Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FFL072291
Kline, P.J.
INTRODUCTION
Kathryn Gimple Probasco appeals in propria persona from postjudgment orders of the Solano County Superior Court awarding attorney fees and costs to her former husband, respondent Scott Parker, following a second court trial on reserved issues of child custody and visitation. (Respondent is also in propria persona on this appeal.) On September 11, 2006, the trial court ordered appellant to pay respondent attorney fees of $6,044 pursuant to Family Code section 2030, and sanctions of $5,000 pursuant to section 271, for appellant’s actions from July 20, 2005 to May 30, 2006. On January 29, 2007, the court ordered appellant to pay respondent an additional $1,550 attorney fees.
Unless otherwise indicated, statutory references are to the Family Code.
Appellant contends the court abused its discretion and erred as a matter of law in awarding the section 2030 attorney fees. She argues that: (1) as to the September 11, 2006 order, no findings indicate the court considered the required statutory factors; (2) the orders are not supported by evidence of disparity of need or ability to pay; (3) the January 2007 fee award lacked evidentiary support; and (4) both section 2030 orders were untimely under section 2031, subdivision (a)(2), and rule 5.128 of the California Rules of Court, and were not based on “current” financial information.
References to rules are to the California Rules of Court, unless otherwise indicated.
Appellant further contends the court abused its discretion in awarding section 271 fees as a sanction against her based on her pursuit of motions she contends were necessary, procedurally proper, and ultimately successful in large part. She further contends that the section 271 fees as a sanction could not reasonably be imposed for her bringing a motion for reconsideration pursuant to Code of Civil Procedure section 1008, as that section is the exclusive vehicle for imposition of sanctions for bringing a motion to reconsider and the requisites for imposition of a sanction under that statute were not followed, depriving her of due process. We shall affirm.
FACTS AND PROCEDURAL BACKGROUND
This is the second appeal by appellant related to the dissolution of her marriage to respondent and custody of their minor child. In the first appeal (In re Marriage of Gimple and Parker (Feb. 26, 2008, A115081) [nonpub. opn.]), we reversed the court’s “Judgment on Reserved Issues: Child Custody and Visitation (Non-Montenegro Orders)” on a July 20, 2005 ruling and remanded to the trial court with instructions to issue a statement of decision as to that judgment. The parties separated in 2003 and filed for dissolution of their four-year marriage. They had one child. The parties each sought formal child custody orders and, at a hearing on August 13, 2003, the court ordered joint physical and legal custody and declined to designate a primary residence. A judgment dissolving the parties marriage was entered in April of 2004. The dissolution was entered as to status only; the issues of child custody and visitation were reserved. Appellant advised the court she intended to remarry and move to New Mexico in July 2004, with her husband, a family physician and captain in the United States Air Force. She requested primary custody and also requested permission to relocate with the child to New Mexico. Respondent opposed the motion and requested joint physical and legal custody with his home to be the child’s primary residence during the school year. Appellant remarried in June 2004. On July 20, 2005, following a trial on child custody, the court granted the parties “joint-physical custody, ” while granting respondent primary physical custody. It granted respondent sole legal custody, except that appellant could authorize medical care during the child’s visits in New Mexico. The court stated that it was making a finding for “the next year only, ” and emphasized that the order was not a permanent order, but that it wanted to see how the parties would cooperate with each other during the year and that either party could return to court seeking a permanent order in the summer of 2006. On July 29, 2005, appellant filed a request for a statement of decision and a motion for reconsideration on the ground that she was pregnant and could not travel from November 2005 through February 2006.
In Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro), the California Supreme Court addressed the question whether a stipulated agreement for custody mightconstitute a final judicial custody determination for purposes of application of the “changed circumstance rule.” That rule requires a party seeking to modify a permanent custody order to demonstrate a significant change of circumstances justifying a modification and provides that absent such change, the court need not reexamine that question. (Id. at pp. 256-257.) The court concluded that stipulated custody orders might be final judicial custody determinations for purposes of the rule, but also recognized that many stipulated custody orders were not intended to be final judgments. (Id. at p. 258.)
On August 18, 2005, appellant filed an ex parte motion for custody modification on the ground that she was moving back to Suisun on September 3, 2005, due to the court’s July 20th custody order, and she requested a custody order reverting back to the status quo before her move to New Mexico, including joint legal and physical custody. Specifically, appellant sought joint legal custody; an order that the child go to school within 15 miles of the parties’ residences in Suisun, as opposed to the Montessori school he attended near respondent’s workplace in Alameda; and restoration of the previous time share arrangement.
It is unclear whether appellant ever actually had moved to New Mexico or simply expected to move there. During the custody proceedings, she had stayed in her Suisun home with her tenants, nearby respondent’s home.
On August 25, 2005, the court heard the emergency motion filed by appellant based on her planned move back to Solano County. The court denied the request, finding it not an emergency and refusing to change the child’s school only two weeks before the start of the school year. It ordered that the child not be removed for purposes of residence and schooling out of the counties of Solano, Contra Costa, Napa, Marin and Alameda. Counsel for appellant also sought at that time to discuss modification of the visitation schedule. The court observed that visitation modification was not the basis upon which the ex parte motion had been brought and was not a proper basis for such an emergency motion. The court reserved ruling on respondent’s request for attorney fees for what respondent characterized as an “avoidable court proceeding that is depleting my funds.”
Appellant’s motion for reconsideration of the July 20, 2005 order was heard on September 28, 2005 At that hearing, appellant also moved to modify custody because she had moved back from New Mexico to Solano County, and because respondent was planning to move to Alameda County. The court denied the motion for reconsideration and kept its prior orders in place. It continued appellant’s request for modification of visitation to October 5, 2005. Respondent acknowledged that a change needed to be made to visitation and indicated a willingness to work on the issue. However, respondent’s counsel also pointed out that appellant’s request for modification and her reconsideration motion came at the end of her 44-day summer visit with the child under the previous orders. The court deferred ruling on a change in custody to April 2006, observing it had not made a permanent Montenegro custody order in July 2005, because of the “state of flux” that it heard with regard to those issues. It reiterated its impression that the parties continued to be unable to communicate about the best interests of the child. It refused to change the order awarding sole legal custody to respondent, pending a hearing in April 2006, at which time it intended to make a final custody order.
A minute order denying the motion for reconsideration was filed December 2, 2005.
On October 4, 2005, one day before a hearing on visitation and finances, appellant filed a declaration seeking modification of the custody schedule due to her move back and the prospect of respondent moving away. In that declaration, she argued that the best interests of the child required modification of custody, that she was more available to the child, that respondent had misrepresented the facts and had sought to limit the child’s contact with her, and she asked for a supplemental custody evaluation. Respondent’s attorney sought attorney fees and costs from July 21 to October 4, 2005. At the October 5, 2005 hearing regarding visitation and finances, the parties reported “no movement” on the issues. Therefore, the court specified visitation, recognizing that it was “somewhat restoring some of the previous visitation” pending a full evidentiary hearing in April 2006. It did not change its determination regarding the award of sole legal custody to respondent. The court ordered both parties to file current income and expense declarations within 15 days, unless they had done so within the last 90 days. It wanted to know whether there had been any changes since June 2005. Respondent represented that his statement was current. Appellant filed an income and expense statement on October 20, 2005.
Following a hearing on November 2, 2005, the court issued findings and an order regarding visitation. On that date, the court heard and granted respondent’s request that appellant pay half of the child’s school tuition and fees. It denied appellant’s request for an updated evaluation, but allowed either party to pay for its own further evaluation, subject to the court’s authority to reallocate costs, and it ordered the parties to cooperate in any evaluation. It took under submission respondent’s request for attorney fees and costs for litigation from July 20 through November 2, 2005. (A formal order from this proceeding was filed on April 19, 2006.)
Trial on issues of child custody and issues of child support, property and debt division, attorney fees and costs was held beginning March 21 and ending April 18, 2006. Evidence was presented that appellant has a high earning capacity as an attorney. She was working part time as an attorney for the Attorney General’s Office at the Department of Justice in Sacramento, having been a full-time employee from July 1998 until September 2000, when the parties’ child was born. Thereafter, she worked between 40 percent and 80 percent time. She was not seeking other employment although there were full time employment opportunities at the Department of Justice at that time. Although respondent was working full time and appellant part time, their annual earnings were approximately the same. Appellant’s income and expense statement had been filed April 3, 2006. The evidence showed that appellant had two homes: one in New Mexico that she owned jointly with Dr. Probasco, and one in Suisun that was hers alone. She received $2,100 monthly rent from her tenants, and rebated them $400 as rent for her living with them in the Suisun home. At the time of trial, she was receiving $1,700 monthly rent. Her mortgage on that home was $2,120. The mortgage payment on the New Mexico home was $1,256 and Dr. Probasco received $1,266 per month as base housing allowance. Appellant guessed that the fair market value of the New Mexico home was $185,000. She further testified as to her expenses. She had paid $6,000 to the new custody evaluator. At the end of the hearing, all issues except for attorney fees were submitted. The court ordered the community be reimbursed for the law school and graduate school education expenses of the parties. The court also advised the parties to lodge their 2005 tax returns one week in advance of the next hearing on fees, and remarked it would look at the tax returns and the most recent income and expense declarations before ruling.
On May 30, 2006, the court issued its rulings on the issues that had been submitted. At the hearing, the court noted that appellant had successfully delivered her new baby and stated it was still “conflicted as to where these two parties are living because I am not sure [whether] I am seeing a shell game here....” The court determined appellant was in fact living in New Mexico, and was residing temporarily in California until the custody matter concluded, based in part on the testimony of appellant and of appellant’s custody evaluator. It observed that for both appellant and respondent, who had not moved to Alameda as he had stated he intended to do, “the situation seems to be constantly in a state of flux.” The court noted the parties had been in court “almost every single month litigating this matter for various hearings since August of last year. And that was based upon the fact that, again, Mrs. Probasco had indicated her intention to return to the State of California.” As relevant to the custody determination, the court found “it to be in the best interest of the child... that the parents share joint physical custody.” According to the court, that custody order “does not differ greatly from what the court’s previous order [was]. But the court is of the opinion that father is more capable of providing frequent continuing contact with this child. And that order remains as it was in July.” The court awarded joint legal custody with “all educational decisions” to be decided by respondent with notice to appellant, “with the exception [of] summer education which might interfere with mother’s time.” Respondent was also to make determinations regarding medical treatment, with limited exceptions. The court made other findings and orders, including other orders relevant to custody and the custody time-share arrangements, including setting a visitation schedule on the assumption that appellant resided in California. Should appellant not reside in California, visitation would be according to the previous July 2005 order. This permanent, final order replaced the previous non-Montenegro order. Appellant had failed to lodge her 2005 tax return with the court, and respondent had lodged his the morning of the hearing. Appellant represented her return would be submitted in the next week. The court stated it had reviewed the attorney fees declarations and would hear additional argument on that issue. It observed that the parties had spent over one $100,000 combined on the litigation, not including the amounts paid to the custody evaluators. Additional arguments regarding attorney fees were made by the parties. The court stated it would wait for appellant’s 2005 tax return to issue its fee order.
On June 20, 2006, the court filed its “Judgment on Reserved Issues: Child Custody and Visitation (Non-Montenegro Orders)” from the July 20, 2005 determination. Appellant filed a timely appeal from this judgment. In a nonpublished opinion filed February 26, 2008 (A115081), we observed the issue was likely mooted by the later events and orders. However, we declined to find the appeal moot because the swift flow of events and new orders in a case of this type might make the error in failing to issue a statement of decision an error capable of evading review and likely to recur between these parties. Therefore, we reversed the particular order at issue and remanded with instructions to the court to issue a proper statement of decision. At the time, we observed that reversal had no impact on the subsequent orders issued by the court and was “likely to be a Pyrrhic victory for appellant.” Accordingly, on April 29, 2008, the court issued its statement of decision on its July 20, 2005 ruling.
On August 24, 2006, the court sent a letter to the parties clarifying and modifying its statement of decision with respect to visitation.
On September 11, 2006, the court filed a “Supplement/Addendum to 8/24/06 Letter to Counsel” containing its ruling on respondent’s attorney fees request. In its cover letter to that September 11, 2006 order, the court stated that “the issue of attorney fees was inadvertently omitted from [that] letter and is to be included in the proposed Statement of Decision.” The court attached a new DissoMaster sheet and findings relating to the child support guidelines made thereon based on the updated 2005 tax information. Among the findings were that appellant made wages of $5,570 per month gross (based on year to date income of $22,279 for paychecks issued April 1, 2006 as attached to her April 3, 2006 income and expense declaration); that her new spouse’s income was $5,414 per month, not including nontaxable rations, housing allowances and so forth for military members, and; that respondent’s income was $5,991 per month as reflected in his 2006 pay stubs. Guideline child support was set at $175 per month from appellant to respondent.
In its September 11, 2006 order, the court found: “Both parties are middle aged, educated and professionals working for State and Federal agencies at annual salaries of over $60,000 per year each. The Petitioner has remarried and her current husband is a Medical Doctor and an active duty Officer in the U.S. Air Force. Both parties combined have spent well in excess of $100,000 on attorney fees and costs including child custody evaluation costs.... [¶] To say that this case has been over litigated would be an understatement....” The court stated it had reviewed appellant’s attorney fee declarations filed October 20, 2005 and April 18th, 2006, and respondent’s attorney fee declarations filed October 5, 2005, April 14, 2006 and May 30, 2006. It noted that appellant had been billed at the rate of $350 an hour, and respondent at a rate of $250 per hour, and that both parties had incurred further costs of court reporter fees for multiple days of trial and motion fees. The court stated it had considered “the evidence presented, the arguments of counsel and the various findings and arguments as to the income and expenses of the [p]arties, ” their community property assets, which had been divided, including real property assets of both, and their separate property. It found the parties should bear their own respective fees and costs through the period of July 20, 2005 on the contested issues of child custody, visitation and child support, except for any previously ordered fees and/or sanctions. As to the period following July 20, 2005, the court determined “that a substantial portion of additional fees incurred by both parties were due to unnecessary hearings and trial dates which did not substantially change the prior rulings. These were engendered by [appellant] filing ex-parte and regular motions to modify the 7/20/05 ruling and brought within a month or two subsequent to that ruling (8/18/05 and 8/22/05) to modify and for reconsideration (7/29/05).” The court also stated it had considered the issue of child support and lingering property division issues that were “mainly resolved ultimately by stipulation.” The court therefore ordered appellant to contribute to respondent “fees and costs incurred from August 2005 forward, the sum of $6,044 per Family Code [section] 2030 and further the sum of $5,000 as and for Family Code [section] 271 fees, for a total of $11,044 fees and costs.”
Meanwhile, on September 6, 2006, appellant sought an order shortening time for a hearing on her request for section 271 sanctions against respondent and his counsel to “punish Respondent for his outrageous interference with Petitioner’s custodial time with the child on September 1, 2006” by refusing to put the child on a scheduled flight from Oakland to Phoenix and failing to notify appellant until she was in flight from El Paso to Phoenix to meet the child. The Labor Day incident occurred because the airline on which appellant had scheduled the child to fly to El Paso (via Phoenix) refused to take the child, as the flight was not considered a nonstop flight and they did not allow unaccompanied minors under the age of 12 to travel on such a flight. In that motion, appellant also notified the court that her husband had received orders basing him at Vandenberg Air Force Base in California and that they would be moving to Vandenberg on September 12, 2006, where she intended to live full time with her husband and infant. In declarations in support of the motion filed October 4, 2006, appellant declared she was on unpaid leave from the Attorney General’s Office and would not be continuing her employment there when her leave ended. She therefore sought modification of the child custody and visitation orders, in addition to sanctions. In an accompanying income and expense declaration, appellant showed nothing for wages or salary.
On October 4, 2006, respondent moved the court for a further order for attorney fees and costs, including counsel’s declaration of fees and costs incurred by respondent after the court’s May 30, 2006 ruling through October 4, 2006. The declaration showed $2,600 incurred to that date.
On October 11, 2006, counsel for respondent filed a response to appellant’s motion for sanctions regarding the Labor Day incident, incorporating declarations previously filed by herself and respondent on September 21, 2006.
At a hearing held October 11, 2006, the court addressed appellant’s request to modify visitation in light of her move to Vandenberg Air Force Base in Lompoc, California, rather than her living in either the Bay Area or New Mexico, as envisioned by the court’s orders. The court stated it would not have time at that hearing to address the “financial issues.” At that hearing, appellant stated she was on leave from the Attorney General’s Office and that she did not intend to return, but would be seeking other employment. She had no idea when, where or with whom. The court made a new visitation order, acknowledging it “changes the entire visitation schedule with the exception of Thanksgiving and Christmas, ” and that it would be seeing the parties again in November and could further refine the schedule at that point.
On November 8, 2006, a hearing was held at which the parties reported they had reached a full agreement on visitation, transportation, and holiday schedules, and only the financial issues remained. Both were asking for attorney fees. Appellant requested section 271 sanctions against respondent for the Labor Day incident. Both parties agreed the court could put its ruling regarding the additional fees and sanctions in a letter. The court issued its ruling on January 29, 2007. The order stated: “After a review of counsel’s declarations, the parties’ Income and Expense Declarations and argument at the November 8th hearing, the Court further orders Wife to contribute to Husband’s attorney fees and costs the sum of $1,550. This supplements and is in addition to the prior order of September 11th, 2006 (letter to counsel).” The court did not specify whether these additional fees were awarded pursuant to section 2030 or as section 271 sanctions. The court expressly declined to award section 271 fees and costs for the issues involving the 2006 Labor Day weekend visitation incident.
On October 6, 2008, the court issued a statement of decision that incorporated its May 30, 2006 order, after the trial of March 21 through April 18, 2006, as well as postjudgment orders reflected in its September 11, 2006 supplement/addendum to the August 24, 2006 letter, its orders of October 11, 2006 and November 8, 2006, and its order for additional fees and sanctions taken under submission on November 8, 2006. On November 18, 2008, appellant filed this timely appeal (A123565) from these orders.
DISCUSSION
I. Principles of Appellate Review
As summarized in In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822-823: “Preliminarily, we stress that, to be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. ‘ “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)’ (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.)
“Furthermore, error alone does not warrant reversal. ‘It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.’ [Citation.] ‘ “The burden is on the appellant, not alone to show error, but to show injury from the error.” ’ [Citation.] ‘Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.’ [Citation.] ‘Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.’ [Citation.] A miscarriage of justice is not found ‘unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.’ [Citation.]” With these principles in mind, we proceed to examine the arguments raised by appellant.
II. Section 2030 Attorney Fee Orders
A.
“There are two discrete statutory sources of authority for fees and costs awards in dissolution” actions such as this: “need-based” fee awards (§§ 2030, 2032), and the award of fees and costs as a sanction (§ 271). (3 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶¶ 14:2-14:4, pp. 14.1 to 14.2 (Hogoboom).)
The purpose of a need-based section 2030 attorney fee award is to ensure that a party has sufficient resources to adequately and properly litigate the controversy and to promote parity between spouses in their ability to obtain legal representation. (§§ 2030, subd. (a); 2032; In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768; Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252 (Alan S.); 3 Hogoboom, supra, ¶ 14:155, p. 14-48.) “[T]he purpose of section 2030 is not the redistribution of money from the greater income party to the lesser income party. Its purpose is parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength. (See [In re Marriage of] Keech [(1999)] 75 Cal.App.4th [860, ] 866....)” (Alan S., at pp. 251-252.)
Section 2030 provides:
The preference for parity is expressed both in section 2030, subdivision (a)(1), and in its “companion statute” section 2032. (Alan S., supra, 172 Cal.App.4th at p. 252.) Section 2032, subdivision(b), requires the court to “take into consideration” when “determining what is just and reasonable under the relative circumstances” “the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320....” (§ 2032, subd. (b).) The statute makes clear, however, that “[t]he fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” (§ 2032, subd. (b), italics added.)
Section 2032 provides:
“Section 4320 presents a near-exhaustive list of factors that are to go into a spousal support award....” (Alan S., supra, 172 Cal.App.4th at p. 253.) These include:
B.
Appellant contends the court abused its discretion and erred as a matter of law in its September 11, 2006 order requiring her to pay respondent attorney fees of $6,044 pursuant to section 2030. Specifically, she asserts that the order is not supported by evidence of either disparity of need between the parties or that she had the ability to pay. We disagree.
Taking into account the statutory factors and the total financial situation of the parties reflected in the record, we are convinced that substantial evidence supports the court’s determination. Appellant focuses on her current liquid assets, but the court did not abuse its discretion in taking a wider view. It had before it evidence, both testimonial and documentary (including their income and expense declarations, tax returns and W-2 statements), of the parties’ income and expenses, their historic earnings, present circumstances, litigation expenses, and other factors. Three weeks after the September 11, 2006 need-based award issued, appellant filed a declaration stating she was on an unpaid leave from her employment and that she was not returning to the Attorney General’s Office. She showed no income or wages from employment. However, at the time the court made its order, it had before it appellant’s testimony that she was working part time at the Department of Justice and that there were full time employment opportunities there. Although respondent was working full time and appellant part time, their annual earnings were approximately the same. Furthermore, appellant and her new husband together had nearly twice respondent’s monthly income. Moreover, the parties’ earnings are not the only factor the court must consider. As the Supreme Court has stated: “ ‘[T]he cases have frequently and uniformly held that the court may base its decision on the [paying spouse’s] ability to earn, rather than his [or her] current earnings...’ for the simple reason that in cases such as this, current earnings give a grossly distorted view of the paying spouse’s financial ability. [Citation.]” (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 769, [former Civ. Code, § 4370].) Insofar as appellant’s income appeared to be a moving target, the court could reasonably give more weight to factors of appellant’s earning capacity, which clearly exceeded respondent’s; the fact that she owned a home from which she received rental income nearly equivalent to the monthly mortgage; that she and Dr. Probasco jointly owned a home in New Mexico; that Dr. Probasco’s base housing allowance exceeded the monthly mortgage on their New Mexico home; and Dr. Probasco’s income.
“[W]hile new mate or partner income is generally irrelevant in child support matters [citation], it is not statutorily irrelevant in pendent lite fee orders.... The expansive language of section 2032-the ‘relevant circumstances of the respective parties’-also shows it is certainly relevant for fee awards.” (Alan S., supra, 172 Cal.App.4th at p. 255.)
Moreover, the court could consider factors in addition to the financial circumstances of the parties. The statute expressly acknowledges that “[f]inancial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” (§ 2032, subd. (b).) Such a circumstance included the fact that appellant “over-litigated” the matter, causing respondent to incur significant additional costs in response. Although this factor was certainly critical to the court’s award of section 271 sanctions, which we discuss below, it was also relevant to evaluate the relative need-based fees between the parties. (See Alan S., supra, 172 Cal.App.4th at p. 255 [“strong indication that [ex-wife] has incurred fees that were not reasonably necessary”].) Also relevant was the fact that appellant, an attorney, took responsibility for representing herself on certain property and debt division aspects of the litigation, whereas appellant needed the assistance of counsel on all aspects.
These are only some of the factors that persuade us that the court did not abuse its discretion in making its fee award in this case.
The case is unlike In re Marriage of Keech, supra, 75 Cal.App.4th 860, upon which appellant relies. There, an abuse of discretion was found where “a pendent lite fee order required the husband to pay fees at $500 a month, leaving him a total of $593 a month to live on. The appellate court reversed the order, in a case where the husband’s gross monthly income was $5,405, his support payments were $1,468 a month, and his taxes and rent took up the balance beyond the $593. (Keech, supra, 75 Cal.App.4th at p. 867.) In short, he had nothing left to pay for fees himself.” (Alan S., supra, 172 Cal.App.4th at p. 252.)
Nor are the relative circumstances of the parties here similar to those of Alan and his ex-wife Mary in Alan S., supra, 172 Cal.App.4th 238. There, relying on In re Marriage of Keech, supra, 75 Cal.App.4th 860, the appellate court reversed a trial court’s need-based fee award on a writ petition presenting an important “access to justice” issue for the pro per ex-husband (Alan S., at p. 241) where the record reflected that there were “several significant relevant factors that the trial court did not consider, ” in ordering Alan to pay $9,000 in attorney fees in favor of Mary. (Id. at p. 242.) These factors included “Alan’s negative cash flow of about $800 a month (he ran up a large credit card debt in order to pay a $25,000 attorney fee bill from the time when he was represented), the respective amounts of property owned by the parties (including some horses that Mary owns and apparently rents out and whether either of the parties has any equity in their respective homes), the $1,800 a month in child support that Alan pays to Mary..., new mate or new partner contributions to the respective households, ... and, finally, the incurrence by Mary of at least a quantum of fees clearly not ‘reasonably necessary’ for the litigation to date.” (Alan S., at pp. 242-233, fns. omitted.)
Appellant’s reliance upon In re Marriage of Aninger (1990) 220 Cal.App.3d 230, for the proposition that respondent did not show a “need” for the attorney fees, does not withstand scrutiny. In that case, an abuse of discretion was found where the trial court ordered the husband to pay the wife’s attorney fees and costs when her own liquid assets, although far less than his, were adequate. (Id. at pp. 244-245.) As recognized in In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 882-883, “[t]he Legislature responded to cases such as... Aninger with a bill intended, inter alia, to ‘clarif[y] the definition of “need” for purposes of making an award of attorney fees and costs.’ (Assem. Com. on Judiciary, Dig. of Assem. Bill No. 2686 (1989-1990 Reg.Sess.) Mar. 21, 1990, p. 2.) As a result, former Civil Code section 4370.5 [the predecessor to section 2032] was amended to add the word ‘relative’ to subdivision (a) (i.e., ‘just and reasonable under the relative circumstances of the respective parties’) and to revise subdivision (b)” as set forth today in subdivision (b) of section 2032. “[T]he unequivocal meaning of the language of the 1990 amendment, ... permits an award to a spouse even if that spouse has sufficient resources to pay attorney’s fees and costs from his or her own pocket.” (In re Marriage of O’Connor, at p. 883.)
Although appellant here argues respondent’s ability to pay fees from his liquid assets exceeds hers, she ignores the full picture of the relative circumstances of the parties. As recognized by the Alan S. court, “[r]eading section 2032 together with section 4320, one cannot escape the idea that a pendent 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, i.e., ‘the relative circumstances of the respective parties’ as the statute puts it. (§ 2032, subd. (a).) Conversely, determination of a pendent lite attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test.” (Alan S., supra, 172 Cal.App.4th at p. 254.) The court in this instance did not simply charge the party with the greater nominal income to pay the fees of the other party. As observed in In re Marriage of O’Connor, supra, 59 Cal.App.4th 877, 883-884, “[t]he trial court was eminently well qualified to rule on husband’s request for additional attorney’s fees and costs, having previously ruled on several motions brought by wife..., and having at [several] separate hearings considered the parties’ extensive factual arguments on their [motions] for attorney’s fees as sanctions.” The court here, in addition, had presided over the parties’ trials and hearings on issues of child custody, child support, property and debt division.
“We may overturn the trial court’s award only if ‘ “no judge could reasonably” ’ have made it. (In re Marriage of Sullivan, supra, 37 Cal.3d at pp. 768-769.)” (In re Marriage of O’Connor, supra, 59 Cal.App.4th at p. 884.) Given the relative circumstances of the parties here, it might have been reasonable to deny respondent’s request for attorney fees and costs. “But the trial court determined that, in the face of [appellant’s] ability to pursue the litigation, [respondent’s] ability to secure sufficient representation to protect his rights would be impaired if he were required to pay all of his attorney’s fees and costs from his own resources. We have no basis upon which to say that the trial court’s determination was unreasonable. [Citation.]” (Ibid.)
C.
Appellant further contends the order must be reversed as no findings indicate the court considered the required statutory factors. As we have described above, the court had before it ample evidence upon which to base its section 2030 need-based fee award. First, there is no requirement that the court make express “findings” as to the various factors upon which it relies in making its award. “While no particular language is required in an order awarding attorney fees under sections 2030 and 2032, 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. [Citations.]” (Alan S., supra, 172 Cal.App.4th at pp. 254-255.)
The September 11, 2006 cover letter and the order itself reflect that the court considered the statutory factors in exercising its discretion. As we have stated, the court made a number of findings in support of its child support award (attaching a new DissoMaster sheet to its cover letter and order), and those findings reflect consideration of relevant factors on the attorney fee award. They include the parties’ 2005 tax information, the parties’ gross monthly income based on year-to-date income as reflected in April paychecks, and income and expense declarations submitted by the parties. This also included information regarding Dr. Probasco’s income, including nontaxable rations, housing allowance, and so forth for military members, the child support being paid by appellant, the attorney fee declarations submitted by counsel, and counsels’ billing rates. The court specifically stated it had considered “the evidence presented, the arguments of counsel and the various findings and arguments as to the income and expenses of the [p]arties, ” their community property assets, which had been divided, including real property assets of both, and their separate property. It also considered and determined that appellant had incurred fees that were not reasonably necessary to litigate the case. Appellant has failed to establish that the court did not consider the relevant statutory factors and the record reflects that the court did consider them.
Were we to conclude that a more complete statement of the statutory factors considered by the court was required, we would find any error harmless in the circumstances. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th 814, 822-823 [holding harmless any errors in shortening time for hearing on section 271 sanctions motion, verification of the motion by counsel rather than the husband, and late notice of sanctions hearing].)
D.
Appellant also challenges the court’s January 29, 2007 attorney fee order that appellant pay respondent an additional $1,550 attorney fees. The court did not state whether it was ordering the payment of attorney fees as need-based fees under section 2030, or as a section 271 sanction. Appellant suggests that because the court specifically “decline[d] to award [section] 271 fees and costs for the issues involving the 2006 Labor Day visitation of the minor child to Mother in the State of New Mexico, ” we may infer that the fees were need-based, awarded pursuant to section 2030. Even assuming that to be the case, as with the September 11, 2006 attorney fee order, we conclude this additional fee award was amply supported by the declarations of counsel as to additional fees incurred by respondent during the period following that covered by the September 11, 2006 attorney fee order. The court stated it made the order after a review of counsel’s declarations, the parties’ income and expense declarations (including the income and expense declaration appellant filed on October 4, 2006), and argument made at the November 8, 2006 hearing. The record supports the fee award and the court’s statement was sufficient to reflect its consideration of the statutory factors. Were we to conclude the court’s statement was inadequate, appellant has failed to show she was prejudiced thereby.
E.
Appellant next contends that the court failed to comply with various rules of court by ruling on the attorney fee request without “current” income and expense declarations required by rule 5.128, and in failing to rule on the fee requests within the 15-day time limit of section 2031, subdivision (a)(2). We shall conclude that any error in this regard was harmless.
Rule 5.128 provides:
Section 2031 provides in relevant part:
1.
Rule 5.128 requires a “current Income and Expense Declaration” to be served and filed by any party appearing at a hearing on issues as to which such declaration would be relevant, and specifically where a party represented by counsel is requesting attorney fees. The rule defines “ ‘Current’... as being completed within the past three months providing no facts have changed.” (Rule 5.128(a).) Appellant argues that because the court made its fee award on September 11, 2006, more than three months after the parties filed their respective income and expense declarations on April 3, 2006 (appellant’s) and March 28, 2006 (respondent’s), the declarations were not “current” under the definition set forth in the rule. Therefore, she argues, the court did not base its ruling on the parties’ “current relative circumstances” (relative need and ability to pay). She maintains that given the “flux” of her living and employment situation during the window of time both attorney fee orders were issued, any expectation that her finances would remain substantially unchanged was unreasonable on its face.
It is undisputed that the court did not issue either its September 11, 2006 or its January 29, 2007 section 2030 need-based attorney fee ruling within three months after the filing of the income and expense declarations of the parties. The question is whether that delay is reversible error in the circumstances.
(a)
September 11, 2006 attorney fee award. We note first that appellant contributed to the delay by failing to promptly lodge her 2005 income tax return at least a week before the May 30, 2006 hearing, at which the court had intended to rule on the attorney fee issue. On April 18, 2006, the court had suggested that the parties lodge their 2005 tax returns one week in advance of the next hearing. The court stated it would look at the tax returns and the most recent income and expense declarations before ruling on the attorney fees requests. It explained that by that time “I will have looked at the Attorneys’ Fees Declaration. I will have looked at the Income and Expense and the tax returns, if I have them. I think I will be ready to give you the order right then and there.” By the May 30, 2006 hearing, appellant had not submitted her 2005 tax return. The record indicates she submitted them on June 9, 2006.
Moreover, before the September 11, 2006 ruling on the attorney fee award, appellant did not complain that the information she submitted was stale or that the income and expense declarations did not reflect her then current situation. Although she advised the court in her September 6, 2006 motion for section 271 sanctions that she would be moving to Vandenberg Air Force Base with her husband and infant on September 12, 2006, she did not then assert that the financial information before the court was no longer an accurate reflection of her finances. She filed a new income and expense statement, showing no income from wages, along with her new declaration in support of her sanctions motion on October 4, 2006, nearly a month after the court’s attorney fee award.
The filing of a financial declaration is not a jurisdictional requirement, such that the failure to file it deprives the court of fundamental subject matter jurisdiction. (See Burkle v. Burkle (2007) 144 Cal.App.4th 387, 403.) In Burkle v. Burkle, the court rejected the claim that the court’s failure to require a financial declaration pursuant to rule 5.128 in support of a section 271 sanctions request was reversible error. It instead found any error to be harmless. (Id. at p. 403, citing In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524, for the proposition that “although a rule of court phrased in mandatory language is generally binding on the courts, departure from the rule is not reversible error unless prejudice is shown.” (Burkle v. Burkle, at p. 403; see also Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121 [same].)
Here, appellant has failed to show how the court’s failure to issue its attorney fee order within three months of the date of filing her April 3rd income and expense declaration prejudiced her. It was appellant’s burden to show that the court’s failure to issue its attorney fee order constituted a miscarriage of justice by showing a reasonable probability that, absent the error, she would have obtained a more favorable result. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.) This she has not done.
(b)
January 29, 2007 attorney fee award. The additional $1,550 attorney fee award was issued by the court nearly four months after appellant filed her income and expense statement and her October 3, 2006 declaration. At the November 8, 2006 hearing, both parties sought attorney fees: appellant seeking section 271 sanctions against respondent for the Labor Day incident, and respondent seeking attorney fees both as need-based and as sanctions for further unnecessary litigation by appellant. At the hearing, both parties agreed the court could put its ruling regarding those sanctions in a letter. The court issued its ruling on January 29, 2007. Here again, appellant has failed to show how failure of the court to issue its attorney fee order within three months of the date of filing of her October 3, 2006 income and expense declaration prejudiced her. She does not contend the situation changed materially between the date by which the court should have issued its order (January 2, 2007) and January 29, 2007 or, indeed, that the situation changed materially between October 3, 2006 and January 29, 2007. It is not reasonably probable that, absent the court’s failure to timely file its order, she would have obtained a more favorable result. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
2.
Appellant next contends the court erred in failing to issue its need-based attorney fee awards within the 15-day time limit of section 2031, subdivision (a)(2). The parties argued the attorney fee issue at the May 30, 2006 hearing, and the court issued its first attorney fee order more than 15 days later, on September 11, 2006. The court issued its second need-based attorney fee order on January 29, 2007, more than 15 days after the November 8, 2006 hearing. Again, we are convinced that appellant was not prejudiced by this delay. If anyone was harmed as a result of the court’s repeatedly deferring its decision on the fee questions until it had more information or more time, it was not appellant, but rather respondent. It was respondent who had sought the need-based fees as a way to enable him to continue to respond to appellant’s numerous and persistent motions following the initial custody determination of July 20, 2005. Appellant has utterly failed to show she was harmed by this belated order, and it is not reasonably probable that she would have received a more favorable result had the court issued its attorney fee orders within 15 days of the relevant hearings.
III. Section 271 Attorney Fees As Sanctions
Appellant contends the court abused its discretion in awarding attorney fees as a sanction against her pursuant to section 271. She contends that the motions upon which the sanctions were based were necessary, procedurally proper, and ultimately successful in large part. She further contends that section 271 fees as a sanction could not reasonably be imposed for her bringing a motion for reconsideration pursuant to Code of Civil Procedure section 1008, because that section is the exclusive vehicle for imposition of sanctions for bringing a motion to reconsider and the requisites for imposition of a sanction under that statute were not followed, depriving her of due process.
Section 271 provides in relevant part: “(a) 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.” Section 271 sanctions may be assessed both for “meritless modification proceedings, or uncooperative conduct in an otherwise meritorious modification proceeding....” (3 Hogoboom, supra, at ¶ 17:334, p. 17-82.1.)
The balance of section 271 provides:
“ ‘A sanction order under... section 271 is reviewed under the abuse of discretion standard. “ ‘[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.’ ” ’ (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) ‘In reviewing such an award, we must indulge all reasonable inferences to uphold the court’s order.’ [Citation.]” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)
A.
Although appellant characterizes her post-July 20, 2005 motions as necessary and mostly successful, the trial court disagreed, as do we. At the time of making its non-final custody order in July 20, 2005, the court indicated it would give the parties a year to see whether they could cooperate and that it would be issuing a permanent order the following spring or summer. Appellant immediately moved for reconsideration of the custody order on the grounds that she was pregnant and could not travel from New Mexico during the last few months of her pregnancy. On August 18, 2005, appellant moved ex parte to modify custody on the ground she was “returning” to California as a result of the court’s custody order. As can be seen from our description of the facts above, appellant’s custody modification motions were, by and large, unnecessary at the time they were made, given respondent’s recognition that appellant’s residence in California would require a modification of the visitation schedule and his apparent willingness to consent to two long weekends per month, equal division of the summer months, and adjustments to the holiday schedule. It is also worth noting that appellant’s ex parte motion for modification of custody, heard on August 25, 2005, was not initiated until after she had received almost the full benefit of a 44-day visit with the child in New Mexico under previous court orders. She also sought at that ex parte hearing to have the child change schools-this less than two weeks before the start of the school year. The court denied these ex parte motions and the motion for reconsideration, while continuing appellant’s request for modification of visitation to October 5, 2005. After the August 25, 2005 hearing, respondent’s attorney asked appellant and her attorney whether they would drop the motion for reconsideration, and use the court date to adjust the visitation schedule instead. They ultimately refused to do so and proceeded with the motion for reconsideration, which was heard and denied on September 28, 2005.
Appellant argues her motions were “successful, ” asserting that: the court on October 5, 2005 granted her request to restore something close to the previous time share pending trial, and it set a holiday visit schedule; the court ultimately granted her request for joint legal custody, and; the court ultimately granted the primary elements of her motion to modify custody. She argues the motions were “necessary, ” as the July 2005 temporary order would have become permanent had she not sought to modify it.
We defer to the trial court’s determination that the continuous series of motions to change the non-final order brought by appellant during the period in which the non-permanent custody order was in place caused “unnecessary hearings and trial dates which did not substantially change the prior rulings.” The court denied appellant’s motion for reconsideration of its July 20, 2005 order. It temporarily modified the visitation schedule after the October 5, 2005 hearing, pending the custody trial that it had contemplated originally would take place about a year after the non-final custody order and would result in final orders. However, it appears that respondent was willing to cooperate on modification of that visitation schedule when appellant indicated she would be staying in California, and the visitation schedule the court set pending trial was one that incorporated aspects of both parties’ requests.
Although, on May 30, 2006, the court changed its award of custody to a permanent order of joint legal custody following trial, this does not mean that appellant was successful in her numerous custody motions during the period between the original July 20, 2005 order and the trial date. Nor was this the “victory” that appellant maintains. Although the court awarded joint legal custody, it continued to order that “issues to be decided by father with notice to mother shall be all educational decisions, with the exception [of] summer education which might interfere with mother’s time.” Father continued to be the person with primary authority to determine medical treatment issues. In continuing to order joint physical custody, the court observed that the physical custody order did not differ greatly from the prior court order as the court found, as it had previously, that “father is more capable of providing [the other parent with] frequent continuing contact with this child. And that order remains as it was in July.”
Were we to view appellant’s motions for modification as ultimately successful-which we do not-the court acted well within its discretion to assess section 271 sanctions based on appellant’s “uncooperative conduct in an otherwise meritorious modification proceeding....” (3 Hogoboom, supra, at ¶ 17:334, p. 17-82.1.)
B.
Appellant contends the court could not impose section 271 sanctions for her making of a meritless motion for reconsideration. She asserts that Code of Civil Procedure section 1008 sets the “exclusive and controlling procedural prerequisites... for the reconsideration or renewal of a previously denied motion.” (Kearns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 372 [trial court lacks jurisdiction to reconsider and grant summary judgment motion previously denied by another judge where procedural prerequisites of Code of Civil Procedure section 1008 were not met].) Appellant further maintains that sanctions could only be imposed under Code of Civil Procedure section 128.7, for violation of Code of Civil Procedure section 1008, and that the requisites for imposition of a sanction under that section were not followed, depriving her of due process.
Code of Civil Procedure section 1008 provides in relevant part:
Some of the procedural protections provided by Code of Civil Procedure section 128.7 are a mandatory 21-day “safe harbor” provision giving the offending party an opportunity to avoid sanctions by withdrawing or correcting the challenged paper (pleading, motion, and so forth) (subd. (c)(1)), and a provision that sanctions for certain violations may only be assessed against counsel and not against a represented party (subd. (d)(1)).
Code of Civil Procedure section 1008, subdivision (d), provides that reconsideration motions made in violation of statutory requirements and limitations “may be punished as a contempt and with sanctions as allowed by [Code of Civil Procedure] Section 128.7.” (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168-1169 [the filing of reconsideration motion without showing new or different facts and without providing credible explanation for not having earlier produced the proffered evidence warranted sanctions under the predecessor statute to Code of Civil Procedure section 128.7]; 3 Hogoboom, supra, ¶ 16:186.1, pp. 16-55 to 16-56.) In many respects, the sanctions power conferred by Code of Civil Procedure section 128.7 is much narrower than that of section 271, so that section 271 “will probably be a more powerful sanctions weapon and the preferred sanctions remedy, in family law proceedings except where the sanctions are to be targeted against counsel....” (3 Hogoboom, supra, ¶ 14:95, pp. 14-33 to 14-34.)
It appears that a party moving for reconsideration of a custody order must comply with the requisites of Code of Civil Procedure section 1008 in all but a few specified circumstances. (In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 365, fn. 8.) However, appellant has cited no case, and we are aware of none, that prohibits a court from imposing section 271 sanctions for conduct that “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” (§ 271) where part of that conduct involves the pursuit of an unnecessary motion for reconsideration under Code of Civil Procedure section 1008. Furthermore, at least one case has found the filing of a frivolous reconsideration motion to warrant section 271 sanctions. In re Marriage of Burgard, supra, 72 Cal.App.4th 74, found the trial court had not abused its discretion in awarding section 271 sanctions for the bringing of a motion for reconsideration that did not present any new or different facts. It observed the party opposing the reconsideration motion “was obligated to respond to an unnecessary motion, to write a brief, to research the law on motions for reconsideration, [and] to appear at yet another hearing.” (Id. at p. 82.)
“Although the point has not been expressly decided, there is most likely no ‘blanket’ exemption from [Code of Civil Procedure section] 1008 for family law motions and [orders to chow cause] generally. Indeed, citing [rule] 5.21..., dicta in one case indicates that except where otherwise displaced by a particular Family Code provision... [Code of Civil Procedure section] 1008 remains applicable in family law proceedings. [Citation.]” (3 Hogoboom, supra, ¶ 16:187.3, p. 16-57, citing In re Marriage of Hobdy, supra, 123 Cal.App.4th at p. 365.) In re Marriage of Hobdy held that Code of Civil Procedure section 1008 requisites did not apply to repeated requests for attorney fees and costs throughout the family law proceeding. The appellate court found Code of Civil Procedure section 1008 superseded by more specific Family Code sections (including § 2030, subd. (c)) allowing for such requests at any time. In so holding, the court noted that it did “not decide here whether [Code of Civil Procedure] section 1008 applies to other motions brought under the Family Code. We note that Family Code sections 210 and 211, and California Rules of Court, rules 5.21 and 5.22, acknowledge the relationship between family law procedure and rules, on the one hand, and statutes applicable to civil actions generally, on the other. [Citations.]” (In re Marriage of Hobdy, at p. 365, fn. 8.)
In any event, the court did not in this case award sanctions for a violation of Code of Civil Procedure section 1008. Rather, it awarded attorney fees as sanctions for appellant’s conduct in adding substantially to the cost of the litigation by unnecessarily filing a barrage of ex parte and regular motions to modify the July 20, 2005 custody ruling, resulting in “unnecessary hearings and trial dates which did not substantially change the prior rulings.” These motions included appellant’s motion for reconsideration. In such case, the award of section 271 sanctions is proper. (See also 3 Hogoboom, supra, ¶ 14:252.2, at pp. 14-67 to 14-68.) Hogoboom recognizes that “where the predicate facts exist, nothing in the law precludes a family law litigant from seeking, and the trial court from awarding, sanctions under both [Code of Civil Procedure section] 128.7 and ... [Family Code section] 271. [Citation.]” (3 Hogoboom, supra, ¶ 14:95, pp. 14-33 to 14-34.)
Were we to agree with appellant that section 271 sanctions could not be assessed for conduct consisting of bringing a Code of Civil Procedure section 1008 motion for reconsideration, we would still find the court did not abuse its discretion here. Simply calling a motion one for “reconsideration” does not transform repeated new motions to modify custody and for other orders into Code of Civil Procedure section 1008 reconsideration motions. As the court itself recognized, at the April 18, 2006 trial of all issues, “this was a motion for reconsideration, which was denied and then became a motion to modify the custody and visitation.” The reconsideration motion filed by appellant on July 29, 2005 was based upon her inability to travel due to her pregnancy-an issue that became moot when she returned to California. This motion was timely brought within 10 days of the court’s July 20, 2005 order. However, appellant’s August 18, 2005 ex parte motion to modify custody was clearly not a motion for reconsideration under Code of Civil Procedure section 1008. It does not appear to have been timely filed and it did not even identify itself as a motion for reconsideration. The court could reasonably find this motion and the related and subsequent requests for a modification of custody, to change the child’s school and on other matters, warranted section 271 sanctions. Appellant’s belated attempt to inflate her reconsideration motion to include a host of additional issues and allegations relating to custody modification due to her “return” to California, and including allegations of what she characterized as respondent’s “bad faith, ” “efforts to frustrate contact between mother and child, ” and “facts regarding health and medical issues, ” must fail.
Were we to allow appellant to avoid section 271 sanctions by sheltering her various modification motions under the umbrella of her initial Code of Civil Procedure section 1008 motion for reconsideration, we would significantly undermine the ability of the trial court to use section 271 as “a potent weapon to curb obstreperous conduct by parties and/or their attorneys when it occurs.” (3 Hogoboom, supra, ¶ 14:72, p. 14-25, italics omitted.) It is difficult to imagine any unsuccessful motion to modify custody or to change an existing family court order that could not be viewed in some sense as a motion for “reconsideration” that was brought in violation of Code of Civil Procedure section 1008-e.g., as untimely or not based on new facts. Finding that such motions could not provide a basis for section 271 sanctions, but must satisfy the more rigid constraints of Code of Civil Procedure section 128.7, would significantly undermine the ability of the family law court to curb the type of uncooperative, wasteful, and obstreperous conduct in which appellant here engaged.
We conclude the trial court did not abuse its discretion in imposing attorney fee sanctions against appellant under section 271.
DISPOSITION
The postjudgment orders are affirmed. Respondent is awarded his costs on this appeal.
We concur: Haerle, J., Richman, J.
“(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
“(2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
“(b) Attorney’s fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
“(c) The court shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.
“(d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney’s fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.”
“(a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
“(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
“(c) The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.
“(d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion direct the implementation of a case management plan for the purpose of allocating attorney’s fees, court costs, expert fees, and consultant fees equitably between the parties. The case management plan shall focus on specific, designated issues. The plan may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the case management plan.”
“(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
“(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
“(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
“(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
“(d) The needs of each party based on the standard of living established during the marriage.
“(e) The obligations and assets, including the separate property, of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
“(h) The age and health of the parties.
“(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
“(j) The immediate and specific tax consequences to each party.
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
“(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
“(n) Any other factors the court determines are just and equitable.” (§ 4320; see Alan S., supra, 172 Cal.App.4th at pp. 253-254, fn. 16.)
“(a) A current Income and Expense Declaration (form FL-150)... and a current Property Declaration (form FL-160) must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. ‘Current’ is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue. [Italics added.]
“(b) When a party is represented by counsel and attorney’s fees are requested by either party, the section on the Income and Expense Declaration pertaining to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section pertaining to the amount of attorney’s fees incurred, currently owed, and the source of money used to pay such fees.
“(c) A Financial Statement (Simplified) is not appropriate for use in proceedings to determine or modify spousal support or to determine attorney’s fees.”
“(a)(1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage... or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.
“(2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.” (Italics added.)
“(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
“(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”
“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
“[¶]... [¶]
“(d) A violation of this section may be punished as a contempt and with sanctions as allowed by [Code of Civil Procedure] Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.