Filed 8/31/26 Prince v. Prince CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STEPHEN PRINCE, D085227
Respondent, (Super. Ct. No. 17FL006027C)
v.
TERESA SUNDER PRINCE,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Christopher S. Morris, Judge. Affirmed.
William M. Henrich for Appellant.
Stephen Prince, in pro. per., for Respondent.
INTRODUCTION
Appellant Teresa Sunder Prince appeals from two orders of the court,
one involving the modification of child and spousal support as between her
and her ex-husband, Stephen Prince, and another ordering her to pay
Stephen $2,500 in attorney fee sanctions in connection with an unsuccessful
motion to compel.
After a multi-hour evidentiary hearing on the support issues, the trial
court found that Stephen had suffered a significant reduction in his ability to
earn income due to severe medical issues. The court recalculated Stephen’s
child support obligation and also modified the spousal support order that had
been in effect between the parties. Due to the significant changes in the
parties’ relative financial positions, the court reduced Stephen’s $500 per
month spousal support obligation to zero and ordered Teresa to pay Stephen
$500 per month in spousal support.
On appeal, Teresa challenges multiple aspects of the trial court’s
support modification order. We conclude that with the exception of one of
Teresa’s arguments challenging this order, the record is insufficient for us to
conclude the trial court erred. And as to the one argument for which the
record is sufficient to permit meaningful review, we disagree with Teresa’s
contention.
With respect to the sanctions order arising out of Teresa’s unsuccessful
motion to compel further production of documents, we conclude Teresa has
not demonstrated the court abused its discretion in assessing the sanctions.
We therefore affirm the orders of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Teresa and Stephen were married in August 1998 and separated in
May 2017. They share three children.
A judgment of dissolution was entered on February 18, 2022. At that
time, the court set guideline child support from Stephen to Teresa at $719 for
their oldest child, who was 18 at the time but still in high school, and $1,496
each for their twins, who were 14 at the time, plus 14 percent of any
employment bonuses he might receive. At that time Stephen was earning
$23,750 in gross monthly income and netting $14,411, while Teresa was
2
earning $7,235 gross monthly income while netting $8,678. The court
imputed an additional $3,640 of monthly income to Teresa. In addition, the
court ordered that starting March 1, 2022, Stephen was to pay Teresa $500
per month in spousal support, plus 15.25 percent of any employment bonuses
he might receive.
In May 2022, Stephen filed a post-judgment Request for Order (RFO)
seeking modification of his child support obligation. He sought a modification
because the parties’ eldest child had completed high school, and he believed
Teresa had started earning more income. Prior to the hearing on Stephen’s
RFO, his employer reduced his and other senior employee salaries by
50 percent, although this was intended to be a temporary reduction. In July
2022, the court issued an interim guideline child support order in response to
Stephen’s RFO to modify the child support; the order, requiring Stephen to
pay Teresa $1,448 per month, reflected Stephen’s recently reduced income.
The court issued further interim child support orders in early November
2022, and June 2023 while a full evidentiary hearing on the matter was
delayed.
In the meantime, in November 2022, Stephen underwent “a
complicated and extensive four level anterior and posterior lumbar fusion”
surgery to try to improve the “severe disabling pain” he had been
experiencing over several years. Stephen did not have a typical recovery,
however, and he continued to have disabling symptoms in his back and lower
extremities. He also developed an additional debilitating diagnosis. As of
June 13, 2024, Stephen’s medical team concluded he had been unable to work
in his “typical occupation” since November 2022, and he was not sufficiently
recovered to a “point that would allow for a return” to work.
3
The court conducted an additional interim hearing on October 26, 2023,
regarding child support. By order issued January 26, 2024, the court ordered
Stephen to pay Teresa $750 in child support, effective as of October 26, 2023.
The court noted at that time that Stephen had submitted credible evidence
establishing his inability to work. But, Stephen’s continued employment by
his company, Immunicom, despite the fact he was not collecting a salary,
meant that he was unable to receive other benefits for which he might be
eligible. Thus, although Stephen had a monthly income of only $721, he had
available to him $444,218 in stocks and bonds, which could be “easily
liquidated,” as well as more than $860,000 in retirement accounts. The trial
court therefore found that the guideline support amount based on Stephen’s
$721 in monthly income would be detrimental to the children, and so it
varied the support amount upward and imposed a $750 monthly child
support obligation on him. Teresa requested a full evidentiary hearing on the
matter.
Prior to the court’s issuance of the January 2024 order, however, and
just five days after the October 26, 2023, hearing on child support, Stephen
filed an RFO seeking to change spousal support. On the standard RFO form,
Stephen checked two boxes related to his request for modification of spousal
support. First, he indicated he wanted the court to “end” the spousal support
order of February 18, 2022, that obligated him to pay $500 per month.
Second, he marked the box next to the following language: “This request is to
modify (change) spousal or partner support after entry of a judgment. [¶] I
have completed an attached Spousal or Partner Support Declaration
Attachment (form FL-157) or a declaration that addresses the same factors
covered in form FL-157. In response to a fill-in-the-blank entry on the form
that stated, “The court should make, change, or end the support orders
4
because (specify)” (italics added), Stephen added, “Change of circumstances
due to [Stephen’s] loss of employment income due to disability.”
After a February 2024 trial readiness conference on Stephen’s pending
spousal support RFO, Teresa served Stephen with a demand for production
in which she requested financial records for the period beginning December 9,
2021 to the date of production, as well as Stephen’s medical records related to
his claims of disability. Although the evidentiary hearing on Stephen’s RFO
was supposed to move forward on March 5, 2024, it was continued just over
two months to May 20 and consolidated with an already-scheduled
evidentiary hearing on the child support matter.
The combined child and spousal support evidentiary hearing did not go
forward as planned on May 20, 2024. Instead, the parties and their attorneys
discussed discovery issues they had been unable to resolve, including a
dispute over Stephen’s formal responses to Teresa’s request for production of
documents and a dispute over the terms of a protective order Stephen sought
regarding his medical records. The evidentiary hearing was rescheduled to
begin in September 2024.
After the May 20 hearing, the parties continued to disagree over the
document production demands Teresa had served. After some back and forth
communications, Teresa eventually filed a motion to compel further
responses. The attorneys continued to communicate further in an effort to
resolve their dispute, but, ultimately, they failed to reach agreement as to
whether Stephen had fully complied with all of the document requests. At
some point after Stephen’s attorney told Teresa’s attorney by email that
Stephen had provided all documents responsive to the requests, Teresa’s
attorney apparently continued to believe there may have been documents
still being withheld, and he therefore decided to move forward with the
5
scheduled hearing on the motion to compel. In response to Teresa not taking
the motion to compel hearing off calendar, Stephen sought sanctions under
both Code of Civil Procedure section 2031.310 and Family Code section 271.
The hearing proceeded, and, at its conclusion, the court determined Teresa’s
motion to compel was moot because Stephen had demonstrated he had fully
complied with the requests for documents and his attorney had
communicated this to Teresa’s attorney. The court also imposed sanctions of
$2,500 on Teresa for going forward with a moot motion hearing.
The court began a nonconsecutive three-day evidentiary hearing on
both the child support and spousal support modification requests on
September 11, 2024. The first two days of the hearing were fully reported.
However, the third day of the hearing, held on September 20, 2024, was
reported only in part. Without objection from either party, the hearing
proceeded unreported for its approximately 80 final minutes. Based on the
clerk’s minutes from this portion of the hearing, as well as reasonable
inferences that can be gleaned from the court’s subsequently issued written
minute order reflecting some of its analysis and rulings, the unreported
segment of the hearing appears to have included the court’s evaluation of the
parties’ competing financial methodologies, a discussion of the Family Code
section 4320 factors in this case, and real-time DissoMaster calculations.
Four days later, on September 24, 2024, the court issued a signed
written minute order addressing both child and spousal support issues.
Although the court’s rulings were provided in written form, the court denied
Teresa’s request for a formal “written decision” because the total hearing
6
time was less than eight hours.1 In its minute order, the court explained
that when the original judgment in this matter had been entered, Teresa had
wage income of $10,875 per month, but she was now earning $12,777 a
month. Stephen, on the other hand, had experienced severe wage loss, given
his “debilitating bone condition” and a series of surgeries that have “left him
unable to work.” Stephen went from earning wages of $23,750 a month to $0.
Stephen was receiving $3,453 in disability benefits per month,
however, and the evidence demonstrated that Stephen “has been able to
maintain himself, and has remained current on his support obligations, by
adroitly managing his investment account.”2 The court noted that although
Stephen was withdrawing money from this account for his own maintenance
and to pay his support obligations, the principal in the account had
“remained relatively unchanged.” The court further explained in its minute
order that “it is the accounting related to this account that has remained the
main source of contention between the parties.”
The court remarked that Stephen had referred to his withdrawals from
the investment account as “dr[awing] down” the account, but Stephen’s
average monthly withdrawals of $12,256.31 over the prior year did not result
in his account balance going down. Thus, the court concluded, Stephen had
managed to obtain a significant 33 percent rate of return on the account over
the previous year. Although Stephen had argued that the account balances
1 Under Code of Civil Procedure section 662, subdivision (b), when a trial
“is concluded . . . in less than 8 hours over more than one day, the statement
of decision may be made orally on the record in the presence of the parties.”
2 The evidence showed the initial principal placed in Stephen’s
investment account came from the money Teresa paid him to buy out his
portion of the marital home.
7
were not “ ‘true balances’ ” because they contained “ ‘unrealized gains,’ ” the
court rejected this, noting that Stephen could liquidate the accounts at any
time and “ ‘realize’ ” the gains. The court also rejected Stephen’s suggestion
that it rely only on his tax returns, which reflected what he claimed were his
“taxable, realized, investment gains” over that time period, as the method for
deciding the true value of earnings he could obtain in the future from the
investment account. The court expressed its concern that investment
accounts can be managed to minimize tax burdens, and thus might not
accurately reflect the true income available. The court believed instead that
it could and should impute a certain amount of monthly income to Stephen by
projecting a reasonable expected future rate of return on the account.
As described by the court, the parties also disagreed about the
appropriate rate of return the court should impute to Stephen as income.3
Teresa argued the court should employ something more like the 33 percent
rate of return Stephen had enjoyed over the prior year. In contrast, Stephen
argued that the overall rate he had obtained over the year was mostly due to
a few stocks that “astronomically increased in value” over a short period of
time, but, he argued, such a “phenomenon” was not likely to recur. In
Stephen’s view, the normal ebbs and flows of the stock market made it
unlikely he could repeat such returns, and he argued for a very low rate of
return. The court did not agree fully with either party. Although it agreed
3 The arguments regarding the proper rate of return the court should use
to impute investment income to Stephen are not reflected in either the
minute order or the reported portion of the hearing. The clerk’s minutes from
that portion of the hearing suggest, however, that Teresa argued that a
40 percent rate of return should be applied to the investment account, while
Stephen offered that a reasonable rate of return to apply was 5 percent.
8
with Stephen that a 33 percent rate of return was “not sustainable going
forward,” it believed Steven could earn more than he was proposing. Based
on Stephen’s demonstrated investing “acumen,” a “reasonable, repeatable,
rate of return for this particular account” was “10%.” Application of this
more historically typical rate of return to the principal in Stephen’s
investment account “result[ed] in a monthly input [into the DissoMaster4] of
‘other taxable income’ of $3,750.”
After confirming all of the other inputs for the DissoMaster calculation
of child support, the court acknowledged that the DissoMaster calculation
“reflects a child support payment, from [Stephen] to [Teresa], of $852.” The
court then stated that it would also be making an adjustment to the prior
spousal support arrangement. The court explained:
“However, given the dire financial and health conditions
[Stephen] now finds himself [in], and the historic support
paid by [Stephen] throughout the pendency of this matter,
the Court sets spousal support of $500 a month, from
[Teresa] to [Stephen], resulting in a net payment of $352
from [Stephen] to [Teresa]. If [Stephen]’s disability of
$3,453 terminates while the children are still minors,
[Teresa] will owe $88 per month in child support to
[Stephen], offset, of course, by any mandatory add-ons due
from [Stephen] to [Teresa].[5] At that time, spousal
support will remain at $500 a month, payable by [Teresa]
to [Stephen]. Spousal support of $500 a month, [Teresa] to
[Stephen], will continue until such time as [Stephen]
4 “ ‘The DissoMaster is a privately developed computer program used to
calculate guideline child support under the algebraic formula required by
[Family Code] section 4055.’ ” (In re Marriage of Usher (2016) 6 Cal.App.5th
347, 352, fn. 5.)
5 Earlier in the order, the court indicated that the evidence demonstrated
Stephen’s temporary disability benefit payments would “end in ‘10 weeks.’ ”
9
receives permanent disability, is able to return to work, the
court receives information that [Stephen] should be
imputed income, Teresa’s income changes, or some other
change in circumstances warrants further modification.”
Teresa has filed a timely appeal from the court’s modification of spousal
and child support, as well as from the court’s prior order imposing $2,500 in
sanctions for proceeding with the motion to compel as to the document
production demands.
DISCUSSION
A. Teresa’s Challenges to the Trial Court’s Modification Order Regarding
Child and Spousal Support
Teresa makes three main arguments regarding the trial court’s order
reducing Stephen’s child support obligation and reversing the spousal
support order such that she is now obligated to pay Stephen $500 per month.
First, Teresa argues that trial court erroneously calculated Stephen’s
guideline child support number by including an “arbitrary reduction”
(capitalization omitted) of Stephen’s investment income. Specifically, she
takes issue with the court’s decision to impute a 10 percent rate of return on
Stephen’s investment account, given that Stephen had obtained a much
greater rate of return over the recent historical period. She argues the court
had no evidentiary basis for concluding 10 percent was an adequate and
proper rate of return for imputing income to Stephen based on his main
income-producing asset.
Teresa’s second major argument is that the court should not have
made a secondary calculation of the guideline child support that would
automatically adjust, without Stephen having to seek further modification of
child support, when his temporary disability insurance benefits end.
10
Finally, Teresa contends the court abused its discretion in awarding
Stephen spousal support, which, she asserts, he “expressly disclaimed” at
trial, and did not seek in his request for modification of spousal support. She
asserts that she therefore did not have notice or an opportunity to be heard
on this issue.
1. Relevant legal principles regarding appellate review
The state of the appellate record in this matter necessitates review of
certain fundamental principles that apply in every appeal, even if they are
not typically recited in every appellate opinion. First, it is axiomatic that in
order “ ‘to be successful on appeal, an appellant must be able to affirmatively
demonstrate error on the record before the court. “ ‘ “A judgment or order of
the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown.” ’ ” ’ ” (In re Marriage of Obrecht (2016)
245 Cal.App.4th 1, 8; accord, Jameson v. Desta (2018) 5 Cal.5th 594, 608–609
(Jameson).) And the appellant, as the party seeking review, has the burden
of establishing reversible error. (In re Marriage of Garcia (2017)
13 Cal.App.5th 1334, 1344; Jameson, at p. 609.)
It necessarily follows that an appellant has “the burden to provide [a]
sufficient record to show error.” (In re Marriage of Brewster & Clevenger
(2020) 45 Cal.App.5th 481, 511; accord, Jameson, supra, 5 Cal.5th at p. 609.)
The effect of this rule is that if the record on appeal is inadequate and does
not permit full and meaningful review as to an issue, the “ ‘ “appellant
defaults and the decision of the trial court should be affirmed.” ’ ” (Jameson,
at p. 609.) In other words, an appellant’s “ ‘[f]ailure to provide an adequate
record on an issue requires that the issue be resolved against [the appellant].’ ”
(ibid., italics added.)
11
Indeed, numerous “appellate courts have refused to reach the merits of
an appellant’s claims because no reporter’s transcript of a pertinent
proceeding or a suitable substitute [such as a settled statement] was
provided.” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 186 (Foust); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121, 132 [without reporter’s transcript, defendants could not demonstrate
insufficient evidence supporting trial court’s finding]; In re Valerie A. (2007)
152 Cal.App.4th 987, 1002–1003 [appellant’s claim considered abandoned
where appellant failed to provide reporter’s transcript of relevant
proceeding].)
These rules are equally applicable where only a portion of the relevant
record—but not the entire record—is provided. “ ‘[A] record is inadequate,
and appellant defaults, if the appellant predicates error only on the part of
the record he provides the trial court, but ignores or does not present to the
appellate court portions of the proceedings below which may provide grounds
upon which the decision of the trial court could be affirmed.’ ” (Osgood v.
Landon (2005) 127 Cal.App.4th 425, 435.) Absent an official record of the full
trial, a reviewing court is precluded from considering the sufficiency of the
evidence or other claims of error, because that court has no record of what the
full state of the evidence was or what may have taken place at the trial.
(Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 (Hearn) [where
appellant failed to furnish a reporter’s transcript of a particular day’s
hearing, “[w]e must . . . presume that what occurred at that hearing supports
the judgment”]; Foust, supra, 198 Cal.App.4th at pp. 186–188.)
2. Teresa’s claims of error with respect to the court’s modification of
child support
12
Turning to Teresa’s challenges to the court’s child support modification
order, the lack of a complete reporter’s transcript prevents us from being able
to meaningfully review most of her claims. For example, Teresa’s first
argument is that the court erred in deciding to impute a 10 percent rate of
return to Stephen’s investment account as a method of determining the
amount of income to impute to Stephen based on his investment assets. She
also appears to argue that the court erred in deciding what tax classification
this income should have been given (i.e., short or long term capital gains or
ordinary income) in entering it into the DissoMaster calculation.
But we review child support orders for an abuse of discretion, and we
review a trial court’s findings of fact in connection with a child support order
under the substantial evidence standard of review. (See In re Marriage of
Zimmerman (2010) 183 Cal.App.4th 900, 906.)6 It is clear that the lack of a
full record of the entire hearing prevents us from meaningful review of
evidentiary and discretion-based challenges. (See Estate of Fain (1999)
75 Cal.App.4th 973, 992 [an appellant who challenges a determination that
relies on an assessment of the evidence cannot succeed on such a claim where
no reporter’s transcript has been provided, because “it is presumed that the
unreported trial testimony would demonstrate the absence of error”]; Wagner
6 We acknowledge that a court’s exercise of discretion is more restricted
in this highly regulated area of the law because it must conform to the
discretion provided only by statute or rule. (See In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 283-284.) However, this does not change the fact
that the lack of a full record of what occurred at an evidentiary hearing
(either through a complete reporter’s transcript or settled statement)
necessarily prevents a reviewing court from being able to meaningfully
review a claim that a court abused its discretion in issuing a child support
order.
13
v. Wagner (2008) 162 Cal.App.4th 249, 259 [“[t]he absence of a record
concerning what actually occurred at the hearing precludes a determination
that the court abused its discretion” (italics added)].)
Similarly, Teresa objects to the court providing a predetermined
modification to Stephen’s guideline support to account for an impending loss
of temporary disability benefit income. But, again, in the absence of a record
of the final portion of the hearing, and particularly that part of the
evidentiary hearing during which parties would normally summarize their
view of the evidence, make additional legal or evidentiary arguments,
address the court’s questions and concerns, and even possibly make
concessions in order to gain a more preferred ruling overall, we must
presume the missing portion of the record would fully support the court’s
determination that the loss of this income was sufficiently likely to occur so
as to warrant the predetermined adjustment to the guideline support amount
to account for the change.
Moreover, any claims about the asserted incorrectness of the trial
court’s calculation of income and/or guideline support are subject to forfeiture
based on a failure to object in the trial court. (See In re Marriage of Hinman
(1997) 55 Cal.App.4th 988, 1002 [failure to raise challenges to child support
calculations forfeits right “to challenge the computation of the child support
award on appeal”]; In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144
[“[T]o conserve judicial resources, any errors [in child support calculations]
must be brought to the trial court’s attention at the trial level while the error
can still be expeditiously corrected.”].) Because we must make all
presumptions about the missing record in favor of the court’s order (Jameson,
supra, 5 Cal.5th 594, 609), we cannot affirmatively conclude Teresa did not
forfeit the objections she is now raising on appeal.
14
Finally, Teresa also contends the court abused its discretion in
awarding Stephen spousal support. She asserts Stephen “expressly
disclaimed” that he was seeking such support at trial, and she further asserts
he did not seek an award of spousal support in his request for modification of
spousal support, but instead sought only to eliminate his spousal support
obligation. Teresa further argues the court’s order regarding the spousal
support award to Stephen “does not include [Family Code section 4320] factor
findings,” and is not supported by the evidence.
As to Teresa’s contentions Stephen disclaimed any desire to be awarded
spousal support and the court’s order does not demonstrate the court went
through the Family Code section 4320 factors or relied on sufficient evidence
to determine the award, we are again left in a position where we are unable
to engage in a full and meaningful review of these arguments due to the lack
of a transcript or settled statement regarding the final portion of the hearing.
For example, Teresa accurately notes that during a reported portion of the
hearing, Stephen was asked whether he was seeking spousal support from
Teresa, and, when he said no, was asked why. Stephen responded that he
merely wanted an end to the litigation. She relies on this portion of the
record to support her contention that he “disclaimed” any request to have
Teresa pay him spousal support. But the lack of a full record of what
occurred at the hearing means that we have no way of knowing whether this
was Stephen’s final word on this subject, or whether the court discussed the
issue with the parties at the conclusion of the hearing and Teresa failed to
object to the court’s view of how to resolve the pending requests for order.
Nor can we know whether Teresa did not, in fact, offer evidence on these
questions, even though she asserts in her briefing on appeal she did not.
Because we do not have a record of what the final evidence involved or what
15
was discussed during the final portion of the hearing, we must presume that
what occurred during this portion supports the trial court’s order. (See
Hearn, supra, 177 Cal.App.4th at p. 1201 [“[w]e must . . . presume that what
occurred at that hearing supports the judgment”].) We therefore have no
ability to conclude the court erred in imposing a spousal support obligation,
even if Stephen at one point seemingly disclaimed desiring such an order in
an attempt to avoid a prolonged dispute.
The same is true for Teresa’s claims that the court failed to go through
the Family Code section 4320 factors and failed to base its spousal support
award on evidence “addressing th[ose] factors.” Again, we lack the ability to
know what occurred during the final 80-plus minutes of the hearing,
including that portion where we must presume the court provided an oral
recitation of its rulings and the basis for them. We must therefore also
presume the court addressed the relevant factors and recounted the evidence
in support of its determinations during the missing portion of the
proceedings.
However, we conclude it is possible to undertake meaningful review of
Teresa’s contention that Stephen’s pleadings did not alert her to the
possibility he had requested modification of spousal support in his favor.
Teresa asserts she was not provided with notice or an opportunity to address
the possibility of a complete reversal of the spousal support obligation, such
that not only would Stephen no longer have to pay her spousal support, but
she might have to pay him support. Because this aspect of Teresa’s
argument relies on the framing of Stephen’s formal request for modification
of spousal support, and because these pleadings are in the appellate record,
we can adequately consider and address this aspect of Teresa’s claim. But on
16
the merits, we view those pleadings as providing sufficient notice of the
possibility spousal support might dramatically change in Stephen’s favor.
In his form request for order (FL-300), Stephen marked the box
indicating he was seeking an order related to “SPOUSAL OR DOMESTIC
PARTNER SUPPORT.” Under that topic heading, the form offers multiple
options to describe what is being requested. Stephen marked two of the
options: subsections “b” and “c.” In “b,” he checked the box indicating he
wanted the court to “end the current support order filed on . . . 2/18/2022,”
and then he filled in a blank demonstrating the court had previously ordered
him to pay $500.00 per month in spousal support. In marking the box next to
option “c,” Stephen additionally indicated that he was requesting “to modify
(change) spousal or partner support after entry of a judgment.” By selecting
both of these options, Stephen provided adequate notice he was requesting
that the court review the changed circumstances of both parties and
reconsider the spousal support order, in full. This was sufficient notice to
Teresa that all of the factors set out in Family Code section 4320 would be
reviewed by the court, such that it might decide a completely different
spousal support order was warranted.7 We therefore disagree with Teresa’s
7 Under section 4320, the court considers such factors as the parties’
earning capacities (id., subd. (a)), contributions to education and training (id.,
subd. (b)), abilities to pay (id., subd. (c)), needs (id., subd. (d)), obligations and
assets (id., subd. (e)), and ages and health (id., subd. (h)). It must also
consider the duration of the marriage (id., subd. (f)), the supported spouse’s
ability to find gainful employment (id., subd. (g)), the balance of hardships
(id., subd. (k)), and any other factor deemed “just and equitable” (id.,
subd. (n)). Obviously, the change of circumstances Stephen set forth in his
pleading indicated that his earning capacity had been significantly reduced,
his poor health status was the cause of this, his ability to pay the support had
been reduced while his obligations remained significant, and the balance of
hardships had transitioned as between the parties.
17
claim that Stephen’s request for order failed to provide her sufficient notice of
the possibility the court might terminate Stephen’s spousal support
obligation and impose a support obligation on her.
B. The Trial Court Did Not Err in Awarding Discovery Sanctions to
Stephen at a Hearing on Teresa’s Motion to Compel Further Responses
As previously described, as the parties were preparing for the joint
evidentiary hearing on the requests for orders regarding child and spousal
support, they were engaging in disputes over discovery. A set of document
production requests Teresa served on Stephen became a particular point of
contention. Teresa requested Stephen produce his financial records from
early December 2021 through mid-August 2024, as well as his medical
records. When Stephen provided his formal responses, he complied with the
requests in part, but he also formally objected to providing financial records
prior to May 2022, which was when Stephen first sought to modify child
support due to a decrease in his pay at work, and he also objected to
providing his medical records without a protective order in place. Teresa’s
attorney found the response inadequate, and the attorneys continued to
argue over these matters, particularly the protective order issue.
On April 23, 2024, Stephen’s attorney emailed a copy of Stephen’s
verification of the truth of the statements made by his attorney in a
responsive letter explaining Stephen’s prior discovery responses and what his
objections were based on. Taken on its own, the letter was ambiguous as to
whether Stephen was withholding documents from the six-month period of
time prior to April 30, 2022, based on those asserted objections or whether he
was instead merely continuing to assert the objection and explain them, but
nevertheless providing responsive documents despite the objections.
However, Stephen’s attorney’s e-mail to counsel for Teresa that attached this
18
letter stated expressly that even though Stephen continued to maintain
documents from the earlier time period were not relevant, he “agrees to
provide documents for the specified period as defined in your Demand for
Production of Documents Set One” with the exception of the medical records
that were to be subject to a protective order. Stephen’s attorney then
repeated an assertion that all responsive documents were being produced,
even for the disputed time period: “To be clear, apart from medical records
demands, [Stephen] is agreeing to provide all documents in his custody,
control, or possession responsive to the demands for the specified period.”
A few days later, on April 29, 2024, Teresa filed a motion to compel
further responses to her document production requests. Among various
things Teresa’s attorney sought by way of the motion to compel was that
Stephen file an amended response stating that he would produce “all
documents” responsive to the request.
At a hearing on May 20, 2024, the court assisted the parties in reaching
an agreement regarding a protective order to cover Stephen’s medical
records. The parties then began to discuss the financial documents and
Teresa’s motion to compel those documents, which had been set for hearing in
July 2024. The court explained its view that even where objections to the
production of documents were set out and preserved in discovery responses,
this meant the objections could be raised at trial to the use of the documents,
but it was not an indication the documents subject to the objection would not
be produced. Teresa’s attorney indicated a contrary understanding, asserting
that “if you’re still raising objections at trial, that means something wasn’t
produced,” or “[w]hy else would you raise the objection?” The court
eventually said, “Seems to me you are taking an overly pedantic view of the
discovery responses. It’s pretty standard fare; right?” Eventually, the court
19
noted that it was ruling Stephen could preserve his objections, but he should
“produce everything.”
Despite what occurred at the May 20 hearing, the attorneys continued
to argue about whether Stephen had produced all responsive documents,
given that his formal written response to the discovery demand included the
objections and Stephen had provided no formal amendment to his original
response. On May 28, Stephen’s attorney informed Teresa’s attorney he
would be receiving an e-mail with a link containing Stephen’s medical
records, and indicating that upon accessing those records, Teresa would
“have ALL records responsive” to her demand for production of documents.
Two days later, Teresa’s attorney acknowledged receiving an additional
3,490 pages from Stephen, but he complained that “there are redactions in
the production,” which he “assume[d] related to the objections in the
response.” Thus, it was Teresa’s attorney’s view that the issues he raised in
his motion to compel had not been resolved.
In response to this communication, three days later on May 31,
Stephen’s attorney provided a “spreadsheet summarizing the redactions,” and
also explained that the “vast majority” involved Stephen’s social security
number, and the others were “high-res photos of [Stephen’s] genitals” that
had been included in Stephen’s federal Social Security Disability Insurance
application. After sending this information, Stephen’s attorney heard
nothing more. He then followed up on June 11 to ask whether the motion to
compel would be taken off calendar. The following day, Teresa’s attorney
responded, “I am not taking the July 11 motion off calendar,” and provided no
additional explanation Stephen’s attorney requested an explanation as to
why the hearing would be going forward, and noted again, “You have all
20
responsive documents.” He suggested that “[f]orcing litigation on a moot
issue will expose your client to sanctions.”
As the July 11, 2024 hearing date approached, Stephen filed a
responsive declaration to Teresa’s motion to compel. In these documents,
Stephen declared that the discovery issue was moot because he “ha[d]
provided all documents responsive to Respondent’s demand for production
that were in [his] possession, custody or control.” Stephen also requested
affirmative relief in the form of sanctions under Family Code section 271,
and, in the event the motion to compel was unsuccessful, pursuant to Code of
Civil Procedure section 2031.310, subdivision (h). He argued Teresa should
be sanctioned under the Family Code provision because “she has frustrated
settlement,” given that the discovery issue was moot and her attorney never
provided an explanation as to why it was not taken off calendar. And this,
Stephen asserted, caused him to incur unnecessary legal fees. Stephen also
attested that he expected to incur a total of $4,000 in legal fees as a result of
having to respond to the motion to compel and have his attorney attend the
hearing, and he requested this amount in sanctions under all of the authority
he cited in support of an award of sanctions.
At the hearing on the motion to compel, the court began by noting it
had received and read the responsive declaration, which stated that the issue
was moot because Stephen had provided Teresa with all documents in his
possession or control that were responsive to her request, including all
financial records for the full time period, as well as all medical records. In
response to the court’s question as to why Teresa was going forward with the
motion to compel, counsel responded that Stephen’s response said that he
would provide “documents,” but never said he would provide “all documents.”
Stephen’s attorney then explained to the court in response that he believed
21
the response “was sufficient,” and that he had attempted multiple times “to
explain to [opposing counsel] in as clear English as possible that he has all
responsive documents.”
The court asked Stephen’s attorney where in the communications it
had been expressed, “I am giving you everything, everything that I have in
my custody and control that’s responsive to your request, I’m giving it to
you.” Counsel provided the court with an example from the e-mail he sent on
May 28 in which counsel indicated that Teresa would “have ALL records
responsive” to the demand for production.
After hearing this, the court explained to Teresa’s attorney its view of
how things had proceeded between the attorneys: “Mr. Henrich, . . . he gave
you a written response. It’s not super-clear [from that response] he’s given
you everything. And then he responds in writing, ‘you have everything.’ I
don’t require him to supplement his written response to incorporate all the e-
mails back into his written response. I mean, that’s not the purpose of the
discovery statute. It’s not I gotcha. It’s not make work. It’s to give
documents. It’s to get the case moving along. Okay? And it seems like he’s
done that. So help me out here. What’s your complaint?” Teresa’s attorney
stood on the language of the statute and argued Stephen should have
amended his verified response. The court at some point stated, “You’ve got
the letter. You have got the meet and confer back and forth. You have the
documents. It seems like you guys are just fighting, this is just an ego
battle.”
After continued back and forth about whether Stephen had verified
that he had provided all documents or not, the court finally said to Teresa’s
attorney, “You have satisfied your client’s obligation, your obligation to your
client. The discovery statute has been complied with. I don’t see a problem
22
here. I really don’t. I mean, I just, what are you asking me to do? You’re
asking me to grant a motion to compel a further written response?” When
Teresa’s attorney said, “Yes,” the court denied that request.
This did not end things, however. Teresa’s attorney proceeded to
discuss with the court whether Stephen’s stated objections in his written
response were merely to preserve those objections at trial, or instead were, as
in Teresa’s attorney’s view, intended to “object to the production [of the
documents] itself.” The court finally tried to wrap up the hearing, saying,
“The document says, in a meet-and-confer letter, ‘All documents in his
possession custody and control have been produced.’ ” And when Teresa’s
attorney tried to suggest it should have added “regardless of objection,” the
court rejected the argument, saying “It says that everything has been
produced. It doesn’t say I’m not — it doesn’t say I’m withholding. It says all
documents have been produced,” and then immediately asked Stephen’s
attorney what amount Stephen was requesting in attorney fee sanctions.
When Stephen’s attorney said they were requesting $4,000, based on
the declaration about the cost to defend the motion to compel, the court asked
why Stephen believed Teresa would be able to pay the sanctions. The court
also allowed Teresa’s attorney to comment on her ability to pay $4,000 in
attorney fees. Counsel asserted that “anything is a hardship to her.” The
court then set attorney fee sanctions at $2,500.
As an initial matter, on appeal the parties begin their arguments about
the propriety of the court’s sanction award by disputing the statutory basis
for the court’s award. Teresa contends the court made its sanctions order
pursuant to Code Civ. Proc., § 2031.310, subdivision (h) (section
23
2031.310(h)).8 Stephen does not address Teresa’s assertion that the
sanctions were awarded pursuant to section 2031.310(h)), and instead simply
assumes the court awarded the sanctions under the authority provided in
Family Code section 271, subdivision (a) (section 271(a)).9 The record
provides support for both contentions, as the court referred to considerations
applicable under both statutory frameworks, and the court never made
express the statutory basis for its sanction award. For purposes of the proper
standard of review on appeal, however, it does not matter whether the court
was relying on section 2031.310(h) or section 271(a). We review an award of
8 Section 2031.310(h) provides: “Except as provided in subdivision (j),
the court shall impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further response to a
demand, unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.”
9 Family Code section 271, subdivision (a) provides in part:
“Notwithstanding any other provision of this code, the court
may base an award of attorney’s fees and costs on the
extent to which any 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. In
making an award pursuant to this section, the court shall
take into consideration all evidence concerning the parties’
incomes, assets, and liabilities. The court shall not impose
a sanction pursuant to this section that imposes an
unreasonable financial burden on the party against whom
the sanction is imposed.”
24
attorney fees as sanctions under either statute for an abuse of discretion.
(See, e.g., Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 347 (Menezes)
[court reviews award of attorney fees and costs as sanctions under section
271(a) for abuse of discretion, and factual findings for substantial evidence];
Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123 [abuse of
discretion standard ordinarily applies to review of an order imposing
sanctions for discovery misuse].) And, similarly, under either statute, we
review any findings of fact underlying the court’s sanctions order for
substantial evidence. (See Menezes, at p. 347; Padron v. Watchtower Bible &
Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1266 [when the
facts underlying the discovery motion that provides the basis for discovery
sanctions are in conflict, appellate court review’s trial court’s factual findings
for substantial evidence].)
Teresa contends the court abused its discretion in imposing any
sanctions on her. According to Teresa, the court’s finding that Stephen’s
stated objections “were not used to withhold documents” was a
“conclusion . . . not supported by substantial evidence.” Instead, she argues,
Stephen’s original formal response, as well as the letter written by counsel
and verified by Stephen, “are both clear and unequivocal that the listed
documents would be withheld because of the objections.” Thus, in Teresa’s
view, the court should have ruled on the objections asserted in the verified
response, and until doing so, it should not have ruled on the motion to
compel.
We disagree with Teresa’s interpretation of the record. In our view, the
record supports the trial court’s conclusion that Stephen had produced all
responsive documents for the entire time period requested. Specifically,
there was ample evidence that Teresa’s attorney had been repeatedly assured
25
in writing throughout the meet and confer process that all documents
responsive to the document production requests and within Stephen’s control
or possession had been produced. Contrary to Teresa’s interpretation of the
April 23, 2024, verified letter containing explanations of the asserted
objections—the letter she contends makes clear Stephen was withholding
financial documents for the disputed time period—we view the letter as
equivocal as to whether documents from the disputed time period were being
withheld.10 However, the e-mail from Stephen’s attorney to Teresa’s
attorney to which the letter was attached did expressly state that all
responsive documents were being produced. In addition, multiple additional
e-mails from Stephen’s attorney repeated that all responsive documents had
been produced to Teresa. As the trial court said, the purpose of the
requirements of the discovery statutes with respect to demands for the
production of documents is to obtain the documents requested—not to press
for a more accurate formal answer despite already having actually obtained
the responsive documents requested. Teresa’s attorney was seemingly
insisting on a formalistic adherence to the discovery rules, based on the
absence of an amended verified response from Stephen. Alternatively, to the
extent Teresa’s counsel was still claiming that he remained unsure as to
whether all documents had been provided, such an assertion was not
supportable, given the multiple statements, in writing, by opposing counsel
10 The letter appears not to be a new verified “response” to the discovery
requests, but instead is a letter “explaining [Stephen’s formal] responses” to
Teresa’s document production demands. Thus, it appears to “clarify” the
objections Stephen had set out in his formal verified response, but, as such, it
does not expressly state whether or not the requested documents would be
provided despite the asserted objections.
26
that all requested documents had been provided. There is thus substantial
evidence to support the trial court’s conclusion that Stephen had not withheld
any responsive documents as a result of the objections he identified and
preserved in his formal verified response. And, based on this conclusion, the
court reasonably determined the motion to compel was moot; all documents
Teresa was seeking had been provided.
Because of this, there is no basis to conclude the trial court abused its
discretion in awarding sanctions based on Teresa’s decision to go through
with the hearing on the motion to compel. The record demonstrates the court
had reason to impose attorney fee sanctions under either section 2031.310(h)
or section 271(a), or both. As for section 2031.310(h), sanctions “shall” be
imposed on a party who makes an unsuccessful motion to compel “without
substantial justification.” “ ‘Substantial justification’ means ‘ . . . justification
[that] is clearly reasonable because it is well grounded in both law and fact.’ ”
(Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304, 1312.) The motion to
compel was unsuccessful. And, there was no reasonable justification to
pursue the hearing because all documents had been provided before the
hearing took place.
Alternatively, the court assessing attorney fees as sanctions under
section 271(a) was similarly reasonable. Attorney fees and costs may be
awarded under this section when “ ‘the conduct of each party or
attorney . . . frustrates the policy of the law to promote settlement of
litigation.’ ” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1477.)
The statute advances the policy of the law “ ‘to promote settlement and to
encourage cooperation which will reduce the cost of litigation.’ ” (In re
Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) Here, instead of
proceeding in a manner that promoted cooperation and reduced the cost of
27
litigation, Teresa and her attorney proceeded to force the issue to a hearing
despite having been provided all relevant documents. The court’s order
requiring Teresa to pay in part for Stephen’s litigation costs in connection
with a hearing on a moot discovery issue was therefore reasonable under
section 271(a). We therefore see no error in the court’s sanction order.
C. Stephen’s Motion for Sanctions on Appeal
Stephen has also filed a motion for sanctions on appeal, as well as a
request for judicial notice in support of his motion for sanctions. The court
may impose sanctions on appeal for, among other things, the “[t]aking [of] a
frivolous appeal or appealing solely to cause delay,” or “committing any other
unreasonable violation” of the California Rules of Court. (Cal. Rules of Court,
rule 8.276(a)(1), (4).)
We begin by addressing Stephen’s request for judicial notice. Stephen
asks this court to take judicial notice of a number of documents, most of
which are already part of this court record in this case. For example, he
requests that we take judicial notice of the “Register of Actions” in this
appeal, as well as orders this court issued during the pendency of the appeal.
He also requests judicial notice be taken of the “Findings and Orders After
Hearing (FOAH) entered in the trial court that form the basis of this appeal,”
“Relevant portion of the Reporter’s Transcript reflecting the trial court’s
observations regarding the nature of the litigation,” as well as the “Notice of
Appeal and Register of Actions in the related appeal (Case No. D086947),”
which he contends can be used “to establish the existence of a separate
appellate proceeding arising from related litigation.”
All but the final two documents are already part of the record for this
appeal. There is no need to take judicial notice of these duplicative
materials. And, with respect to the final two documents—the notice of appeal
28
and “Register of Actions” in case No. D086947—we conclude denial of judicial
notice is appropriate. We are unconvinced these documents are relevant to
our consideration of the motion for sanctions in this appeal. The mere fact
that there is another matter in the underlying case currently on appeal does
not suggest anything meaningful with respect to whether the current appeal
should be determined to have been frivolous or prosecuted for an improper
purpose. We therefore deny Stephen’s request for judicial notice, in full.
We also deny Stephen’s motion for sanctions. First, Stephen argues
sanctions are appropriate because Teresa’s “November 13, 2024 notice of
appeal was taken from unsigned minute orders directing preparation of a
Findings and Order After Hearing (FOAH),” which, he asserts, caused this
court to instruct her that a minute order that contemplates the filing of a
FOAH is not itself appealable. However, the filing of a premature notice of
appeal from a minute order, something that may be done as a protective
measure to ensure a litigant does not inadvertently fail to meet the strict
timing requirements for appeal, is not sanction-worthy conduct. This court
routinely interprets premature notices of appeal as having been timely taken
from a subsequently-filed FOAH (see Cal. Rules of Court, rule 8.104(d)(2)
[permitting appellate court to treat a notice of appeal filed after the superior
court has announced its intended ruling, but before it has rendered judgment,
as filed immediately after entry of judgment]), and there is nothing
inherently frivolous in such conduct, nor does it reflect an attempt to delay or
represent a violation of court rules.
Stephen also relies on the fact that this court sent out default notices
and Teresa was late to designate the record and complete other routine tasks
on appeal. Such conduct is not egregious, and certainly is not worthy of the
29
imposition of sanctions; rather, the issuance of default notices in an appeal is
fairly unremarkable.
Stephen further complains that Teresa sought to “retroactively
manufacture appellate jurisdiction” by trying to augment the record with
later proceedings and expand the scope of appeal to include other rulings.
We do not find this conduct to be worthy of sanctions. Although Teresa’s
filings were rejected, a request for the court to consider the proper scope of an
appeal is not inherently sanctionable. In fact, the authority Stephen cites in
support of this argument, Estate of Sapp (2019) 36 Cal.App.5th 86, 102,
addressed questions about the proper scope of an appeal, but did not involve
a request for sanctions, let alone an order for sanctions based on the
appellant’s rejected argument that appellate review of additional orders was
proper. (See ibid.)
Finally, Stephen argues Teresa’s opening brief reflects that her appeal
was objectively frivolous. “[A]n appeal should be held to be frivolous only
when it is prosecuted for an improper motive—to harass the respondent or
delay the effect of an adverse judgment—or when it indisputably has no
merit—when any reasonable attorney would agree that the appeal is totally
and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d
637, 650 (Flaherty).) And “[i]n determining whether an appeal indisputably
has no merit, California cases have applied both subjective and objective
standards. The subjective standard looks to the motives of the appealing
party and his or her attorney, while the objective standard looks at the merits
of the appeal from a reasonable person’s perspective. [Citation.] Whether
the party or attorney acted in an honest belief there were grounds for appeal
makes no difference if any reasonable person would agree the grounds for
30
appeal were totally and completely devoid of merit.” (Kleveland v. Siegel &
Wolensky, LLP (2013) 215 Cal.App.4th 534, 556–557.)
Thus, to be clear, “[a]n appeal that is simply without merit is not by
definition frivolous and should not incur sanctions. . . . [T]he punishment
should be used most sparingly to deter only the most egregious conduct,”
being careful to “avoid a serious chilling effect on the assertion of litigants’
rights on appeal.” (Flaherty, supra, 31 Cal.3d at pp. 650–651.)
Here, although we have concluded Teresa’s appeal lacks merit, in part
because we conclude the record is insufficient to allow us to meaningfully
consider many of her claims, we are not convinced that no reasonable person
would have pursued an appeal in this matter. We also cannot say that
bringing this appeal constituted the type of egregious conduct that needs to
be deterred. An appellant has a right to present any arguable issues on
appeal, even those that are unlikely to prevail. Being mindful of the
possibility of a chilling effect on the assertion of litigants’ rights on appeal
(see Flaherty, supra, 31 Cal.3d at p. 650), we decline to impose sanctions in
connection with this appeal.
31
DISPOSITION
The orders of the trial court (1) modifying spousal and child support
and (2) awarding sanctions of $2,500 to Stephen are affirmed. Stephen is
awarded costs on appeal.
KELETY, Acting P. J.
WE CONCUR:
CASTILLO, J.
BERMÚDEZ, J.
32