Filed 12/15/17 Marriage of Stuman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of MELISSA and GREGORY J. STUMAN.

MELISSA STUMAN,

Respondent,

v.

GREGORY J. STUMAN,

Appellant.
D071567


(Super. Ct. No. DN182193)

APPEAL from an order of the Superior Court of San Diego County, Bradley A. Weinreb, Judge. Affirmed.
Gregory J. Stuman, in pro. per., for Appellant.
Law Office of Nancy J. Bickford and Andrew J. Botros for Respondent.

Melissa (Mother) and Gregory (Father) Stuman were married in 2000, and then had two children. In 2008, a court entered a dissolution judgment, ordering Father to pay child and spousal support. In June 2015, Mother moved to increase child support and sought an order requiring Father to pay past due amounts. After appointing a special master and holding several hearings, the court issued an order increasing child support beginning in July 2015, and ordering Father to pay arrearages and sanctions.
Father challenges three portions of the order: (1) the court's income determination for purposes of calculating Father's child support obligations after January 1, 2016; (2) the court's ruling on Father's prior support overpayments; and (3) the court's sanctions awards. We reject Father's contentions and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
The couple's 2008 dissolution judgment was entered in Oregon, where they were living at the time. The Oregon judgment granted Mother and Father joint custody, and ordered Father to pay $1,206 in monthly child support and $3,380 in monthly spousal support. The parties later stipulated to modifications in the judgment that reduced and then terminated Father's spousal support obligations and required Father to pay Mother $11,000 by the end of December 2009. Father never paid this amount.
After both parties moved to California, Mother registered the modified Oregon judgment with the San Diego Superior Court. In June 2015, Mother moved for increased child support based on changed circumstances, and sought an order that Father pay outstanding arrearages and attorney fees. Mother asserted that Father owned a successful real estate development entity and was earning between $300,000 and $400,000 per year. At the time, Father was an attorney licensed in California and Oregon.
Father opposed the requested relief, and sought to be credited with an overpayment of $17,801. He claimed he had no income because his real estate business was in bankruptcy and he had no other source of income.
Shortly after she filed the modification petition, Mother propounded interrogatories and document production requests seeking information regarding Father's income and assets. Father asserted numerous objections, and did not produce any documents or the required Declaration of Income and Expenses.
In September 2015, Mother moved to compel responses to the interrogatories and document production demand, and sought $20,000 in sanctions for Father's failure to cooperate in discovery and his engaging in bad faith litigation tactics (including refusing to meet and confer). (See Code Civ. Proc., § 2030.010 et seq.; Fam. Code, § 271.) Father opposed the motion and moved for a protective order, arguing the requested documents contain information about third parties and therefore could not be produced without a protective order.
After many delays (which the court found were caused primarily by Father), on January 27, 2016, the court held a combined hearing on the motion to compel, motion for sanctions, and motion for protective order. There is no transcript of the hearing in the appellate record. After the hearing, the court issued a minute order granting Mother's motion to compel responses to the interrogatories and to the document production request. The court ordered Father to provide all responsive documents no later than February 10, 2016. The court denied Father's protective order motion, but stated the parties had stipulated (and the court had ordered) that Father's financial documents would not be disclosed to third parties. The court scheduled a hearing on the merits of Mother's modification petition for March 14, 2016. The court deferred ruling on the sanctions request until the March 14 hearing.
Before the March 14 hearing, on February 18, Mother filed a second sanctions motion based on Father's failure to produce any documents by the February 10 deadline. Mother sought $35,159 in monetary sanctions and/or termination sanctions. Mother was represented by counsel, and Father represented himself. The hearing was not reported. After the hearing, the court issued an order reflecting that the parties presented evidence and argument on three primary issues: (1) the amount of arrearages owed by Father, including the amount of overpayments for which Father was entitled to be credited; (2) each parent's income for purposes of determining the appropriate amount of child support payments; and (3) Mother's requests for sanctions and attorney fees.
On the first issue, the order stated the parties "agree [Father] made additional payments in the amount of $17,801.00," but that Mother claimed Father should not be entitled to credit for these overpayments because these payments should be treated as agreed-upon increased child support before Mother filed her June 2015 petition. The court deferred its final ruling on this issue, but indicated that all the evidence on this issue had been presented at the hearing.
On the second issue (income), the court stated it would defer its ruling and appoint a Special Master, explaining: "The court finds the presentation of income for support and cash flow for the purpose of a child support calculation was confusing and the financial information incomplete. The Court faults [Father] for not timely and not fully providing needed financial information. [¶] The court appoints Marc Kaplan as Special Master. Mr. Kaplan is appointed to examine [Father's] income for support and cash flow. [Father] is ordered to provide any requested financial information to comply with presentation of the report. [Father] is ordered to pay the cost for the Special [M]aster. . . . [¶] . . . [At the next hearing,] [t]he Special Master report [will] be admitted without foundational objections [and] [t]he parties are limited to the issues of modification of child support, attorney fees and sanctions. . . . No additional evidence will be presented."
On the third issue (Mother's two sanctions motions and attorney fees request), the court stated it would reserve ruling on these matters until after the Special Master had submitted his report.
In early November 2016, the Special Master lodged his report with the court. After analyzing Father's real estate entities, banking records, and accounting information, the Special Master found Father earned about $19,000 in monthly income during 2014 and 2015 from his real estate development ventures, but earned no income in 2016. On the 2016 income-conclusion, the Special Master said he was relying on evidence showing Father's prior real estate entities are no longer viable; the absence of any evidence showing Father was earning money from other sources; Father's statements that he was unemployed; and Father's statements that he is actively pursuing various business ventures. The Special Master said that issues of earning ability and income opportunities were outside the scope of his retention, and he was focused solely on identifying whether Father was earning income, as that term is defined in Family Code section 4058.
On November 15, 2016, the court held a final hearing to allow the parties to present argument on all remaining issues. Mother's counsel was present at the hearing, and Father (representing himself) appeared telephonically. A reporter's transcript of this hearing is contained in the appellate record. The court admitted into evidence the Special Master's report, but no other evidence was presented.
Two weeks later, on November 30, the court issued its written order on the child support, arrearages, attorney fees, and sanctions issues. In the order, the court stated it would adopt the Special Master's findings and recommendations, but qualified this statement by noting it found "Father's Income and Expenses Declarations to be somewhat evasive and deficient and has considered the lack of any updated or current Income and Expense declaration from Father." The court also said it found a "general lack of credibility in Father's financial information," but it did not appear "Father purposely designed his business and financial structures to absolve himself of child support obligations."
The court then set forth its conclusions on each of the disputed issues.
On child support, the court ordered Father to pay monthly child support payments of: (1) $4,712 (retroactively) from July 1, 2015 (after Mother's modification motion) through December 31, 2015; and (2) $1,968 from January 1, 2016. The court calculated these amounts based on the following findings: (1) Mother now had sole custody of the children based on the parents' agreement; (2) Mother's monthly income is $7,646; (3) Father's monthly nontaxable income from July 1, 2015 through December 31, 2015 was $19,379; and (4) Father's monthly nontaxable income from January 1, 2016 forward is $6,646. The court stated its 2016 income finding was based on facts showing Father's current actual monthly expenses is $6,646, and "Father is able to afford" these expenses "from frequent and continuing gifts or from his self-employment income."
Regarding arrearages, the court found (1) the parties had stipulated that Father owes Mother $11,000 plus $42,241.50 (the latter amount reflecting support arrearages plus interest through October 2010); (2) Father is entitled to an offset of $17,801 for overpayments of support; and (3) Father thus owes Mother $24,440 for pre-October 2010 arrearages ($42,241 minus $17,801). The court stated it was "us[ing] the principal and interest amounts as provided by the parties" in calculating these amounts. The court permitted Father to pay the ordered retroactive amounts under a $1,500 monthly payment plan. The court ordered Father to receive credit for any additional payments made during the retroactive period of the order, and stated that if there were any arrearages during this time Father could pay under a $1,000 per month payment plan.
On sanctions, the court ordered Father to pay various amounts after "consider[ing] the financial evidence" and Father's "ability to pay." The court specifically found the sanctions award would not impose a "financial hardship" on Father. The specific sanctions amounts and grounds will be detailed in part III of the Discussion below. The court declined to award attorney fees to either party.
DISCUSSION
I. Father's Post-January 1, 2016 Income
Father does not challenge the court's findings that his monthly income in 2014 and 2015 was $19,379, but contends the court erred in concluding his post-2015 income is $6,646. He relies on the Special Master's findings (accepted by the court) that he had no actual business earnings in 2016 because his business failed at the end of 2015.
A. Applicable Law
In California, child support is determined by a mathematical formula that is based on various factors, including the parents' income. (See Fam. Code, §§ 4055, 4057, subd. (a); In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) The relevant income is each parent's actual or imputed income. (Fam. Code, §§ 4055, 4058, subds. (a), (b); see In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 642-643 (Sorge).)
A parent's actual income is derived from the parent's "annual gross income," defined generally to mean "income from whatever source derived." (Fam. Code, § 4058, subd. (a).) The statutes include a nonexclusive list of "income" sources (e.g., wages, salaries, dividends, interest, workers' compensation benefits). (Fam. Code, § 4058, subd. (a)(1).) Although gifts are not included on this list, the Courts of Appeal have held a family court has the discretion to treat monetary gifts as income if the gift resembles earned income in the sense that it is a recurring and regular amount received by the parent. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 736 (Alter); accord Anna M. v. Jeffrey E. (2017) 7 Cal.App.5th 439, 445-446 (Anna M.); see also In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1314-1315.)
A court has broad discretion in determining whether gift amounts should be treated as a parent's income. (Alter, supra, 171 Cal.App.4th at pp. 736-737; see Anna M., supra, 7 Cal.App.5th at p. 450.) A party challenging the court's discretionary ruling has the "burden of convincing this court that the trial judge exercised his discretion in an arbitrary, capricious or patently absurd manner." (Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710; accord, In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1176; see In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 778.)
B. Analysis
The court found Father's monthly post-2015 nontaxable income was $6,646. The court calculated this amount based on Father's admission that he spends this amount each month and that he is able "to afford" these expenses based on his "self-employment income" or "frequent and continuing gifts." (Italics added.)
The record supports the court's income conclusion on the "gifts" prong. The evidence established that although Father's real estate development business had failed and Father was not earning any business income, he was supporting himself through money received from his mother. During the proceedings, Father repeatedly confirmed he was living "on the generosity of his mother" and was "subsisting" on cash amounts given by her. Because the evidence showed that Father has been spending approximately $6,646 on living expenses and that his expenses have been paid for by his mother, the court could make the logical inference that Father's mother was gifting him $6,646 every month. On this record, the court had the discretion to conclude Father was receiving regular gifts of $6,646 and that these gifts should be characterized as income for purposes of child support. (See Alter, supra, 171 Cal.App.4th at pp. 736-737.)
Father's arguments to the contrary are unavailing.
First, Father devotes large portions of his briefs to arguing that there was insufficient evidence to support an imputation of income because there was no evidence of his ability or opportunity to work. These arguments are unhelpful because we have concluded the court did not calculate Father's income based on an imputation theory. Although the court used the word "impute[]" when explaining its income finding, the court's explanation shows it was basing its conclusion on findings of Father's actual income (including regular cash gifts), rather than an income-imputation theory.
Second, Father argues there was insufficient evidence to show his mother would continue to support him. However, the court had a reasonable basis to draw this inference based on the undisputed evidence that his mother has been regularly supporting him. Father contends "his family is not wealthy." Father fails to cite to any evidence in the record supporting this assertion. Moreover, because the March 14 evidentiary hearing on the income issue was not reported or transcribed, we are entitled to presume the court had sufficient evidence before it on the fact that Father's mother's gifts would continue into the future (until Father obtained a job or successfully engaged in another income-producing activity). (See Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall); Estate of Fain (1999) 75 Cal.App.4th 973, 992; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler).)
II. Arrearage Findings
Father next contends the court erred in impermissibly increasing child support for periods before Mother filed her June 2015 petition.
Generally, courts may retroactively modify child support orders to the date the party moved to modify the order, but have no authority to order increases or decreases before that filing date. (See In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1214, 1217 (Sabine & Toshio M.); In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 625-626; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 ["filing date . . . establishes the outermost limit of retroactivity"].) Likewise, courts can order past arrearages (based on the terms of the prior order) to be paid, and have no power to waive past arrearages. (Tavares, at pp. 625-626.)
Father argues the court exceeded its jurisdiction by ordering an increase in child support for periods before Mother filed her modification petition. However, the record does not show the court ordered any increases to Father's child support obligations before Mother filed the modification petition. In the prior 2008 judgment, the court ordered Father to pay $1,206 in monthly child support. In June 2015, Mother filed a petition seeking to increase this amount. In their papers, the parties agreed that Father owed past arrearages of $42,241.50 (which included principal and interest) plus the $11,000, and that Father had overpaid $17,801 in support amounts. On these facts, Father argued he should get credit for the $17,801, and Mother countered that he should not get credit for this amount because the parties reached a private agreement to increase the child support amount before Mother filed her June 2015 motion. After considering the evidence, the court disagreed with Mother's position, and ruled that Father would be credited with the $17,801.
On this record, Father's appellate contention is without merit. The court found in Father's favor on the issue of whether the support payments could be retroactively increased before Mother filed her motion. The court did not accept Mother's position that she was entitled to an implied increase in ordered child support before she filed her motion. The court's order that Mother was entitled to increased child support concerned Father's obligations only after Mother filed her modification petition.
Father alternatively argues that the court made a "mathematical error" in crediting him only with $17,801, rather than including an additional $54,525. The record does not support this assertion. Throughout the proceedings, Father claimed the amount of overpayment was $17,801 and that he was seeking credit for this amount. For example, in his declaration, Father stated: "My records also show that . . . I have . . . made overpayments to [Mother] in the sum of $17,801, which I now seek to recover." Similarly, in his second amended trial brief filed on November 10, 2016 (several days before the final hearing), Father identifies his requested relief as follows:
"1. Awarding [Father] a money judgment in the sum of $17,801 for overpayment of arrearages;

"2. Awarding [Father] a money judgment . . . for reimbursement of 25% of the private school tuition;

"3. Entering a new child support order . . . using [Father's] current income of $0.00 per month;

"4. Denying [Mother's] request for money judgments, and sanctions;

"5. Ordering each party to bear their own costs and attorneys' fees." (Italics added.)

There is nothing in these requests that would suggest Father was seeking greater than $17,801 as credit for his overpayments.
The transcript of the final November 2016 hearing confirms this conclusion. At the end of this hearing, Father asked the court whether the issue of the prior arrears (and credits) remained under consideration, and the court responded as follows:
"[At the March 14 hearing] we took arguments on the issue of the $11,000 [amount owed by Father] and the amount of arrears that [Father] owed through October 2010 . . . . [T]he only issue at that time was whether you were entitled to offsets for the [pre-2010] arrearages and the $11,000 . . . owed based upon making support payments above and beyond what was ordered.

"The parties agreed at that time that Father had made additional payments in the amount of $17,801, and the Court found that the arguments as to whether or not the additional payments would be used to offset arrears and judgment was sufficiently argued before the Court at that time. And we turned then to the issue of [the parties' income] at which time the Court ordered a special master report." (Italics added.)

Father then responded, "Thank you for the clarification, Your Honor. [¶] So it [the arrearages determination] will all be included in the final ruling?" The court replied: "That's correct."
On this record, we reject Father's argument that he should be credited with more than the $17,801. Father repeatedly informed the court he was seeking credit for $17,801; he identified this $17,801 figure in asserting his specific requested relief; and he did not correct the court when the court identified the $17,801 figure as the amount Father was seeking as a credit. A party cannot prevail on an issue raised for the first time on appeal. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.)
Additionally, as reflected in the court's comments at the November 2016 hearing, the issue of the $17,801 credit and the arrearages was litigated at the March 14 hearing, which was not reported or transcribed. A family court's rulings are presumed to be correct. It is the appellant's burden to provide an adequate record to overcome the presumption of correctness and show prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Randall, supra, 2 Cal.App.5th at p. 935.) Under these principles, we presume the court's $17,801 credit finding was correct, and that the evidence supported this amount. There is no support for Father's argument that an error can be ascertained from the face of the court's order.
III. Sanctions
A. Court's Sanctions Rulings
After the November 15 hearing, the court ruled on the sanctions and attorney fees issues as follows:
"Having reserved jurisdiction on the issues of attorney fees/costs and sanctions, the Court has considered the financial evidence, ability to pay and made a determination there would not be a financial hardship for any awards made herein.

"Having granted Mother's motion to compel, the Court orders discovery sanctions against Father in the amount of $20,000 pursuant to Code of Civil Procedure sections 2030.030, 2030.290 and 2031.320.

"The Court further orders Family Code section 271 sanctions against Father in the amount of $25,000, based on his pattern of behavior that frustrated settlement including but not limited to his dilatory tactics, uncooperative behavior and unnecessary delays.

"The [sanctions] shall be paid [to Mother's attorney] at the rate of $1,250 per month for each award (for a total of $2,500 per month) . . . . [¶]

"As to the issue of Family Code section 2030 attorney fees, the Court finds an award of attorney's fees and costs, by either party to the other, is not appropriate under the circumstances. Based upon the evidence, neither party has the ability to pay for the other party's attorney's fees and cost while still being able to pay for their own, nor is there a disparity in access to funds between the parties for adequate representation." (Italics added.)

On appeal, Father challenges the court's imposition of sanctions under the Civil Discovery Act (Code Civ. Proc, § 2016.010 et seq.) and under Family Code section 271 (section 271). As explained below, Father has not met his burden to show the court abused its discretion on either of these sanction awards.
B. Civil Discovery Act Sanctions
In considering Mother's sanctions request under the Civil Discovery Act (Code Civ. Proc., § 2023.010 et seq.), the court had before it two separate motions: (1) Mother's September 2015 motion seeking sanctions for Father's unsuccessful opposition to Mother's motion to compel and for his actions in delaying resolution of the issues; and (2) Mother's February 18, 2016 motion seeking sanctions after the court ordered Father to produce "all" responsive documents by February 10 and Father failed to produce those documents by this deadline.
After three separate hearings and its evaluation of the entire record, the court imposed $20,000 in discovery sanctions. In challenging this ruling, Father focuses on Mother's second sanctions motion and argues this motion was deficient on various grounds. We need not reach these arguments because the court's order was proper based on its findings regarding Father's discovery abuses that were the subject of the first sanctions motion.
A court "shall" impose monetary sanctions on a party "who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ. Proc., § 2031.310, subd. (h); see also id. § 2030.300, subd. (d) [interrogatories].) Additionally, a court has broad discretion to sanction a party for misusing the discovery process, including "[m]aking, without substantial justification, an unmeritorious objection to discovery," "[m]aking an evasive response to discovery," "[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel," and "[f]ailing to confer . . . in a reasonable and good faith attempt to resolve informally any dispute concerning discovery." (Code Civ. Proc., § 2023.010, subds. (e), (f), (h) & (i).) A sanctions award must be upheld unless the decision was "arbitrary, capricious, whimsical" or exceeds " ' "the bounds of reason. . . ." ' " (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.)
The record shows Father unsuccessfully opposed a motion to compel. Thus, the court was required to impose monetary sanctions, unless it found Father acted with substantial justification. (Code Civ. Proc., § 2031.310, subd. (h).) Substantial evidence supports the court's implied conclusion that Father did not act with substantial justification. After Mother served discovery requests seeking the financial documents in June 2015, Father asserted unmeritorious objections and did not provide any responsive documents until mid-February 2016. Father's financial information was obviously critical to resolving the parties' disputes regarding the appropriate child support payments. The evidence supports that during those eight months, Father engaged in bad faith tactics to prevent Mother from obtaining this information, and when he did disclose information, the disclosures were incomplete and evasive.
Father argues he was justified in objecting to Mother's requests because the disclosures would have adversely affected third parties who held interests in his business unless a protective order was in place. However, the court had a reasonable basis to reject this argument because the evidence shows that Father owned about 99 percent of the claimed third-party businesses, and Father did not promptly move for a protective order. Further, there is no showing Father took any reasonable steps to obtain Mother's agreement to keep the records confidential.
Father's primary argument on appeal is that the court had no authority to impose the sanctions because there was no legally effective (written) order requiring him to produce the documents until after he provided all responsive documents to Mother's counsel. He relies on In re Marriage of Drake (1997) 53 Cal.App.4th 1139, which recognized that if a minute order directs a party to prepare a written order, the written order is the legally effective order, and the minute order is not binding. (Id. at p. 1170.) In this case, the court's January 27, 2016 minute order directing Father to produce the documents by February 10 contained a checked box that Mother's counsel would prepare a written order. The court entered the final written order on Mother's motion to compel in May 2016. The court imposed the discovery sanctions in November 2016.
The premise of Father's argument is flawed because it is based only on the second sanctions motion. With respect to the first motion, the court had the authority to sanction Father even without his violating a prior court order. In the first motion, Mother sought discovery sanctions for Father's meritless objections to the interrogatories and document production request. Under the applicable statutes, Father engaged in sanctionable conduct when he unsuccessfully opposed Mother's motion, and a prior order was not a necessary predicate to a sanctions award. (Code Civ. Proc., § 2031.310, subd. (h); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:1906, p. 8M-2 ["monetary sanctions can be imposed on a motion to compel absent a prior court order"].) The court ruled that Father's objections had no merit long before it awarded the sanctions, and the fact that Father eventually produced the documents did not preclude the court from sanctioning Father for his unsuccessful opposition to the motion to compel and his related misuse of the discovery process.
Moreover, even if we were consider only the second sanctions motion, the court's ruling would have been correct. The record supports that at the January 27, 2016 hearing the court made clear to Father that he should not wait for the formal order to be filed before producing the documents and that Father was required to strictly comply with the February 10 deadline because Mother's counsel needed a reasonable time to prepare for the three-hour evidentiary hearing scheduled for March 14. As reflected in the emails between counsel, at the January 27 hearing the court told Father that time was of the essence with respect to the document production and Father's privacy concerns were unjustified because Mother's counsel had agreed not to disclose the documents to third parties and the documents would be lodged, rather than filed (and therefore not subject to public disclosure). Despite the court's clear orders, Father violated them and was therefore subject to discovery sanctions.
In his reply brief, Father complains that the $20,000 award was unwarranted because a reasonable attorney would have spent only a few hours to prepare the motion to compel, asserting that "motions to compel are mostly boiler plate in nature requiring only a small effort to insert new facts . . . ." By failing to raise this issue in his opening brief, Father forfeited the contention. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) The argument also fails on its merits. The $20,000 sanctions award was a reasonable amount for attorney time related to the motion to compel and to respond to Father's repeated efforts to stall the litigation.
C. Section 271 Sanctions
Section 271 provides a family court with broad discretion to impose sanctions on a party who engages in conduct that "frustrates the policy of the law to promote settlement of litigation and . . . reduce the cost of litigation . . . ." (§ 271, subd. (a).) In deciding the appropriate sanctions amount, a court should take into consideration both parties' incomes, assets, and liabilities. (§ 271, subd. (a).) However, section 271 is not a needs-based statute and a court may award sanctions even if the opposing party has substantial assets. (§ 271, subd. (a); In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) "The only stricture imposed by [section 271] is that the sanctions may not impose an unreasonable financial burden on the party sanctioned." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995.) In determining whether a sanctions award will impose this burden, the court may consider the party's existing income and assets and the ability to earn income. (See In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60; see also In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.)
We review a section 271 sanctions order under the abuse of discretion standard. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) " ' " ' "[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." ' " [Citation.] ". . . [W]e must indulge all reasonable inferences to uphold the court's order." [Citation.]' " (Sorge, supra, 202 Cal.App.4th at pp. 652-653; see In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)
Father does not challenge the court's determination that his conduct warranted section 271 sanctions. But he argues insufficient evidence supported the court's finding that the $25,000 sanctions amount would not result in a financial hardship.
The argument is forfeited because Father did not provide a full factual record on which we could assess whether the trial court's determination was supported by the evidence. Father's income, assets, and his future earning capability were matters at issue at the March 14 evidentiary hearing, which was not reported. Absent a reporters' transcript or settled statement, we must presume the court's factual finding was supported and cannot properly evaluate the evidence of Father's available resources to pay the sanctions. (See Randall, supra, 2 Cal.App.5th at p. 935; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Ehrler, supra, 126 Cal.App.3d at p. 154.)
Father contends these principles do not preclude review in this case because the court made a factual finding that Father had only $6,646 in current available monthly income (his mother's gifts). He notes that the court awarded Mother $20,000 for discovery sanctions plus $25,000 for section 271 sanctions, and provided a payment plan of $2,500 per month (total) for the two monetary sanctions. The court also ordered Father to pay $1,968 in ongoing monthly child support, $1,500 per month for retroactive support increases, and $1,000 per month for post-2016 arrearages. Father argues these monthly payment requirements would put him in debt and/or leave him with little or nothing with which to support himself.
Viewing the entire record, the court had a reasonable basis to conclude the $25,000 sanction under section 271 would not impose an inequitable financial burden. Father admitted he has $20,000 in personal property; he is living with his mother and thus has no housing expenses; and he has the ability to earn a substantially greater amount in the near future. The evidence showed Father has a long history of earning substantial income from his entrepreneurship skills; he earned at least $19,000 in monthly income from his real estate businesses in 2014 and 2015; he is now "back into the process of doing" business and real estate transactions; and he expects to earn income from these new ventures "within the next six months." The court additionally made express findings that Father's Income and Expense Declarations were "evasive and deficient," and that there was a "general lack of credibility in Father's financial information."
On this record, Father did not meet his appellate burden to show the court abused its discretion in finding the sanctions awards would not impose unreasonable financial burdens on Father. Although the court recognized that Father had no actual current business earnings, the court had a reasonable basis to conclude he had the capability to earn substantial funds in the near future, and/or had substantial available resources to obtain funds to pay the ordered amounts. Additionally, the fact that part of Father's monthly obligations constitute payment for outstanding arrearages and for discovery violations cannot justify Father's attempt to avoid sanctions for his abuse of the litigation process. A trial court has no discretion to waive or forgive any part of a support arrearages debt or accrued interest on the debt (Sabine & Toshio M., supra, 153 Cal.App.4th at p. 1214), and the imposition of discovery sanctions (unlike Family Code sanctions) are not necessarily dependent on the party's ability to pay.
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.


HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



NARES, J.