this new information, Jackie moved for reconsideration.

Jackie also filed an ex parte request to determine arrears she contended were owed for bonus income Jeff received in August, November, and December 2012.[7] Jackie reiterated her understanding that Judge Schall's July 2011 Order required that Jeff pay the Ostler-Smith percentages even during the period the April 2012 Stipulation was in effect.

Jeff opposed Jackie's ex parte request, explaining his view that the April 2012 Stipulation modified the July 2011 Order with respect to Ostler-Smith percentages and required only a fixed monthly payment. He maintained Judge McAdam's "December 2012 order [did] not require that [Jeff] pay money from [his] bonuses, but rather pay a set amount per month." Nevertheless, Jeff stated he had already paid Jackie one-half of his net November bonus, as ordered by Judge McAdam during the October hearings.

In reply, Jackie argued she was entitled to the Ostler-Smith percentages of Jeff's $477,000 December bonus because Judge McAdam's December 2012 Order did not go into effect until after Jeff earned the bonus, and thus Judge Schall's July 2011 Order—with its Ostler-Smith percentages—was still in effect when Jeff earned the bonus.

Before the court could hear Jackie's ex parte request, Jeff filed for Chapter 13 bankruptcy protection. As a result, Judge McAdam denied Jackie's ex parte request without prejudice.

Jackie then filed an RFO to set aside the December 2012 Order on the basis of mistake (Code Civ. Proc., § 473) or fraud/perjury (Fam. Code, § 3691). She asserted Jeff knew from his firm's records that his compensation for 2012 was likely to be higher than the approximately $800,000 he told the court.

Jeff's response explained that the apparent discrepancy in his income resulted from his firm's fiscal year not aligning with the calendar year, making it "extremely complicated to correlate projected partnership income with W-2 income." He argued that due to the Chapter 7 bankruptcy trustee's claw-back claim, Jeff had actually overpaid child support by $59,500.

On April 19, 2013, Judge McAdam heard and denied Jackie's requests for reconsideration or to set aside the December 2012 Order, but indicated he would issue a clarifying order to address the discrepancies in Jeff's income. On June 27, 2013, Judge McAdam issued an order (the June 2013 Order) clarifying his December 2012 Order by prospectively reinstating Ostler-Smith bonus percentages as to Jeff's income in excess of the $724,258 on which the court had based its December 2012 Order.[8] Judge McAdam expressly declined to make Jeff's support obligation retroactive.

Jackie's Abandoned Appeal of Judge McAdam's Orders

Jackie filed a notice of appeal challenging Judge McAdam's December 2012 Order and his June 2013 Order. After receiving two extensions of time to file her designation of the record, Jackie failed to do so. We notified Jackie she was in default, then dismissed her appeal. (See Cal. Rules of Court, rule 8.140(b).)

Jackie's Attorney Fees Motion

In April 2013, Jackie filed an RFO seeking attorney fees. Over Jeff's opposition, Judge McAdam ordered that Jeff "forthwith" advance fees of $88,000 "to be charged to [Jackie] against her community property interest in [Jeff]'s retirement and/or investment funds through his employment . . . ."[9]

Special Master Appointed to Determine Arrears

In August 2013, Jackie gave notice that Jeff was over $100,000 in arrears between July 2011 and December 2012. Jeff filed an RFO to determine arrears, including proper treatment of the Chapter 7 bankruptcy trustee's claw-back claim. Jackie requested that the court appoint a special master to determine the disputed arrears. Ultimately, the court ordered the appointment of a special master, and the parties agreed on retired commissioner Alan Clements.

Jackie's Second RFO to Set Aside the December 2012 Order

In January 2014, Jackie filed an RFO to set aside Judge McAdam's December 2012 Order, or, in the alternative, to modify spousal support. She argued Jeff had misled the court regarding his expenses and several aspects of his bankruptcy case. Jackie claimed she did not learn of Jeff's deception until November 2013 when he lodged certain records in support of his RFO to determine arrears. Jackie also informed the court she was recently diagnosed with breast cancer and was undergoing chemotherapy and radiation treatment, and on that basis was seeking a modification of spousal support.

Jeff opposed Jackie's request, arguing res judicata barred her effort to recover Ostler-Smith bonus percentages for the period the April 2012 Stipulation was in effect. According to Jeff, the court had previously rejected Jackie's challenges to the December 2012 Order and June 2013 Order, and Jackie had abandoned her appeal of those orders. Jeff also argued the RFO was based on incorrect and misleading factual allegations.

Judge Davis heard argument and announced her ruling on August 1, 2014. Judge Davis denied Jackie's set-aside request, finding it was barred by res judicata. However, Judge Davis found Jackie's medical condition constituted a changed circumstance warranting a modification of spousal support. Accordingly, the court increased Jackie's base spousal support to $4,000 per month, and confirmed the Ostler-Smith percentages set forth in Judge McAdam's June 2013 Order (i.e., child and spousal support of 20 percent and 15 percent, respectively, on Jeff's income above $724,528). The court continued the hearing on arrears.

Jeff's RFO to Eliminate Spousal Support and Cap Bonus Percentages

In December 2014, Jeff filed an RFO seeking to eliminate his spousal support obligation and to cap the Ostler-Smith bonus percentages based on the couple's marital standard of living (MSOL). He sought to eliminate spousal support on the basis Jackie had filed a $500,000 claim in his Chapter 13 bankruptcy, which resulted in an increase in payments he was required to make in that case. As for the bonus cap, Jeff argued he was now earning more income than he had before separation, and it would be unjust to allow Jackie to benefit from that increase. Jeff also sought to cap child support based on the children's need, which he argued was not impacted by the fact his income had increased since separation.

Jackie's counsel withdrew from representation due to nonpayment, and Jackie became self-represented.

The court continued the hearing on Jeff's RFO to be heard with the arrears issue.

Judge Davis's June 8, 2015 Order

Judge Davis heard Jeff's requests on April 21, 2015. She noted that the special master had nearly completed his arrears determination, but requested that the court make a legal determination of how to treat Jeff's bonus income for the period the April 2012 Stipulation was in effect. Judge Davis noted the parties had not briefed this issue, but stated she had already spent "a good portion" of the previous evening going through the record, and "plan[ned] on spending a significant amount of time with this file to work [her] way through it" before "mak[ing] the call."

On June 8, 2015, Judge Davis issued her order (the June 2015 Order) addressing the special master's inquiry and Jeff's requests regarding support. Judge Davis concluded the Ostler-Smith bonus percentages set forth in Judge Schall's July 2011 Order did not continue during the stipulation period, explaining:

"This court finds the parties did not stipulate to the continuation of the [Ostler-Smith] bonus percentages for the time period [February 1, 2012] to [December 31, 2012]. That language was not included in the stipulation . . . . Additionally, Judge McAdam considered [Jackie's] arguments for retroactivity [during the stipulation period] and expressly denied the request. In his [December 2012 Order] Judge McAdam held 'There is to be no retroactivity.' Because the parties did not stipulate and Judge McAdam declined to apply retroactivity, this court holds for the period of [February 1, 2012] to [December 31, 2012] no [Ostler-Smith] percentages applied to [Jeff's] bonus. However, because Judge McAdam made two separate standalone orders to split the August 2012 and the November 2012 bonus income 50/50 between [Jeff] and [Jackie], those orders stand. [Jackie] shall retain those proceeds. When calculating arrearages those payments shall be above and beyond the $5,000 per month figure paid to [Jackie] representing unallocated [as between child and spousal] base support for this time period. The fact Judge McAdam entered orders splitting those two 2012 bonus payments lends further support to this court's interpretation that no retroactivity was necessary under the circumstances."

In further support of this conclusion, Judge Davis cited the fact that Jackie's written closing argument to Judge McAdam urged the court to either reinstate the 15 percent child support and 20 percent spousal support orders from the July 2011 Order, or order new percentages of 11 percent child support and 30 percent spousal support. Judge Davis reasoned Jackie would not have advocated for different percentages "f the parties truly had an understanding that the [July 2011 Order] . . . percentages remained in effect . . . ."

Judge Davis denied Jeff's request to eliminate his support obligations, but agreed to cap the bonus percentage on spousal (but not child) support. Using Jeff's income during the three years before separation, Judge Davis determined the MSOL income level was $1,069,166 per year. Based on the totality of circumstances, Judge Davis capped Jeff's [i]Ostler-Smith "percentage for spousal support at 15 [percent] on income over $724,258 up to the marital standard of living of $1,059,166." This would yield a maximum annual spousal support of $99,736 ($48,000 of annual base support ($4,000/month x 12 months) plus up to $51,736 of percentage bonus support (15 percent times $344,908 (the difference between the MSOL income level of $1,069,166 and the $724,258 floor at which the bonus percentage is triggered)).

Jackie did not appeal the June 2015 Order.

Judge Davis's March 2016 Order

After Judge Davis provided guidance to the special master on how to treat bonuses earned during the 2012 stipulation period, the special master issued a report finding Jeff had overpaid Jackie by $129,846.[10] Jeff then filed an RFO asking that his obligation to advance Jackie $88,000 in attorney fees be deemed satisfied from this overpayment. Jackie opposed on the bases that the "over payment of support is disputed and unrelated," and that Jeff was still violating the two-year-old order to pay attorney fees "forthwith."

Jackie also filed an RFO. She requested that the June 2015 Order be set aside and stayed, and that Jeff be ordered to pay $5,000 for her attorney and expert fees for trial.[11] The stay request was based on the potential impact the June 2015 Order would have on Jackie's claim in Jeff's Chapter 13 bankruptcy, a portion of which was for the arrears Jackie claimed were due for the 2012 stipulation period.

Jackie argued the June 2015 Order should be set aside because it impermissibly modified Judge Schall's July 2011 Order by construing the April 2012 Stipulation as superseding the order's Ostler-Smith bonus percentages. Jackie argued the April 2012 Stipulation was void on its face because it reduced child support below guideline levels without including statutorily required language for doing so. She further argued she was denied due process by retroactive interpretation of the stipulation. Jackie also sought to vacate the June 2015 Order on the basis of surprise (Code Civ. Proc., § 473, subd. (b)),[12] reasoning the order surprised Jackie by improperly modifying support retroactively. Finally, she argued the June 2015 Order was void because the court lacked authority to retroactively modify support.

Jackie cited the parties' disparity in income and ability to pay as support for her request for fees.

Jeff opposed Jackie's RFO. He again argued the December 2012 Order was a res judicata bar to Jackie's challenge to the court's determination that the July 2011 Order's Ostler-Smith bonus percentages did not apply while the April 2012 Stipulation was in effect. Substantively, Jeff argued Judge Davis had not modified the July 2011 Order or the April 2012 Stipulation but, rather, had merely interpreted Judge McAdam's orders. Jeff also argued Jackie's request for relief based on surprise was untimely, particularly in light of the fact the bankruptcy court was waiting for the family court case to progress. Jeff accused Jackie of gamesmanship with respect to her attorney fees request. He pointed out that he had paid Jackie about $400,000 in support in 2014, and expected she would receive the same amount in 2015. He maintained some of her claimed expenses were "outrageous."

In December 2014, Judge Davis heard argument on Jeff's and Jackie's RFO's. She announced her ruling orally two weeks later, and issued a corresponding FOAH on March 28, 2016 (the March 2016 Order).

Judge Davis denied Jackie's requests, concluding the June 2015 Order "did not retroactively modify child and spousal support"—Judge McAdam had already done that, and Judge Davis was merely interpreting his orders doing so. She found "Judge McAdam had all of the relevant information before him and he affirmatively declined to apply retroactivity even after being informed of the December 2012 bonus in the amount of $477,000." Judge Davis also denied Jackie's request for attorney/expert fees "n light of the significant support paid to [Jackie] in 2014 and 2015."

In addition to ruling on the parties' RFO's, Judge Davis issued sua sponte orders modifying spousal support. She noted that based strictly on Jeff's income, Jackie's spousal support was significantly below guidelines. However, she also noted that Jeff was servicing the community's liabilities, and Jackie's $500,000 bankruptcy claim "is by far the largest claim in the Chapter 13 case" and "has created an additional level of complexity for the Court in the family law case." But based on Jackie's medical condition and resulting inability to work, Judge Davis maintained the $4,000 fixed monthly payment, and raised the cap on the [i]Ostler-Smith bonus percentage from $51,736 per year to $108,000 per year (a $56,264 difference), resulting in a potential 56 percent increase of Jackie's total annual spousal support from $99,736 to $156,000. Judge Davis explained this would more closely reflect the MSOL.

Jackie Appeals the March 2016 Order

On May 16, 2016, Jackie filed a notice of appeal from the March 2016 Order. She did not appeal the June 2015 Order.

DISCUSSION

I. Bonus Percentages During the 2012 Stipulation Period

Jackie challenges the March 2016 Order denying her RFO to set aside Judge Davis's June 2015 Order, including the court's determination that she was not entitled to Ostler-Smith percentages of Jeff's bonuses during the April 2012 Stipulation period. She contends (1) Judge Davis misinterpreted the April 2012 Stipulation, (2) the June 2015 Order is fundamentally void for a variety of reasons,[13] and (3) Judge Davis erred in not setting aside the June 2015 Order on the basis of surprise (that is, that Jackie was surprised Judge Davis modified support retroactively).

Jeff argues Jackie's challenge regarding the 2012 stipulation period is barred by the doctrine of res judicata because Judge McAdam already examined the stipulation's impact on Judge Schall's order and concluded Jackie was not entitled to Ostler-Smith bonus percentages while the stipulation was in effect. Jeff contends that because Jackie abandoned her appeal of Judge McAdam's orders, those orders became final and bar her relitigation of the issues they resolved. We agree, and therefore do not reach the merits of Jackie's challenge.

" 'The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action.' " (Wodicka v. Wodicka (1976) 17 Cal.3d 181, 188.) "The same rule applies to final adjudications rendered in the course of a divorce proceeding over which a court may have continuing jurisdiction and which may require several orders for its ultimate disposition." (Ibid.) The doctrine of res judicata " 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.' " (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) The doctrine thus is intended to deter litigants "from bringing repetitive challenges to the trial court's orders." (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1027.)

Although res judicata generally does not apply when "the first ruling was not in a former action" but instead "was an earlier ruling in the same action" (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185, italics omitted), "a prior appealable order becomes 'res judicata' in the sense that it becomes binding in the same case" if no appeal is taken (id. at pp. 1185-1186). Thus, "f an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata." ([i]In re Matthew C. (1993) 6 Cal.4th 386, 393; see In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8 ["California follows a 'one shot' rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited."].)

Jackie expressly argued to Judge McAdam that she was entitled to the Ostler-Smith percentages set forth in Judge Schall's July 2011 Order even while the April 2012 Stipulation was in effect, reasoning the stipulation did not modify Judge Schall's bonus percentages. Judge McAdam ruled otherwise. The stipulation authorized the court to modify support retroactively to the date Jeff filed his motion to modify support. In that vein, Judge McAdam ordered the parties to split 50/50 the net proceeds of Jeff's August and November 2012 bonuses. Both the percentage and object of the split (that is, net versus gross) differ from the provisions of the July 2011 Order. Moreover, although Judge McAdam was keenly aware of the $477,000 December 2012 bonus—Jackie based her reconsideration motion on it—he did not order Jeff to pay support based on it. Rather, Judge McAdam expressly confirmed that the newly reinstated Ostler-Smith bonus percentages "are to be effective as of January 1, 2013."

Jackie acknowledged in her briefing below and on appeal that Judge McAdam's orders were appealable. Indeed, she initially appealed the orders. But Jackie abandoned that appeal. By doing so, she allowed Judge McAdam's orders to become a res judicata bar to subsequent relitigation of the same issue.[14] Jackie's requests to Judge Davis to award support based on bonuses earned during the 2012 stipulation period are precisely the type of relitigation that res judicata precludes.[15] We therefore need not reach the merits of Jackie's challenge.

Even if we were to reach the merits, we would find no error. First, when Jackie raised the issue in her January 2014 RFO (her second RFO seeking to set aside the December 2012 Order), Judge Davis correctly found the challenge was barred by res judicata. Second, when the special master raised the issue when determining arrears, Judge Davis thoroughly examined the record and concluded Judge McAdam had already determined Jackie was not entitled to Ostler-Smith bonus percentages during the 2012 stipulation period (other than as he specifically ordered with respect to the August and November 2012 bonuses). Finally, on the same basis, Judge Davis denied Jackie's RFO to set aside the June 2015 Order. Judge Davis reiterated she was construing Judge McAdam's orders, not the April 2012 Stipulation. Judge Davis's construction, as discussed in the preceding paragraphs, is sound.[16]

Because Judge McAdam's adverse determinations on the Ostler-Smith bonus issue are a res judicata bar to Jackie's current challenge on the same topic, Jackie's challenge fails as a matter of law.

II. Deeming Attorney Fees Satisfied From Support Overpayment

Jackie contends the court erred by deeming Jeff's obligation to advance $88,000 in attorney fees satisfied by his overpayment of support. She argues the court abused its discretion because it "did not have jurisdiction to make this award and Jeff approached the court with unclean hands." Jeff counters that Jackie forfeited these arguments by not raising them below. Alternatively, he argues the merits regarding the court's jurisdiction and further argues Jackie was not aggrieved by the order. We conclude Jackie forfeited her jurisdiction and unclean hands challenges.

Jackie argues in her reply brief that she raised one aspect of her jurisdiction argument below. However, the evidence she cites in the appellate record does not indicate she sufficiently raised the issue. Jackie also argues her jurisdictional challenge is saved by the rule that a lack of fundamental jurisdiction can be raised at any time. However, her challenge is not based on a lack of fundamental jurisdiction because she does not contend the family court generally lacked subject matter jurisdiction or personal jurisdiction over the parties. (See Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 ["A lack of fundamental jurisdiction is ' " 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' " ' "].)

As to unclean hands, although Jackie arguably raised the issue below (though not by name; she merely argued Jeff had for years been in violation of the order to advance the fees forthwith), she likewise forfeited the issue on appeal by failing to obtain a ruling from Judge Davis on this ground. (People v. Valdez (2012) 55 Cal.4th 82, 122.)

In any event, we would find no abuse of discretion in Judge Davis's apparent rejection of Jackie's implied unclean hands argument. Jeff argued he was unable to comply with the order due to complications in his bankruptcy case. Judge Davis addressed the period of noncompliance by ordering that he pay Jackie more than $20,000 in interest—nearly one-quarter of the $88,000 principal amount. Under the circumstances, we find no abuse of discretion in Judge Davis's handling of this issue.

III. Denial of Attorney/Expert Fees

Jackie contends Judge Davis erred by denying her request for $5,000 for attorney and expert fees " '[in] light of the significant support paid to [her] in 2014 and 2015.' " She contends the court failed to conduct the required needs-based analysis or make statutorily required findings. We find no error.

A. Relevant Legal Principles

Under Family Code sections 2030 and 2032,[17] the family court "is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action." (In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 974 (Falcone); see Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252 (Alan S.).) Section 2030 requires that the family court "ensure that each party has access to legal representation" by ordering payment of attorney fees and costs from one party to the other "if necessary based on [an] income and needs assessment." (§ 2030, subd. (a)(1).)

Section 2032 identifies factors the family court must consider when determining whether to award attorney fees, including whether an award is "just and reasonable under the relative circumstances of the respective parties" (§ 2032, subd. (a)) and "the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party's relative need and the other party's ability to pay, [the court] is to take into account ' " 'all evidence concerning the parties' current incomes, assets, and abilities.' " ' " (Falcone, supra, 203 Cal.App.4th at pp. 974-975.)

Section 2032 also authorizes the family court to consider the factors listed in section 4320 for determining the amount of spousal support. (§ 2032, subd. (b).) These factors " ' "include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." ' " (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829; see § 4320.)

"Reading section 2032 together with section 4320, one cannot escape the idea that a pendente lite 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.) The family court is vested with considerable discretion in undertaking this nuanced process. (Falcone, supra, 203 Cal.App.4th at p. 975.)

In considering a request for an award for attorney fees and costs, the court "shall make findings on whether an award . . . 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." (§ 2030, subd. (a)(2).) "While no particular language is required . . . , the record (including, but not limited to, the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Alan S., supra, 172 Cal.App.4th at p. 254.)

B. Analysis

We are unpersuaded by Jackie's argument that the court erred by failing to make sufficient findings to support the denial of an award of attorney fees. First, Jackie forfeited the issue by failing to raise it below. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 (Whealon) [" 'Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention.' "], quoting People v. Scott (1994) 9 Cal.4th 331, 353; see In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1279 (Shimkus) [respondent's counsel "advised that the court needed to make findings as to attorney fees" and "offered to prepare the FOAH with the addition of the attorney fees findings."].)[18] Jackie's request for a statement of decision before the court ruled was insufficient to put the court and Jeff on notice that she contended the court's subsequent written order did not contain sufficient findings.

Second, we are satisfied by our examination of the record that the March 2016 Order denying attorney fees is "the product of a nuanced process" in which Judge Davis tried "to get the 'big picture' of the case." (Alan S., supra, 172 Cal.App.4th at p. 254.) That is, although the section of the order specifically addressing Jackie's request for attorney fees consists of only two short paragraphs, it is followed by a two-page analysis supporting the court's sua sponte decision to increase Jackie's spousal support. The sua sponte analysis addresses Jackie's inability to work, Jeff's income, guideline spousal support levels, Jeff's servicing of substantial community liabilities, and Jackie's $500,000 claim in Jeff's Chapter 13 bankruptcy case, which "unfortunately . . . created an additional level of complexity for the Court in the family law case."[19] Moreover, although the court denied Jackie's request for $5,000 in need-based attorney fees, the court sua sponte awarded her an unexpected windfall of $56,264 in additional annual spousal support, which undoubtedly impacted Jackie's claimed need for attorney fees. We are therefore satisfied that Judge Davis exercised her discretion in denying Jackie's request.

Jackie's heavy reliance on In re Marriage of Tharp (2010) 188 Cal.App.4th 1295—she devotes three pages of her opening brief to the case—is misplaced. Although there are superficial factual similarities, the case is materially distinguishable in that the Tharp family court never exercised its discretion at all. (Id. at p. 1314 ["statement by the family court that it was not going to review the billing records submitted by" the wife's attorney "indicates an absolute failure of the family court to perform its official duties and review the relevant evidence before ruling"].)

Jackie's reliance on In re Marriage of Keech (1999) 75 Cal.App.4th 860 and Shimkus, supra, 244 Cal.App.4th 1262 is similarly misplaced. The Keech family court's order requiring the husband to pay a portion of the wife's attorney fees was an abuse of discretion because the trial court did not consider the husband's ability to pay (Keech, at p. 867) or the reasonableness of the claimed fees (id. at p. 869). The Shimkus family court's denial of attorney fees was an abuse of discretion because, "[o]ther than the judge's signature on the [party-prepared] FOAH there [was] no evidence the court made" the findings listed in the FOAH "or any findings as to attorney fees and costs." (Shimkus, at p. 1280.) By contrast, the March 2016 Order reflects a detailed analysis by Judge Davis of the parties' financial conditions. We find this analysis comports with California's public policy in ensuring parties are suitably represented in marital dissolution proceedings.

IV. Sua Sponte Upward Revision of the Bonus Cap

Jackie contends Judge Davis abused her discretion by imposing caps on the Ostler-Smith bonuses. However, the caps were imposed by the June 2015 Order, whereas Jackie has appealed only the March 2016 Order (which increased the cap). Jackie asserts the later order was "the only appealable order" because the earlier order "was not final due to the court's decision to reopen." However, Jackie has not supported this assertion with any citation to legal authority, as required. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 [" 'To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error."].)[20] In short, Jackie has not satisfied her burden of demonstrating she has timely appealed the right appealable order. (Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.)

Even if Jackie had met this threshold burden, her challenge would fail on the merits. She contends Judge Davis did not (1) find "a sufficient material change of circumstance" or (2) conduct an adequate analysis of Jackie's need for support or Jeff's ability to pay. First, she did not object below regarding the lack of findings, as required. (See Whealon, supra, 53 Cal.App.4th at p. 144.)

Second, the record contradicts Jackie's claim that Judge Davis made an insufficient finding of material changed circumstances. The June 2015 Order states:

"Material Change of Circumstance:

"The court finds there has been a material change in circumstance as [1] the confirmed Chapter 13 plan requires a significant increase in payments into the plan starting [in] 2014 and [2] [Jeff's] 2014 income was dramatically outside [Jeff's] highest earning averages for the last ten years. Either financial event would be considered a material change . . . ."

Jackie has not explained why either finding is inadequate.

Finally, as to the balancing of the parties' respective need and ability, the record shows Judge Davis conducted a thorough review of substantially the same issues when determining the MSOL and evaluating Jeff's request to eliminate or modify support levels. Again, Jackie does not explain why the court's findings in those regards are inadequate.

DISPOSITION

The March 28, 2016 order is affirmed. Jeff is entitled to his costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.