Filed 5/27/14 Marriage of Browne CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re the Marriage of SHERRY
BROWNE and JASON BROWNE.


SHERRY BROWNE,
         Respondent,                                                 A139607
v.
                                                                     (San Mateo County
JASON BROWNE,                                                        Super. Ct. No. F0107505)
         Appellant.


         Appellant Jason Browne appeals from a post-judgment order in this marital
dissolution action (1) denying his request to impute income to respondent Sherry
Browne1; (2) clarifying the parties’ marital settlement agreement (MSA) to require Jason
to pay child support on a certain percentage of his wage increases; and (3) awarding
sanctions to Sherry pursuant to Family Code section 271.2 We affirm.
                                                  BACKGROUND
         The parties’ marriage terminated in December 2011 pursuant to a judgment
incorporating their MSA. Under the MSA, Sherry assumed primary physical custody of

1
       For convenience, we hereafter refer to the parties by their first names. We do not
intend this informality to reflect a lack of respect.
2
         All undesignated section references are to the Family Code.


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their two minor children and Jason paid her a monthly amount of child support based on
his then-current salary.3 The MSA further provided for Jason to pay additional child
support “on any bonus or additional income above this amount as and for child support as
set forth in the attached bonus schedule.” The referenced “bonus schedule” is a
computer-generated chart providing a varying percentage of “Father’s Bonus,” depending
on the size of the bonus, be paid as child support.4 Sherry was not employed at the time
judgment issued and had no income under the MSA for purposes of calculating child
support. The MSA provided, “Jason will agree not to seek to have income imputed to
[Sherry] before September 2011, when both children are in school. [Sherry] shall
commence seeking work in September 2011 when both children are in school.”5
       In January 2012, Jason filed a motion seeking, inter alia, to impute income to
Sherry for purposes of child support or, in the alternative, an order that she apply to at
least five jobs every two weeks. Jason also requested Sherry undergo vocational
evaluation. In Sherry’s response, she readily agreed to undergo vocational evaluation.
She stated she applied for 45 jobs between September 2011 and January 2012 but did not
secure a single interview. Sherry had work experience but left the workforce in 2004,
shortly after the birth of their first child. In light of the discouraging results of her job
search, Sherry was taking concrete steps to pursue a career in nursing. Sherry stated she
had conveyed this information to Jason and had provided him proof of her job search
efforts. At the March 2012 hearing on Jason’s motion, the trial court declined to impute
income, noting Sherry was out of the workforce “pretty much the entire length of the
marriage. So we have to give her time to get back in, and we’ll see what the vocational
evaluation is. And she’s to follow the recommendations in the vocational evaluation.”

3
       The MSA’s spousal support provisions are not at issue in this appeal.
4
       The trial court and parties refer to this as a “Smith/Ostler” payment. (See In re
Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 37 [affirming order for
“additional support, based on a percentage of [the husband’s] future bonuses”].)
5
      The term was apparently negotiated as part of an April 2011 memorandum of
understanding, the terms of which were incorporated into the MSA.


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The written order, filed in June 2012, also required Sherry to apply for at least five jobs
every two weeks, even when attending school.
       In September 2012, the vocational evaluation was complete. The evaluator
concluded pursuit of a nursing degree “is a reasonable choice” for Sherry, she could
attain the degree in the spring of 2016, and her starting salary as a registered nurse would
be approximately $65,000 to $70,000 per year. The evaluator made a number of specific
recommendations regarding education, related volunteer work, and the pursuit of
temporary work when Sherry was not in school. The evaluator also concluded, if Sherry
did not have the resources to pursue a nursing degree she should pursue administrative
support work at a starting salary of $14 to $20 per hour.
       Shortly thereafter, Jason filed an order to show cause seeking a small change in
the custody schedule and to recalculate the child support based on “current support
guidelines and actual timeshare.” During the November 2012 hearing, Jason raised the
issue of Sherry’s lack of employment and job search efforts. In response to the trial
court’s questioning, Sherry represented that she was attending school full-time and
complying with both the court’s order to look for work and the recommendations of the
vocational evaluation. Jason argued she had not pursued work with a temporary
employment agency, and the trial court ordered Sherry to do so. Jason told the trial court
he wanted to impute income and the trial court told him he needed to file a motion: “If
you want to impute income, you have to put a request in there. And you have to show
what jobs were available. For child support you need to show there were jobs available
that she didn’t apply for and could have had that wouldn’t have interfered — because
she’s a full time student . . . so it needs to be something that would work with her
schedule.” The court’s written order issued on December 3, 2012 and directed Sherry to
“[a]pply for work at temporary employment agencies. [Sherry] will not be required to
accept work that interferes with her school schedule.”
       Ten days later, Jason filed a request seeking 11 separate forms of relief, five of
which Sherry agreed to in her response. One of the agreed upon items was Jason’s
request to “[c]larify [the] MSA by adding ‘salary increases’ as specific additional income


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that is paid according to the current Smith/Ostler bonus table to [Sherry].” Jason also
sought to impute income of $43,669 to Sherry, based on the salary of a full-time
administrative support position, retroactive to January 2012. Jason argued Sherry was
refusing to register with temporary employment agencies, but attached correspondence in
which Sherry stated she had contacted two such agencies. In response, Sherry contended
she was following the recommendations of the vocational evaluation and was applying
for temporary employment work which did not interfere with her school schedule
pursuant to the trial court’s most recent order. Sherry also sought an award of attorney
fees and costs as sanctions under section 271 based on Jason’s “extremely litigious
course of conduct,” citing his multiple post-judgment motions (not all of which have been
included above), citing the fact that many of the requests in his most recent motion could
have been resolved outside of court, and arguing his motion to impute income presented
no new evidence since the last hearing.
       At the February 2013 hearing, the trial court addressed Jason’s request regarding
salary increases: “The Smith-Ostler doesn’t apply to a raise, generally. But you have
agreed to it” in the request. Jason denied he had agreed to it, and then withdrew his
request regarding salary increases. The trial court noted Sherry had requested the same
relief and granted the request. The trial court denied Jason’s request to impute income
“until after what it would normally take her to finish her [registered nurse] [p]rogram,
unless you can prove to me she’s refusing jobs that don’t . . . interfere with school.”
Finally, the trial court awarded Sherry $3,000 in attorney fees as sanctions pursuant to
section 271, telling Jason “you’re bringing this thing back to court and back to court. . . .
I just ruled on something and you have no new evidence to go to court. There’s nothing
new in here that says I should now impute income.” The trial court later added, “I think
[the sanctions order] is appropriate in this case because I think we’re getting too many




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motions filed.” The written order, issued in August 2013, did not set forth any reasoning
with respect to the orders at issue in this appeal.6
                                        DISCUSSION
I. Imputing Sherry’s Income
       When determining a parent’s income for purposes of calculating child support
pursuant to the statewide uniform guideline (§ 4055), “[t]he court may, in its discretion,
consider the earning capacity of a parent in lieu of the parent’s income, consistent with
the best interests of the children” (§ 4058, subd. (b)). This statute’s emphasis on the best
interests of the children is in accord with the statutory directive that “[t]he guideline seeks
to place the interests of children as the state’s top priority.” (§ 4053, subd. (e).)
       On appeal, Jason argues he need only demonstrate Sherry’s ability and opportunity
to work to be entitled to an order imputing income. This argument ignores both the trial
court’s discretion and the interests of the children.7 Jason makes no attempt to reconcile
the best interests of his children with the imputation of income to Sherry. Any such
attempt would not be likely to succeed: “it is counterintuitive — often counterproductive
— to impute income to a custodial parent, because the objective effect of such an

6
       Jason did not request a statement of decision and the parties dispute whether he
was entitled to one. We assume, without deciding, he was not, as our decision would be
the same in either event.
7
        Jason’s contention that “[i]f the custodial parent has the current ability and
opportunity to return to work, the court should impute income, despite the difficulty
inherent in reconciling work with the need to care for children,” citing In re Marriage of
Hinman (1997) 55 Cal.App.4th 988 (Hinman) for the proposition, is unavailing. First,
Hinman properly recognizes the trial court’s discretion. (Hinman, at p. 999 [“the trial
court’s order was not an abuse of discretion”].) Moreover, Hinman does not brush aside
the interests of the children. In that case, income was imputed to the noncustodial spouse
who had custody of children from a subsequent relationship. (Id. at p. 999.) The court
found imputation of income “would be consistent with the [parties’] children’s best
interests.” (Id. at p. 1000.) While the imputation might not be in the best interests of the
children from the subsequent relationship, “section 4058, subdivision (b) does not require
awards based on earning capacity to be consistent with the best interests of any child
other than the child or children who are the subject of the child support award.” (Id. at
p. 1001.)


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imputation will be to reduce the money otherwise available for the support of any minor
children.” (In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 19 [finding order
imputing income to custodial parent was abuse of discretion].) The trial court’s refusal to
impute income to Sherry was not an abuse of discretion.
II. Jason’s Salary Increases
       Jason argues the trial court’s inclusion of his salary increases as a Smith/Ostler
payment was error because the trial court failed to comply with section 4056. Section
4056, subdivision (a), requires a trial court to make certain findings when ordering child
support that differs from the guideline amount. Sherry contends such findings were not
required because the ordered amount did not differ from the guideline amount. We need
not decide the issue because, as Sherry argues, salary increases are subject to the
Smith/Ostler payment under the terms of the MSA.8
       The MSA provides the Smith/Ostler payment be made “on any bonus or additional
income above” Jason’s salary at the time of the MSA. No definition of “income” is
included in the MSA. “Income” for purposes of calculating guideline child support
includes “salaries” and “wages.” (§ 4058, subd. (a).) Accordingly, the provision
appears, on its face, to apply to any wages, including wage increases.
       However, Jason points to the provision’s reference to the “attached bonus
schedule” which provides a percentage of “Father’s Bonus” be paid as child support. To
the extent this attachment creates ambiguity about the meaning of the provision, we look
to the intent of the parties. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205,
1221 [“Statutory rules of construction and interpretation are generally applicable to
marital settlement agreements that are incorporated into a dissolution judgment.”]; In re
Marriage of Facter (2013) 212 Cal.App.4th 967, 979 [“In general, an ambiguous or
uncertain provision of a contract ‘must be interpreted in the sense in which the promisor
believed, at the time of making it, that the promisee understood it.’ ”].) In a declaration


8
       Neither party contends the trial court failed to make any necessary findings when
adopting the MSA.


                                              6
submitted with his December 2012 motion, Jason stated: “The MSA specifies ‘additional
income’ should be paid to [Sherry] as a Smith/Ostler component. I interpret this to mean
that salary increases are a part of this and they should be paid out at Smith/Ostler rates.” 9
Sherry agreed with this interpretation. Accordingly, the MSA includes Jason’s salary
increases in the Smith/Ostler payments.10
       Jason points to the trial court’s comment at the hearing that the parties’ “MSA
doesn’t say you pay Smith-Ostler on raises.” In light of the uncontradicted evidence of
the parties’ intent, this finding was not supported by substantial evidence. This error is of
no significance to our ruling, as we may affirm the trial court’s order on any ground
supported by the record. (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 632.)
III. Sanctions Award
       Section 271 authorizes trial courts to award attorney fees as sanctions when a
party’s conduct “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 . . . .” We review the order for abuse of discretion. (In re Marriage of Feldman
(2007) 153 Cal.App.4th 1470, 1478.)
       Although the written order does not state the basis for the sanctions award, at the
hearing the trial court stated the sanction was because Jason was filing “too many
motions,” including the motion to impute income when he had “no new evidence” since
the previous hearing. In light of Jason’s aggressive litigation approach, we cannot say
this ruling was an abuse of discretion.
       Jason notes the trial court stated at the November 2012 hearing that he could file a
motion to impute income. However, the trial court based sanctions on the history of “too
many motions,” not just the motion to impute. Moreover, at the prior hearing the trial

9
       Jason makes much of the fact that he withdrew his request regarding salary
increases prior to the trial court’s ruling, but he does not contest — or cite any record
evidence contradicting — this statement in his declaration.
10
       Neither party argues that this decision by the court sets child support below the
guideline amount.


                                              7
court directed Jason any motion to impute must “show there were jobs available that she
didn’t apply for and could have had that wouldn’t have interfered — because she’s a full
time student . . . so it needs to be something that would work with her schedule,” such as
“work on a temporary basis that you work a couple days here and a couple days there.”
Jason ignored this direction when he subsequently requested imputed income of a full-
time salary and argued Sherry was not applying for jobs without showing those jobs were
compatible with her school schedule.
       Finally, Jason argues the trial court’s sanction order rested in part on his refusal to
consider a settlement offer from Sherry. Jason contends he had inadequate notice he
could be sanctioned for this conduct. (See § 271, subd. (b) [sanction “shall be imposed
only after notice to the party against whom the sanction is proposed to be imposed and
opportunity for that party to be heard”].) We do not agree the sanction was based on this
conduct. Although the trial court mentioned it during the general discussion, when Jason
specifically asked “Why am I being sanctioned? For what behavior?”, the trial court’s
response referred only to his litigious conduct.
                                       DISPOSITION
       The order is affirmed. Sherry is awarded her costs on appeal.




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                  SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.




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