Filed 11/26/13 Marriage of Vidales CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

In re the Marriage of ARTURO VIDALES and
PAULA VIDALES.

ARTURO VIDALES,                                                                            F064783

         Plaintiff and Appellant,                                           (Super. Ct. No. 04CEFL00512)

                   v.
                                                                                         OPINION
PAULA VIDALES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Fresno County. Kimberly
Nystrom-Geist, Judge.
         Rusca & Rusca Law and Christopher M. Rusca for Plaintiff and Appellant.
         David Minyard for Defendant and Respondent.
                                                        -ooOoo-
       In this marital dissolution case, respondent Paula Yanez (formerly Paula Vidales)
(Paula) was granted sole physical custody of the parties’ two minor children, and
appellant Arturo Vidales (Arturo) was required to pay child support. Later, when Arturo
was in substantial arrears on his child support obligations, he filed a petition in the trial
court seeking to modify the existing child support order. When a hearing on that matter
was held, the trial court denied the relief sought by Arturo but reserved the issue of
whether to grant Paula’s request for an award of need-based attorney fees pursuant to
Family Code section 2030.1 At a continued hearing to address the attorney fees issue, the
trial court awarded Paula $15,000 in attorney fees. Arturo appeals from the order
granting attorney fees, contending that the trial court abused its discretion. We modify
the challenged order by reducing the amount of the award to what was actually requested
by Paula in her motion ($7,500), but in other respects we conclude that no abuse of
discretion has been shown. As so modified, we affirm the order of the trial court.
                        FACTS AND PROCEDURAL HISTORY
       As to background circumstances and proceedings in this case occurring prior to
the subject attorney fees motion, our knowledge is hampered by the minimal record
provided to us. As to that part of the procedural history, the record on appeal merely
consists of docket entries in the superior court’s register of actions and the factual
summaries provided by the parties in their appellate briefs. With that caveat in mind, we
attempt to provide a brief summary of the relevant circumstances that preceded the
attorney fees motion. Then we shall describe the motion itself and the trial court’s ruling
thereon.
       Arturo and Paula were married with two minor children when Arturo filed a
petition for dissolution of the marriage on January 28, 2004. A status-only judgment of
dissolution of the marriage was filed on January 3, 2007. On November 28, 2007, Arturo
1      All further statutory references are to the Family Code unless otherwise noted.



                                               2.
was ordered to pay child support for the parties’ two children. The trial court indicated
that the Fresno County Department of Child Support Services (DCSS) would enforce the
child support obligation. DCSS sought to collect child support from Arturo by means of
Wage Assignment Orders.
       On June 9, 2009, Arturo filed a motion seeking to modify the child custody and
child visitation arrangement. On February 15, 2010, the trial court ordered joint legal
custody of the children, with Paula to have sole physical custody and Arturo to have
supervised visitation subject to regular drug screening. Presumably, this was (or became)
the existing, permanent order concerning child custody. Subsequent issues arose in 2010
and 2011 concerning the terms of visitation, drug testing, and other details, but such
issues were apparently resolved by the parties or through court-ordered mediation
services, with the trial court adopting certain recommendations of the mediator.
Arturo’s Motion to Modify Child Support
       On May 26, 2009, Arturo filed a motion to modify child support. We do not have
the moving or opposing papers relating to this motion, but one of the issues apparently
raised by Arturo was his alleged inability to find work and/or alleged disability. After
numerous appearances and continuances relating to this motion, the hearing on the merits
did not commence until October 4, 2011, nearly two and one-half years after Arturo first
filed the motion. Arturo concedes that “[f]rom May 26, 2009, to October 4, 2011, the
matter was continued sixteen (16) times.” It appears from the docket entries that the
continuances were sometimes initiated by Arturo, and other times by Paula, by
stipulation, the trial court and/or DCSS. On the record before us, it is impossible to
ascertain whether or not the majority of the continuances were due to circumstances that
were predominantly the fault of any one party.2

2       The record on appeal does not include the motion to modify child support, nor any
of the supporting or opposing papers and declarations relating to the child support issue,
nor the numerous minute orders from the several occasions on which the hearing was


                                             3.
       On June 29, 2011, the trial court found that certain requests for relief by Arturo
were completely without merit and he was ordered to pay $2,499 in attorney fees to
Paula. Arturo claims the $2,499 in attorney fees was ordered in connection with a
distinct property-related motion that he had filed; Paula claims the attorney fees arose out
of one of Arturo’s unsubstantiated requests to modify child support. The record provided
on appeal is unclear.
Hearings on the Motion to Modify Child Support
       A hearing or trial was finally held on Arturo’s motion to modify child support on
October 4, 6, and November 1, 2011. Both Arturo and Paula testified. The presentation
of evidence was completed on October 6, 2011, with closing arguments postponed until
November 1, 2011. Paula’s attorney (David Minyard) requested that an award of need-
based attorney fees be made to Paula and, on October 7, 2011, Mr. Minyard filed his
declaration in support of that request. On November 1, 2011, the attorneys completed
their closing arguments, after which the trial court stated its actual or intended decision.
According to a \minute order from the November 29, 2011, hearing, the trial court denied
as unreasonable Arturo’s motion to modify child support. Before the conclusion of the
November 1, 2011, hearing, the trial court noted that there was no motion for sanctions
pending, but there were oral motions for attorney fees “by both sides.” Accordingly,
each party was ordered to provide an updated “Income and Expense Declaration, as well
as an Attorney’s Fees Declaration by 11/18/2011 and file with the Court by 11/21/2011.”
Further, both sides were ordered “to return on 11/29/2011 … regarding the issue of
attorney’s fees.”



continued, nor any of the prior income and expense declarations of the parties in
connection with the hearings, nor the transcripts of the trial/hearing dates that occurred on
October 4, 6, and November 1, 2011, regarding the merits of the motion to modify child
support.



                                              4.
The Continued Hearing to Address Attorney Fees
       By the time of the continued hearing regarding attorney fees, the trial court had
received several documents from the parties relating to their attorney fees requests. We
briefly note what these documents were and what they said.
       On Paula’s behalf, Mr. Minyard previously filed (on October 7, 2011) a
declaration in support of Paula’s request for attorney fees. Minyard’s declaration stated
that from May 2009 to October 4, 2011, Paula had incurred attorney fees and costs
totaling $12,169.75. A copy of Minyard’s attorney billing records was attached to the
declaration. The declaration further stated: “On June 29, [2011], this court ordered
[Arturo] to pay [Paula] attorney fees in the amount of $2,499.00 forthwith. [Arturo] has
failed to pay the attorney fees as ordered by this court. [¶] [Arturo] nor his attorneys
have ever provided any documentation to support [Arturo’s] alleged disability claim.
[Arturo] was previously represented by Attorney Robert Cervantes and has now hired
new counsel to represent him in this matter. [Arturo] also retained the services of
Attorney Jean Pinkerton in January of 2010 to prepare a Qualified Domestic Relations
Order. [¶] [Arturo] currently owes child support arrears in excess of $70,000.” Based
upon these asserted facts, Paula’s motion requested “attorney fees in the amount of
$7500.” (Italics added.)
       On November 15, 2011, Paula filed her income and expense declaration. Paula
reported therein that her prior employment ended in June 2010, and since that time she
had received unemployment compensation in the amount of $1,308 per month, but it was
uncertain whether those sums would continue. She stated that her expenses each month
totaled $1,735. Regarding attorney fees, her declaration stated that she previously paid
her attorney $8,400 in attorney fees and costs, which she paid from “personal/savings and
employment,” and she still owed her attorney the sum of $11,900 in attorney fees and
costs. Under the child support information heading, her declaration asserted that the



                                             5.
parties’ two minor children spent 98 percent of their time with her and 2 percent of their
time with their father.
       Arturo also filed an income and expense declaration prior to the hearing. He
stated in that document that he had been unemployed since July 2007, and was receiving
$1,096.33 each month from an insurance company hardship settlement fund, but he
anticipated those payments would not be continuing. Arturo’s declaration disclosed that
his new wife’s gross income each month was $7,666.67, and he admitted that she was
paying most of his monthly household expenses. Specifically, Arturo’s total monthly
expenses were $5,340.73, of which his new wife paid $4,250. His declaration listed
monthly expenses that included credit card bills from Nordstrom, Sears, Kohls, Macy’s,
along with monies due each month on his two bank credit cards. On the issue of attorney
fees, Arturo’s declaration stated he had paid his current attorney to date a total of $1,610,
using funds his sister loaned him, and he still owed his attorney the sum of $3,276.50.
Arturo also provided a copy of the joint income tax return for 2010, which he filed with
his new wife, reflecting a combined annual income of $86,845.
       The hearing on the issue of attorney fees was held on November 29, 2011. At the
outset of the hearing, Arturo’s attorney (Christopher Rusca) immediately withdrew his
client’s attorney fees request, leaving only Paula’s motion for attorney fees. The trial
court then questioned Arturo and Mr. Rusca at length to ascertain how much Arturo paid
his prior attorney, Robert Cervantes, in the ongoing litigation of the child support issue.
Arturo told the trial court it was only $2,500, and he denied there was anything further he
owed to Mr. Cervantes. Mr. Rusca attempted to qualify Arturo’s remarks by reporting a
conversation Mr. Rusca recently had with Mr. Cervantes, but Mr. Rusca was unable to
provide any dollar amount of Arturo’s past attorney fees. At that point in the oral
argument, Mr. Minyard, reminded the trial court that it had previously directed Arturo to
complete an accurate statement of how much attorney fees he had paid to Mr. Cervantes.
Mr. Minyard argued that, in light of the many court appearances on the child support

                                             6.
issue, Arturo’s claim to have paid such a small amount in attorney fees was simply not
credible.3 Further, Mr. Minyard observed this was the first time that “we have actually
received an appropriate income and expense declaration finally laying out the entire
amount of [Arturo’s] expenses,” and he argued that Arturo “has not been forthcoming” in
reporting his income to the court.
       During the hearing, Mr. Rusca took issue with the trial court’s announcement at
the beginning of oral argument that if it awarded attorney fees, it would be in the amount
of approximately $15,000, based on a particular methodology. Mr. Rusca objected
because the methodology employed by the trial court was not disclosed in advance and
no adequate accounting or showing had been offered to support it. Moreover, as we
noted above, Paula had only requested $7,500 in attorney fees.
       After oral argument was completed, the trial court granted Paula’s motion for
attorney fees in the amount of $15,000. The trial court provided a lengthy oral
explanation of its ruling from the bench and, afterwards, a formal written order was
prepared that incorporated a transcript of the trial court’s oral explanation. Specifically,
the trial court’s written order from the November 29, 2011, hearing stated as follows:

               “In this case there is a dramatic difference in how the parties live.
       [Arturo’s] income and expense declaration indicates that his household
       expenses are $5,340, that $4,250 of these expenses were paid by someone
       else. He has debts to Nordstrom, Kohls, Macys, other credit card debt. All
       of his payments are current. The information regarding attorney’s fees is
       clearly inadequate. [Arturo] manages to live in a home where the mortgage
       is $1700 per month.

              “The court does not consider [Arturo’s] wife’s income as being
       available for attorney’s fees. The court considered these expenses, which
       are marked as estimated expenses, to be the most revealing of any income

3      Mr. Minyard noted that as recently as May 2011, in connection with a motion on
property issues, Mr. Cervantes filed a declaration requesting attorney fees of $5,415 “just
for that motion.”



                                              7.
and expense declaration previously filed by [Arturo]. [Arturo] indicates
that he has $13 in cash, checking accounts. And regarding stocks, bonds
and other assets that could easily sell, he wrote DCSS lien.

       “[Paula], on the other hand, barely survives. Her household income
is $1730, her household expenses are $1735. She has no current income,
minimal debt. And she has custody of the parties’ children. The father’s
time share is essentially zero. He sees them under supervised conditions.

       “All of the litigation regarding child support is attributable to
[Arturo]. [Arturo] chose when to seek the modification. He had, as the
Court previously noted, an extensive period of time in which to prove his
case and yet he failed to do so. There were close to countless appearances
for [Paula] and her attorney. [Paula’s] interests in this litigation, and more
importantly the children’s interest in this litigation could not have been
adequately presented to the Court but for the effort of [Paula’s] counsel.
She could not possibly have done this on her own.

       “The attorney’s fees are reasonable under the circumstances. They
are not reasonable for a request to modify child support. So what should
have happened is that [Arturo] filed a well-founded motion with proper
supporting documentation; that the parties went to court once or perhaps
twice, the matter was resolved and everyone moved on. But the
circumstances were created by [Arturo]. He filed papers that did not
include adequate facts. He failed to produce documents when required to
do so. He failed to comply with [the] Court’s orders. He has failed to
comply with the child support order. And as noted in the Court’s prior
order, DCSS reported that [Arturo] owes in excess of $62,000 in child
support. He failed to comply with a prior court order pertaining to
attorney’s fees.

        “The Court does not find some bad intent on [Arturo’s] part. This is
not in the nature of a sanction. The Court has considered the conduct and is
not ordering sanctions. But [Arturo] has driven this litigation, always able
to afford his own attorney, always being able to live a comfortable life style
while his children go without. It is appropriate for [Arturo] to bear all of
the attorney’s fees associated with this motion. The Court still does not
know what [Arturo’s] income was. [Arturo] has filed income and expense
declarations varying from ‘I receive zero’ to [‘]I receive some other
amount.’ Now indicating that he is receiving this hardship money, which is
fairly consistent with his testimony at trial.

       “The Court is going to order the amount of $15,000 in attorney’s
fees payable directly to Mr. Minyard’s office, and to [Paula] jointly.


                                      8.
       This would be enforceable as any money judgment would be
       enforceable in any manner available under the law. And while the
       Court said the attorney’s fee[s] were not reasonable in general, that is
       because of the way this particular litigation was handled. The attorney’s
       fees were entirely reasonable on [Paula’s] part and on her attorney’s part in
       light of the circumstances … which they faced. To do anything other than
       this would be to reward [Arturo] for continuing to litigate when he owes in
       excess of $62,000 in child support. And that would be unforgivable.

               “The Court is using the fact that [Arturo] has proven himself to lack
       credibility on many issues. [Arturo] has failed to provide the Court with
       adequate information about his expenses. He has failed to comply with the
       Court’s order that he specifically provide information about his payment of
       his own attorney’s fees and the source for those payments, [and Arturo] has
       not provided the Court with adequate information at any turn regarding this
       litigation. The best information the Court has available is the information
       used to calculate the prior support order. It appears to the Court, that
       [Arturo] has access to funds [that] he has not divulged to the Court. He has
       had the ability to litigate this matter. He has driven this litigation at every
       turn, thus revealing that he has the ability to have private counsel at every
       moment at his own expense wherever he finds those funds from.

              “The Court finds [Arturo] lacks credibility, as he previously filed
       knowingly incorrect income and expense declarations where he advanced to
       the Court that his income was zero, when, in fact, he was receiving funds
       [from] the insurance company that he has not revealed.

              “The Court is not imputing any income to [Arturo]. He has not been
       forthright with the Court, so it’s very difficult for the Court to provide
       imputed income.”
       As the above order made clear, the trial court found that Arturo lacked any
credibility and had not been forthcoming in reporting his income, but had failed to
comply with prior orders in that regard. The trial court clearly considered the entire
history of the past appearances, court filings and proceedings connected with Arturo’s
motion to modify child support. The trial court concluded that Arturo had other sources
of income sufficient to carry on the litigation and it was appropriate to order him to pay
Paula’s attorney fees. That conclusion was based on all of the circumstances referred to
in the trial court’s order, including (i) Arturo’s ability to continually hire attorneys and



                                              9.
drive the litigation through countless hearings and appearances, (ii) his expenses reflected
that he maintained a comfortable lifestyle even though his child support is in arrears in
the amount of $62,000, and (iii) he had filed inaccurate income declarations and failed to
comply with court orders to provide financial information in the past. Although due to
Arturo’s failure to provide adequate information the trial court was unable to quantify
Arturo’s actual income and financial resources, the trial court implicitly decided that
Arturo could afford to pay the attorney fees relating to the motion to modify child
support. Consequently, the trial court awarded Paula $15,000 in attorney fees.
       Arturo timely appealed from the order granting attorney fees.
                                      DISCUSSION
I.     Contentions on Appeal
       Arturo contends that the trial court abused its discretion in awarding Paula
$15,000 as need-based attorney fees because (i) the trial court allegedly did not follow
the criteria for awarding attorney fees under sections 2030 and 2032, (ii) the ruling was
made beyond the 15-day period set forth in section 2031, and (iii) on due process
grounds, the amount of the award should be limited to what Paula actually requested
($7,500). As will be seen, we reject the first two contentions, but agree with the last one.
       Additionally, Paula has filed a responsive brief asking that we exercise our
discretion to dismiss Arturo’s appeal on the ground that Arturo’s conduct in the trial court
disentitles him to having his appeal heard. (See In re Marriage of Hofer (2012) 208
Cal.App.4th 454, 458-460 [where party intentionally refused to comply with several court
orders requiring disclosure of his financial condition, his appeal on ground that the trial
court failed to consider his finances was dismissed under disentitlement doctrine].) We
do not find the circumstances in the present case to be sufficiently egregious to warrant
the sanction of dismissal. Accordingly, we will proceed to hear the appeal.




                                             10.
II.    Criteria for Need-Based Attorney Fees and Standard of Review
       During the pendency of a dissolution proceeding, the trial court may order that one
party pay some or all of the other party’s legal fees and costs. (§§ 2030, 2032.) The goal
is to ensure parity between the spouses in their ability to have access to effective legal
representation, based on a consideration of their relative circumstances. (In re Marriage
of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974-975; In re Marriage of Keech
(1999) 75 Cal.App.4th 860, 866.)
       The grounds for awarding such attorney fees are set forth in sections 2030 and
2032. We briefly highlight the relevant language of these statutes. Section 2030,
subdivision (a)(1), requires the court to “ensure that each party has access to legal
representation” by ordering, “if necessary based on the income and needs assessments,”
one party to pay to the other party “whatever amount is reasonably necessary for
attorney’s fees and for the cost of maintaining or defending the proceeding .…” (§ 2030,
subd. (a)(1).) Section 2030, subdivision (a)(2), provides that the trial court shall make
certain findings: “When a request for attorney’s fees and costs is made, the court shall
make findings on whether an award of attorney fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel, and whether
one party is able to pay for legal representation of both parties. If the findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.”
       Section 2032, subdivision (a), elaborates that an award of attorney fees under
section 2030 or 2031 may be made “where the making of the award, and the amount of
the award, are just and reasonable under the relative circumstances of the respective
parties.” Section 2032, subdivision (b), provides that “[i]n determining what is just and
reasonable under the relative circumstances,” the trial court shall “take into consideration
the need for the award to enable each party, to the extent practical, to have sufficient
financial resources to present the party’s case adequately, taking into consideration, to the

                                             11.
extent relevant, the circumstances of the respective parties described in Section 4320.”
Section 2032, subdivision (b), adds the following clarification of the factors to be
considered: “The fact that the party requesting an award of attorney’s fees and costs has
resources from which the party could pay the party’s own attorney’s fees and costs is not
itself a bar to an order that the other party pay part or all of the fees and costs requested.
Financial resources are only one factor for the court to consider in determining how to
apportion the overall cost of the litigation equitably between the parties under their
relative circumstances.”
       “Given this statutory framework, a trial court has wide discretion in fashioning an
award of attorney fees in marital proceedings. [Citation.] In assessing one party’s
relative need and the other party’s ability to pay, the family court may consider all
evidence concerning the parties’ current incomes, assets, and abilities, including
investments and income-producing properties.” (In re Marriage of Sorge (2012) 202
Cal.App.4th 626, 662.) In that assessment, the court may also consider the parties’
expenses and “new mate or partner income.” (Alan S. v. Superior Court (2009) 172
Cal.App.4th 238, 253, 255 [the latter being relevant because of possible economies of
scale and the effect on ability to pay].) Further, in determining whether to award attorney
fees to one party, the court may consider the other party’s trial tactics. (In re Marriage of
Sorge, supra, at p. 662; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314.)
Thus, an attorney fees award under sections 2030 and 2032 “should be the product of a
nuanced process in which the trial court should try to get the ‘big picture’ of the case, i.e.,
‘the relative circumstances of the respective parties’ as the statute puts it.” (Alan S. v.
Superior Court, supra, at p. 254.) The trial court not only considers financial resources,
but also a broader analysis of the parties’ relative circumstances. (In re Marriage of
Cryer (2011) 198 Cal.App.4th 1039, 1056.)
       “In summary, the proper legal standard for determining an attorney fee award
requires the trial court to determine how to apportion the cost of the proceedings

                                              12.
equitably between the parties under their relative circumstances. [Citation.] In making
this determination, the trial court has broad discretion in ruling on a motion for fees and
costs .…” (In re Marriage of Falcone & Fyke, supra, 203 Cal.App.4th at p. 975.) An
award of attorney fees in a dissolution proceeding is a matter left to the trial court’s sound
discretion, and absent a clear showing of abuse, the trial court’s determination will not be
disturbed on appeal. (In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1054.)
“[W]e will not reverse absent a showing that no judge could reasonably have made the
order, considering all of the evidence viewed most favorably in support of the order.” (In
re Marriage of Falcone & Fyke, supra, at p. 975.)
       However, “although the trial court has considerable discretion in fashioning a
need-based [attorney] fee award [citation], the record must reflect that the trial court
actually exercised that discretion, and considered the statutory factors in exercising that
discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827, fn. omitted.)
“While no particular language is required in an order awarding attorney fees under
sections 2030 and 2032, the record (including, but not limited to, the order itself), must
reflect an actual exercise of discretion and a consideration of the statutory factors in the
exercise of that discretion.” (Alan S. v. Superior Court, supra, 172 Cal.App.4th at
p. 254.)
III.   The Trial Court Properly Considered the Statutory Factors
       Arturo contends that the trial court did not consider the statutory factors. We
disagree. Here, the trial court made a sufficient assessment and comparison of the
parties’ relative financial circumstances and ability to pay attorney fees. (§§ 2030, 2032.)
The trial court considered the evidence of the parties’ respective incomes, expenses and
other resources, along with Arturo’s trial tactics, and determined under the circumstances
that there was a disparity in the parties’ relative circumstances and it was appropriate for
Arturo to pay Paula’s attorney fees. It was not that the trial court did not adequately
consider Arturo’s financial ability or inability to pay. Rather, based on Arturo’s track

                                             13.
record of failure to be forthcoming on his income and expense declarations, the trial court
found that Arturo lacked any credibility concerning the financial evidence he had
submitted. In deciding the matter, the trial court apparently relied on Arturo’s past
misleading or inadequate income disclosures, his litigation tactics of being able to afford
attorneys whenever he wanted for “countless appearances” and repeated unnecessary
hearings, and his comfortable lifestyle as indicated by his other expenses (while still
being in arrears in the amount of $62,000 on child support), to conclude that Arturo had
sufficient financial resources to pay the attorney fees award—i.e., Arturo “ha[d] access to
funds [that] he ha[d] not disclosed to the Court” from which he was able to perpetually
drive the litigation and hire attorneys. On the record before us, including the trial court’s
order, we are of the opinion that the statutory factors were adequately considered by the
trial court. This ground of Arturo’s appeal fails.
       To the extent that Arturo is arguing that the trial court’s findings were not
supported by the evidence, Arturo has failed to produce an adequate record on appeal.
The trial court obviously based its ruling on the entire history of the proceedings relating
to Arturo’s motion to modify child support, including past appearances and financial
filings in that matter. Arturo’s appeal only provided a record of the most recent income
and expense declarations filed by the parties. Therefore, much of what the trial court
relied on is not before us. “‘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. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a
consequence, an appellant has the burden of demonstrating reversible error based on
adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems
Corp. (2007) 154 Cal.App.4th 547, 556-557.) A necessary corollary to this rule is that if
the record is inadequate for meaningful review, the appellant defaults and the decision of

                                             14.
the trial court should be affirmed. (Gee v. American Realty & Construction, Inc. (2002)
99 Cal.App.4th 1412, 1416.) Since Arturo has not provided an adequate record to permit
us to evaluate whether the trial court’s findings were supported by substantial evidence,
the order cannot be attacked on that ground.
       In a distinct but related line of argument, Arturo asserts that the trial court failed to
adequately consider the reasonableness of the amount of attorney fees. (See § 2032,
subd. (b) [trial court to consider what is just and reasonable].) In this regard, Arturo
claims that the amount awarded was unreasonable because (i) it was greater than what
was sought by Paula and (ii) it exceeded the total outstanding attorney fees set forth in
Mr. Minyard’s supporting declaration.4 While these two challenges to the amount of the
award are arguably well taken, they are cured and rendered moot by the reduction we
make on due process grounds in the last part of our opinion. Therefore, we do not reach
these two particular contentions, as it is unnecessary to do so.
       Arturo also claims that the amount of the award was unreasonable because the trial
court failed to adjust the total attorney fees award downward by $2,499, the amount of an
earlier attorney fees award imposed against him. Arturo has failed to demonstrate any
error. There is nothing in the record that would require us to conclude that the previous
attorney fees award of $2,499 overlapped with, or was duplicative to, the attorney fees
awarded by the trial court on November 29, 2011. Indeed, Arturo’s opening brief herein
described the prior award as a sanction imposed against him on a “property-related
motion [Arturo] had filed.” No abuse of discretion is shown in regard to the alleged
failure to consider the prior attorney fees order of $2,499.




4      Mr. Minyard’s declaration stated that through October 4, 2011, his total attorney
fees incurred in representing Paula regarding the motion to modify child support was
$12,169.75.



                                              15.
IV.    Trial Court Did Not Lose Jurisdiction to Rule on Attorney Fee Requests
       Arturo contends the trial court lost jurisdiction to rule on the attorney fees motion
based on the deadline in section 2031. Section 2031 states procedural rules that apply
when a party requests an award of need-based attorney fees, whether such attorney fees
are requested by a written notice of motion or order to show cause (id., subd. (a)(1)), or
by means of an oral motion made at the hearing (id., subd. (b)), as was the case here. The
section provides, in relevant part, that when attorney fees are requested by a written
notice of motion or order to show cause, the trial court shall rule on the party’s
application for attorney fees “within 15 days of the hearing on the motion or order to
show cause.” (Id., subd. (a)(2).) When a request for attorney fees is made by an oral
motion “[a]t the time of the hearing of the cause on the merits,” the court shall rule
“within 15 days and prior to the entry of any judgment.” (Id., subd. (b)(1) & (2).) Arturo
argues that the trial court erred in awarding attorney fees to Paula because, allegedly, the
trial court’s ruling came after the 15-day statutory deadline. Arturo claims the 15-day
deadline of section 2031, subdivision (b)(2), expired because the hearing of the cause on
the merits (i.e., the motion to modify child support) concluded, at the latest, on
November 1, 2011, and the trial court did not rule on the attorney fees motion until
November 29, 2011, more than 15 days later. Moreover, according to Arturo, once the
15-day period expired, the trial court lost jurisdiction to rule on Paula’s attorney fees
request.
       We disagree with Arturo’s analysis for several reasons. First, it is not clearly
established by the minimal record before us that the 15-day period actually expired.
Although the hearing on the underlying motion to modify child support (during which
Paula’s oral motion for fees was made) was apparently concluded on November 1, 2011,
the record is ambiguous on that point. The minute order of the November 29, 2011,
hearing indicates that one issue (at least) relating to Arturo’s underlying motion did not
get finally resolved until the November 29, 2011, hearing. That is, the minute order for

                                             16.
November 29, 2011, stated in part: “Court does not find the request to modify child
support reasonable.” If issues relating to the underlying motion to modify child support
did not get resolved until the November 29, 2011, hearing, it would not appear that the
15-day period definitely expired prior to the trial court’s attorney fees award.
       Second, Arturo’s contention that the deadline in section 2031 is jurisdictional in
nature is not supported by any case authority or adequate legal analysis. When points are
perfunctorily raised, without adequate analysis and authority, we pass them over and treat
them as abandoned. (Placer County Local Agency Formation Com. v. Nevada County
Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not address
points in appellate briefs that are unsupported by adequate factual or legal analysis.”];
Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when appellant fails to
support a point “with reasoned argument and citations to authority, we treat the point as
waived”]; People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union
School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
       Third and finally, Arturo’s argument that the time deadline in section 2031 is
jurisdictional is not reasonably tenable. In light of the deficiencies noted above, it is
unnecessary for us to reach the issue of statutory construction regarding section 2031; but
even if we were to do so, Arturo’s position would clearly fail—as we now briefly point
out. The prevailing rule is that such time provisions are directory in nature, not
jurisdictional, unless the statute clearly expresses a contrary intent. “‘[G]enerally,
requirements relating to the time within which an act must be done are directory rather
than mandatory or jurisdictional, unless a contrary intent is clearly expressed.’” (Woods
v. Department of Motor Vehicles (1989) 211 Cal.App.3d 1263, 1267; accord, Santa
Monica Properties v. Santa Monica Rent Control Bd. (2012) 203 Cal.App.4th 739, 757.)
“Unless the Legislature clearly expresses a contrary intent, time limits are typically
deemed directory.” (People v. Allen (2007) 42 Cal.4th 91, 102.) Here, there is nothing in
the language of the statute to indicate that the 15-day deadline was intended by the

                                             17.
Legislature to be jurisdictional in nature. Therefore, Arturo’s proposed interpretation
cannot be sustained. Moreover, the interpretation urged by Arturo would be contrary to
the actual legislative purpose of the time provision in section 2031, which is to require
judges to rule promptly on such motions to ensure that a party’s need for such attorney
fees is not unreasonably delayed. (See Stats. 2004, ch. 472, § 2; Analysis of Assem. Bill
No. 2148 (2003-2004 Reg. Sess.) Aug. 16, 2004, p. 3.) Since the timing provision is for
the benefit of the party needing an attorney fees award (by requiring a prompt ruling on
such requests), it would be unreasonable to construe it in such a way as to deprive that
same party of the benefit of such attorney fees merely because the trial court was tardy in
ruling on the motion.
       For all of the foregoing reasons, we reject Arturo’s assertion that the trial court did
not have jurisdiction to rule on Paula’s motion for attorney fees.
V.     The Due Process Issue
       In support of Paula’s oral motion for attorney fees, Mr. Minyard, submitted a
declaration to substantiate the amount and reasonableness of her request. The declaration
was filed pursuant to the former Superior Court of Fresno County, Local Rules,
rule 5.2.13(D), the apparent purpose of which was to put the opposing party and the trial
court on notice as to the amount and factual basis for attorney fees being requested.
Mr. Minyard’s billing records in the case were attached as further substantiation. The
declaration indicated that Paula’s total attorney fees incurred for all services rendered
from May 2009 through October 4, 2011, was $12,169.75. However, the declaration
stated plainly that the amount of attorney fees being requested by Paula pursuant to
section 2030 was $7,500. Neither Paula nor her attorney ever indicated that more than
$7,500 would be sought at the hearing. Therefore, on November 1, 2011, when the trial
court continued the hearing to November 29, 2011, both parties and the trial court were
clearly apprised that Paula was requesting $7,500 in attorney fees.



                                             18.
       At the hearing on November 29, 2011, the trial court disregarded Paula’s
attorney’s declaration that $7,500 was the amount claimed by her as reasonable, need-
based attorney fees. Instead of looking at the amount of attorney fees actually requested
by Paula’s motion, the trial court undertook an entirely different methodology for
determining the amount of Paula’s attorney fees. The trial court added all of the attorney
fees apparently incurred by Paula in the case, and then, based on Mr. Minyard’s oral
representation at the hearing that the child support issue had consumed approximately
three-fourths of the attorney time expended on the case since May 2009, the trial court
multiplied the total number by three-fourths and concluded that Paula’s reasonable
attorney fees were just over $15,000. Arturo’s counsel, Mr. Rusca, objected to this
process at the hearing, pointing out that there was no accounting or other factual showing
to confirm the three-fourths percentage, that figure was just an unsubstantiated
assumption, and he was not given any advance notice of that issue or any opportunity to
disprove or rebut it.
       On appeal, Arturo argues that he was not provided adequate notice that an amount
greatly in excess of the $7,500 sought by Paula would be at issue at the hearing, and he
further argues that he was denied due process when the trial court disregarded the actual
amount requested in the motion ($7,500) and, instead, applied an alternative basis for
calculating fees without advance notice or an opportunity to respond. On the unique facts
of this case, we agree with Arturo. Mr. Minyard’s declaration was, in essence, a form of
notice that framed the issues for the upcoming hearing—that is, it informed Arturo and
the trial court of the amount of attorney fees that Paula claimed to be reasonable, need-
based attorney fees under section 2030. When the trial court looked past Paula’s motion
and the factual basis for it, and granted relief substantially beyond that which Paula had
requested by using different grounds for ascertaining her fees, it denied Arturo due
process because he was not afforded notice of the issues he would have to meet at the
hearing nor given a reasonable opportunity to rebut the factual basis for the methodology,

                                            19.
the percentages used, and the amount arrived at under the trial court’s formula. (See,
e.g., Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545 [only grounds in
notice of motion may be considered by the court]; Tafti v. County of Tulare (2011) 198
Cal.App.4th 891, 901 [inadequate notice where party not fairly apprised of nature of
hearing or scope of issues that would be considered at hearing]; § 271 [basic rules and
principles applicable to civil actions generally also apply to family law proceedings]; 9
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2013) ¶¶ 9:2.2, p. 9(I)-2 (rev. #1 2012) [“due process of law requires adequate notice and
opportunity to be heard on any motion that affects the rights of the opposing party”],
9:38, p. 9(I)-23 (rev. #1 2013) [the court cannot grant different relief, or relief on
different grounds, than stated in the notice of motion].) Additionally, although the trial
court indicated that it was not imposing sanctions, the fact that the trial court ended up
doubling the amount of fees requested by Paula strongly suggests that it may have been
impermissibly imposing sanctions without providing adequate notice, as is required by
law. (In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 513 [case
authority condemns imposition of sanctions without prior notice].)
       Based on the foregoing, we believe the appropriate remedy is for us to modify the
order awarding attorney fees to reflect that the amount of attorney fees awarded to Paula
is only $7,500. “‘Whenever an appellate court may make a final determination of the
rights of the parties from the record on appeal, it may, in order to avoid subjecting the
parties to any further delay or expense, modify the judgment and affirm it, rather than
remand for a new determination. [Citations.]’ [Citations.]” (Orthopedic Systems, Inc. v.
Schlein (2011) 202 Cal.App.4th 529, 547.)




                                              20.
                                    DISPOSITION
      The order awarding attorney fees is modified to reflect that the amount awarded to
Paula is $7,500. The order is affirmed as modified. Each party shall bear their own costs
on appeal.


                                                               _____________________
                                                                      Kane, Acting P.J.
WE CONCUR:


 _____________________
Franson, J.


 _____________________
Oakley, J.⃰




⃰       Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



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