Opinion
B326955
04-25-2024
STACY V., Respondent, v. FRANK B., Appellant.
Frank B., in pro. per., for Appellant.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. LF005780, Firdaus F. Dordi, Judge.
Frank B., in pro. per., for Appellant.
No appearance for Respondent.
FEUER, J.
Frank B. appeals from the family court's orders denying his request for order (RFO) modifying a prior child custody order and his motion for reconsideration. Frank sought sole legal and physical custody of his two sons based on his contention their mother, Stacy V., who has sole custody, violated the existing custody order by refusing to transfer the boys to Frank on July 4, 2022 after Frank announced he would be three hours late for a scheduled handoff. The family court found Frank's RFO was frivolous and awarded Stacy $2,625 in attorneys' fees under Family Code section 271. On appeal, Frank contends the family court abused its discretion in finding that Stacy's conduct did not violate the existing custody order, denying his request to change custody, awarding Stacy attorneys' fees, and denying Frank's motion for reconsideration. Ample evidence supports the family court's finding that Frank's RFO was frivolous-seeking a change of custody and $10,000 in sanctions based on a dispute over a single custody exchange. We affirm.
As is common in family law proceedings, we use the parties' first names to respect the family's privacy.
Further undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The July 2018 Custody Order
This is Frank's third appeal in this child custody action. As we described in Stacy V. v. Frank B. (Jan. 18, 2023, B316943) (nonpub. opn.), Stacy and Frank met in 2009, and they have two children together, Brendan (born in 2010) and Luke (born in 2011). Stacy and Frank never married or lived together.
On September 29, 2011 Stacy filed a petition in family court seeking sole legal and physical custody of the boys and child support. Frank filed a cross-petition seeking joint legal and physical custody, with no child support. At a May 24, 2017 settlement conference, Stacy and Frank executed a stipulation and order of settlement providing for joint legal and physical custody with a parenting plan and allocation of child-rearing expenses. A stipulated judgment was entered on August 17, 2017.
On April 5, 2018 Stacy filed a request to modify child custody seeking sole legal and physical custody of the boys. Stacy argued, among other things, that Frank had been extremely controlling and incapable of coparenting, and he would send her insulting or aggressive messages almost daily, interfering with her custodial time and making handoffs and practical accommodations difficult. On July 27, 2018 the family courtgranted Stacy's request and awarded her sole legal and physical custody (the July 2018 custody order), finding Stacy presented credible evidence of changed circumstances adversely impacting the boys. Frank appealed, and we affirmed. (Stacy V. v. Frank B. (Dec. 18, 2019, B293010) [nonpub. opn.].)
Judge Shirley K. Watkins.
On January 21, 2021 Frank filed an RFO for modification of the July 2018 custody order to award him joint custody with an equal timeshare, arguing that Stacy repeatedly violated his visitation rights and engaged in parental alienation. After a two-day evidentiary hearing, on August 6, 2021 the family court (Judge Firdaus F. Dordi) denied the request, finding Frank did not meet his burden to show changed circumstances. We affirmed the order in Stacy V. v. Frank B., supra, B316943.
The July 2018 custody order included a visitation schedule and detailed coparenting orders, and it specified that failure to comply with these orders could result in loss of custody. The visitation schedule provided that during the summer each parent had custody of the boys on alternating weeks, as well as alternating holidays and vacations. As relevant here, the order allocated custody on the Fourth of July holiday as follows: "from 9:00 a.m. on July 4th until 9:00 a.m. on July 5th/even years father, odd years mother." Handoffs were to take place at a shopping mall in Calabasas or at "mutually agreed upon locations." Stacy and Frank were also ordered to communicate only through the Our Family Wizard (OFW) messaging software-reserving phone calls for "true emergenc[ies]" (capitalization omitted), and they were ordered to check their messages daily. The order also stated, "A party who is unable to assume responsibility for the care of any minor child during any scheduled period of custody for the party is responsible for making adequate alternative arrangements." The order did not address the scenario where a parent is late to pick the boys up at a scheduled exchange.
In addition to a 12-page memorandum order, the July 2018 custody order included Judicial Council Form FL-341(D), entitled "Additional Provisions-Physical Custody Attachment," which enumerates visitation terms. (Capitalization omitted.) The family court did not select box 5, entitled "Canceled visitation (parenting time)," in which the court could have specified how many minutes a custodial parent must wait for a tardy parent before deeming a scheduled visit to be canceled.
B. Frank's RFO To Modify Custody
On July 7, 2022 Frank, who was self-represented, filed an RFO seeking modification of the July 2018 custody order to award him sole legal and physical custody of Brendan and Luke with "limited visitation" for Stacy, and $10,000 in sanctions. In his supporting declaration, Frank stated that pursuant to the July 2018 custody order he was entitled to custody of the boys from 9:00 a.m. on July 4, 2022 until 9:00 a.m. on July 5th. But after he communicated to Stacy on July 3 that he would be two hours late for the handoff on the morning of July 4, Stacy stated she would keep the boys until July 5. Between 11:00 a.m. and 5:00 p.m. on July 4, Frank called and texted Stacy several times to arrange an exchange but received no response. Frank filed two incident reports with the Los Angeles County Sheriff's Department (LASD) on July 4 and July 5 "to assist with the transfer," but law enforcement was unable to help him.
Although Frank's declaration states that he informed Stacy he would be two hours late for the exchange, his only messages to Stacy stated he would pick the boys up at noon (i.e., three hours late).
Ultimately Frank picked up the boys from Stacy's home on July 5 at approximately 10:00 a.m.
Frank argued the July 2018 custody order did not allow Stacy to refuse to transfer the boys to him or to make them available during his custodial time after she received sufficient notice that he would be late for an exchange. Further, Stacy's "tortured interpretation" of the custody order to deny him any visitation on July 4 violated the order and warranted awarding him sole custody and $10,000 in sanctions.
Frank attached to his declaration excerpts of the July 2018 custody order, a screen shot of his July 4, 2022 text messages to Stacy, receipts for the LASD incident reports filed July 4 and 5, and excerpts of Frank's OFW message exchanges with Stacy. On June 23, 2022 Stacy sent an OFW message to Frank stating, "It was brought to my attention that you will be on vacation for your time with the boys this Fourth of July. Therefore, you will not be picking them up per our 9 am court order. If that is the case and you need me to keep them, I will be out of the area. The boys can come home with me and can be picked up from my house the following morning at 10 am (July 5th). If that doesn't work for you, please find other arrangements for their care. [¶] Please let me know either way."
At 12:17 p.m. on July 4, 2022 Frank texted Stacy, "Trying to [pick up] our boys-where can I meet them?" and "[I]t is my custodial timeshare, today July 4th, you are refusing to exchange our boys. Where can I pick them up?" At 4:54 p.m. Frank texted, "I am still trying to pick up our boys. When and where."
The OFW record reflects that Frank viewed Stacy's message on June 23, but he did not respond until July 3 at 7:06 p.m., when he wrote: "I will be late for our 9 am exchange tomorrow at the Calabasas coffee house. Where can we meet at noon to exchange?" At 7:39 p.m. Stacy responded, "I sent you a message . . . on 6/23. It was viewed and ignored. I am not available to meet after. You had time to make other arrangements in order to follow the court order. The boys will see you at 9 am." There is no evidence of additional OFW messages regarding the July 4 exchange.
On September 1, 2022 Stacy filed a responsive declaration opposing modification of custody and seeking an order that Frank pay her attorneys' fees for the "frivolous and improper filing of the [RFO]." Stacy stated, "Sometime in June, I informed the boys that I would not be in the area for the Fourth of July. The boys were confused because they thought they would be with me since their dad would be out of state on vacation." Stacy stated she brought the boys to the coffee house in Calabasas at 9:00 a.m. on July 4, where they waited a half hour for Frank or someone else to pick them up. After that, Stacy "proceeded with [her] plans as scheduled."
Frank did not include Stacy's responsive declaration and other relevant pleadings in his appellants' appendix. On our own motion, we augment to the record to include the following family court records: (1) Stacy's September 1, 2022 responsive declaration and attachments; (2) minors' counsel Gregory Pedrick's September 7, 2022 responsive declaration; and (3) Stacy's November 7, 2022 responsive declaration opposing Frank's motion for reconsideration.
Stacy acknowledged in her declaration that Frank called her and sent text messages on July 4, but she did not respond because the July 2018 custody order limited communications between the parents to the OFW software. Stacy received a call from the LASD, but she explained the situation and provided deputies with "proof" that she was at the handoff location at the court-ordered exchange time. Stacy asserted, "On at least five other occasions, [Frank] has gone on vacation and sent me messages saying he would not be able to pick up the boys due to a family emergency either the night before or in the early morning leaving me scrambling."
Stacy argued that Frank's request for sanctions against her was "not only without merit, but highly disingenuous." Frank did not pay child support or the boys' day-to-day expenses, despite having "money to take them to Catalina and Disneyland." She averred that Frank "claims he is practically indigent but he owns two homes and has the funds to fly to New York to see his family." And despite his assets, Frank continued to apply for fee waivers for all of his court filings.
Stacy's responsive declaration also raised several issues relating to Brendan's and Luke's relationships with Frank, Brendan's welfare, and other longstanding coparenting disagreements, including issues we addressed in Stacy V. v. Frank B., supra, B316943. Frank responded to these issues and raised additional issues in his reply, and these disputes were discussed in part at the hearing on the RFO. However, they were not a basis for the family court's ruling on the RFO and are not relevant to this appeal.
On September 7 minors' counsel filed a responsive declaration stating that Frank failed "to introduce, credible, admissible evidence supporting his request." The same day Frank filed a reply declaration stating Stacy misrepresented to the court that she was unavailable after 9:00 a.m. on July 4. Frank stated he drove by Stacy's condominium complex at approximately 11:30 a.m. on July 4 and observed that her car was in her parking stall; moreover, when he asked the boys the following day what they did for the holiday, the boys stated that after going to the coffee shop in Calabasas for a few minutes in the morning, they spent the day at Stacy's home and watched fireworks in a park that night.
Frank filed evidentiary objections to Stacy's responsive declaration on multiple grounds, including relevance, foundation, improper opinion, and improper conclusion. Frank also made nonstandard objections such as "contradicts evidence" and "violates court order re questioning boys." At the September 20, 2022 hearing on the RFO, the family court overruled Frank's objections. On appeal, Frank argues the court erred in overruling the objections without "correctly using evidentiary rules," and the court mischaracterized his objections by stating he had not objected on relevance grounds. Contrary to Frank's contention, the court addressed Frank's relevance objections, noting "relevance is a low standard," and the court had no obligation (nor was it asked) to provide a detailed legal basis for each ruling. Moreover, Frank's opening brief does not include any argument or authorities demonstrating an erroneous application of evidentiary rules, thereby forfeiting his arguments on appeal. (Conservatorship of Tedesco (2023) 91 Cal.App.5th 285, 302, fn. 20 ["Because [appellant] fails to support her arguments with citations to supporting authority, the arguments are forfeited."]; Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 ["'"'When an appellant [asserts a point] but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited].'"'" (Fn. Omitted.)].)
The family court conducted a hearing on the RFO on September 20, 2022. Frank admitted in response to the court's questions that he did not directly respond to Stacy's June 23 message, but Frank asserted he gave Stacy notice on July 3 that he would be late and Stacy "unilaterally changed the court order" by denying him visitation. The court responded, "You haven't demonstrated at all that she didn't do what she was supposed to do. She did it; you just told her you were going to be late. She complied with the order; you did not." The court continued, "[S]he gave you mechanisms in her communication that you chose . . . not to respond to, let alone comply with. So this could have been entirely avoided by saying, I don't know my schedule; can I let you know when I'm a little bit closer? . . . [O]r you could have just said, I'm not planning to leave town; I'm planning to be here.... You chose not to do any of that until 7:00-something the night before."
Judge Dordi presided over the hearings on Frank's RFO and motion for reconsideration.
The family court found that Frank had not demonstrated "by any meaningful evidence" that Stacy violated any orders, and that sanctions and a reversal of custody were not justified. The court further found the RFO was "frivolous" and a "misuse of the court's process given the miscommunication in this context," and "asking for such drastic relief in light of the actual facts that occurr[ed]" was an abuse of process. The court ordered Frank to pay $2,625 in sanctions to Stacy's lawyer pursuant to section 271 based on her lawyer's representation that he had spent approximately seven hours opposing the RFO at a rate of $375 an hour, which the court found to be reasonable. The court entered a minute order on September 20, 2022 denying the RFO and awarding the $2,625 in attorneys' fees to Stacy.
The family court rejected Frank's argument that Stacy's June 23, 2022 message that she learned Frank would be out of town on July 4 showed she had interrogated the boys in violation of the custody order, observing that the boys could have volunteered the information. The court also rejected Frank's argument that because Stacy and the boys remained at home on July 4, she could have made them available later in the day. The court found the boys' testimony they were at home was hearsay, Frank's assertion he inspected Stacy's driveway was "concerning," and Frank forfeited his custodial time by not showing up at the exchange time.
C. Frank's Motion for Reconsideration
On September 29, 2022 Frank filed a motion for reconsideration under Code of Civil Procedure section 1008 (among other code sections). Frank argued he could never have anticipated the family court would both deny a custody modification and impose attorneys' fees under section 271. He also asserted in his supporting declaration that the $2,625 fee award was excessive because his monthly income was approximately $2,200 and he had received court fee waivers since 2008, when he became unemployed.
In her responsive declaration, Stacy averred that Frank owns a large home in Westlake Village valued at $1,400,000 with no encumbrances and no outstanding tax liability. Frank also owns a home in Long Beach valued at $900,000 free of encumbrances that he used as rental property. Frank had recently taken the boys to Catalina on the express ferry for a weekend for scuba diving and fishing, he took the boys to Disneyland, and he went on yearly ski trips with his adult children. Frank paid no child support, and Frank voluntarily retired in 2008.
In his reply declaration, Frank argued that paying $2,625 in Stacy's fees would cause him severe financial hardship limiting his ability to care for the boys. While Frank's income of $2,200 had not changed in several years, his expenses had increased dramatically, including spending $350 to $400 per month on gasoline to visit the boys and take them to activities. Frank could not afford legal counsel during the entire pendency of the action, and the family court had approved fee waivers on multiple occasions. Frank did not leave his job voluntarily in 2008 as Stacy claimed; rather, the company was sold and all employees terminated. Frank's most recent fee waiver from September 2022 included a sworn declaration his monthly income was $2,200, his monthly expenses were $2,300, he had $3,000 cash and no assets or debts apart from his Westlake Village home valued at $800,000.
Frank's reply declaration attached a fee waiver order dated October 26, 2011 and fee waiver requests dated March 14, 2019, March 25, 2020, January 21, 2021, March 8, 2021, and September 29, 2022.
At the November 30, 2022 hearing, Frank argued the parties had not reached an agreement on how to handle delayed exchanges, and his RFO was intended to obtain clarification of an ambiguity in the July 2018 custody order. Frank stated he did not respond to Stacy's June 23 message because he intended to have his sons' baseball coach pick up the boys on the morning of July 4, but the coach canceled at the last minute. The family court found there were no new facts or law to support reconsideration because Frank could have presented evidence in his RFO about his plan to have the coach pick up the boys, and in any event, Frank never communicated to Stacy the alternative arrangements.
With respect to the attorneys' fees award, Frank testified his court fee waivers demonstrated that his expenses exceeded his assets, although he acknowledged he did not file a current income and expense declaration. During cross-examination, Frank admitted he owned his home in Westlake Village, he coowned a home in Long Beach that generated $2,200 in monthly rental income, and neither property was encumbered. He also had investment income of $1,000 per month through a family trust in New York. After his employer ceased operations in 2008, Frank tried to find employment in his field (health care consulting) without success, although he never looked for another job outside of his field. The family court found Frank had $2.5 million in assets based on his real estate and the $2,625 fee award was "not an undue burden in this context."
On November 30, 2022 the family court entered a minute order denying Frank's motion for reconsideration. Frank timely appealed.
Frank appealed from "[a]n order after judgment," although he specified the date of the "judgment or order" as September 20, 2022 (the date of the judgment). We construe the notice of appeal liberally to include the September 20, 2022 judgment and the November 30, 2022 "order after judgment." (See K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 883 ["Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function-to provide notice of who is seeking review of what order or judgment-so as to properly invoke appellate jurisdiction."]; In re Joshua S. (2007) 41 Cal.4th 261, 272 ["'notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced'"]; see also Cal. Rules of Court, rule 8.100(a)(2) ["The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed."].)
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Frank's RFO
1. Legal standard for custody modification
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child." (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 (Montenegro); accord, In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1088-1089.) In determining the best interest of the child, the court must consider "all relevant factors, including the child's health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child's contact with the parents." (In re Marriage of Brown &Yana (2006) 37 Cal.4th 947, 955-956; accord, In re Marriage of McKean, at p. 1089.)
"Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, 'the paramount need for continuity and stability in custody arrangements-and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker-weigh heavily in favor of maintaining' that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination." (In re Marriage of Brown &Yana, supra, 37 Cal.4th at p. 956; accord, In re Marriage of McKean, supra, at p. 1089.) Under the changed circumstance rule, "a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification. [Citation.] . . . [A court] should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest." (Montenegro, supra, 26 Cal.4th at p. 256; see In re Marriage of McKean, at p. 1089-1090 [family court's modification of custody order from joint to sole custody was abuse of discretion because of lack of evidence of changed circumstances].)
Generally, "[w]e review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard to the court's factual findings." (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497; see In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [noting abuse of discretion standard applies to review of custody and visitation orders, but applying substantial evidence standard to factual determinations supporting relocation order].) "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.'" (Montenegro, supra, 26 Cal.4th at p. 255.)
However, a different standard applies where, as here, the appellant had the burden of proof in the family court. "'In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.' [Citation.] 'Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.'" (Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979 (Juen); accord, Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's).)
"'Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."'" (Juen, supra, 32 Cal.App.5th at p. 979; accord, Glovis America, Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Dreyer's, supra, 218 Cal.App.4th at p. 838.) "'[W]here . . . the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor.'" (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734; accord, Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.) "That is because unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found the [losing party's] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence." (Bookout, at p. 1486.)
2. Frank's evidence does not compel a finding that Stacy violated the July 2018 custody order
Frank's principal contention on appeal is that the family court erred in finding that Stacy did not violate the July 2018 custody order when she kept the boys on July 4, 2022 after Frank told her he would be three hours late for the handoff. Because the court found Frank failed to carry his burden to show changed circumstances supporting modification of the 2018 custody order, the question before us is whether the evidence compels a finding in Frank's favor as a matter of law. (See Juen, supra, 32 Cal.App.5th at pp. 978-979; Dreyer's, supra, 218 Cal.App.4th at p. 838.) Frank's evidence does not compel a finding that Stacy violated the order, and therefore, there were no significant changed circumstances that supported modification of custody.
On June 23, 2022 Stacy sent Frank a message stating she heard Frank might not be available to pick the boys up at 9:00 a.m. on July 4, and she offered to keep the boys, but if she did, she would need to keep them overnight because of her own plans. Stacy wrote, "If that doesn't work for you, please find other arrangements for their care" and "[p]lease let me know either way." Although Frank viewed the message on June 23, he did not respond until the evening of July 3, when he informed Stacy that he would be late for the 9:00 a.m. handoff and asked where they could meet at noon for the exchange. Stacy promptly responded she would be at the exchange location at 9, but she was not available after that. Stacy brought the boys to the exchange location, waited for a half hour, and took them home. Frank did not present any evidence to dispute this series of events. Instead, he asserted in his declaration that he drove by Stacy's home at 11:30 a.m. on July 4 and saw her car in her parking stall. (The court properly excluded Frank's hearsay testimony that the boys confirmed they stayed at Stacy's home that day.) But even if the court credited Frank's testimony (which the court found concerning), it was Frank who deviated from the custody order and who ignored Stacy's offer of accommodation.
Frank argues, as he did in the family court, that the absence of any language in the July 2018 custody order addressing the consequences when a noncustodial parent is late for an exchange allowed Stacy to improperly interpret the custody order to justify keeping the boys. While it is true the order does not specify that being late for a handoff forfeits visitation, Stacy's position under the circumstances was far more reasonable than Frank's position that he could unilaterally demand that Stacy make the children available three hours after the scheduled handoff time. The order made clear that "[a] party who is unable to assume responsibility for the care of any minor child during any scheduled period of custody for the party is responsible for making adequate alternative arrangements." Frank was unable to assume responsibility for the boys when his custodial time began at 9:00 a.m. on July 4, and he failed to make alternative arrangements. Stacy's decision to keep the boys after Frank failed to appear at the scheduled time was therefore a reasonable response to ensure the boys' welfare.
Frank also argues the family court erred in failing to check the box on Form FL-341(D) governing "[c]anceled visitation" as part of the July 2018 custody order. However, this custody order is now final because Frank appealed from the July 2018 custody order, and we affirmed the order in Stacy V. v. Frank B., supra, B293010. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 662 [trial court's procedural errors in entering judgment not subject to collateral attack]; Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 767 [errors of substantive law not subject to collateral attack].)
Frank also argues that Stacy's refusal to make the boys available later in the day violated her coparenting duties, while Frank exhibited the "textbook definition" of coparenting by giving Stacy notice he would be late and offering to pick the boys up at "'any time and place of her choosing.'" But, as discussed, well in advance of the holiday Stacy invited Frank to make arrangements to address his unavailability and asked him to let her know what he planned to do. Even in his July 3 message Frank failed to explain why he could not pick up the boys, and on July 4 Frank contacted Stacy through prohibited methods (repeated telephone calls and text messages) and called law enforcement. Frank thereby created the circumstances giving rise to the RFO when he ignored Stacy's coparenting efforts, manufactured a crisis, and then reacted disproportionately.
Frank's argument that the family court erred in ignoring his evidence that Stacy violated the July 2018 custody order by "interrogating the boys" about Frank's unavailability on July 4, 2022 fares no better. Stacy's June 23, 2022 OFW message stated that it was brought to her attention that Frank would be on vacation over the weekend, and the boys told her they were confused about the July 4 weekend because they believed Frank would be out of state on vacation. The family court did not abuse its discretion in finding this evidence did not show that Stacy "interrogated" the boys in violation of court orders, and it was more likely the boys volunteered the information when Stacy shared her plans. Frank did not offer any contrary evidence.
Frank likewise contends there was no admissible evidence Stacy was at the Calabasas exchange location. However, Stacy averred in her sworn declaration she brought the boys to the exchange at 9:00 a.m. before returning home. We have "no power on appeal to judge the credibility of witnesses or to reweigh the evidence," and absent specific findings in favor of Frank, we presume the family court found Frank's "evidence lacks sufficient weight and credibility to carry the burden of proof." (Bookout v. State of California ex rel. Dept. of Transportation, supra, 186 Cal.App.4th at p. 1486.)
Frank also contends the children have been suffering in Stacy's sole custody since July 2018, yet the family court denied each of Frank's six requests for orders to restore his custody based on the court's bias against him. The parents' numerous disputes regarding the children's well-being and upbringing in Stacy's custody were not raised in the RFO and are therefore not before us now.
B. The Family Court Did Not Abuse Its Discretion in Awarding Stacy Attorneys' Fees Under Section 271
Frank contends the family court erred in imposing $2,625 in attorneys' fees as a sanction under section 271 after finding Frank's RFO was frivolous and abusive. Section 271 provides in family law matters, "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." (§ 271, subd. (a); accord, Featherstone v. Martinez (2022) 86 Cal.App.5th 775, 783 ["'Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel.'"]; see Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 612 ["The duty imposed by . . . section 271 requires a party . . . to be cooperative and work toward settlement of the litigation on pain of being required to share the party's adversary's litigation costs."].)
In awarding attorneys' fees under section 271, "[t]he court must take into consideration 'all evidence concerning the parties' incomes, assets, and liabilities,' in particular the [sanctioned] party's ability to pay; and in no event may the amount of the sanction impose 'an unreasonable financial burden' against the sanctioned party." (In re Marriage of Rangell (2023) 95 Cal.App.5th 1206, 1219, quoting § 271, subd. (a); accord, In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)
We review an award of sanctions under section 271 for an abuse of discretion. (Featherstone v. Martinez, supra, 86 Cal.App.5th at pp. 783-784; In re Marriage of Pearson (2018) 21 Cal.App.5th 218, 233; In re E.M. (2014) 228 Cal.App.4th 828, 850.) The imposition of section 271 sanctions "will be upheld on appeal unless the reviewing court, 'considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, [concludes] no judge could reasonably make the order.'" (In re E.M., at p. 850; accord, In re Marriage of Fong, supra, 193 Cal.App.4th at p. 291.)
The family court found Frank's RFO was "frivolous," and his request for drastic relief (a change in custody and $10,000 in sanctions) was an abuse of process. The court further found that imposing a $2,625 sanction on Frank did not create an undue burden in light of Frank's real estate assets. The court did not abuse its discretion.
At the hearing on the RFO, Frank did not contend the requested attorneys' fee award created an undue hardship, and the court made no express findings as to his ability to pay. Frank first raised his ability to pay in his motion for reconsideration. Although arguably Frank forfeited his challenge to the court's failure to consider his ability to pay at the RFO hearing, we consider the evidence and arguments Frank presented in connection with his reconsideration motion.
Frank argues that he should not have been sanctioned for filing the RFO because it was reasonable and prudent for him to seek clarification from the family court regarding the application of the July 2018 custody order in circumstances where a parent gives notice he will be late for an exchange, particularly because the family court did not address late exchanges on Judicial Council Form FL-341(D). Frank points to our admonition in Stacy V. v. Frank B., supra, B293010 that Frank should have brought an earlier dispute about the interpretation of the visitation schedule to the family court rather than threatening Stacy he would call the police on her.
We stated in Stacy V. v. Frank B., supra, B293010 in addressing a harassing message Frank sent to Stacy during a visitation schedule dispute, "Father could appropriately have sought judicial resolution of this ambiguity instead of threatening Mother he would call the police." We also noted Frank could prospectively seek joint custody based on a showing of changed circumstance or that a modification of the visitation schedule was in the boys' best interests. (Ibid.) In no way did we suggest that Frank should file an RFO every time the parents have a dispute about a single custody exchange-in this case, an asserted loss of a single day of visitation.
The language of the July 2018 custody order and our prior decision do not excuse Frank's conduct. First, as the family court found, the RFO was not a request for clarification of an ambiguous custody term; the only orders Frank requested were the imposition of $10,000 in sanctions and an award of sole custody with "limited visitation" for Stacy. Nowhere in Frank's RFO did he assert there was an ambiguity that required clarification; to the contrary, he argued that Stacy's failure "to transfer our children to me according to the Court order [is] traumatizing our children, so a new custody order is in their best interest." Moreover, the evidence does not support Frank's assertion that this case simply involves the scenario in which a parent gives appropriate notice he will be late for a pickup. As discussed, Stacy gave advance notice that a 9:00 a.m. pickup was necessary and Frank ignored her. Even though Frank knew he would be out of town, he failed to make arrangements to pick up the children at the court-ordered time. Finally, Frank's invocation of our language in Stacy V. v. Frank B., supra, B293010 does not assist him because Frank did harass Stacy rather than seeking an appropriate resolution: he repeatedly called and texted Stacy on July 4 contrary to court orders (and despite the fact she told him she would keep the children for the day if he failed to come to the exchange), he filed two police reports against her on July 4 and 5, and on July 7 he filed the RFO seeking to sanction her for $10,000 and modify her custody.
Frank also contends the family court erred in not accepting his fee waiver applications as evidence of his financial status and in finding his home ownership was evidence of his ability to pay $2,625, and that the sanction would hurt his ability to care for the boys and to litigate this action. The record reflects that although the family court admonished Frank for failing to submit a current income and expense declaration, the court considered his fee waiver requests, the most recent of which reported monthly income of $2,200, $3,000 in cash, and expenses of $2,300. However, the court appropriately considered Frank's inconsistent testimony at the hearing on the reconsideration motion that he owned two homes (his primary residence in Westlake Village and co-ownership of a rental property in Long Beach), despite having identified only the Westlake Village home on his fee waiver form, and that he had investment income of $1,000 per month through a family trust, showing his monthly income was $3,200 (not $2,200 as declared). And the court credited Stacy's declaration that Frank's primary home was worth $1.4 million although Frank stated on his fee waiver form that it was worth only $800,000. Stacy also averred that Frank's Long Beach home was worth $900,000 and Frank spent generously on vacations with both the boys and with his older children, while not paying child support. Considering all of the evidence viewed in the light most favorable to the award, it was not unreasonable for the family court to find that paying $2,625 would not impose an undue burden on Frank. (In re E.M., supra, 228 Cal.App.4th at p. 850.)
Frank argues the family court erred in accepting Stacy's lawyer's argument that because Frank owned his home without encumbrances, he could secure a home equity loan. The court made no such finding, although it did conclude in light of Frank's multimillion-dollar real estate assets that he could afford to pay $2,625. The court also offered to set a schedule to spread the payment over time, but Frank declined.
C. The Family Court Did Not Abuse Its Discretion in Denying the Motion for Reconsideration
Code of Civil Procedure section 1008, subdivision (a), provides that a party may make a motion to reconsider a prior order "based upon new or different facts, circumstances, or law." "'A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.'" (Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 50; accord, Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.) "[T]he moving party's burden is the same as that of a party seeking new trial on the ground of 'newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.'" (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198, italics omitted.) We review a lower court's ruling on a motion for reconsideration for an abuse of discretion. (Torres, at p. 243; Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1339.)
Frank contends reconsideration of his RFO was warranted based on his additional testimony that he had arranged for the boys' baseball coach to pick up the boys at the July 4 exchange and to take care of them until Frank returned to town; therefore, he did not tell Stacy he was unavailable until July 3, when his alternative arrangements fell through. In denying the reconsideration motion, the family court found Frank could have presented this testimony in his RFO, and in any event, it did not justify Frank's failure to communicate his plans to Stacy. We agree on both points.
Frank does not contend-nor could he-that he did not know about the alternative arrangements that had fallen through when he filed his RFO. (See Yolo County of Child Support Services v. Myers, supra, 248 Cal.App.4th at p. 50 [upholding trial court's denial of motion for reconsideration because "the documents Myers submitted appear to have been in existence or at least available to him at the time" he submitted his first motion].) Instead, Frank argues he did not have an opportunity to testify about his plans for an alternative pick-up at the hearing on the RFO "because the [family court] interrupted and misdirected [him] in the beginning of that hearing and did not allow him [to] present his argument." (Citations omitted.)
The hearing transcript does not support Frank's contention he was prevented from presenting his arguments at the hearing. Frank argued at great length, interrupted the court numerous times, and was allowed multiple times to present additional points. The hearing covered the events that transpired between June 23 and July 5, 2022 in great detail. The court did not "misdirect" Frank in any way. To the contrary, the court observed early and often that Frank failed to communicate with Stacy, which Frank could have addressed by presenting evidence regarding the arrangements with the coach. Frank also could have raised his alternative plans in his RFO, reply declaration, motion for reconsideration, or reply in support of his reconsideration motion. Instead, he raised the argument for the first time at the November 30 hearing.
Moreover, regardless of whether Frank's silence in response to Stacy's initial email about the exchange was excusable (assuming Frank had made alternative arrangements), Frank never communicated his alternative plans to Stacy before or after his plans fell through. His plans therefore have no bearing on whether Stacy violated the custody order or otherwise acted improperly in keeping the boys after Frank announced with no explanation at the last minute that he would not be at the 9:00 a.m. handoff and no one came to the exchange location to pick up the boys.
DISPOSITION
The September 20, 2022 order denying Frank's RFO to modify child custody and awarding sanctions to Stacy and the November 30, 2022 order denying Frank's motion for reconsideration are affirmed. The parties are to bear their own costs on appeal.
We concur: SEGAL, Acting P. J., MARTINEZ, J.