Filed 1/25/18 Marriage of Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re the Marriage of BLAS and CHRISTINA RIVERA.

BLAS RIVERA,

Appellant,

v.

CHRISTINA RIVERA,

Respondent.


E066720

(Super.Ct.No. IND1200124)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge. Affirmed.
Law Offices of Basil Chapman and Basil T. Chapman for Appellant.
La Quinta Law Group and Timothy L. Ewanyshyn for Respondent.
I. INTRODUCTION
This is an appeal in an ongoing marital dissolution action between Blas and Christina Rivera. The family court ordered Blas to pay pendente lite attorney fees of $60,000 to Christina and ordered her to pay $3,000 as sanctions under Family Code section 271. Blas contends the court erred in (1) denying him the right to cross-examine Christina at the hearing on these issues, and (2) imposing only $3,000 rather than $37,000 in sanctions, as he requested. We affirm.
II. FACTS AND PROCEDURE
Blas filed this action in January 2012. From October 2012 to November 2014, the court ordered Blas to pay Christina’s attorney fees and costs totaling at least $119,650.
In August 2015, Blas filed a request for order (RFO) seeking sanctions against Christina under section 271. We know this from minutes that appear in the record, but the RFO itself and any responsive papers do not appear in the record.
Also in August 2015, Christina filed an RFO seeking additional attorney fees. She requested that Blas pay another $30,000 of her attorney fees, consisting of $10,000 in fees already incurred and estimated future fees of $20,000. Her concurrently-filed income and expense declaration indicated she earned approximately $900 per month as a caregiver for her mother. She estimated that her average monthly expenses amounted to $8,846. She stated that she had no assets other than real property worth approximately $200,000. She had received temporary spousal support of over $9,000 per month earlier in the case, but as of July 2015, the court had ordered no spousal support.
Blas, a retired farmer, filed his own income and expense declaration in response to Christina’s RFO and income and expense declaration. He indicated that he earned an average of $21,595 per month in dividends/interest and $2,147 per month in social security. His stated assets consisted of $15,000 in cash and bank accounts; $2.5 million in stocks, bonds, and other assets he could easily sell; and $3 million in all other real and personal property. Blas estimated his average monthly expenses to be $48,792. To date, he had paid his own attorney $165,000 in fees.
The court denied Christina’s RFO without prejudice. At the hearing, the court suggested several times that Christina was not credible in her income and expense declaration, particularly with respect to the representation that she had no money at all in her bank accounts. The court concluded that if it did not have accurate information about her financial situation, it could not properly evaluate her request for attorney fees. The court denied the RFO without prejudice to her filing a new RFO and income and expense declaration, which the court might deem more truthful.
In November 2015, the court granted in part Blas’s RFO for sanctions against Christina. The court found she had committed misconduct in three instances and that she should pay Blas’s associated attorney fees as sanctions. It found Christina had filed “a knowingly false declaration” in one instance, but the minutes of the court’s hearing do not specifically describe the other two instances of misconduct. It ordered the parties to meet and confer about the amount of Blas’s attorney fees associated with each instance of sanctionable misconduct.
In December 2015, Christina filed a new RFO for attorney fees. This time she sought $60,000 in fees, consisting of fees already incurred and future fees. The accompanying income and expense declaration again stated that she earned $900 per month as a caregiver to her mother. As to assets, the declaration stated she had $14,000 in cash and bank accounts, in addition to her real property worth approximately $200,000. Her average monthly expenses based on “[p]roposed needs” amounted to $10,846. Christina filed an updated income and expense declaration in May 2016 that showed her cash and bank account assets had decreased to $3,000.
In January 2016, Blas filed a notice of intent to request an evidentiary hearing on Christina’s RFO. Although the notice of intent stated Blas’s witness list was attached to the notice, the record on appeal contains no such witness list. In May 2016, he filed another notice of intent to request an evidentiary hearing, along with a witness list. This second request and witness list do not appear in the record.
The court heard Christina’s RFO for attorney fees in May 2016, the day after Blas filed his second request for an evidentiary hearing. At that point, the parties’ meet and confer efforts regarding the amount of sanctions against her had not been successful. The court thus heard the sanctions issue at the same time. Blas contended Christina’s misconduct cost him $37,000 in attorney fees. The court ruled $37,000 would be “[c]ompletely unreasonable,” given that she had assets of only $3,000 in cash or checking accounts, and Blas had not shown she had more assets available. The court found that $3,000 would not be “a walk in the park” for her and was an appropriate sanction. At the same time, the court granted Christina’s RFO and ordered Blas to pay her $60,000 for attorney fees. The court found Blas had substantially greater assets and had the ability to pay, and Christina was in need. It ordered that the $3,000 in sanctions against her should offset her attorney fees award.
III. DISCUSSION
A. Blas Has Not Shown the Court Denied Him the Right to Cross-examine Christina
Blas contends the court erred by not allowing him to cross-examine Christina at the hearing on her RFO for attorney fees and the sanctions issue. We reject Blas’s argument because it rests on a faulty premise. He has not shown the court denied him the right to cross-examine Christina.
At a hearing on any motion or RFO brought pursuant to the Family Code, “the court shall receive any live, competent testimony that is relevant,” absent a stipulation by the parties or a finding of good cause to refuse to receive live testimony. (§ 217, subds. (a), (b); Cal. Rules of Court, rule 5.113(a).) When a party wants to call witnesses other than the parties, the party must file and serve a witness list, including a brief description of the anticipated testimony, prior to the hearing. (§ 217, subd. (c); Cal. Rules of Court, rule 5.113(e).) The party must serve the witness list with his or her RFO or responsive papers. (Cal. Rules of Court, rule 5.113(e).) If the party does not serve the witness list prior to the hearing, the court may, on request, grant a brief continuance to permit the opposing party time to prepare for questioning the witnesses. (§ 217, subd. (c); Cal. Rules of Court, rule 5.113(f).)
Here, Blas filed a request for an evidentiary hearing, but the record does not include any witness list. We presume it contained third party witnesses, however, because a witness list was only necessary if he intended to call someone other than Christina. (§ 217, subd. (c).) At the hearing, Christina argued Blas’s request for an evidentiary hearing was untimely. The court asked Blas: “How do I go forward on the evidentiary hearing with regard to her finances such that you’ve requested these witnesses on when they’ve only gotten two days[’] notice as to potentially that’s what’s going to occur today?” Blas responded that the latest request for an evidentiary hearing was actually the second one, and he first gave notice months before. The parties went on to argue the sanctions and attorney fees issues at length, but no witnesses testified before the court ruled.
Accordingly, the record discloses that the court impliedly denied the request to have any third party witnesses testify. But Blas points to nowhere in the record where he asked to question Christina and the court denied the request. Nor do we think the record supports such an implied ruling. Both Blas and Christina were at the hearing, and the clerk swore them in as the first matter of business. At one point, the court suggested either party could question the other. The court asked Christina’s counsel what specific bills she had to pay, and counsel responded: “I don’t know the specifics. Given that my client’s been sworn, if the Court would like me to, I can have her speak on that.” The court responded: “Well, either side has a right to question either one of the litigants on that particular issue.” Blas said nothing after that about questioning Christina. It stands to reason that if he had asked to do so, the court would have permitted it, consistent with the court’s comment that either litigant had the right to question the other.
We presume the family court’s rulings are correct, and Blas bears the burden of presenting a record to demonstrate otherwise. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Blas has not simply failed to demonstrate error—he fails to demonstrate the court even made the ruling he challenges.
B. The Court Did Not Abuse Its Discretion in Sanctioning Christina $3,000
Blas next contends the court erred in sanctioning Christina only $3,000, as opposed to the $37,000 in attorney fees he sought. He argues the court should have sanctioned her $37,000 by: (1) further offsetting her need-based attorney fees award (§ 2030); (2) offsetting any future community property awarded to her; (3) awarding Blas some of her separate property; or (4) ordering her to make installment payments to him. We disagree the court erred.
Under section 271, the court may assess attorney fees and costs against a party when that party’s conduct “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation . . . .” (§ 271, subd. (a).) “An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.” (Ibid.) The party requesting sanctions need not demonstrate a financial need for the award. (Ibid.) In determining the amount of the award, however, “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.” (Ibid.) Thus, the court must scale the sanctions to account for the comparative wealth of the parties and the payor’s ability to pay. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60.) Moreover, section 271 does not require a correlation between the amount of the sanctions and the fees incurred in resisting the sanctionable conduct. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.) Nothing in the statute “require[s] that the sanction imposed compensate for all fees and costs expended.” (In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1346.)
We review a sanctions order under section 271 for abuse of discretion. (In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1225.) “[W]e will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.” (Id. at pp. 1225-1226.)
This case presents no manifest abuse of discretion. Section 271 does permit the court to assess a sanction by awarding attorney fees against the sanctioned party’s share of community property. (§ 271, subd. (c).) But whatever the method of assessment—whether an offset against Christina’s need-based attorney fees, an offset against any future community property award, or an award of her separate property to Blas—in no event could the court impose an unreasonable financial burden on Christina. The parties’ income and expense declarations showed a vast disparity in wealth between them. Blas is a millionaire, while Christina earns around $900 per month, had $3,000 in cash assets, and had $200,000 in real property. Given her income and assets, the fact that she was no longer receiving spousal support, and Blas’s comparative wealth, we cannot say the court erred in concluding anything over $3,000 would pose an unreasonable financial burden on her.
Blas suggests he was entitled to $37,000 in sanctions because that represented the amount of attorney fees caused by her misconduct, but the court was not required to fully compensate him for the fees he incurred in resisting her sanctionable conduct. Further, to the extent Blas contends the court should have assessed the sanctions against her share of community property, he has not shown this was a realistic alternative. As far as we can tell from the minimal record he has provided, the court has yet to divide any marital property. Still, we can see from pleadings in the record that he believes “[t]here are no community property assets in this case” because all of his earnings during marriage came from the sale of his farming business, which he built over 30 years prior to the marriage, and sold the year of the marriage. If, according to him, Christina has no community property award coming to her, the court properly refused to factor it into the scaling of her sanctions.
IV. DISPOSITION
The orders are affirmed. Christina shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

McKINSTER
Acting P. J.

CODRINGTON
J.