Marriage of Aceret

Filed 3/15/07 Marriage of Aceret CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Motion for sanctions. Judgment affirmed. Motion granted.

The Law Office of Michael A. Younge and Michael A. Younge for Appellant.

Nanci-Alis Townsend for Respondent.

* * *

After more than 13 years of marriage, Peter M. Aceret and Leticia S. Aceret separated and divorced. Wife appeals from a judgment on reserved issues. She contends the trial court erred by denying her request for permanent spousal support, failing to resolve husbands allegation that she obtained a temporary spousal support order through fraud, refusing to grant her a credit for husbands unilateral approval of a $2,500 repair charge demanded by the buyer of the parties residence, and awarding husband attorney fees and costs under Family Code section 271. Husband has moved for sanctions, arguing the appeal is frivolous and wife failed to comply with the court rules governing appellate procedure. We affirm the judgment and grant the motion for sanctions.

PROCEDURAL BACKGROUND

Husband filed this action in November 2003. In September 2004, the court entered a judgment dissolving the parties marital status to accommodate husbands forthcoming remarriage.

During pretrial proceedings, husband filed motions to compel wifes responses to interrogatories, her appearance for a deposition, plus her production of documents and the preliminary disclosure of assets and liabilities required by Family Code section 2104. Wife sought temporary spousal support, claiming she had lost her job and was unemployed. On September 27, 2004, the trial court entered an order directing husband to pay wife $1,122 per month in support. Husband later sought to vacate the spousal support order on the ground that, at the time of the courts September 27 order, wife had a job and earning $50,000 a year. The parties agreed to reserve the issue of spousal support fraud for trial.

Through pretrial stipulations, the parties resolved the bulk of the issues on the division of their community assets and debts. By a stipulated order entered

November 29, 2005, the parties agreed the remaining issues included attorney fees, wifes reimbursement claim for a $2,500 repair credit husband granted to the purchaser of the community residence, and the spousal support issue. After a trial held on December 28, the court entered a judgment denying wifes requests for permanent spousal support, reimbursement for the $2,500 credit, and attorney fees. The court awarded husband $3,713.50 in attorney fees and costs under Family Code section 271.

DISCUSSION

1. Spousal Support

Wife challenges the trial courts denial of her request for permanent spousal support. In addition, she claims it made no findings of fraud on husbands request to vacate the September 27, 2004 temporary support order or order the retroactive amount of spousal support due to [her].

a. Background

Husband and wife each have an engineering degree and, during the marriage, with the exception of some periods of unemployment, each held engineering jobs. When the couple separated, wife was employed as an engineering project manager.

Shortly before their separation, the couple discussed the possibility of wife becoming a certified interpreter. Wife testified the parties agreed that she would return to school. Husband denied there was any such agreement. In October 2003, wife began taking courses towards an interpreters certificate.

At the time of trial, wife worked part-time for a telephone interpreting service earning $1,000 a month, had an internship with the Public Defenders office, and was scheduled to take an oral exam for her certification the following month. Husband testified he was earning $67,000 a year with an opportunity to receive a 10 percent bonus. His current wife earns around $32,000 a year.

A vocational consultant who evaluated wifes employment prospects testified she could find work as an engineer within two to six months making between $50,000 and $75,000 annually. He also concluded she was on the cusp of being able to work as an interpreter and, although there are rare job[s] for interpreters where you can make as much as . . . an engineer, for most interpreters the yearly rate

is . . . around . . . [$]30[,000] to [$]35,000.

In denying permanent spousal support, the court considered all of the factors in Family Code Section 4320, including those no[t] specifically mentioned. Citing the trial testimony, the court found wife could find employment as an engineer in a reasonably short period of time, making approximately the same amount as [husband], and while wife may prefer[] to work as an interpreter . . . she cannot expect [husband] to pay her support if she makes less at that job. The court also found this is not a situation where the parties agreed . . . to have one spouse shift careers . . . and the spouses skills in the prior line of work become rusty, or where a party needed retraining or education to acquire other, more marketable skills or employment.

b. The Denial of Permanent Support

In a meandering, unfocused summary of legal principles applicable to spousal support apparently pirated from a California family law treatise without the courtesy of a citation to the source, wife appears to assert the trial court erroneously denied permanent support for the following reasons: It ignored the length of the parties marriage, their agreement that she return to school to become a certified interpreter, her diligent, but unsuccessful, efforts to seek employment both as an engineer and an interpreter, and the disparity in the parties earning capacities. Interspersed throughout

this material are references to the evidence favorable to wife, sometimes without any citation to the record. To add insult to injury, the opening brief falsely accuses husband of perjur[ing] himself by claiming he testified to earning only $32,000 in 2004.

Wifes argument is unavailing. First, these arguments involve factual issues and, as husband notes, her one-sided and sometimes unsupported review of the evidence, amounts to a waiver of these claims. 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. [Citations.] (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; see also In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) An appellate court also presumes the record contains evidence sustaining the express and implied factual findings, and accepts as true all of the evidence, contradicted or not, that tends to establish the correctness of the findings, including inferences reasonably leading to the same conclusion. (Green v. Green (1963) 215 Cal.App.2d 31, 35.) [T]he burden is on the appellant to demonstrate that there is no substantial evidence to support the challenged findings. [Citations.] (Ibid.)

To overcome this presumption, wife needed to fairly summarize the facts in the light favorable to the judgment (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290), and show wherein the evidence does not sustain the findings. [Citations.] (Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199.) Wife failed to do so. Her recitation of only [her] evidence . . . [and] general unsupported denial[s] that any evidence sustains the findings is not the demonstration contemplated under the rule. (Green v. Green, supra, 215 Cal.App.2d at p. 35.) In addition, wifes opening brief also often failed to [s]upport . . . reference[s]

to . . . matter[s] in the record by a citation to the volume and page number of the record where the matter appears (Cal. Rules of Court, rule 8.204(a)(1)(C)), or

support . . . point[s] by argument and, if possible, by citation of authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); see also In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1084, fn. 1.)

Second, the trial courts findings reflect it properly exercised its discretion in denying the request for permanent spousal support. The parties agree the trial courts spousal support ruling is reviewed for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 825.) No abuse occurs if the trial courts ruling falls within the range of available legal options based on the evidence. (In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 691.) Factual disputes are resolved under the substantial evidence rule. (Ibid.; In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.)

The court expressly acknowledged the length of the parties marriage and that it had considered all of the factors in Family Code Section 4320 . . . . Citing husbands denial that the parties agreed wife would return to school to become an interpreter, the court rejected wifes contrary assertion. Based on its conclusion wife could find employment as an engineer in a reasonably short period of time, making approximately the same amount as [husband], it is apparent the court rejected wifes assertions that she had diligently sought but could not find employment equivalent to husbands work. The court also recognized the disparity in the parties income was, in part, due to wifes decision to change her career path and work in a financially less lucrative field. Contrary to wifes perjury claim, the record clearly reflects husband testified that his income at the time of trial was [a]bout $67,000 a year, while his current wife made [a]round $32,000.

In light of the evidence, the trial courts findings, and the deficiencies in wifes argument, we conclude the trial court did not abuse its discretion by denying her request for permanent spousal support.

c. The Fraud Allegation

Citing husbands pretrial order to show cause that sought to vacate the temporary spousal support award and the parties agreement to reserve the issue for trial, wife argues the trial court erred by ma[king] no findings of fraud, and fail[ing] to order the retroactive amount of . . . support due to [her].

As husband notes, wifes argument is again unsupported by any citation to the appellate record. Furthermore, wife never affirmatively sought an award for unpaid spousal support. She merely opposed husbands allegation that the temporary award had been based on fraud. Even assuming the trial court failed to rule on husbands order to show cause, this error did not prejudice wife and she cannot assert it on appeal. (Code Civ. Proc.,  902.)

Finally, wifes argument misstates the record. At trial, wife admitted accepting a $50,000 a year engineering job on September 22, 2004, but due to the pending court hearing on her temporary spousal support request, she did not start work until September 28. When asked why she did not mention the new job at the September 27 hearing, wife responded, [n]obody ever asked me and I didnt know that I had to. The trial court cited wifes employment in its findings on the permanent spousal support issue. In addition, it cited wifes untrue representation that [she] did not have a job as a basis for its award of attorney fees and costs to husband under Family Code section 271. Thus, we find this appellate contention lacking in any merit.

3. The $2,500 Credit for Repairs

The parties agreed to sell their home and, after payment of a community debt, equally divide the remaining balance.

In July 2005, the parties reduced their asking price and shortly thereafter, entered into a conditional sale agreement. The contract provided seller[s] to credit

buyer[]s account $20,000 towards closing [and] repairs. The agreement also authorized the buyer to inspect the property and demand the sellers make [r]epairs or take other action. Although husband and wife were entitled to reject the buyers demand, if they did so, the contract authorized buyer to cancel the agreement in response.

Buyers property inspector discovered undisclosed damage in the walls of the master bedroom estimated to cost $2,500 for repair. The buyer made a demand upon the parties to pay this sum. Wife declined to agree to the buyers demand, but husband agreed to pay it.

Wife sought to have the $2,500 expense charged against husband. The trial court declined this request, finding [t]he evidence does not demonstrate . . . that the $2,500 was unnecessary to effectuate the sale of the property, and [i]t appear[ed] to be an appropriate community cost of selling the residence.

Wife now contends husbands release of an additional $2,500 to the buyer . . . constituted a gift and she should not be held to share in this expense. Husband argues the trial courts ruling is supported by substantial evidence.

Again, we agree with husband. The parties reduction of the homes asking price suggests they experienced difficulty selling it. Although not introduced as an exhibit at trial, during closing argument, both parties cited to and discussed the terms of the sale contract. That agreement granted the buyer $20,000 for repairs and closing costs, but also afforded him the opportunity to inspect the property, demand the sellers make repairs and, if they refused to do so, cancel the agreement. Husband claimed the parties agreed to a price [for] the house . . . over the dollar amount the buyer was going to

pay . . . with the understanding he wanted $20,000 extra . . . so that he could . . . redo the residence which is fairly old [and] out of shape. The $2,500 charge was for an entirely different thing; damaged walls the buyer discovered during the property inspection.

Given the evidence before the court and tenuous nature of the market for husband and wifes house in mid-2005, the record supports the trial courts finding that husbands unilateral agreement to the $2,500 repair demand constituted a reasonable attempt to accomplish the parties goal of selling the home at an acceptable price.

4. The Award of Attorney Fees and Costs

Each party requested the other party be ordered to pay his or her attorney fees and costs. The trial court denied wifes request. Citing husbands discovery motions resulting from wifes inaction in these various instances, plus husbands effort to vacate a spousal support order that was based upon the untrue representation that [wife] did not have a job, the court awarded him over $3,700 in litigation expense under Family Code section 271. Wife now claims the trial court erred in so ruling because it failed to consider the parties respective needs and ability to pay.

The record supports the trial courts ruling. Family Code section 271, subdivision (a) permits a court to base an award of attorneys fees and costs on the extent to which the conduct of each party . . . furthers or frustrates the policy . . . to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties . . . .  An award . . . pursuant to this section is in the nature of a sanction. The trial court cited wifes inaction in responding to husbands discovery requests and the untrue representation concerning her employment status as conduct that increased the parties litigation expenses in this matter, and the record supports its findings.

As wife notes, the statute requires a court to take into consideration . . . evidence concerning the parties incomes, assets, and liabilities, and precludes a sanction . . . that imposes an unreasonable financial burden on the party against whom [it] is imposed. (Fam. Code,  271, subd. (a).) But the sanction award may be imposed

against the sanctioned partys share of the community property. (Fam. Code,  271, subd. (c).) Here, the trial court acknowledged wife had recently received proceeds from the sale of the house, and noted her ability to earn between $50,000 and $75,000 annually in support of its ruling. We conclude the record supports the trial courts decision on this issue.

5. Motion for Sanctions on Appeal

Husband has filed a timely motion for sanctions on appeal. He cites three grounds for the request: (1) The appeal is frivolous; (2) wife violated the rules of court by failing to include citations to the record in her opening brief, misstating the contents of the record, and referring to facts not in the record; and (3) she failed to serve copies of the notice of appeal and the notices requesting preparation of the clerks and reporters transcripts on him.

The first and third grounds do not support relief. Although the appeal lacks merit, it is not frivolous. The notices of appeal and to prepare the clerks and reporters transcripts contain signed proofs of service reflecting service of these documents on husband. But husbands second claim supports an award under California Rules of Court, rule 8.276(e)(1)(C) for wifes actions in [c]ommitting . . . unreasonable violations of the[] rules. Wifes opening brief relied on the evidence favorable to her without consideration of the contrary evidence, failed to support many factual allegations with any citation to the record, and falsely alleged husband committed perjury when testifying at trial. Thus, we grant the motion for sanctions and award husband the reasonable attorney fees incurred in opposing this appeal.

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal. The motion for sanctions is granted. Upon issuance of the remittitur, the trial court shall determine the reasonable attorney fees incurred by respondent in opposing this appeal.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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