In re Marriage of Burke-Baum & Burke

Filed 1/3/08 In re Marriage of Burke-Baum & Burke CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Wendy L. Kohn, Judge. Affirmed.

Silberberg & Ross, Fred Silberberg and Jeremy A. Lane for Appellant.

Freid and Goldsman and Gary J. Cohen for Respondent.

_________________________

Richard Burke appeals an order entered in post-judgment dissolution of marriage proceedings directing him to pay $125,000 in attorney fees and costs to Leslie Burke-Baum.^[1] Richard contends the trial court abused its discretion in failing to analyze the factors set forth in Family Code sections 2030 and 2032 and related case law, and in basing its fee order on factual findings that lacked substantial support.^[2]Leslie asserts Richards appeal is frivolous and the matter should be remanded to permit the trial court to determine the amount of monetary sanctions Richard should pay for prosecuting it.

We affirm the order and deny Leslies request for sanctions.

FACTS AND PROCEDURAL BACKGROUND

1. Overview.

A judgment in dissolution of the parties marriage was entered on September 14, 1999. It incorporated the provisions of a Marital Settlement Agreement which recited that Richard and Leslie would share joint legal custody of their two children, Skyler (11-26-87) and Alexis (2-1-90).

The award of attorney fees at issue in this case relates to post judgment proceedings that Richard instituted on October 31, 2002, by filing an OSC seeking modification of the child custody order, an order for an Evidence Code section 730 psychological evaluation of the entire family with respect to custody, an order for counseling for the parties and the children, and an order precluding Leslie and her husband, Jeffrey Baum, from interfering with Richards custodial periods of time with the children. Richard requested appointment of either Stan Katz, Ph.D. or Robin Drapkin, Ph.D. to conduct the psychological evaluation.

In support of the OSC, Richard filed a 16-page declaration in which he noted Skyler had been seeing therapist Amy Zeff since March of 2002, and Zeff had invited Richard to attend sessions with Skyler. Richard averred a full psychological evaluation of the children and the parties would reveal vital information in the possession of Zeff and would corroborate Richards allegations that Leslies behavior was alienating the children toward Richard. Richard requested full custody of the children to prevent further alienating conduct by Leslie and requested that contact between Leslie and the children be monitored to prevent Leslie from disrupting the process of our family being reunified.

Leslie retained her current counsel, Melvin S. Goldsman, and filed a responsive declaration on December 11, 2002, in which she agreed to a psychological evaluation by Katz, and agreed that Richard be permitted to attend joint therapy with the children at the request of Zeff. Leslie further agreed to follow Zeffs recommendation with respect to custody until the completion of Katzs report and recommendation. Leslies declaration indicated, We have been to several therapists over the years, all of whom were selected by [Richard]. Eventually, after the therapists have had an opportunity to assess the situation, they all reach the same conclusion, i.e., [Richard] needs to address his issues and his parenting style before he will be able to have a positive relationship with Skyler and Alexis. Once this recommendation has been made by each of the therapists[,] [Richard] abruptly terminated the therapy and selects another therapist. We have gone to at least four (4) different therapists including our current therapist, Amy Zeff, MA, MFT.

By motion filed July 9, 2003, Richard sought an order disqualifying Leslies attorney, Goldsman, from further representation of Leslie based on the failure to disclose that Goldsman represented Zeff in her marital dissolution in 1996. Richard also sought an order directing that Zeff appear for a deposition, an order terminating the therapeutic relationship between Zeff and the children, and sanctions in the amount of $21,409.20. Richards declaration averred Zeff was biased and was interfering with Richards relationship with his children.

In a responsive declaration filed October 8, 2003, Goldsman noted Richard chose Zeff to be the childrens therapist in May of 2002 and Leslie did not retain Goldsman until November of 2002, after Richard filed the instant OSC.

It appears the motion to disqualify Goldsman was never heard. Leslie objected to Richards attempt to depose Zeff on the ground the deposition would violate the childrens psychotherapist privilege. The trial court eventually ruled Richard could not waive the childrens psychotherapist privilege but permitted Richard to depose Zeff on matters unrelated to the childrens therapy. The trial court appointed a discovery referee to attend Zeffs deposition, which required two half-day sessions. At a third session, Zeff appeared but claimed she was too ill to proceed. Zeff thereafter resigned as the childrens therapist.

Richard and Leslie entered into a stipulation for appointment of Katz, pursuant to which Richard would pay Katzs fees subject to later reallocation.

2. The first fee request.

On January 8, 2004, Leslie filed a request for contribution toward her attorney fees and costs by Richard. At that time, Leslie had incurred fees in the amount of $90,020 and she sought contribution from Richard in the amount of $66,520. The motion noted Leslie had remarried and had two children, ages 5 and 1 year, as well as Skyler and Alexis. Leslie had put her real estate career on hold to address her family obligations. Leslie noted Richard had not paid child support since August of 2002 and failed to pay the $2,425 balance due for Katzs custody evaluation as he previously had stipulated. Richard would not pay because Katz refused to reopen the evaluation to consider further evidence related to Richards relationship with the children.

3. Interim proceedings.

After the filing of Katzs report, Leslie indicated willingness to implement Katzs recommendations. Richard subpenaed records from Katzs office and filed numerous motions with respect to the extent to which the parties would follow Katzs recommendations. Richard eventually agreed to one portion of the recommendation related to family therapy.

Richard sought to quash subpoenas aimed at obtaining Richards financial information. Richard also sought to obtain discovery related to the loan on the house owned by Baum. On March 18, 2004, the trial court denied Richards motion to compel production of documents and continued the hearing on the motion for attorney fees.

On May 19, 2004, the trial court issued a stipulation and order partially implementing Katzs recommendation and appointing the Hon. Eli Chernow (Retired) as a child custody special master. The parties agreed to continued joint legal custody and agreed that Lester Summerfield Ph.D. would work with Richard and the children as family therapist.

Leslie thereafter sought to discover financial records relative to Richards ability to pay Leslies attorney fees.

4. The report of the special master.

On February 3, 2005, Special Master Chernow filed a Report of Special Master in which he recommended visitation to the extent each child agreed. The special master observed that, [a]t best, the efforts to achieve frequent contact between [Richard] and the children were beset with difficulties. The initial goal was to have a flexible schedule to maximize the opportunities for a successful meeting. The childrens schedules and disinterest in spending time with their father, however, led to frequent failures of scheduling. . . . [] [Richard] has experienced few meetings with his children despite the efforts and expense of Dr. Summerfields interventions and those of the Special Master.

The special master noted progress was being made until matters began to spiral downward when Richard sent Leslie a particularly insensitive fax to a fax machine in [Leslies] household used by the children. . . . [Richard] had previously been asked by [Leslie], in Dr. Summerfields presence, not to transmit to that particular fax, but rather to transmit to a separate fax in the home to which the children did not have access. Skyler read the fax, became enraged, and showed it to Alexis. . . . The long litany of alleged irresponsible parenting [attributed to Leslie in the fax] served to enrage both children. They reported feeling that everything they told their father was turned by him into an accusation against their mother. . . . [] After the fax incident the children refused to see their father.

The special master conducted a meeting with Richard to communicate directly to [Richard] the importance of his error and [the need for Richard] to become sensitive to [the childrens] needs . . . . The special master reported the meeting was a total failure because Richard clearly and forcefully expressed the view that the only reason he was not spending time with his children was that [Leslie] had alienated them from him and no one had the moral courage to make appropriate orders to vindicate his rights. . . . [Richard] was simply closed to hearing any view other than his own. Thereafter, Richard has essentially withdrawn from the process. The special master concluded Richards alienation from his children was not related to the Parental Alienation Syndrome but to his failure to develop a sensitive, caring and respectful relationship with them, and not because of inappropriate conduct on [Leslies] part.

The special master found, The parents are in conflict over virtually everything. . . .  An unhealthy level of conflict exists 11 years after the decree of dissolution. This fighting inflicts emotional and financial stress on the adults and children, and does so on a continuous basis. The special master concluded it is in the best interests of the children to put an end to the continual conflict and tension. I recommend that the court enter a new and different order allocating specific authority over designated matters to [Richard] and all other matters to [Leslie].

One of the attachments to the report of the special master is a letter from Lester Summerfield, Ph.D., which indicates, [I]t is the opinion of the Childrens therapists and my own that Mr. Burkes children are alienated from him due to his own alienating behavior toward them and verbal and written attacks upon their mother.

5. Proceedings before theHon. Wendy L. Kohn.

After the filing of the special masters report, Richard sought to depose Summerfield. Leslie sought to quash the subpena based on the psychotherapist privilege. On May 11, 2005, the trial court, the Hon. Wendy L. Kohn, granted Leslies motion to quash the deposition subpena served on Summerfield. The trial court found Summerfield was a treating psychotherapist, the psychotherapist-patient privilege with respect to the family therapy had not been waived, the privilege was held for the children jointly by Leslie and Richard and it was not in the childrens best interests to waive the privilege. This order marks Judge Kohns first ruling in this case. Judge Kohn continued to preside over the case and made all subsequent rulings, including the order for payment of attorney fees at issue here.

On June 7, 2005, Leslie filed an updated motion seeking contribution toward her attorney fees and costs. The motion indicated Leslie had incurred $175,278.81 in fees and costs but had paid only $35,105. In support of the fee request, Leslie submitted Goldsmans declaration outlining the services rendered by his firm on Leslies behalf and the fee statement from Goldsmans firm to Leslie dated March 29, 2005. Although Goldsmans statement showed the dates on which various attorneys worked on Leslies case and the hours worked, the statement had been redacted to delete the nature of the service performed.

Leslies declaration in support of the motion noted Richard had paid his attorney $195,224.01, based on the billing statements produced by Richards counsel for the period commencing December 5, 2003, through February 2, 2005. The billing statements from Richards counsel to Richard were attached to the declaration as an exhibit.

Leslie also sought discovery sanctions to preclude Richard from presenting evidence related to his financial condition and to establish that Richard had the ability to pay the fees and costs sought by Leslie. After numerous continuances, the trial court granted the discovery sanction on September 9, 2005. The hearing on Leslies fee motion was continued numerous times and eventually was heard on February 14, 2006.

6. The hearings on Leslies fee request.

a. The February 14, 2006 hearing.

At the hearing on February 14, 2006, the trial court first addressed the pending deposition of Baum, which was relevant to Leslies ability to pay attorney fees. Leslies counsel noted the trial court previously had sanctioned Richard for failing to produce financial records and Richard now was precluded from disputing his ability to pay reasonable attorney fees. The trial court indicated it nonetheless would have to consider the reasonableness of the fees requested, as well as Leslies ability to pay her own fees, which would be based not only on her income, but also on her assets. The trial court observed it was disingenuous that Leslies income and expense declaration failed to estimate the value of her community property assets.

After Goldsman argued Leslie lacked the ability to pay, the trial court asked when Leslies last income and expense declaration had been filed. Goldsman indicated June of 2005. Richards counsel then argued Leslies income and expense declaration was so deficient as to preclude an award of attorney fees, regardless of Richards ability to pay. Also, Leslie failed to demonstrate the necessity of the fees incurred because Goldsmans fee statement had been redacted to omit any description of the services rendered. Thus, the trial court was unable to determine whether the fees were reasonable. Also, as many as 12 attorneys had worked on the case and these lawyers must have spent some time becoming familiar with the file.

Richards counsel also noted that some of the fees claimed by Leslie had been occasioned by her resistance to Zeffs deposition and, in the course of the deposition, it was revealed that Goldsman represented Zeff in Zeffs dissolution. Thus, Leslies opposition to Zeffs deposition was unnecessary. Richards counsel urged the trial court not to discount Leslies improper objections to depositions. Counsel suggested the case was worth $30,000 to $40,000 in fees, at most, and noted Leslie had failed to establish her need for a fee award because she failed to disclose her income.

Richards counsel argued Leslies children now were all of school age but she continued not to work, even though she is a licensed real estate agent in probably the hottest market that [has] taken place in the last hundred years in California. Further, Leslie admitted at her deposition that she has no prenuptial agreement with Baum. Thus, Leslie was entitled to one-half the assets and earnings accumulated during the marriage. Counsel noted Leslie resided in Baums 4,000 square foot residence and she refuses to disclose Baums earnings. All she knows is he pays the living expenses of the family when asked. Further, the income tax return produced by Leslie at her deposition included the Schedule C from Baums business which showed gross annual income of $422,000 and expenses of $253,000. Counsel suggested Baum likely had paid many personal expenses through the business. Thus, the trial court should attribute half of Baums adjusted gross income, or $218,773 to Leslie.

Goldsman noted Richards income of $141,000 per month had been determined based on a loan application Richard submitted to a mortgage company that was obtained during discovery. Goldsman argued Richards income does warrant a substantial contribution from [Richard] even if he werent the perpetrator of all this work, which he is. Goldsman stated work had been delegated to attorneys in the firm with a lower billing rate to reduce expenses. Further, Goldsman was retained by Leslie after Richard selected Zeff to be the family therapist.

Richards counsel then noted that California Rules of Court, rule 5.128(a) required a current income and expense declaration.^[3] Counsel suggested the trial court lacked jurisdiction to make a fee award absent a current declaration. Goldsman responded the hearing on the fee request had been continued so often Leslie would have filed numerous income and expense declarations and, in any event, the declaration on file reflected Leslies current financial circumstances.

The trial court prefaced its ruling as follows: I have well over a volume of information that has been submitted to me. . . . I have reviewed many volumes of this, since I have been hearing the matters involved in this case. I am able to determine what went on, what types of fees were incurred, [and] what they were incurred for. []  I have the benefit of [Richards] counsels billing, some of [Leslies] counsels billing. . . . [] Further, I think I have sufficient information to understand what is going on. The trial court observed Richard had retained an attorney thats held in high regard and Leslie was entitled to hire counsel of equal stature and I believe [she] has done so and has incurred a great deal of fees but less than what [Richard] has incurred.

The trial court found the financial information submitted by the parties sufficient, noting Leslies income and expense declaration had not changed. The trial court observed that even if it attributed all of the $422,000 in annual income on the Schedule C to Leslie, Richards income of $141,000 per month remained substantially greater and Leslie would still have need. The trial court found Richards actions had led to an increase cost of litigation and Leslie was in need of a contribution in order to assist her to pay reasonable attorney fees in this matter. The trial court indicated it had reviewed in detail the billing statements submitted by both sides and had reviewed the file. Also, the trial court had presided over some of the earlier proceedings.

The trial court indicated that, despite some . . . concerns about Leslies income and expense declaration, Richard had a far superior ability than [Leslie] to pay attorney fees. The trial court ordered Richard to make a reasonable contribution toward Leslies attorney fees in the sum of $125,000 payable at $10,000 per month commencing April 1, 2006. The trial court continued the matter to March 30, 2006, to address the recommendations of the special master with respect to child custody.

b. The second hearing on the fee request.

After the hearing, the trial court issued a minute order staying the attorney fees award pending the hearing on March 30, 2006, and directing Leslie to file an updated income and expense declaration by March 1, 2006. The order indicated, At the March 30, 2006 hearing, the Court will consider the information regarding [Leslies] newly filed Income and Expense Declaration, as the Court deems necessary and appropriate.

At the start of the March 30, 2006, hearing, Richards counsel objected to the updated income and expense declaration Leslie had filed on the grounds that, like the previous declaration, it contained questionable or incomplete information. Richards counsel noted the declaration again failed to state Leslies income or her interest in Baums residence and failed to reflect whether her claimed expenses are actual, estimated or proposed. Richards counsel asserted there was virtually . . . no difference between the new declaration and the previous declaration.

The trial court indicated it had directed Leslie to file a current income and expense declaration only because Richards counsel objected to the declaration on file as outdated at the last hearing and suggested the trial court lacked jurisdiction to proceed without a current declaration. The trial court noted it was a procedural, rather than a substantive, matter. Further, had the trial court realized that Goldsman represented at the last hearing that Leslies financial situation was unchanged, the trial court would not have required an updated declaration.

Richards counsel then asked to examine Leslie with respect to her income and expense declaration. The trial court denied the request, noting the declaration did not differ in any significant manner from the declaration previously filed. The trial court then reinstated the attorney fees award and ordered it effective May 1, 2005.

CONTENTIONS

Richards contentions on appeal mirror those he raised in the trial court. Specifically, Richard contends the trial court could not determine, based on the information Leslie submitted, whether the fees Leslie requested were reasonably necessary or whether Leslie had the ability to pay them. Richard further contends the trial court deprived Richard of an opportunity to respond to the supplemental information Leslie filed in advance of the second hearing on the fee request.

Leslie contends Richard should be sanctioned for prosecuting a frivolous appeal.

DISCUSSION

1. Relevant legal principles.

[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] [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 made. [Citations.] [Citation.] (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)

However, [t]he trial courts discretion in this area is . . . limited by the statutes which enable the exercise of that discretion. [] Under section 2030, subdivision (a): During the pendency of a proceeding for dissolution of marriage . . . , the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the partys rights, order any party . . . to pay the amount reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding. (Italics added.) Under section 2032: (a) The court may make an award of attorneys fees and costs under Section 2030 . . . 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 factors for determination of permanent spousal support]. . . . 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. (Italics added.) (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 866-867.)

Section 4320 lists factors to be considered in determining permanent spousal support including: (a)(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. . . . [] (e)  The obligations and assets, including the separate property, of each party.

2. Leslie demonstrated the fees requested were reasonably necessary.

Richard contends the trial court could not determine, based on the information Leslie submitted, whether the fees Leslie requested were reasonably necessary. Richard argues the trial court could not scrutinize the fees as it was required to do because Goldsmans fee statement did not describe the services performed. Thus, the trial court could not determine whether Leslie overlitigated the matter. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1525; In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 576.)

Richard also claims Leslies counsel incurred fees unnecessarily. Richard notes Goldsman failed to disclose the conflict of interest arising out of Goldsmans representation of Zeff in Zeffs dissolution case. Richard asserts he learned of this conflict during Zeffs deposition, which Leslie unsuccessfully opposed by seeking a motion to quash. Also, Leslie attempted to block Richard from discovering information related to her need for a fee award by forcing Richard to file a motion to compel Baums deposition, which was granted. Thus, the fees Leslie incurred in opposing these depositions were unnecessary.

Richard argues the trial court also failed to determine whether counsels skill and effort were wisely devoted to the expeditious disposition of the case. (In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 588.) Richard further contends the trial court failed to make any inquiry with respect to the myriad of individuals who performed services for Leslie. Richard asserts a trial court cannot order a spouse to pay whatever fees the attorney chooses to charge. (In re Marriage of Keech, supra, 75 Cal.App.4th at p. 870.)

Also, absent detailed billing records, the trial court could not determine whether Goldsman engaged in double billing by charging for the same work done by more than one attorney, such as appearances at a hearing or deposition, or whether Goldsman engaged in the practice of billing blocks of time (block billing), which makes it more difficult to determine the amount of time spent on any particular activity. (Welch v. Metropolitan Life Insurance (2007) 480 F.3d 942, 948.) Finally, Richard argues the trial court improperly considered the billing statements from Richards counsel to determine the reasonableness of Goldsmans bill to Leslie. (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 869-870.)

Review of the record in this case reveals the trial court was possessed of all pertinent information needed to adjudicate the fee issue. Further, none of Richards arguments demonstrates any abuse of the trial courts discretion. Although Goldsmans fee statements omitted the description of the services rendered, the statements nonetheless reflected the date the service was rendered, the amount of time billed and the billing rate of the attorney performing the service. These fee statements, combined with the trial courts familiarity with the case and all the other evidence before the trial court, were sufficient to support the fee award. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.)

Although Richard argues Judge Kohn presided over the matter for only one year before making the fee award, even the first order made by Judge Kohn, the May 5, 2005, order quashing Richards deposition subpoena directed at Summerfield, required familiarity with the entire case. Thereafter, Judge Kohn issued evidentiary sanctions against Richard and ultimately ruled on the underlying custody issue. At the hearing on the fee request, Judge Kohn remarked that she had reviewed and considered substantial portions of the voluminous file and that she had reviewed the fee statements of both counsel in detail. It is apparent the trial court was sufficiently familiar with the case to assess the reasonable value of the service rendered by Goldsmans firm. [W]hen the trial court is informed of the extent and nature of the services rendered, it may rely on its own experience and knowledge in determining their reasonable value. (In re Marriage of Keech, supra, 75 Cal.App.4th at p, 870; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280; Frank v. Frank (1963) 213 Cal.App.2d 135, 137.)

Richard cites In re Marriage of Keech for the proposition the trial court improperly considered the billing statements from Richards counsel to determine the reasonableness of Goldsmans bill to Leslie. Keech observed that the amount of the opposing partys fees is not the standard by which the court was to determine the amount of the award. (In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 869-870.) In this case, the trial court merely considered the amount expended in attorney fees by Richard, among many other factors, in determining whether Leslies fees were reasonable in amount. It did not use the amount of Richards attorney fees as the standard.

In response to Richards argument the fee award was excessive because too many attorneys worked on Leslies case, Leslie notes 86 percent of the work was performed by four attorneys and the hourly rate was less than that charged by Richards counsel. Moreover, it is reasonable to assume the trial court took duplication of effort and the other factors urged by Richard into account when it awarded only $125,000 in attorney fees, which was substantially less than the amount requested.

We agree with these observations and conclude the record reveals the trial court exercised its discretion in a reasonable manner in ordering Richard to pay $125,000 of the attorney fees and costs incurred by Leslie in defending Richards OSC. (In re Marriage of Sullivan, supra, 37 Cal.3d at pp. 768-769; In re Marriage of Keech, supra, 75 Cal.App.4th at p. 871.)

3. Leslie demonstrated a need for contribution to her attorney fees.

Richard contends the evidence showed Leslie had the ability to pay her own attorney fees and it is inappropriate to award attorney fees to one party merely because the other party has a substantially higher income than the other. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630-631.) Richard notes Leslie is a licensed real estate agent who could earn substantial income. In fact, an order issued with respect to child support on March 28, 2002, concluded Leslie had the capacity to earn $5,800 per month. Also, Baum had gross annual income of $422,385 from his business and Leslie testified at her deposition that Baum pays nearly all of the approximately $19,000 in monthly household expenses. Further, Leslie resides in a 4,000 square foot community property home but failed to declare any real property on her income and expense declaration.

We conclude Leslies income and expense declarations on file provided support for the trial courts finding of need. (See In re Marriage of OConnor (1997) 59 Cal.App.4th 877, 881-884.) The declarations established that Leslie earned little, if any, income. However, the income tax records produced by Leslie at her deposition demonstrated her community property interest in Baums earnings. Further, there is no indication in the record the trial court discounted Leslies ability to earn. Rather, the trial court noted that, even if it imputed all of Baums income to Leslie, Leslie still had a demonstrated need for an award of fees.

In any event, even where a party has the ability to pay his or her own attorney fees, an award of attorney fees is proper where the opposing party has a superior ability to pay due to a large financial disparity between the parties. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167-1168.) Additionally, the trial court found Richards conduct had resulted in an increase in the cost of litigation. Thus, the record establishes that the trial court actually exercised its discretion according to applicable legal principles. No abuse of that discretion appears.

4. Leslies failure to file an updated income and expense declaration.

Richard contends the trial court lacked jurisdiction to order attorney fees at the first hearing because Leslie failed to file an updated income and expense declaration as required by rule 5.128(a). Further, the updated income and expense declaration Leslie eventually filed for the second hearing contained the same deficiencies as the declaration it replaced. The updated declaration made no mention of Leslies income, failed to attach paystubs for the prior two months, failed to indicate Leslie held a real estate license, failed to indicate Leslies interest in Baums residence and failed to indicate whether the claimed monthly expenses of $17,195 were estimated, actual or proposed. Although the declaration at one point indicates Baum contributed toward the monthly expenses in a varying amount depending on Leslies income, an attachment to the declaration indicates none of Leslies expenses were paid by others.

As previously has been noted, the income and expense declaration on file, combined with all the other information presented to the trial court, was adequate to permit the trial court to assess Leslies financial condition. The claimed deficiencies in Leslies income and expense declaration must therefore be seen as harmless. (See In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 525-528; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336-337.)

5. The trial court did not deprive Richard of an opportunity to be heard.

Richard contends Leslie conceded her moving papers were insufficient to warrant an award of attorney fees by presenting supplemental information to the court about the nature of the fees in a declaration submitted in reply to Richards opposition. By submitting supplemental information, rather than a reply, Leslie deprived Richard of an opportunity to respond. Richard notes the trial court failed to hold a contested evidentiary hearing, did not allow him to file a response to Leslies income and expense declaration and denied his request to cross-examine Leslie with respect to her declaration. Thus, the trial court permitted Leslie to interject new facts that were not included in her moving papers. Richard asserts the trial court should have granted a continuance or stricken Leslies income and expense declaration. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1168-1170.)

Richards claim he was deprived of the opportunity to respond to supplemental information presented in a declaration submitted in reply to Richards opposition has not been preserved for appeal. Richard failed to request an opportunity to respond in the trial court. Thus, any error has been waived. (In re Marriage of King (2000) 80 Cal.App.4th 92, 117; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)

Richards assertion he was deprived of an opportunity to respond to Leslies updated declaration, although not waived, nonetheless is meritless. The minute order of February 14, 2006, stated the trial court would consider further information regarding the newly filed Declaration at the [March 30, 2006] hearing as necessary. Richard could have filed opposition to Leslies updated income and expense declaration in the interim between its filing on March 1 and the hearing on March 30, but failed to do so. The trial courts refusal of Richards request to cross-examine Leslie similarly does not require reversal of the fee award. Richard did not seek to cross-examine Leslie at the first hearing and he concedes the updated declaration essentially was identical to the original declaration. In any event, the trial court indicated it would not have ordered an updated income and expense declaration had it known the declaration would be virtually identical to the one on file. Thus, cross-examination of Leslie with respect to the declaration would not have altered the outcome of the hearing.

4. The appeal is not frivolous.

Leslie claims the appeal is frivolous and warrants an award of costs and attorney fees according to proof.

The Supreme Court has stated that an appeal should be held to be frivolous only when it is prosecuted for an improper motive ― to harass the respondent or delay the effect of an adverse judgment ― or when it indisputably has no merit ― when any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

Alternatively, attorney fees and costs may be awarded under section 271 where the conduct of a party frustrates the policy of the law in favor of settlement, and increases the cost of litigation. (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991; 271, subd. (a).)

Neither standard has been met here. Consequently, we deny Leslies request for sanctions on appeal.

DISPOSITION

The order is affirmed. Appellant Richard Burke to bear costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

^[2] Subsequent unspecified statutory references are to the Family Code.

^[3] California Rules of Court, rule 5.128(a) provides: A current Income and Expense Declaration (form FL-150) or a current Financial Statement (Simplified) (form FL-155), when such form is appropriate, 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.