Marriage of Thul






Filed 1/5/11 Marriage of Thul CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of TAMARA ANN and JAMES RONALD THUL.
TAMARA ANN THUL, Appellant, v. JAMES RONALD THUL, Respondent.	G042511 (Super. Ct. No. 05D010369) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James L. Waltz, Judge. Affirmed in part and remanded.
Cindy Lee Cannon for Appellant.
Brian G. Saylin for Respondent.


Tamara Thul appeals from an order imposing $80,000 in sanctions against her, payable at a rate of $800 per month, stemming from her uncooperative and unreasonable conduct during the course of the litigation dissolving her marriage to James Thul. Tamara^[1] challenges the order on several grounds, none of which is persuasive, and we consequently affirm the order.
FACTS^[2]
Tamara filed the petition to dissolve her marriage to James on November 9, 2005, following a marriage of over 17 years. The parties have two daughters, who were 7 years old and 16 months old, respectively, at the time Tamara petitioned for dissolution. According to James, the marriage was “shattered when a third party told my wife that I was gay.”
On December 5, 2005, Tamara requested and obtained a temporary restraining order against James, requiring him to move out of the family home and stay away from the children. The hearing for the permanent restraining order was set for December 12, 2005, and pending that hearing, James was ordered to move out of the family residence and to have no visitation with the children. In support of the restraining order, Tamara alleged there was a danger James would leave the jurisdiction with the children, because his “homosexual lover has threatened to take the children to Mexico,” and alleged there was threatened use of guns or other weapons because while she had “removed guns from the home,” James had “requested that I return them.” She claimed to be suffering from “severe emotional distress.”
In her supporting declaration, Tamara stated that James had been arrested for public masturbation in 1996 and for “prowling” in 2004, and claimed that he admitted to being HIV positive and to contracting syphilis.
Tamara also declared that on December 2, 2005, after she told James he had no further reason to be in the master bedroom, “He became belligerent and hostile,” and attempted to punch her. Tamara claimed she called the police, and then spent the weekend with her parents in Victorville. Tamara also claimed that James had told their elder daughter “Mommy was a fucking bitch” and that Tamara had tried to put him in jail. She also claimed that James called the house in Victorville and demanded Tamara either return with the children or she would have to find a new place to live. She contended these events “show[ed] an escalating pattern of strange and threatening behavior by [James.]”
With respect to James’ alleged homosexual relationship, Tamara stated James had initially characterized a man he was spending time with, Raul O’Campo, as “a friend.” She claimed, however, that Mr. O’Campo was actually using the family residence to obtain welfare checks under the name Benjamin Penaloza.
Tamara claimed that in July of 2005, Raul informed her that he and James were lovers and that James was going to leave her. Then in August, a man Tamara said she didn’t know informed her that Benjamin Penaloza, aka Raul O’Campo, was a suspected child molester. She then barred O’Campo from the house, but he wouldn’t stay away. It was in August of 2005 that O’Campo told her he would “take the kids to Mexico.” Shortly thereafter, James and O’Campo had a falling out, and when Tamara applied for a restraining order against O’Campo, James asked to be included within its protections. However, after the restraining order issued, James began seeing O’Campo again.
Tamara explained that when she learned James was again seeing O’Campo, she threatened divorce unless he stopped immediately. She claimed that James was verbally abusive, threatened to set fire to the house, and threw a bottle of hair conditioner across the room before leaving the house.
Tamara also claimed James had admitted to having sex with O’Campo in the children’s playroom and that “bodily fluids were exchanged” during the encounter. She also claimed James has been HIV positive since 1996 and both O’Campo and James had admitted to having syphilis. Tamara believed that “James had exposed his children to AIDS” by having sex in the children’s playroom.
Tamara also related she had recently discovered James in the shower with their seven year old daughter, and although he was wearing shorts, she believed the behavior was nonetheless “inappropriate” in light of his “recent behavior and his association with Mr. O’Campo.”
On December 12, 2005, the parties stipulated to an additional continuance of the hearing on the domestic violence petition, setting it for January 5, 2006. The TRO was continued in effect pending that hearing, and the parties stipulated James could have monitored visitation with the children at F.A.C.E.S. in Fullerton, California in the interim.
At the January 5, 2006 hearing, Tamara testified on her own behalf. She also called Brian Gordon from family court services to testify, apparently as a percipient witness. However, when James requested that Gordon be allowed to testify as an expert, Tamara refused to stipulate to his expert qualifications – even after the court advised counsel of the court’s own familiarity with Mr. Gordon as an expert. The court then found Mr. Gordon to be an expert despite Tamara’s objection.
James offered evidence in response to Tamara’s claims, including evidence she had lied about her claims of violence by James, and it was she, not he, who had acted aggressively toward the other. Before the conclusion of the hearing, the court ordered the matter trailed and conferred with counsel in chambers. During that conference, the court indicated to Tamara’s counsel that it was not convinced she had demonstrated any grounds for issuance of a permanent restraining order. However, in lieu of completing the hearing and issuing a formal ruling at that time, the court suggested that the parties endeavor to reach a temporary custody agreement and suggested they stipulate to the appointment of an expert forensic psychologist to advise the court on custody issues.
The parties then agreed Tamara “shall have exclusive use of the marital residence,” and “primary physical custody of the minor children,” while James’ visitation with the children would be “monitored by Nick Thul and any other person agreed to in writing by the parties.”
On March 7, 2006, the court appointed Dr. David Mann to conduct a child custody evaluation, and ordered the parties to cooperate with him. However, Tamara apparently failed or refused to do so, and consequently “the process became longer and more drawn out than necessary,” and the expert’s report was not filed until significantly beyond the deadline the court had ordered.
On April 5, 2006, Tamara’s counsel filed a separate petition for a domestic violence restraining order, this time on behalf of Tamara’s mother, Sylvia Gormley. The petition alleged that James had tossed a baby blanket into the house. The temporary restraining order was denied. The fees incurred in support of that petition were billed to Tamara, rather than her mother, and paid by Tamara.
In July of 2006, Tamara stopped paying the mortgage on the family residence, which she continued to occupy. She did not notify James that she had stopped paying the mortgage, even after she received statements formally notifying her that the mortgage was in arrears. When James discovered what was happening, he contacted the mortgage company and brought the payments current.
On August 8, 2006, following receipt of the report by the custody expert, the court entered a stipulated order that James’ custodial time would no longer be monitored, and that his time with the children would be increased.
Meanwhile, Tamara continued to pursue her claim for a domestic violence restraining order against James, despite the court’s earlier attempt to suggest the claim lacked merit. Thus, on February 16, 2007, the court held an additional hearing on the issue. However, after hearing Tamara testify, the court issued a formal ruling denying the petition, after determining that “no domestic violence occurred and no domestic violence was perpetrated by James Ronald Thul.” The issue of attorney fees was specifically “reserved to the date of trial on property division and dissolution of the marriage.”
On February 20, 2007, the court entered a judgment on the bifurcated issue of child custody. The court ordered the parties would enjoy joint legal and physical custody of the children. The court further ordered the parties “to ensure that no person denigrates either party in the presence of the children. Family and friends are to be instructed not to send any derogatory letters or messages.”
In its order, the court made specific findings relating to Tamara’s parents, the Gormleys. The court noted that the Gormleys were in court every day “making faces, their body language, tone of voice and the content of their testimony in court made it abundantly clear that they absolutely despise the ground [on which] Mr. Thul walks. The Gormleys admitted that they were hostile to Mr. Thul. The Gormleys lied on the witness stand. The [c]ourt has grave concerns about the Gormley’s influence on the minor children.” Further, the court suspected that Mr. Gormely was the author of letters written on pink paper, the content of which “horrified” the court, and the court expressed the hope that “the content never gets passed on to the children.” Thus, the court ruled that “[c]ommencing February 20, 2007, and continuing for six (6) months thereafter neither Mr. [nor] Mrs. Gormley shall be around either minor child outside the presence of the Petitioner.”
The court further ordered, “[s]o that each party shall focus on the children,
. . . that commencing February 20, 2007, and for the next six (6) months thereafter neither Petitioner nor Respondent shall have people of a romantic interest present during their custodial time with the children.”
Then, in March of 2007, Tamara filed for bankruptcy. And in an order to show cause (OSC) filed March 16, 2007, Tamara asked the court to defer the sale of the family residence, where she continued to reside. In her accompanying declaration, she took the opportunity to assert she was “concerned and worried about the well being of our daughters while they are in the custody of their father.” Then despite the prior denial of both her own and her mother’s petitions for restraining orders, she also asserted “James has a history of threatening me and my mother. He also has a history of criminal arrests and poor judgment.” Those assertions, of course, had little to do with the issue of deferring the sale of the family home.
Tamara also acknowledged that her bankruptcy filing had been designed to “allow [her] to continue to live [in] the . . . residence,” and then relied upon that filing as justification for allowing her to remain in the home, explaining that “the bankruptcy will make it extremely difficult for me to find alternative housing at this time.” Tamara admitted she had stopped making payments on the home in the summer of 2006, but blamed James for any arrearages on the home mortgage, claiming that although she (and not he) resided in the home, he “should have taken an equal burden in paying these debts from the time that we separated.”
On October 19, 2007, the court entered a stipulated judgment on reserved issues, relating to financial matters. Tamara was charged with the fair rental value of the family residence until the date she actually vacated it. The court also ordered that she be charged with 100 percent of all increases in the obligations relating to the home caused by her nonpayment of those obligations, and that she reimburse James $14,642 for the payments he made from his own separate property, relating to the obligations owing on and secured by the home, which the court found to be for her “sole benefit.”
The judgment further provided that Tamara had improperly “transferred money of the minor children to her mother,” including money that had been a gift from James’ grandfather, and ordered that Tamara deposit these sums into an account where James would be the custodian. The judgment specifically reserved the issues of attorney fees, sanctions, and costs.
In January of 2008, James filed an OSC, seeking an order requiring Tamara to undergo anger management therapy and parenting classes, requiring that therapy be afforded to their elder daughter, and requiring that Tamara’s parents, the Gormleys, be prohibited from contact with the children for a period of six months. In support of the OSC, James filed a declaration detailing disturbing contact by both Tamara and her parents. For example, James declared that on December 19, 2007, Tamara had confronted him and his significant other in a crowded room following a Christmas program at the children’s school, saying various things, including “Do you like getting fucked in the ass‌” “Yeah, you do.” “That’s why you walk like you do, because you like to get fucked in the ass.” “You fucking faggots.” The Gormleys were also present, and the parties’ younger daughter was on her mother’s hip.
Additionally, James reported that despite the court’s order limiting the Gormelys’ contact with the children, they had actually “increased their pressure on our daughters,” and that Mr. Gormley had even tried to engage James in a fight, by coming out to the porch during one of the custody transitions and shoving him.
Tamara opposed the order, and requested an award of $2,500 in attorney fees for the expense of opposing it. Although she denied uttering the vile and disparaging things claimed by James during the incident at their daughter’s school, Tamara nonetheless made it clear she believed it inappropriate for James to have attended the event with his partner. As Tamara explained it, shortly after the expiration of the court-imposed six-month period in which neither party was to expose the children to their romantic partners, James began cohabitating with his “gay lover,” and “in a lapse of good judgment . . . brought [him] for a custody exchange to [their daughter’s] pre-school.” Tamara claimed she could “see no productive reason, and indeed no reason at all, to antagonize my church community by bringing [him] to church preschool.” She characterized the event as “an attempt by [James] to incite conflict and then utilize the same for his requested psychotherapy order.”
Tamara also purported to explain her parents’ conduct, by simply noting that “[James’] life choices are contrary to my parents’ religious beliefs which has caused friction between them.” Without denying that her father shoved James, Tamara claimed that she had “good control over [her] parents at this juncture,” and thus there was no reason “to seek severance of a relationship between maternal grandparents and the girls that is well in hand and well supervised by me.” Tamara denied that she personally had any need for therapy, as she “attend[s] church regularly and receive[s] ample counseling in that setting.”
On April 7, 2008, the court commenced a hearing regarding James’ OSC. After taking evidence over a two-day period, the court concluded that James had substantiated his allegations “beyond more than a preponderance of the evidence” and ordered that Tamara enroll in and complete a 10-week anger management program. The court’s order also precluded the Gormleys from having any physical contact with the parties’ children until further order of the court, and subject to review in six months. The matter was set for a review hearing on October 1, 2008, at which time the court would determine the parties’ compliance with its order, and consider the issue of attorney fees.
On May 20, 2008, James filed an ex parte application for an OSC, seeking an order requiring that Tamara cooperate in the sale of the parties’ home, and empowering James to sign documents on her behalf if she fails to do so within 24 hours of a request. He also asked for an order prohibiting the proceeds of the sale from being disbursed without either an agreement of the parties or a court order.
Additionally, James also requested a determination of the “monies owed by [Tamara] to [him] pursuant to the October 19, 2007 Judgment on Reserved Issues” and a determination of the “[a]ttorney fees, sanctions and costs” owed to him, plus the “‘related’ fees [he] incurred . . . in the Bankruptcy claim . . . .”
In his supporting declaration, James reminded the court that Tamara had failed to pay the mortgage, insurance and taxes on the home, all of which had eroded its equity, and had declared bankruptcy in response to his application for a court order to sell the property. James also supplied the court with a declaration from the agent appointed by the bankruptcy court to sell the home, detailing Tamara’s refusal to cooperate in the sale of the home. Among other things, the agent reported that Tamara made “unreasonable specific demands,” including requiring that any person wishing to see the home first post a $10,000 bond, and that she refused to provide a key to the home (in which she resided) claiming she did not have one. The bankruptcy trustee later abandoned the home as part of the bankruptcy action, allowing it to revert to the jurisdiction of the family court in the marital case.
In response to the OSC, the parties stipulated to an order requiring them to “cooperate and take all steps reasonably necessary to finalize the sale of the real property located at 1925 Celeste Lane” and requiring that “neither party shall take any action that will negatively effect [sic] the sale.” The parties also agreed that the net proceeds from the sale of the home would be held in a separate interest bearing account.
The parties failed to resolve the remaining issues raised in James’ OSC, and in September of 2008, the court ordered Tamara to file a response, and to include briefing on the effect of her bankruptcy in the marital action. In that response, Tamara contested the requested orders, and reminded the court that she placed blame for the marital dissolution on James.
Specifically, Tamara’s responsive declaration reminded the court that James had left the marriage to live with a man. Tamara reiterated allegations that James had been arrested for a variety of misconduct, including a more recent conviction of lewd conduct in a public place, and expressed doubt that the custody evaluator was aware of this and suggested a further custody evaluation might be warranted. She also accused James of recently defacing family photographs, and thus destroying memories, despite the fact her mother was ill with cancer and undergoing chemotherapy. Tamara suggested that conduct demonstrated that it was he, and not she, who was the “angry one.”
Tamara also complained about various aspects of the judgment on reserved issues (although not specifically about the provision requiring her to reimburse James for the amounts he paid to maintain the marital residence after she stopped doing so), and complained about the amount of child support paid by James. None of those matters were at issue in connection with the OSC. With respect to the issues actually raised, Tamara said very little. She did make clear she understood the court would be considering whether to hold her responsible for some portion of James’ attorney fees, on the basis that “this protracted litigation was occasioned by me and by my ‘gay bashing.’” She denied that, and claimed instead that the protracted litigation was caused by James’ own conduct, including his criminal acts which caused “tension in our relationship because I am concerned about our girls being in the company of certain of [James’] friends.”
On October 16, 2008, Tamara formally moved to set aside the judgment on reserved issues. Tamara declared that the attorney who previously represented her “did not know a lot about family law and had health problems” – the latter of which circumstances was purportedly apparent to her as a registered nurse. She contended that those problems led her to improvidently stipulate to the judgment. The court denied the motion.
On or around October 27, 2008, James submitted declarations in support of his claim for fees and costs. In his own declaration, James stated that as of September 1, 2008, his fees and costs incurred in the dispute totaled nearly $138,000.
James’ counsel also filed a declaration, in which she explained why the fees incurred in the case had gotten so high. Counsel stated that “The Thul case has been one of the more legally exasperating cases in my 30+ years of practicing law. Petitioner, and each of her attorneys played fast and loose with the system; created unnecessary delays; resurrected matters that had long been resolved; failed to communicate; failed to produce information and documentation; failed to cooperate in nearly any endeavor; and personalized the case such that slurs were repeatedly hurled at my client.”^[3] Counsel also pointed out that she had “represented Petitioner in 27 Court appearances including hearings on numerous Motions/Orders to Show Cause, 2 1/2 day of Trial – DV and Custody and Objections to Judgment, and almost a full day settling the property issues to only now, some 13 months later have the Petition[er] file a Motion to set aside.”
Counsel also reviewed the billings of James’ prior counsel and opined that at least 75 percent of the $30,000 James paid was related to Tamara’s domestic violence accusations. Based on counsel’s expertise and experience, she felt “the Respondent’s fees and costs in this matter should have been no more than $10-15,000 had the Petitioner not engaged in tactics that frustrate[d] the policy of law to promote settlement of litigation and refus[ed] to cooperate for the benefit of not only the Respondent and the minor children, but for her own benefit.” Counsel attached her billing invoices for review.
Tamara filed her declaration in opposition to the attorney fee request on November 12, 2008. Tamara stated that she had incurred approximately $90,000 in attorney fees, much of which was spent defending matters brought by James. According to Tamara, “A significant amount of attorneys’ fees incurred in this matter are directly related to Mr. Thul’s criminal conduct and high-risk behavior.” Again, she listed his offenses: “Mr. Thul was arrested on several occasions and convicted of lewd conduct in a public place. Dr. Mann, the neutral evaluator in this case, is not aware of Mr. Thul’s recent conviction and current criminal probationary status. The conduct that Mr. Thul was convicted of involved soliciting sex with strangers, not a regular partner. I feel that this lifestyle choice placed me at risk. Mr. Thul’s promiscuity is certainly one of the primary reasons for our divorce.”
Tamara goes on, claiming that the people entering James’ life “posed serious threats” to her safety, and stating that she has investigated James’ current partner, Sergio Garcia, who she believes might be using the alias of “Sergio Villalobos,” and “may have an alarming criminal conviction record.” According to Tamara, James refused to answer any questions about Garcia, and it is his intransigence which “has done as much as anything else, if not more, to increase the costs of litigation in this sad case.”
On March 15, 2009, James filed a “Consolidated Brief re: Attorney Fees/Costs and [Family Code section 270] Sanctions,” in which he outlined in detail the claims made and and sanctions sought. The brief reflected a hearing date of June 4, 2009.
On April 17, 2009, at a hearing prior to the scheduled hearing on sanctions, the issue of Tamara’s bankruptcy and its affect on attorney fees was raised. Tamara’s counsel took the position that any liability she may have had for fees incurred prior to her declaration of bankruptcy may have been wiped out by her discharge. However, she also assured the court that whatever position it took on that issue, Tamara was ready to proceed on the merits of the fee claim. On May 21, 2009, Tamara filed a “Reply to Consolidated Brief Re: Attorney Fees/Costs And [Family Code section 270] Sanctions.” In that document, which was in the form of a declaration, Tamara defended her conduct in the litigation, and argued that any problems stemmed from James’ conduct and his “high risk behavior that [she] believed placed the girls and [her] at risk.”
On June 4, 2009, there was a hearing on the request for sanctions. At this hearing, Tamara’s attorney gave an extensive recap regarding James’ sexuality, explaining “[a]nd this is not gay bashing, by the way. I’m trying to demonstrate to the court what caused the protracted litigation. [¶] He was arrested three times. He was convicted of lewd conduct in a public place with another person. He was solicited by a police officer, and he’s currently on criminal probation.” The court attempted to steer counsel away from the issue of James’ sexuality, noting that there was only so much time to address sanction issues at hand. Nonetheless, counsel persisted in trying to portray James’ sexuality as the key problem causing difficulty in the case. Specifically, counsel referred to the incident where “Mr. Thul had appeared at the children’s conservative Christian school with his partner, his – who is not Raul O’Campo at this point; it’s a new partner. And they were holding hands and skipping across the lot and making a scene, such that they claim they were then called names at the school by my client and by someone else. But they came to the school together.”
Finally, toward the end of the hearing, after Tamara’s counsel referred again to Mr. Thul’s residing with “his current partner” (as part of an argument suggesting that he had reduced living expenses as compared to Tamara), the court asked Tamara’s lawyer to “stop referring to [James’] current partner,” and emphasizing that the court did not “care who his partner is” and was “blind as to his sexual orientation.”
At the conclusion of her argument, Tamara’s counsel told the court she would submit the matter “on our paperwork,” and stated she had filed everything she wanted to file in the case. Counsel did, however, indicate that she objected to the fact that James’ fee request did not clearly set forth “what portions of the fees are sought pursuant to [Family Code section] 271 [i.e., as a sanction], and what portion of the fees are sought pursuant to [Family Code sections] 2030, 2032 [i.e., based upon financial need].” In response to that concern, the court told her it would look at both theories, and consider all facts presented.
Tamara’s counsel also expressed some confusion as to whether the matter was being treated as an OSC, in which case Tamara had a third-party witness available to testify about Tamara’s reduced financial circumstances, or as a motion, which would be submitted solely on the evidence filed by declaration. In response, the court told her it deemed the matter to be a motion, but gave her leave to file a declaration from that witness within the following week. Counsel agreed, stated she would submit that declaration, and it would “be fine.” The additional declaration was submitted on June 16, 2009.
The court issued its ruling on June 26, 2009. The court ordered Tamara to pay sanctions to James, in the sum of $80,000, pursuant to Family Code section 271.[4] The court made the sanction “payable in installments at the rate of Eight Hundred dollars ($800.00) per month commencing August 1, 2009 until paid in full.”
In its ruling, the court explained it “has spent a considerable amount of time carefully reviewing the extensive file and observ[ing] petitioner’s persistent pattern of prosecuting [sic: persecuting‌] the respondent based on his sexual preference. The petitioner’s open and clear bias and prejudices have driven, fueled and directed this litigation and tactics. It appears at-a-glance that petitioner has attempted to redress her psychological injuries from a failed marriage by means of this family law litigation and attempted to damage and interfere with the father’s relationship with his daughters based on his sexual orientation. In that regard, the petitioner has embarked on a scorched earth campaign to blast, harass, retaliate and discriminate based [on] the respondent’s sexual orientation and to expunge him from the lives of their two children.” In its order, the court specifically cited (1) Tamara’s act of filing “false allegations of domestic violence” against James; (2) the failed domestic violence petition filed on behalf of Tamara’s mother; (3) Tamara’s refusal to cooperate with custody and visitation plans which necessitated additional litigation; (4) her refusal to cooperate with the child custody evaluator which also drove up expenses; (5) her failure to pay the mortgage or expenses for the family home in which she resided, and her efforts to impede the sale of that home; and (6) her “meritless” motion to set aside the judgment.
Further, the court noted “[Tamara’s] entire behavior was damaging to [James], drove up unnecessary attorney fees and costs and, delayed the litigation meeting the predicate conduct under [section 271] and her entire behavior can be characterized as obstreperous.” It concluded she should pay a sanction of $80,000 – roughly half of James’ total fees incurred – because “about one-half of the litigation was not necessary and the direct result of [Tamara’s] un-restrained anger and hostility.”
The court acknowledged Tamara would be unable to pay the sanction if assessed in a lump sum to be paid forthwith, but stated it would be reasonable for her to do so at a rate of $800 per month. The court found that Tamara had the ability to pay that monthly amount, citing her hourly rate of pay as a nurse, her current income and her earning capacity.
After characterizing the award as “in the nature of a sanction,” the court explicitly “defer[red] to the bankruptcy court to determine whether this award is dischargeable or non dischargeable under the Bankruptcy Code.”
I
The court in a marital dissolution case is specifically empowered not only to render decisions on the status of the marriage, child custody support and property issues, but also to award attorney fees and costs. (§ 2010, subd. (f).) The general rule for fee awards in marital cases is that they are based upon the disparity in financial resources available to the parties. Thus, section 2030, provides “the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (§ 2030, subd. (a)(1).) Section 2030 further makes it clear that the power of the court presiding over the marital dissolution case to award fees and costs extends to those incurred in “any proceeding related thereto.” (§ 2030, subd. (c).)
Section 271 provides an additional basis for awarding fees and costs in cases arising under the Family Code, including marital dissolution cases.^[5] Section 271 provides, in pertinent part, that “[n]otwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.” (§ 271, subd. (a).) The sanction under section 271 may be levied without regard to the financial need of the recipient. (§ 271, subd. (a).)
Nothing in section 271 restricts the power of the court in a marital case to award fees, and thus its effect is simply to expand the grounds upon which fee and cost awards can be made in such a case. As a consequence, courts have held a sanction award levied pursuant to section 271 by a court presiding over a marital dissolution case can encompass fees and costs incurred in related matters. (See, e.g., Neal v. Superior Court (2001) 90 Cal.App.4th 22 [directing court in marital dissolution action to impose sanctions under section 271 for expense of separate civil action which was essentially duplicative of issues in marital dissolution case]; In re Marriage of Green (1992) 6 Cal.App.4th 584 [award of fees as a sanction against husband under former § 4370.5 (now § 271), based upon expense of his malicious prosecution action against wife’s attorney].)
While the court in a marital case may issue interim sanction orders pursuant to section 271 during the pendency of the proceeding (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1494-1495; Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500), courts often wait until the end of the case and consider an award of sanctions based upon a course of conduct throughout the entirety of the proceeding. (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6; In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [“[t]he statute, we think, contemplates assessing a sanction at the end of the lawsuit, when the extent and severity of the party’s bad conduct can be judged.”].)^[6]
A trial court has broad discretion to order sanctions under section 271, and its order will be reversed for abuse of discretion “‘“‘only if, considering all of the evidence viewed most favorably in support of its order, no judge could reasonably make the order.’”’ [Citation.]” (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478.) With these principles in mind, we turn to Tamara’s contentions.
II
Tamara’s first challenge to the court’s order is characterized as an assertion that the court’s findings – specifically including its conclusions regarding Tamara’s motivation and intent in fighting this litigation so vigorously – “are not supported by substantial evidence.” However, in making this assertion, Tamara does not challenge – or for that matter even acknowledge – the content of the declarations submitted to the court with respect to the attorney fee motion, or any other aspect of the extensive record of proceedings reviewed by both the trial court and this one, at some length.
Instead, Tamara’s actual argument appears to be that the order should be reversed because the judge who ruled on the sanctions motion did not preside over the bulk of the case, and thus was not “best prepared and qualified to pass upon the merits of the motion.” She contends that because the judge who decided the motion neither took live testimony, nor personally presided over the earlier aspects of the case, his findings are necessarily “pulled from thin air.” Tamara then laments that “[s]urely our family courts have not denigrated to the point where lawyers can hawk vitriol courtroom to courtroom until a buyer is found. Labeling a party a bigot, and imposing extreme financial hardship on her for the next ten years must require more than this.”
In making this argument, however, Tamara cites no authority supporting the contention that the judge who decided the motion was somehow without power to do so. Instead, she relies upon Abbott v. Mandiola (1999) 70 Cal.App.4th 676, in which this court reversed an order for sanctions arising out of a declaration of mistrial, on the basis that the judge who had actually declared the mistrial had erred in transferring the sanction motion to a different judge who had presided over an earlier portion of the case. This court reasoned that because the propriety of sanctions was rather inextricably tied to the court’s actual reason for declaring the mistrial (which was disputed), it was important for that same judge to decide the motion – and thus the court erred in transferring the motion to be heard by a different judicial officer.
Here, by contrast, the sanctions requested were not specifically tied to any single ruling. Indeed, the sanctions pertained to the fees and expenses incurred by James in several different cases, including the marital dissolution case, the domestic violence litigation, and Tamara’s bankruptcy case. Moreover, the cases involved numerous distinct issues, which were raised and ruled upon at different times. Tamara has made no effort to establish which, if any, of the judicial officers who participated in these cases is the one to whom the sanction motion was required to be addressed.
Nor has Tamara made any effort to demonstrate how the sanction issue in this case ended up before the judge who decided it, let alone that some error occurred in the manner in which that came about. But the most significant flaw in Tamara’s argument is her utter failure to acknowledge that she herself participated in the sanction motion before this particular judge without apparent protest, offered declarations in support of her positions, and otherwise failed to object to the manner in which the issue was obviously being decided. She has consequently waived any contention on appeal that the matter was required to be adjudicated by a different procedure. “‘“An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.’” (Children’s Hospital & Medical Center v. Bonta’ (2002) 97 Cal.App.4th 740, 776; see also Robinson v. Grossman (1997) 57 Cal.App.4th 634, 648 [party that failed to object to the trial court that the opposing party’s attorney fees were not sufficiently documented waived the right to object on appeal to the amount of the fee award].)” (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1496.)
III
Tamara next argues the court erred by incorporating fees incurred by James in connection with her separate domestic violence petition into the sanction award. However, as explained above, the court presiding over a marital dissolution case does have authority to render an award of fees and costs which encompasses the fees and costs incurred in other cases related to the marital dissolution. And section 271 simply provides the court with an additional ground upon which to make that award.
Moreover, Loeffler v. Medina (2009) 174 Cal.App.4th 1495, the sole case Tamara relies upon to support her position, is both inapposite and fails to reach the conclusion she asserts. Loeffler involves an appeal from an order in a domestic violence case, denying the defendant’s application to terminate the restraining order, and awarding fees and costs to the petitioner who had opposed the application. The parties were apparently never married, and thus there was no indication any marital dissolution action was pending or had ever been filed. Consequently, the Loeffler court had no occasion to consider the issue of whether the court in a marital dissolution action can base its award of sanctions on conduct in a related domestic violence case.
More significantly, nothing in Loeffler suggests sanctions under section 271 would be unavailable in a domestic violence case, as Tamara appears to believe. With respect to the propriety of the fee award made against him, the appellant in Loeffler made no claim that section 271 could not be applied to the proceeding; instead, he asserted only that petitioner had not provided any evidence that his conduct had actually “‘frustrate[d] the policy of the law to promote settlement of litigation,’” as specified in section 271, and thus she had not proved any entitlement to a sanction award thereunder. (Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1508, quoting § 271, subd. (a).)
In rejecting his contention, the Loeffler court determined he was mistaken as to the trial court’s justification for the fee award. It explained that “as we interpret the trial court’s statement of decision, it did not award fees and costs to Loeffler as a sanction under section 271. Instead, it awarded fees and costs to Loeffler pursuant to section 6344, subdivision (a), which states that in connection with a proceeding concerning a domestic violence restraining order, ‘[a]fter notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.’ (§ 6344, subd. (a).)” (Loeffler v. Medina, supra, 174 Cal.App.4th at p. 1508.) Having determined that no fees had been awarded under section 271, the Loeffler court then simply concluded the appellant’s attack on the sufficiency of the evidence to support such an award was moot.
What the Loeffler court did not do, however, was express any opinion that such a sanction award would have been improper, as a matter of law, in a domestic violence case. As a consequence, Loeffler is of no assistance to Tamara here.
IV
Tamara also contends the court’s sanction order must be reversed because it is based in part upon the misconduct of her parents, which the court erroneously “imputed” to her. While she acknowledges “there is evidence in the record of hostility and bad conduct toward James on the part of [her] parents,” her specific complaint is that “nowhere is this conduct ever assigned to her by a judge who actually took the evidence.” (Italics added.) But that is simply a variation on her earlier claim that only the particular judge who presided over alleged misconduct can consider an award of sanctions relating to it. There is no such rule, and even if there were, Tamara waived the contention by failing to raise it below.
Significantly, what Tamara makes no effort to do is summarize the evidence actually in the record, and demonstrate why that evidence would have been insufficient to support a determination by the judge who actually decided the sanction motion, that she should be held responsible for any misconduct of her parents which frustrated the policy of promoting settlement. She consequently waived any claim that the evidence was insufficient.
“An appellate court “‘must presume that the record contains evidence to support every finding of fact….’” (In re Marriage of Fink (1979) 25 Cal.3d 877, 887, italics added; see Brown v. World Church (1969) 272 Cal.App.2d 684, 690, [“‘a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact’”].) It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. (Brown v. World Church, supra, 272 Cal.App.2d 684, 690.) This burden is a ‘daunting’ one. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409; Grand v. Griesinger (1958) 160 Cal.App.2d 397, 403 [“‘Instead of a fair and sincere effort to show that the trial court was wrong, appellant’s brief is a mere challenge to respondents to prove that the court was right. And it is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondents. An appellant is not permitted to evade or shift his responsibility in this manner.’ [Citations.]”].)
Having made no attempt to demonstrate how the record before us is insufficient to support the conclusion that she should be held responsible for the admitted misconduct of her parents, Tamara cannot prevail on that claim.^[7]
V
Tamara also challenges the sufficiency of the notice given to her concerning the sanction motion, claiming she was entitled to a clear “notice of motion” which set forth both the code section relied upon and the specific grounds and conduct upon which the sanction request was based. She complains that the procedure in this case was so confused that the court deciding the sanction issue did not even determine that the request constituted a “motion” rather than and OSC, until the hearing itself.
We agree the procedure employed in connection with the sanction motion was not without its flaws. However, “flawless” is not the standard we employ in reviewing alleged procedural errors. Instead, we consider whether the alleged flaws were so significant that they affected the substantial rights of the complaining party. (Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40 [“Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., § 475.)”].) And Tamara has made no such showing here.
In fact, the record demonstrates the contrary. It is clear that Tamara was aware, significantly before the hearing, that James was seeking an award of fees as a sanction under section 271. The statute was specifically cited in the titles of both his brief, and her opposition.^[8] Moreover, it’s clear from the content of those briefs and supporting declarations that Tamara was aware James was seeking an award covering the entire litigation, as well as the basis upon which he contended a substantial award was warranted. Finally, while Tamara may have been confused as to whether the procedure employed at the hearing was to be that of an OSC or a motion, the court answered her inquiry promptly, and offered her the opportunity to submit any evidence she might have offered as testimony at the hearing, in the form of a post-hearing declaration. She expressed satisfaction with that option. Under these circumstances, there is no basis to conclude the notice given to Tamara was deficient in any manner which affected her substantial rights. (See In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161.)^[9]
In any event, whatever defect there may have been in the notice given to Tamara was waived when she appeared and argued the sanction motion on the merits. As explained in Tate v. Superior Court of San Francisco (1975) 45 Cal.App.3d 925, 930, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.” (See also Pacific Std. Life Ins. Co. v. Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888 [“Tower has waived its right to complain of insufficient notice of the motion for judgment [because it] did not object to the motion on the ground of lack of notice.”].)
Indeed, in Carlton v. Quint (2000) 77 Cal.App.4th 690, the court concluded that even when the opposing party does expressly object to the inadequate notice in its opposition papers, it may not be sufficient to preserve the issue for appeal. Instead, if the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived: “[D]espite his claim of inadequate service and notice in his opposition to the motion and at the summary judgment hearing, Carlton did file an opposition to the motion, appeared and argued at the hearing, never requested a continuance of the hearing and never claimed prejudice by reason of insufficient notice or service. Under these circumstances, we conclude Carlton waived any claim of inadequate service or notice assuming, without deciding, that claim had any merit.” (Id. at p. 697.)
The same rule applies here, and thus Tamara cannot rely upon any perceived inadequacy of notice as the basis for reversing the court’s decision.
VI
Tamara next suggests it would have been a good idea if someone had determined the extent to which her liability for sanctions might be subject to discharge as a result of her earlier bankruptcy filing, before asking the court below to assess that liability. She claims that “it is a novel issue as to whether a family court should review a case for bad conduct before the bankruptcy court determines the nondischargeability of the conduct pursuant to Bankruptcy Code section 523(a)(15) . . . .” She asserts that ordering such sanctions in this case “may well have been an idle act.”
However, a potentially “idle” act is not reversible error. Indeed, if the court’s order were truly meaningless, Tamara would have no standing to appeal it. (In re D.R. (2010) 185 Cal.App.4th 852, 858-859 [“One has no standing to appeal if one is not aggrieved.”].) The fact that it might be, in effect, superseded by a dischargeability ruling in the bankruptcy court at some later point, also provides no basis for reversal. If that occurs, it would simply render the order moot. That too would be grounds for dismissing an appeal, rather than ruling on one. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214, [“A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief.’ [Citation.]”]; In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204 [“‘it is the duty of the court to dismiss the appeal’ [Citation]” of an issue which has become moot].)
Significantly, what Tamara does not claim is (1) that it was James’ responsibility, and not hers, to seek a determination of dischargeability from the bankruptcy court; (2) that such a determination could not yet be obtained; or (3) that the court below was actually precluded from issuing its sanction ruling in the absence of such a determination being made. Thus, she failed to demonstrate error.
VII
Tamara next asserts the court abused its discretion by relying upon her motion to set aside the judgment on reserved issues as part of the grounds for its sanction award. She argues the position she took in the motion “was not particularly aggressive,” and thus she should not have been punished for it. The contention is not persuasive.
Significantly, Tamara fails to even acknowledge that, whatever the merits of the judgment she challenged, it was one she had stipulated to. It’s difficult to conceive of an act which more directly frustrates the policy favoring settlement, and thus might trigger sanctions under section 271, than a motion to overturn a stipulated judgment. There is simply no requirement that her effort to do so be considered “particularly aggressive” for it to qualify as sanctionable under section 271.
And while Tamara claims the court “did not consider the facts upon which [she] relied in support of the Motion to Set Aside” in making its sanction ruling, we cannot assume that. To the contrary, we are obligated to presume the court considered whatever facts were necessary to its decision. “‘In reviewing the facts which led the trial court to impose sanctions, we must accept the version thereof which supports the trial court’s determination, and must indulge in the inferences which favor its findings.’ [Citations.]” (Gemini Aluminum Corp. v. Cal. Custom Shapes (2002) 95 Cal.App.4th 1249, 1262-1263.) And in the absence of some affirmative showing by Tamara to the contrary, we are further obligated to infer the court properly concluded the motion reflected her effort to frustrate settlement. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138 [court must “indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings.” ].)
In light of the foregoing, Tamara has failed to demonstrate the court erred in relying upon her motion to set aside the judgment on reserved issues as a basis for its sanction ruling.
VIII
Tamara also contends the sanction order must be reversed because the court “utterly disregarded [her] actual income, history of income, obligations, lack of assets, lack of credit, and the inability she had to meet her most basic financial needs” in concluding the sanction award would not impose an unreasonable financial burden on her.^[10] However, as we have already explained, we are obligated to presume the court considered all relevant evidence in making its decision, and thus in the absence of an explicit statement from the court that it actually disregarded certain evidence, we will not conclude it did. Here, the court’s ruling reflects it gave significant consideration to the issue of Tamara’s ability to pay sanctions, and analyzed the evidence submitted on the point.
And to the extent Tamara is really implying the record simply contains insufficient evidence to support a determination that this sanction award would not impose an unreasonable financial burden on her, she has failed to demonstrate that insufficiency. As we have already explained, when an appellant attacks the sufficiency of the evidence to support a factual finding, she is required to summarize all of the evidence relating to the point, both favorable and unfavorable, and explain why that evidence is insufficient. (Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at p. 409.)
In her opening brief, Tamara made no effort to do that. Instead, her only reference to evidence relating to her financial condition is in her statement of facts, and she recites only that she “offered her declaration testimony regarding her inability to pay a large award,” and that she “presented declaration testimony following the hearing from a witness who declared that she had administered charity for Tamara and the girls through her church in recent months because of the family’s dire financial condition.”
Tamara did, however, make a greater effort to support the point in her reply brief. After first chiding James for his failure to point out “actual evidence [in the record] suggesting that [she] could pay such a substantial sanctions award,” she goes on to supply us with three pages of facts and arguments designed to establish that she would have great difficulty doing so. The effort is too late. The burden was on Tamara to affirmatively demonstrate error in the court’s ruling – not on James to supply us with the factual support for that ruling. And she was obligated to meet that burden in her opening brief, rather than wait until her reply brief to make the attempt. (Sanchez v. State of California (2009) 179 Cal.App.4th 467, 484-485; Board of Administration v. Wilson, supra, 52 Cal.App.4th at p. 1162.) She failed to do so.


IX
Tamara’s final contention is that the court’s comments to her counsel during argument on the sanction motion evidenced bias, such that “the average person could well entertain doubt whether the trial judge was impartial.” (Quoting Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247, disapproved of in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4 [holding that the mere appearance of bias is insufficient to justify reversal of a decision on due process grounds].) Although she does not set forth the remarks in her argument, we presume she is referring to the moment in the hearing where the court asked counsel to desist in her references to James’ homosexual partner, because the court did not “care who his partner is” and was “blind as to his sexual orientation.” The court went on to tell counsel, “[y]ou have your opinions. I may have my opinions. They don’t have any relevance to me as I sit here and judge cases.”
As explained in People v. Freeman, supra, 47 Cal.4th at p. 1005, “it is the exceptional case presenting extreme facts where a due process violation will be found. [Citation.] Less extreme cases – including those that involve the mere appearance, but not the probability, of bias – should be resolved under more expansive disqualification statutes and codes of judicial conduct.” (Quoting Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. ___, ___ [129 S.Ct. 2252, 2267].)