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In Re the Marriage of Mirko and Vesna Vojnovic. v. Vesna Vojnovic

December 21, 2010

IN RE THE MARRIAGE OF MIRKO AND VESNA VOJNOVIC. MIRKO VOJNOVIC, APPELLANT,
v.
VESNA VOJNOVIC, RESPONDENT.



(Santa Clara County Super.Ct.No. FL129014)

The opinion of the court was delivered by: Duffy, J.

Marriage of Vojnovic

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this relatively contentious marital dissolution proceeding, appellant Mirko Vojnovic (husband), appearing in this court as a self-represented litigant, appeals from the trial court's order awarding Vesna Vojnovic (wife) $10,000 in sanctions under Family Code section 271.*fn1 In challenging the order, husband articulates no particular legal argument, cites no authority, and does not refer to the record on appeal, instead citing to various exhibits contained in an appendix not a part of the record.*fn2 As part of our own review of the order, however, it is apparent that the trial court created an ambiguity in that the order discusses awarding sanctions in the amount of $7,500 but then inconsistently directs an award of $10,000. We will accordingly reverse the order and remand the matter to the trial court for clarification of the dollar amount of sanctions intended. But we further conclude that husband has otherwise failed to demonstrate any error or abuse of discretion.

STATEMENT OF THE CASE

We briefly summarize the relevant background.

Husband and wife were married in December 1991 and they separated in September 2003 after having a daughter in 1997. Husband petitioned for dissolution of the marriage in September 2005. Around May 2006, husband proposed that the parties resolve the matter based on a draft marital settlement agreement that he provided to wife. After some restraining order requests were raised and the parties were ordered to mediation, a judgment terminating their marital status was entered in December 2006 with reservation of various issues, including those concerning child custody, visitation and support; division of marital property and debts; spousal support; and characterization of property. The court entered a separate order at the same time concerning husband's payment of child support and temporary spousal support.

In April 2007, on husband's request, the court modified its order concerning payment of child and spousal support based on DissoMaster calculations but it also continued to reserve jurisdiction over these issues. In December 2007, the court entered an order on the parties' stipulation concerning child custody and visitation pending an assessment of the child's need to participate in therapy. Another stipulation and order dealing with these issues was entered in February 2008. In April 2008, wife moved to compel husband to produce documents and for an award of attorney fees and costs incurred in connection with the discovery dispute. Husband also moved to compel further production of documents and further responses to interrogatories by wife and for sanctions. After a hearing, the court granted in part wife's request for an order compelling husband to produce documents but denied wife's request for sanctions, finding that husband had acted with substantial justification in opposing wife's motion. The court also granted in part husband's request for an order compelling further discovery responses but likewise denied husband's request for sanctions, finding that wife had acted with substantial justification in opposing husband's motion.

As the parties were approaching trial on unresolved issues in June 2008, they participated in a judicial settlement conference before a temporary judge. Both parties were seeking, among other things, an award of attorney fees against the other. At the conference, with the help of the temporary judge, they were able to resolve all issues except those on each side relating to attorney fees. The court's minutes reflect the parties' general terms of agreement and with respect to attorney fees, the minutes say, "both counsel[] are to submit a declaration regarding attorney's fees by 6/23/08 and repl[ies] are due on 6/30/08; there [is] a 20 page[] limit on all pleading[s] including declaration[s] and 5 pages for replies." The parties put their settlement on the record before the court, which then entered a written order reflecting their stipulation. With respect to attorney fees, the order reflecting the parties' stipulation says that they "shall submit declarations on the issue of attorney's fees by June 23, 2008, and replies are due on June 30, 2008. The declarations are limited to 20 pages, and the replies are limited to 5 pages." In other words, it appears from the record that the page limitations were included within the parties' stipulation, which became the order of the court.

Husband's brief regarding his claim for attorney fees under section 271 was seven pages and there was no declaration. He contended that he had incurred over $100,000 in fees and costs over the course of the dissolution proceeding and that wife had delayed the settlement by her litigation tactics. And he contended that wife had not established a basis for an award in her favor. Wife on the other hand contended in her 17-page brief (that included her own declaration averring to its stated facts) that husband should be ordered to pay her attorney fees under section 271 but also under section 2030 on a needs basis.*fn3 With respect to fees as sanctions under section 271, wife contended that husband used intimidation throughout the proceeding to attempt to force his way; that he demanded that wife sign the proposed marital settlement agreement that he had tendered in 2006 and relentlessly pursued fees against wife because she didn't sign that agreement; that he made the settlement of child custody issues very difficult by his extreme obstreperousness and constantly changing positions over custody terms; that he made no effort to settle the proceeding on fair terms and resisted wife's efforts; that he made inappropriate requests for sanctions against wife; that he deliberately refused to provide relevant documents to wife; and that he regularly asserted new terms of negotiation into already settled questions. Wife also opposed husband's request for an award of fees against her, responding to each of husband's supporting allegations. She specifically contended and declared that the settlement agreement he had proposed in 2006 was very onerous and unfair to her and that she was not the cause of husband incurring fees.

Husband's reply brief was five pages in which he generally contended that wife had failed to establish facts justifying a fee award. Wife's reply brief again responded to husband's individual points and argued that he was continuing to misrepresent the facts of the case, further justifying sanctions against him. She also specifically emphasized again that sanctions were appropriate for husband's insistence throughout the litigation that she sign his proposed marital settlement agreement, which, she contended, was unfair to her.

In a written order, the court denied husband's request for fees under section 271. The court characterized the crux of husband's request as amounting to a claim that wife "waited more than a year to advise [him] of her objections to the original MSA, and that she did not assert an interest in [his company] until two years after the parties had 'essentially divided all the community property.' " As to this claim, the court analyzed contrary evidence offered by wife, including to the effect that the agreement initially proposed by husband was unfair because it provided for wife's waiver of spousal and child support. The court concluded that husband had failed to establish that wife should be sanctioned under section 271. It appeared to the court that wife "was substantially justified in refusing to accept the first proposed MSA. The terms of this initial proposal are substantially favorable to Husband. Therefore, Husband's argument that Wife frustrated the Court's policy of settlement by refusing to accept the initial MSA is unpersuasive. The ...


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