Marriage of Van Der Horst

Filed 2/28/07 Marriage of Van Der Horst CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Willem Van Der Horst (Wim), respondent below, appeals from post-judgment orders issued in marriage dissolution proceedings initiated by respondent Florence Lovie Van Der Horst (Lovie). We affirm the courts post-judgment orders.

BACKGROUND

In July 2002, Lovie filed a petition for the dissolution of her marriage from Wim. The parties had been married for almost 50 years. The following are the facts and evidence relevant to Wims substantial evidence and abuse of discretion arguments, discussed post.

On May 26, 2004, the parties recited in open court a stipulation to the terms of a judgment of dissolution of marriage, with both parties and their counsel present. The parties stipulation included an agreement that their personal property, with jewelry excepted, would be sold at auction with an equal division of the proceeds. The court subsequently filed a judgment on July 23, 2004 based on this stipulation. Among other things, the parties agreed as follows:

Vehicles and Personal Property, all personal property, regardless of how the title is held, whether personal, business or corporate will be sold and the net proceeds divided equally between the parties.

The parties agreed to act with due diligence as to the disposition of the personal property. They were to exchange the names of three individuals to handle the sale of the property by a certain date and, if they could not agree, to submit their lists to the court ex parte.

The Parties Initial Actions Regarding the Stipulation and Judgment

A substantial amount of the parties personal property was appraised at $99,135 prior to its removal from their residence by a certified appraiser, but the appraisal did not include all of the six vehicles that were at issue between the parties. The parties exchanged lists of persons to sell the property, and Lovies counsel indicated in writing on June 23, 2004 that one of Wims choices was acceptable if inventory could be taken by the end of the month. When Wims counsel did not respond, Lovies counsel applied ex parte to the court for the appointment of a person, resulting in the courts appointment of Susan Gardner on July 6, 2004 to conduct an inventory and immediate sale of the parties personal property.

Lovies counsel and Gardner attempted to obtain a date when Wim would allow Gardner access to the warehouse, where it was understood the parties personal property at issue was being stored. In response to inquires about when Gardner could begin inventory of the personal property, Wims counsel at first indicated that Wim was on an extended trip until July 20, then wrote on July 21 that he had initiated contacts with Wim but have yet to receive a response, and later, on Thursday, August 12, stated that he was currently trying to get Wim in the office on Monday and I am awaiting his response. Wims counsel raised substantial concerns about this situation with Gardner in the meantime, including that she had no contract and that she mentioned to him that what we have in mind is not what she does and would provide names of others who might accomplish our goal. Wims counsel did not confirm a date for Gardners warehouse visit with Lovies counsel until after being given notice of another ex parte application, which was not pursued.

On August 19, 2004, Gardner went to the warehouse and found Wim sitting inside. Gardner later reported to Lovies counsel that she did not find most of the personal property at issue. Lovies counsel promptly wrote to Wims counsel inquiring about the whereabouts of the parties personal property, including the parties cars, but did not receive a response.

Lovies Application for an Order to Show Cause and Motion

On August 27, 2004, Lovies counsel filed an application for an order to show cause and a motion for reimbursement and attorney fees. Among other things, Lovie requested remedies set forth in Family Code section 1101, subdivision (h), including the award of the entire value of the property to Lovie, and the award of attorney fees as sanctions under Family Code section 271 for bad faith conduct interfering with the settlement and extending litigation unnecessarily. Lovies papers stated:

This case should have concluded with the stipulated judgment in May, 2004. Since that time Petitioner has incurred costs to prepare two motions to enforce the sale of the property. She has now incurred additional fees to prepare this motion, extending litigation even further.

All of these fees could have been avoided with the least cooperation from
Respondent. Instead, he has engaged in an endless tactic of stalling enforcement of the agreement and concealing the whereabouts of the parties only remaining assets.

On September 14, 2004, Wims counsel filed a responsive declaration requesting that Lovie and her counsel take control of the personal property, vehicles, and miscellaneous, except for the Lexus vehicle and the personal property in Wims apartment, and that Lovie and her counsel take control of the storage warehouse, and conduct the auction of the personal property. The filing did not directly address the questions that had been raised about the location of the property at issue, such as all of the parties cars.[1]

On September 17, 2004, Wims attorney filed a declaration regarding the order to show cause. Wim stated that he did not know of the ex parte application to appoint Gardner beforehand, or of a proposed meeting with Gardner until two days before it occurred. He further stated that at the time of Gardners visit, two disassembled Porsches were parked elsewhere and available to be seen, that the Lexus and Toyota were present, as was the furniture, and that no personal property or vehicles had been sold. He did not further address the questions raised about the location of the property at issue.

On September 17, 2004, Wims attorney filed an application for appointment of a guardian ad litem for Wim. The application was summarily denied. The parties subsequently engaged in some settlement negotiations over their dispute that were unsuccessful, which we discuss further post.

An evidentiary hearing was held in December 2004 and January 2005. At the December 2004 hearing, Gardner testified that when she visited the warehouse on August 19 she observed a small pick-up truck, two balloon baskets, a bunch of junk, some tools, a balloon-backed carved chair, a wrought iron-legged table with a wood top, and a lot of boxes. She stated that, expecting to find 30 pieces of carved furniture, she asked Wim where the carved furniture was located, and that Wim responded that it wasnt there and that Lovie must have it. Gardner asked Wim where the parties vehicles were and he responded that he was handling that end of it.

Wim testified that when Gardner visited, 26 items of furniture were in the warehouse and that certain vehicles were parked outside. He claimed support for his testimony from certain photographs, explaining the location of the parties personal property by pointing to a darkened photograph of the warehouse, which he said depicted five pieces of furniture. He testified that the other 21 pieces of furniture were located on the mezzanine level of the warehouse, which was not visible by photograph. He testified that Gardner did not ask about the location of vehicles or where the furniture was located. He testified further that Garner commented that she expected to see six vehicles in the warehouse, and that he told her that was impossible, that he had moved two Porsches to another location. He also testified that the Lexus or Aerostar van were either parked outside or at the apartment, as he could not recall which he drove that day. Besides his own testimony, he did not present further evidence about the location of the personal property at issue.

The hearing continued on January 25, 2005; Wims attorney was present, but Wim failed to appear without excuse. The appraiser testified that he had the day before inspected four storage units that Wim had surrendered to Lovie and observed two inoperable vehicles, business equipment, and personal property, and that he believed that there were fewer items in volume than he had previously observed during his appraisal, but that the property appeared better organized. He thought that some hand power tools were missing. He found other items were missing, such as a grandfather clock, some prints, and some furniture, but acknowledged that these could have been at Wims apartment, which he did not inspect. He stated, [t]here was just a lack of a lot of material items, apparently referring to tools.

Wims Abandonment of Vehicles in Lovies Attorneys Parking Lot

On January 17, 2005, before the second hearing day, Wim left two vehicles, a Toyota truck and a Ford van, in Lovies attorneys office parking lot without prior notice. The vehicles had signs posted inside indicating that the vehicles were the responsibility of Lovies attorney and uninsured. They had no license plates and did not contain any form of registration. These acts, and the correspondence that followed, were brought to the courts attention by Lovies attorney in a supplemental declaration in support of her application and motion.

Upon his discovery of the vehicles in his parking lot, Lovies attorney wrote to Wims counsel proposing that Wim either agree that the appraiser, if willing, dispose of the vehicles, or immediately remove the vehicles.

Two days later, Wims attorney wrote that Wim would be out of town for an undetermined period of time, and that Wim was surrendering care, custody, control, and maintenance of the cars to Lovies attorney as Lovies agent. According to Lovies attorney, the letter included rental agreements for storage units, photocopies of the certificates of title to five vehicles, the 1993 Lexus, 1961, 1962 and 1964 Porsches, and the 1990 Ford, but not the Toyota, keys to the vehicles that had been left in Lovies attorneys office parking lot, and a master lock key.

Lovies counsel responded that same day, asking if Wim would agree to the proposed disposal of the vehicles, whether the missing Porsches and furniture were in the storage unit, and indicating he would seek ex parte relief if the vehicles were not removed from his office parking lot.

Wims attorney responded by letter, stating, among other things, that he had not spoken with Wim, that his best information was that Lovies attorney was now in possession and control of the items on the [appraiser] list, with the exception of the one vehicle and some personal items that Wim needed to take with him, that Wim would produce those items to the party designated by the Court to liquidate them, and that Lovie and her attorney have a fiduciary obligation to make every effort to preserve and protect the personal property in your possession and control . . . . Your actions with regard to the property are entirely at your own personal risk. He also cautioned that the terms of the judgment restrict the method of liquidation of the assets awarded and that he had no authority to agree to any modification of the judgment and the prior order appointing Gardner to auction the property.

Lovies attorney wrote one more time to demand removal from his office parking lot, reminding Wims attorney that the vehicles had no license plates and that their registration status was unknown. He also stated that the Toyota could not be started because apparently a key was broken in the ignition, that the appraiser could not take possession and sell the vehicles without them being registered, and that there had been no response to a previous inquiry about the location of the Porsches.

The Courts Orders and Decision

At the end of the hearing, the court issued some interim orders and took the remaining issues under submission. The court issued a written order on February 9, 2005, appointing a receiver and auctioneer to take possession of all six vehicles and the parties personal property in storage, ordering that Wim turn over the Lexus and 1964 Porsche to this receiver, and that the net proceeds be turned over to Lovies attorney pending further court order.

The court issued a written decision on February 25, 2005. The court found that Wim had failed to establish where the personal property was located. It stated:

Wim contended that the items were all present and submitted a photograph purporting to show items that were lurking in a darkened area of the warehouse. The photograph provided no such view and the Court does not find the explanation credible. Nor did Wim present any other credible evidence to explain where the numerous items had disappeared to. Moreover, when Wim was asked by Ms. Gardner as to where the three Porsches were, Wim replied that she did not have to worry about them but gave no explanation regarding the whereabouts of the autos.

In a further odd twist to this case, prior to the second day of trial, Mr. Schwartz, Lovies attorney, found the parties Ford van and Toyota pickup in his office parking lot with the license plates removed and notes on the dash of each vehicle apparently left by Wim stating that the vehicles were now Mr. Schwartzs responsibility. Meanwhile, the parties Lexus automobile and unvalued Porsche were unaccounted for.

The court found that Wim breached his fiduciary duty to Lovie regarding the disposition of the remaining community assets, offered no plausible explanation as to the location, condition, or disposition of assets that were under his custody and control and, by clear and convincing evidence, acted with oppression, fraud, and malice in breaching his fiduciary duty to Lovie. The court, noting Wims incredible photograph, his failure to appear for the second day of trial, that he allowed the property under his custody and control to almost magically disappear, and his intentional concealment of the location and condition of property, found Wims conduct to be despicable and unconscionable, and to have caused injury to Lovie.

In its decision and subsequent clarifications, the court, among other things, awarded Lovie 100 percent of the proceeds from the sale of the appraised property (except what Lovie already possessed) and any vehicles not covered by the appraisal, ordered Wim to pay Lovie the appraised value of items not accounted for, and awarded Lovie attorney fees of $28,410.24. Wim timely appealed the courts orders.

DISCUSSION

I. Wims Breach of Fiduciary Duty

Wim first argues that there was not substantial evidence to support the courts finding that he breached his fiduciary duty to Lovie such that Lovie should have been awarded 100 percent of the sale of the property pursuant to Family Code section 1101, subdivision (h).[2]

Section 721, subdivision (b), states that in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other, and includes [r]endering upon request, true and full information of all things affecting any transaction which concerns the community property. ( 721, subd. (b)(2).) Remedies for a breach of this section 721 duty are stated in section 1101, with section 1101, subdivision (h), setting forth the remedy if the breach rises to the level of oppression, fraud, or malice as referred to in Civil Code section 3294.[3] Section 1101, subdivision (h), states:

Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.

Civil Code section 3294, subdivision (a), provides that [i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

Civil Code section 3294, subdivision (c), states:

As used in this section, the following definitions shall apply:
(1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
(3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

We must determine whether substantial evidence supports the trial courts decision, with the evidence considered in the light most favorable to Lovie as the prevailing party. (In re Marriage of Murray(2002) 101 Cal.App.4th 581, 601-604.) Generally, substantial evidence is evidence . . . of ponderable, legal significance . . . reasonable in nature, credible, and of solid value.(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Id. at pp. 873-874.) Furthermore, we must give great deference to the lower court, as trier of fact in this case, regarding its determinations of the credibility of witnesses. (See Evid. Code, 780.)

Thus, we must determine if the lower courts order was supported by substantial evidence of clear and convincing evidence that Wim was guilty of oppression, fraud, or malice in breaching fiduciary duties to Lovie. We conclude that it was so supported.

In Rossi, supra, 90 Cal.App.4th 34, cited by the court below in its decision, the appellate court upheld a trial courts finding of misconduct pursuant to Civil Code section 3294. The wife filed for dissolution after winning the lottery. (Id. at p. 36.) The husband first discovered that the wife had won the lottery after the judgment of dissolution was entered. (Id. at p. 38.) The husband then filed a motion to set aside the judgment based on fraud, breach of fiduciary duty, and failure to disclose. (Ibid.) The trial court found that the wife had intentionally failed to disclose her lottery winnings throughout the dissolution proceedings and that this was a breach of the codified spousal fiduciary duties. (Id. at p. 39.) The trial court found the breach to constitute fraud, oppression, and malice pursuant to section 3294 and, therefore, that the husband was entitled to 100 percent of the lottery winnings pursuant to section 1101, subdivisions (g) and (h). (Id. at p. 39.) The appellate court found substantial evidence supported the trial courts ruling. (Id. at p. 41.)

The facts of Rossi, supra, 90 Cal.App.4th 34, are analogous to the facts of this case. Substantial evidence was presented at trial that Wim breached his fiduciary duty to Lovie by repeatedly failing to act in good faith or to deal fairly with her, creating obstacles and delays to the sale of the property. Among other things, his attorneys non-responsiveness delayed the selection of a person who would sell the property, forcing Lovie to seek an ex parte order appointing Gardner. After Gardner was appointed to conduct an immediate sale of the property, Wim and his attorney did not diligently agree to a date for her review of the personal property. When Gardner finally visited the warehouse on August 19, 2004, there was substantial evidence that Wim deceived Gardner about the location of the carved furniture, telling her Lovie had it, and withheld five of the parties six vehicles by claiming that he was handling that end of it. Lovie, after hearing Gardners report of her warehouse visit, asked Wim about the location of their property and received no response. She again was forced to go to court, this time filing her application for an order to show cause and motion and, ultimately, participating in two days of hearings in December 2004 and January 2005, which would have been unnecessary but for Wims misconduct. This evidence indicates that Wim repeatedly caused unnecessary delays in the sale of the parties personal property deliberately and without good reason, including by deceiving Gardner, concealing property, and forcing Lovie to repeatedly invoke the courts authority before Wim would fulfill his obligations.

Wims actions in January 2005, shortly before the second day of the hearing, provide further substantial evidence of clear and convincing evidence that Wim acted with oppression, fraud, and malice towards Lovie. Wim unilaterally, without notice or explanation, left two vehicles, shorn of their license plates and without registration, and with a key apparently broken off in the ignition of one vehicle, in the parking lot of Lovies attorneys office, and then rendered himself unavailable to answer any questions about their status or possible disposition. The record indicates that the whereabouts of other vehicles remained unknown.

Wim claims this case is similar to In re Marriage of Hokanson (1998) 68 Cal.App.4th 987 (Hokanson), but argues that Wims conduct did not even equal the dilatory conduct of the wife in that case. In Hokanson the parties agreed to put their residence on the market for sale. The trial court found that the wife had breached her fiduciary duty to the husband by acting in such a way as to delay the sale of the residence. (Id. at p. 991.) However, the trial court did not find that these delay tactics rose to the level of oppression, fraud, or malice. Wim claims that there is no evidence that he caused any delay in the sale of the property, particularly in the period from May to August 2004, that any delays from his side were caused by his attorney, and that his only bad act was to not be forthcoming with Gardner during her warehouse visit, and that this failure resulted in a delay of only 19 days until he offered in his responsive declaration to surrender control of the property to Lovie. Wim ignores the fact that the trial courts determination regarding the wifes delay tactics was not an issue raised on appeal in Hokanson. (Id.) Regardless, Wim also ignores the substantial evidence of delay, concealment, and deception that we recite above, which were used to stall and evade reasonable efforts to advance the inventory and sale of the personal property at issue.

Wim also argues that the appraiser in his January 25, 2005 testimony could not identify any significant missing property.[4] However, as discussed ante, the appraiser testified that significant items were missing, and in any event the appraisers review did not include all of the vehicles involved.

Wim acknowledges that he could have been more forthcoming with information to Gardner on August 19, 2004. Nonetheless, he defends his conduct with other contentions that lack merit. He argues that there was no evidence of a failure to disclose, but Gardners testimony indicates that he did so. He contends that [n]o evidence of the sale or gifting of personal property was presented. This is beside the point in light of Wims delays, deception, concealment and bad faith, which required Lovie to request repeatedly that the court exercise its post-judgment jurisdiction. Wim contends that the evidence substantiates that Wim had the property at least readily available and that he would, and did, make it available for sale. Substantial evidence indicates otherwise. Along with Gardners testimony of Wims deceptive August 19 statements, neither Wim nor his counsel adequately responded to inquiries about the location of all the property.[5] Wims January 2005 abandonment of the vehicles in Lovies attorneys parking lot, his subsequent unavailability to respond to questions about the abandoned vehicles and the location of others, and his unexcused absence from the second day of the hearing were further evidence of his stonewalling and bad faith.

In short, Wims arguments asks that we reweigh the evidence, which is inappropriate under a substantial evidence standard of review. There was substantial evidence to support the trial courts finding of clear and convincing evidence that Wim had acted with fraud, oppression, and malice as these terms are used in section 3294 in breaching his fiduciary duties to Lovie pursuant to section 721, and that an award pursuant to section 1101, subdivision (h) was appropriate. Indeed, there was strong evidence that this was the case.

II. Attorney Fees

Wim also argues that the trial court abused its discretion by awarding Lovie all of her attorney fees pursuant to sections 271 and 1101, subdivision (h). Lovie responds, among other things, that section 1101, subdivision (h) was not implicated in the courts award. The courts decision awarded fees pursuant to section 271, and then stated that these fees are also awarded pursuant to Family Code [section] 1101(h). We find the court was entitled to award these fees pursuant to sections 271 and 1101, subdivision (h).

Section 271 states in relevant part:

[T]he court may base an award of attorney fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

A sanction order under Family Code section 271 is reviewed under the abuse of discretion standard. The trial courts order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .    (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)

Section 1101, subdivision (h) provides for remedies for breach of fiduciary duty, as already discussed. These may include a 100 percent award of property and attorney fees. (Rossi, supra, 90 Cal.App.4th at pp. 42 [ the clear import of the language in subdivision (h) is that an award of attorney fees is discretionary, over and above the mandatory award of the entire asset at issue ].) As we already have discussed, Wims misconduct met the standards stated in section 1101, subdivision (h).

In its decision, the court stated as grounds for awarding attorney fees to Lovie:

Additionally, given the conduct of Wim in concealing the property in question and forcing Lovie to undertake this proceeding to enforce the clear terms of the marital settlement agreement, an award of attorney fees under Family Code 271 is appropriate. Family Code  271 provides that a court may award attorneys fees as a sanction for conduct by a party that frustrates the policy of promoting settlement of litigation and reducing the cost of litigation. It is the very type of conduct that Wim engaged in that Family Code  271 was designed to discourage.

It is unnecessary to repeat herein the conduct by Wim that additionally supports an award of attorneys fees, but the Court additionally notes that Wims entire attitude to this proceeding and his obligations to Lovie can be summarized by his conduct of abandoning the two vehicles in Mr. Schwartzs parking lot like some old couch on the roadside.

We agree with the following statement in Lovies reply brief to this court on the attorney fees issue:

The trial courts finding was not an abuse of discretion because the record is filled to the brim with evidence of Wims conduct; Wims failure to timely respond to Lovies inquiries throughout her attempts to have the property sold [citation], the fact that a significant portion of the property was missing [citation], his overall disdain for the entire court proceedings by his failure to appear on the last day of trial [citation], and his act of dumping two of the parties[] vehicles in Lovies attorneys parking lot complete with signs that they belonged to Mr. Schwartz and were not insured.

Wim makes various factual arguments for why the court was wrong.[6] Once again, he asks that we reweigh the evidence, ignoring the standard of review we must employ. Wim attempts to paint Lovie as the unreasonable party, contending that she was not required to file and pursue her order to show cause to enforce the judgment, as the court found. He contends that his conduct should be excused by Lovies failure to independently verify that the personal property was missing. Any such failure on Lovies part was not particularly relevant to the courts decision whether or not to award attorney fees in light of Wims misconduct. We also see no reason why Lovie should not have relied on Gardners report of her visit to the warehouse, or why she should have done anything more than have her attorney write to Wims attorney to inquire about the whereabouts of the property.

Wim next argues that Lovies one week deadline for a response to her August inquiry before she sought relief from the court was somehow unreasonable. In light of Gardners report that most of the furniture and some of the vehicles were missing, the court could certainly conclude that Lovies deadline was reasonable.

Wim also contends that he initiated numerous offers and suggestions for resolution. He offer[ed] to have Lovie take full control of the property and the auction, to divide the property in kind, to pay her a cash sum with a division in kind, and to agree to an auctioneer. We are not aware of anything in the record that indicates that Wim or his counsel sufficiently satisfied the inquiries that had been made about the location of all the property involved, which was at the heart of Lovies application for an order to show cause and motion. We find no fault with Lovies counsels argument at hearing that, after what Mr. van der Horst said to Ms. Gardner when she went out there, we werent going to rely on Mr. van der Horst producing the property. He had lost all credibility with us at that point. We had no idea where the property was, what he had sold, what he had disposed of. So to accept the proposal that he would then turn it all over to an auctioneer was stepping backwards . . . .

Furthermore, the record indicates that Lovie attempted in good faith to reach a dollar settlement after filing her application for order to show cause and motion, proposing in October 2004 to accept half of the appraised value of the property, half of the certified appraised value of the vehicles, and the fees she incurred attempting to enforce the judgment. Wim, rather than accept this offer, proposed, among other things, that the parties keep the vehicles and personal property in their possession, and he pay Lovie $25,000. Lovies counsel noted that this would mean that he would receive approximately $140,000 of the personal property and Lovie receive approximately $9,000. Wim can hardly argue that the trial courts award of attorney fees was an abuse of its discretion given such an approach to settlement.

As for Wims agreement to an auctioneer for sale of the proceeds pending the outcome of the hearing, while this may have been the case, it does not excuse his persistent misconduct.

In short, the trial courts award of attorney fees to Lovie was not an abuse of discretion.

DISPOSITION

We affirm the courts orders. Respondent Lovie is awarded costs.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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Analysis and review provided by La Mesa Property line attorney.

[1] On September 9, 2004, Wims counsel stated essentially the same proposal, among other things, in a letter to Lovies counsel. Lovies counsel wrote back on September 15, 2004, [a]s none of the furniture or cars were on site when Susan [Gardner] went to the warehouse, and given that we still do not know where the items are being stored, I do not see how that solves anything. Wims counsel responded that only two vehicles had ever been removed from the warehouse, one had been returned, and the other needed to be towed back to the site but Wim lacked the funds to do so. Neither of his letters fully addressed the questions raised by Lovie and her counsel about the location of all of the property at issue.

[2] All statutory references herein are to the Family Code unless otherwise indicated.

[3] Section 1101, subdivision (a) states, among other things, that [a] spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate. Wim argues that Lovie must also specifically prove impairment or detriment pursuant to this subdivision, and did not do so. We do not necessarily agree with Wims assertion that Lovie had to meet the standards stated in 1101, subdivision (a), given the reference to section 721 in section 1101, subdivision (h), (see In re Marriage of Rossi (2001) 90 Cal.App.4th 34 (Rossi) [affirming an award pursuant to section 1101, subdivision (h) without reference to section 1101, subdivision (a)]), and Wim does not indicate if he raised this issue below. Regardless, Wims actions as discussed herein impaired Lovies interest in the community property for many months, given his concealment and deceit regarding the parties personal property, and the delays and resorts to further judicial action that his actions caused.

[4] Lovie moves that we strike Wims argument for lack of citations to the record pursuant to Moulton Niguel Water District v. Columbo (2003) 111 Cal.App.4th 1210, 1220. We deny the motion because of Wims citations to the record in his factual and procedural summary.

[5] For example, as already discussed, neither his counsels September 14, 2004 responsive declaration or Wims September 17, 2004 declaration adequately addressed the questions that had been raised about the location of all the personal property; moreover, counsels proposed surrender of property in his September 14 filing excluded the parties Lexus.

[6] Lovie moves that we strike Wims portion of the brief regarding attorney fees for lack of citations to the record pursuant to Moulton Niguel Water District v. Columbo, supra, 111 Cal.App.4th at p. 1220. We deny the motion because of Wims citations to the record in his factual and procedural summary.