Opinion
A145598
05-23-2017
In re the Marriage of STEVEN STUPP and ANNEMARIE SCHILDERS. STEVEN STUPP, Respondent, v. ANNEMARIE SCHILDERS, Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING BY THE COURT:
It is ordered that the opinion filed herein on May 23, 2017, be modified as follows: At the end of the paragraph on page 10 beginning, "Even if Schilders could show . . ." add the following as a footnote:
"In a petition for rehearing, Schilders asserts that we misstate the issue on appeal, and that her appeal does not concern the family court's failure to hold an evidentiary hearing, but instead concerns the family court's failure to schedule or hold 'any hearing at which her motion may be presented and argued to the court.' Schilders's assertion is puzzling, because the thrust of the argument in her opening brief on appeal is that by failing to hold a hearing the family court denied her the opportunity to present evidence. To the extent Schilders would argue that she was entitled to present oral argument to the family court, the argument has been forfeited because nowhere in her opening brief on appeal does she make that point or cite authority to support it."
The petition for rehearing is denied. This modification does not change the judgment. Dated: __________
/s/_________P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0110799)
The entry of a stipulated judgment of dissolution did not end litigation between Steven Stupp and Annemarie Schilders. Amid highly contested postjudgment proceedings, Stupp filed a motion seeking to compel discovery responses relevant to Schilders's pending request to have Stupp pay her attorneys' fees. Two court days before the scheduled hearing on Stupp's motion to compel, Schilders filed an ex parte application asking the family court to continue the hearing; to modify child and spousal support; and to order Stupp to pay additional attorneys' fees and costs. The court denied the application in its entirety and reserved jurisdiction on Stupp's request for sanctions related to the application. Schilders does not challenge the family court's denial of her request for a continuance, but she contends that the family court erred by failing to hold an evidentiary hearing on her ex parte requests, by denying the requests, and by reserving jurisdiction over Stupp's request for sanctions in connection with the ex parte application. We find no error, and we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is one of more than a dozen challenges by Schilders to orders issued in the contentious proceedings concerning the dissolution of her marriage to Stupp. The underlying dissolution has been pending in the family court since September 2010. A stipulated judgment was entered on March 28, 2014. From that date through June 23, 2015, the date of the orders appealed here, the family court considered numerous ex parte applications and noticed motions, and held more than 10 hearings. A. Hearings Are Scheduled for June 2015
Since June 2014, when Schilders appealed the entry of a stipulated judgment of dissolution (see Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.]), Schilders initiated 13 further appeals and submitted several writ petitions.
In June 2015, when the orders Schilders contests here were issued, several motions were pending in the family court. As background, we begin with the family court's order pronounced by Judge Susan Greenberg on February 24, 2015, and entered on April 3, continuing until April 30 a hearing on a motion by Schilders requesting that Stupp pay her attorneys' fees under Family Code section 2030. The parties subsequently stipulated to a continuance to May 19.
Further undesignated statutory references are to the Family Code unless otherwise stated. Section 2030, subdivision (a)(1) provides, "In a proceeding for dissolution of marriage, . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . 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." Section 2031, subdivision (a)(1) provides that, with exceptions not relevant here, an application for fees is to be "made by motion on notice or by an order to show cause."
At the hearing on May 19, 2015, the family court further continued the fee request to June 11, and said that on that day the court would hold a one-day trial to hear all the pending fee requests, as well as "trailing" trial setting for contempt charges that Schilders had brought against Stupp and "trailing" a status conference. Schilders's counsel asked to file an additional fee request to cover fees for upcoming hearings and proceedings, to be heard on June 11 on shortened time. The family court responded, "You can invite a stipulation from the other side and then we can do that. I'm happy to put that on June 11th if [Stupp] doesn't object." The possibility that additional fee requests would be heard on June 11, or on shortened time, was not raised again during the May 19 hearing. The record does not indicate that any stipulation for a hearing on shortened time was filed, or that Schilders filed a request for additional fees before the June 11 hearing.
On May 21, 2015, Stupp filed a motion to compel discovery responses seeking information relevant to Schilders's request for fees. Stupp also sought discovery sanctions and sanctions under section 271. A hearing on Stupp's motion to compel and the request for sanctions motion was scheduled for June 23.
Section 271 authorizes the family court to award attorneys' fees and costs as a sanction, based "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." (§ 271, subd. (a).)
At the beginning of the June 11, 2015 proceedings, Judge Greenberg observed that Stupp had submitted a trial brief and witness and exhibits lists for the scheduled trial on attorneys' fees, as required by the local rules, but Schilders had not. Schilders's counsel conceded that she had neither filed nor served the required papers. The family court accordingly found that due to Schilders's failure to comply with the local rules, the matter could not proceed to trial that day. The trial on attorneys' fees was continued to October 14, 2015, the first open day on the family court's calendar. The family court went on to attend to the "trailed" matters by scheduling a trial on the contempt charges Schilders had brought against Stupp and conducting an extensive status conference. Stupp's motion to compel discovery remained scheduled for June 23, which was less than two weeks away. At no time during the June 11 proceedings did Schilders's counsel suggest that a continuance of the June 23 hearing would be necessary or requested, or that Schilders would file any emergency requests regarding additional attorneys' fees, or spousal or child support. B. Schilders Files Ex Parte Requests
On Thursday, June 18, 2015, Schilders's counsel sent a letter to Stupp's, stating that the next morning she would file an ex parte application for attorneys' fees and costs; for a continuance of the hearing on the motion to compel discovery set for Tuesday, June 23; for child support; and for spousal support. The letter stated that Schilders would request attorneys' fees and costs for representation in connection with Stupp's pending motion to compel; for representation at upcoming hearings scheduled on July 27 and 28, August 4, October 14, and November 5, 2015; and for representation in appeals.
Schilders's ex parte application was submitted and served on Friday afternoon, June 19, 2015. Schilders requested that time be shortened so that the application could be served two days before a hearing. The application included a request that the June 23 hearing be continued, supported by a declaration from Schilders's counsel and a memorandum of points and authorities. Schilders argued that there was good cause to continue the hearing, and also argued that there was good cause to award her fees and costs to respond to Stupp's motion to compel before that motion was heard.
In addition, Schilders requested that the existing child support order, which required Stupp to pay "guideline child support" of $1,500 per month, which was offset by $1,500 as Schilders's fixed share of add-ons and which was "subject to true-up" based on the parties' income, be modified to require Stupp to pay support based on the child support guidelines "+ bonus percentage." Schilders also requested that the existing spousal support order, which required Stupp to pay $8,000 per month, subject to a "true-up" based on the parties' income, and which effective January 1, 2016 would impute $2,000 per month earned income to Schilders, be modified to require Stupp to pay $12,621 per month. The request for an increase in child and spousal support was supported by a declaration in which Schilders stated: "1. I am unemployed. [¶] 2. I do not have sufficient income or assets to pay my attorney's fees and costs. [¶] 3. I do not have sufficient means to support myself and our son without adequate spousal and child support. [¶] 4. I have been unemployed since the year 2003 because of health disability. [¶] 5. My costs of living, including health-care costs and rent have gone up substantially since November 2013." Schilders also submitted a copy of part of an income and expense declaration that Stupp had filed on May 6, 2015, her own income and expense declaration, and a spousal support declaration attachment in which she described her work history, her health conditions, her understanding of Stupp's income, assets, and standard of living, and information about her assets and obligations.
The "Support Term Sheet" incorporated in the judgment of dissolution stated that the child and spousal support provisions were to begin November 18, 2013.
The ex parte application also requested estimated attorneys' fees and costs of about $62,000. These fees covered more than the anticipated response to the motion to compel, which was the issue argued in the memorandum of points and authorities. The request also covered fees for anticipated work to respond to other requests by Stupp, and to work on three appeals that Schilders had initiated. The fee request was supported by the documents discussed above, and by a declaration from Schilders's counsel, setting forth her hourly rate and estimating the time she anticipated spending on responding to various motions and requests filed by Stupp, and on preparing the briefs and records in three then-pending appeals.
The same day the ex parte application was filed, Stupp filed a responsive declaration from his counsel, objecting to the ex parte request on various grounds, including that "[t]here is no emergency." The declaration also stated that Stupp would seek sanctions pursuant to section 271 for the time spent responding to the ex parte notice, and asked the court to reserve jurisdiction over the request for sanctions. In objecting to the continuance, Stupp argued that Schilders should not receive a continuance of Stupp's motion to compel based on a lack of fees when the reason for the motion was her failure to provide discovery related to her previous attorneys' fee requests. Stupp also questioned the legitimacy of Schilders's claim that lack of fees justified a continuance, noting that Schilders sought to continue the June 23 hearing on Stupp's motion to compel, but did not seek to continue a June 25, 2015 hearing that was scheduled on one of Schilders's motions. Stupp also asked the court to deny Schilders's request for attorneys' fees on an ex parte basis, and to deny her requests related to child and spousal support because those issues were currently on appeal. C. The Family Court Denies the Ex Parte Requests
At the time Stupp filed the declaration, Schilders had appealed from the stipulated judgment, which included spousal support and child support provisions. The judgment was subsequently affirmed. (Stupp v. Schilders (Mar. 25, 2016, A142302) [nonpub. opn.].) Schilders had also appealed from an order denying a postjudgment request to modify child support. That order was subsequently affirmed. (Stupp v. Schilders (May 16, 2017, A144007.) [nonpub. opn.].)
On June 22, 2015, Judge Greenberg signed an order denying Schilders's ex parte requests and reserving jurisdiction on Stupp's request for sanctions pursuant to section 271. The order was filed on June 23.
At the outset of the June 23, 2015 hearing on Stupp's motion to compel, Judge Greenberg stated that the court had "received the ex-parte request, part of which was to continue today's hearing and part of which was for other issues. The request to continue today's hearing by ex-parte request was denied." Schilders's attorney posed two questions: "One is on what grounds was the continuance denied? The second question is I also asked for attorney fees and costs in order to represent [Schilders] on this motion. Had the court ruled on that request for today?" Judge Greenberg responded, "The request for the continuance was denied, it was not timely and good cause was not shown. I ruled on the request for attorney fees and costs. I denied that as an ex-parte motion. We have hearings set for attorney fees and costs already in this case. And my recollection is that your client . . . has incurred almost a little over at this point $200,000 in fees and costs. You have not been paid, yet you continue to represent her. So I do not find good cause to by ex-parte motion grant your request for fees and costs as to this motion." Later in the hearing, Judge Greenberg stated, "waiting until two court days before a hearing to request by ex-parte [application] a continuance and fees is absolutely not timely and without good cause." This appeal followed. D. Schilders Requests Judicial Notice
On October 14, 2015, almost four months after the June 23 hearing, Schilders filed a statement of disqualification of Judge Greenberg. Six days later, Judge Greenberg issued an order striking the statement and recusing herself from the case. Schilders included copies of the statement and order in her Appellant's Appendix and mentioned them in her opening brief on appeal, which was filed in November 2015.
Then, in May 2016, after briefing of this appeal was completed, Schilders requested we take judicial notice of "the records of this Court in Schilders v. Stupp, writ petition number A14[63]01 and its exhibits, including the transcripts of the hearings of September 24, 2015 and October 14, 2015 that were filed in appeal case A147151." Schilders argued that the documents for which she requests judicial notice "are relevant to the appeal, because they establish that [Judge Greenberg] was disqualified when she presided at the hearings and signed the orders that are the subject of this appeal."
The writ petition in case A146301 was filed in November 2015, but Schilders did not request judicial notice until May 2016. The appeal in case No. A147151 was dismissed because it was taken from a nonappealable order. (Stupp v. Schilders (Oct. 25, 2016, A147151) [nonpub. opn.] pp. 2-4.)
Schilders contended that Judge Greenberg was disqualified from the time she was assigned to the case in August 2014.
Stupp opposed the request for judicial notice on various grounds. Among other things, he argued that the records do not establish that Judge Greenberg was disqualified when she presided at the hearings, and he points out that Schilders could have raised the issue of the judge's supposed disqualification as a ground for reversal of the June 23, 2015 orders in her opening brief in this appeal (which was filed after Schilders attempted to disqualify the judge and after the judge recused herself), but did not do so.
Schilders filed a reply to Stupp's opposition to her request for judicial notice, along with a supplemental request asking the court to take judicial notice of documents reflecting that the family court had scheduled a hearing for July 1, 2016, on a motion filed by Schilders on May 24, 2016, to vacate all Judge Greenberg's orders in the case, including the June 23, 2015 orders denying Schilders's ex parte requests, on the grounds that Judge Greenberg was disqualified when the orders were made.
We took the requests for judicial notice under submission to decide with the merits of the appeal, and we now deny them. Under Evidence Code section 452, subdivision (d)(1) and section 459, subdivision (a), we may take judicial notice of the existence of the court records that Schilders identifies. We may also take judicial notice of the truth of the results reached in orders, statements of decision and judgment, but we "cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact," which is what Schilders asks us to do here. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.) By contending that the documents here establish that Judge Greenberg was disqualified when she signed the orders that are challenged in this appeal, Schilders is asking us reach a conclusion by assuming the truth of hearsay statements and the correctness of legal arguments that are contained in documents that are part of court files. This we cannot do.
Furthermore, the records Schilders identifies are not relevant to this appeal, because they relate to an argument that is not properly before us. The issues on appeal are framed by appellant's opening brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [considerations of fairness demand that appellant present all points in the opening brief].) On October 14, 2015, weeks before Schilders filed her opening brief in this appeal, she filed a statement of disqualification of Judge Greenberg in the family court and on October 20 Judge Greenberg recused herself. Schilders could have argued in her November 2015 opening brief that the June 23, 2015 orders were void because it was signed by a disqualified judge, but she did not. Then, belatedly, she tried to introduce a new argument in a request for judicial notice that she submitted months after her reply brief was due, and she offered no explanation for her failure to raise the issue earlier. Schilders has forfeited her argument that Judge Greenberg was disqualified and that, therefore, the June 23, 2015 orders are void and should be vacated.
In any event, Schilders's repeated assertions that Judge Greenberg was disqualified do not suffice to establish disqualification. The family court ultimately denied Schilders's motion to vacate Judge Greenberg's orders, and Schilders's appeal of that ruling was later dismissed at her own request.
We deny Schilders's request for judicial notice because the requests are improper, and because the materials for which Schilders requests judicial notice are irrelevant to this appeal. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [denying request where judicial notice is neither necessary, helpful, or relevant].)
DISCUSSION
A. Ruling on the Ex Parte Application Without an Evidentiary Hearing
Schilders contends that it was "reversible error per se" for the family court to rule on her ex parte application without holding an evidentiary hearing, and that its orders on the application and Stupp's request for sanctions were therefore void. Even though Schilders did not request an evidentiary hearing on her ex parte request, and even though she had, and she took, the opportunity to submit declarations to the family court in support of her request, she contends that she was denied an opportunity to present evidence to the court. Her contentions lack merit.
A postjudgment motion, such as Schilders's ex parte request for orders, "requires an evidentiary hearing 'only if necessary . . . .' " (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 312, quoting Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1360.) The family court has discretion to determine a motion upon declarations alone, and may exclude or admit oral testimony. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150, fn. 4.) Certainly, the family court has discretion to allow oral testimony for motions, but is not required to do so: it "is empowered to hear motions based upon declarations and to exclude oral testimony." (In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 982.) Here, where the family court was presented with declarations from Schilders and her attorney, as well as from Stupp's attorney, and where Schilders did not request an evidentiary hearing in her ex parte request for orders, Schilders shows no abuse of discretion in the family court's deciding to rule on the ex parte request without an evidentiary hearing.
Schilders relies on section 217 to argue that absent a stipulation to admit declarations as evidence the family court was required to receive relevant testimony or state on the record a reason for finding good cause to proceed without testimony. We need not reach the merits of this argument. Schilders has forfeited it because she did not request the opportunity to present live testimony below—she did not raise the issue in her ex parte request, nor did she raise it at the June 23, 2015 hearing when the family court explained its rulings to her. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn, 1; Avalos v. Perez (2011) 196 Cal.App.4th 773, 776-777.)
Even if Schilders could show that the family court erred in ruling on her ex parte requests without hearing live testimony, she gives us no grounds to reverse because she fails to show any prejudice. (Code Civ. Proc., § 475.) Schilders provides no indication of what testimony she might have offered or elicited had an evidentiary hearing been scheduled, or that any such testimony would have led to more favorable rulings on her requests. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447 [appellants must "show that it is reasonably probable that they would have received a more favorable result . . . had the error not occurred"].)
We turn now to Schilders's challenges to the merits of family court's denial of her requests and reservation of jurisdiction over Stupp's request for sanctions. B. Denial of Request to Modify Child Support
We review a family court's decision whether to modify a child support order for abuse of discretion. (Edwards v. Edwards (2008) 162 Cal.App.4th 136, 141.) Schilders argues that it was an abuse of discretion for the family court to deny her request for modification where she demonstrated that the existing stipulated child support order was for an amount below the state guideline. Schilders's argument rests on a false premise. Contrary to her contentions, she did not demonstrate that the existing order was for an amount below guideline. Her ex parte application neither stated nor argued that the existing order was for an amount below guideline.
In general, a party seeking modification of a stipulated child support order must introduce admissible evidence of changed circumstances. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234.) However, if the parties have stipulated to a child support order that is below the state guideline, there is no need to show a change of circumstances to obtain a modification of the order to the guideline level or above. (Ibid.) Either party may renege on a child support stipulation without grounds and at any time, if the stipulation is for an amount below guideline. (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.)
Schilders does not contend that she demonstrated the change of circumstances that would be necessary to justify a modification of an at- or above-guideline child support payment.
In her ex parte application, Schilders asked the family court to modify the child support order to "guideline + % of bonus." She did not contend that the existing agreement was below guideline, or cite any legal authorities, or make any legal argument: she simply stated that the existing agreement was that Stupp would pay $1,500 per month, offset by $1,500 per month. She did not state what the guideline amount was (or what percentage of "bonus" she requested). In sum, there is no indication that Schilders's application claimed that the existing child support order was below guideline. There was, however, information before the family court to indicate that the existing support order was at the guideline amount. The stipulated judgment states that Stupp pays "guideline child support . . . in accordance with the Support Term Sheet," which specifies that child support is $1,500 per month, subject to true-up. In her appeal, Schilders ignores the statement in the judgment that Stupp pays guideline child support, as well as the true-up provision. Schilders's failure to fairly state the evidence that was before the family court constitutes waiver of the alleged error. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) But there are still more problems with her arguments.
The stipulated agreement provided that child support from Stupp to Schilders was $1,500 per month, offset by $1,500 per month for specified expenses, including the child's preschool, agreed extracurricular activities, health care, and Stupp's child care expenses. Although Schilders did not say so in her ex parte application, the record reflects that the amount was subject to an annual true-up based on the parties' tax returns "per DissoMaster," which is a computer program that has been certified by the Judicial Council for child support calculations pursuant to Family Code section 3830 and rule 5.275 of the California Rules of Court. (http://www.courts.ca.gov/8933.htm [as of May 23, 2017].)
Schilders contends that the family court judge should have calculated the guideline amount on its own, and that if the judge had done so, she would have "seen that the existing order was below guideline." Schilders cites no authority to support her contention. Nor does she cite any authority to suggest that the family court was obligated to grant her request that child support be modified to include an unspecified percentage of bonus income. Schilders mentions "the rule of the In re Marriage of Ostler & Smith ((1990) 223 Cal.App.3d 33) case," but the case does not help her: it stands for the proposition that an order for support based on a percentage of bonuses is within a trial court's discretion. (Id. at p. 37.)
We conclude that Schilders failed to demonstrate that the existing child support order is below guideline. Therefore, she has not demonstrated that the family court abused its discretion in declining to modify the child support order. C. Denial of Request to Modify Spousal Support
We review a family court's decision whether to modify a spousal support order for abuse of discretion. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576.) Schilders argues that the family court abused its discretion by denying her request to modify spousal support without considering the circumstances set forth in section 4320, which include, among other things, the earning capacity of each party and the ability of the supporting party to pay spousal support. We disagree.
Where an agreement specifies that spousal support is not modifiable except in particular circumstances, the family court's discretion to modify spousal support is constrained by the terms of the agreement. (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1014.) The Family Code provides that, "An agreement for spousal support may not be modified . . . to the extent that a written agreement . . . specifically provides that the spousal support is not subject to modification." (§ 3591, subd. (c).) As reflected in Schilders's ex parte request, the stipulated judgment of dismissal in this case provided that spousal support could not be modified unless Stupp's income fell below $350,000 per year, and Schilders nowhere alleged or argued that the necessary condition for modification had been met.
Even if the spousal support provision in the parties' judgment were subject to modification, the family court could not modify support "in the absence of a material change of circumstances occurring subsequent to the last prior order." (In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1082.) Schilders does not even attempt to argue that she provided the family court with evidence of a material change of circumstances since the March 2014 entry of the judgment containing the agreement as to spousal support. In any event, such an argument would not be persuasive, since the only allegation in her ex parte request to justify her request is her statement, "My costs of living, including health-care costs and rent have gone up substantially since November 2013."
Schilders points out that when the family court denied her ex parte request to modify spousal support, the issue of spousal support was part of a judgment pending appeal, and that support is modifiable even during the pendency of an appeal, citing In re Marriage of Horowitz (1984) 159 Cal.App.3d 377. This does not require the family court to modify spousal support, and Schilders does not contend otherwise. She argues that if the court had decided not to modify spousal support because of the pending appeal or the terms of the judgment, it "could have" stayed Schilders's request until the appeal was concluded. She cites no authority to suggest that the trial court was required to do so.
The family court did not abuse its discretion in denying the request to modify spousal support. D. Denial of Request for Attorneys' Fees
The spousal support provision of the parties' stipulated judgment has since been upheld on appeal. (Stupp v. Schilders (Mar. 25, 2016, A142302 [nonpub. opn.].) Accordingly, even if the family court had erred in failing to stay Schilders's request, the error would be harmless.
We review the denial of Schilders's request for fees under section 2030 for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) "The family court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order." (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 657 (Winternitz).)
"Pursuant to Family Code sections 2030 and 2032, the trial court is empowered to award fees and costs between the parties [to a dissolution action] based on their relative circumstances to ensure parity of legal representation in the action." (Falcone, supra, 203 Cal.App.4th at p. 974.) "When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 2030, subd. (a)(2).) In determining whether an award is "just and reasonable under the relative circumstances of the respective parties" (§ 2032, subd. (a)), the court is to consider "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." (§ 2032, subd. (b).) In assessing relative need, the court is to take into account the parties' financial resources, but those resources are only one factor for the court to consider. (Ibid.) The court may also consider the parties' litigation tactics. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167 ["the other party's trial tactics" may be considered in determining a need-based award]; In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1524 [discretion in awarding fees under section 2030 includes " 'judicial evaluation of whether counsel's skill and effort were wisely devoted to the expeditious disposition of the case' "].) Furthermore, the family court does not abuse its discretion by declining to award attorneys' fees on an ex parte basis if the request raises evidentiary issues to be resolved at a subsequent hearing or trial. (Winternitz, supra, 235 Cal.App.4th at p. 656.)
Schilders argues that the record here does not reflect that the family court exercised its discretion or considered the statutory factors, because the family court held no hearing on her ex parte request, "denied holding a hearing, and made no statement on the record showing consideration of any statutory factor." Her arguments lack merit. Schilders points to no requirement that the family court must hold a hearing on a request for fees, nor to any request she made that such a hearing be held. But most important, an evidentiary hearing on attorneys' fees issues in Schilders's case had already been scheduled, and the family court properly concluded that Schilders's ex parte request was inappropriate in view of that upcoming scheduled hearing. (See Wisternitz, supra, 235 Cal.App.4th at p. 655.) The record here amply reflects that the family court appropriately exercised its discretion in denying Schilders's last minute ex parte request for fees.
The family court's order did not foreclose Schilders's making another request for attorneys' fees in a more appropriate fashion. (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056; see also Hogoboom, et al., Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶¶ 14:7-8, p. 14-3.)
The family court had before it evidence of the parties' incomes, expenses, assets, and savings. We presume the family court considered this information. (Evid. Code, § 664; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526.) But this is not the only information that the family court had before it, as the family court made clear in explaining that it was denying Schilders's request "as an ex-parte motion" for several reasons.
First, as a general matter, the family court found there was no good cause for Schilders to request more than $60,000 in attorneys' fees on an ex parte basis, on just two days' notice, when less than 10 days earlier the family court—in consultation with Schilders's counsel—had scheduled evidentiary hearings on attorneys' fees and costs. The resolution of Schilders's existing requests for fees required an evidentiary hearing; that hearing had been scheduled (and would have already taken place, on June 11, 2015, if Schilders had been prepared for it). In these circumstances, there was no basis for filing an ex parte request for additional fees. Moreover, just a month earlier, on May 19, 2015, Schilders asked to file an additional fee request to cover fees for upcoming proceedings to be heard at the June 11 hearing on shortened time. The family court explicitly gave her the opportunity to seek a stipulation to have that issue heard on June 11 on shortened time, yet Schilders did not do so. Then, on June 11, when Schilders's counsel appeared for a trial on attorneys' fees, but was not prepared to go forward, a new trial date was set. Still, Schilders said nothing about additional requests for fees. In these circumstances, the family court could appropriately find that it would be unreasonable to request more than $62,000 in additional fees on an ex parte basis just eight days later.
The family court gave additional reasons for denying the portion of Schilders's request for $3,360 in fees to prepare for the hearing on the motion to compel that was scheduled for June 23, 2015. The family court found that there was no good cause for Schilders to wait until just before the hearing to make an ex parte request for a continuance and fees. The family court noted that although Schilders had ample opportunity to file a response to the motion in time for the hearing (and she could have filed the response along with a request for fees incurred), she instead filed a lengthy request for a continuance and a request for anticipated fees. The family court also found that since Schilders's counsel was continuing to represent Schilders, even though Schilders apparently owed her over $200,000, there was no good cause to "by ex-parte motion grant your request for fees and costs as to this motion." The family court apparently concluded that in the absence of any evidence of an immediate need for $3,360 to represent Schilders on the pending motion, and in view of the size of Schilders's debt to her counsel, there was no need for the request to have been framed as an emergency and made by ex parte application.
Because Schilders has not shown that the family court abused its discretion in denying her ex parte request for attorneys' fees, we will affirm the order. E. Stupp's Request for Sanctions
Schilders contends that the family court could not properly reserve jurisdiction over Stupp's request for sanctions under section 271 at the same time it denied her ex parte request for orders. We disagree.
In view of the family court's inherent authority to control its calendar and docket (Walker v. Superior Court (1991) 53 Cal.3d 257, 267) and in view of the requirement of section 271, subdivision (b) that Schilders have an opportunity to be heard before sanctions were imposed (an opportunity that she did not have between Stupp making his request on Friday, June 19, 2015, and the family court signing the order on Monday, June 22), we cannot conclude that the family court abused its discretion in reserving jurisdiction over Stupp's request.
Schilders's arguments that the family court erred are not persuasive. In the first place, Schilders nowhere explains why the order reserving jurisdiction over the request for sanctions is appealable, nor does she acknowledge that if the order is appealable, we will review it for abuse of discretion. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) Furthermore, Schilders cites no authority that supports her contention that the family court "had no jurisdiction to reserve jurisdiction over [Stupp's] request for sanctions while denying, without a hearing, all of [Schilders's] requests." Schilders argues that under Code of Civil Procedure section 170, which states, "A judge has a duty to decide any proceeding in which he or she is not disqualified," the family court could not reserve jurisdiction over the request for sanctions without stating legal grounds for doing so. She also argues that canon 3B(8) of California Code of Judicial Ethics, which states, "A judge shall dispose of all judicial matters fairly, promptly, and efficiently," required the family court to grant or deny the request for sanctions at the same time it ruled on Schilders's request for orders. Schilders's arguments are not supported by the language of the provisions that she cites.
Finally, Schilders does not even attempt to argue that she was prejudiced by the family court reserving jurisdiction over Stupp's request rather than ruling on it immediately.
Because we conclude that Schilders has not shown any error by the family court, or any prejudice to her in the reservation of jurisdiction over Stupp's request for sanctions, we will affirm the family court's order.
DISPOSITION
Schilders's requests for judicial notice are denied. The June 23, 2015 orders of the family court are affirmed. Respondent shall recover his costs on appeal.
/s/_________
MILLER, J. We concur: /s/_________
KLINE, P.J. /s/_________
STEWART, J.