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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Court further finds that, in light of the facts and circumstances of this case, none of Wife's conduct is deserving of sanctions under [section] 271. Wife appeared willing to settle on reasonably equal terms throughout the course of the litigation." (Underscore omitted.)

As to wife's request for sanctions against husband under section 271, the court analyzed evidence offered by wife, including her claims that husband had used intimidation and threats that involved their child in their dispute to pressure wife into signing his proposed settlement agreement; that wife had made repeated efforts to settle the case; and that husband had unreasonably refused to provide documents concerning his ownership interest in his company. The court further noted that husband had not responded to wife's contentions except to argue that she had not met her burden. And the court found "several aspects of Husband's behavior troubling. First, Husband was quite insistent on urging Wife to agree to the initially proposed MSA even though the agreement was substantially unfair to Wife. Furthermore, Husband involved the parties' child in the dispute by threatening that if Wife did not sign the agreement, Wife and the child would not be able to go on vacation to Serbia. On other occasions, the parties appeared poised to reach an agreement, but at the last minute, Husband would insert different terms and raise new issues. [¶] Second, Husband was recalcitrant and evasive regarding disclosure of his interest in [his company]. Wife had to file a motion to compel discovery, and even after the Court ordered Husband to provide the pertinent information, Husband still resisted. Litigation regarding this issue would not have been as protracted if Husband had been more forthcoming from the outset." For these reasons, the court's order in text found an award of sanctions against husband in the amount of $7,500 to be appropriate. But then it inconsistently directed husband to pay sanctions in the amount of $10,000 to wife's attorney.

Finally, the court denied wife's need-based request for fees under section 2030, finding that although the parties had disparate income, wife still received $250,000 in the distribution of community property and thus the "disparity between [their] relative circumstances is not so great that an award of attorneys' fees based on financial need is appropriate."

Husband timely appealed.

DISCUSSION

I. Husband Has Forfeited Most Claims on Appeal

Husband, as a self represented litigant, filed an opening brief in which he states that he is "an engineer, not an attorney" and he will consequently "not try to recite any . . . applicable laws here." His brief accordingly has not one citation to legal authority. Nor does it articulate any specific issues or claims of error with headings and argument in support. Nor does it, with one single exception, cite to the actual record on appeal, instead discussing and citing under a heading called "Statement of Facts" 25 "exhibits" that are all outside the appellate record.

The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be 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; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) Further, error alone does not warrant reversal. A judgment " 'will not be reversed unless it can be shown that a trial court error in the case affected the result.' [Citation.]" (In re Marriage of Falcone v. Fyke (2008) 164 Cal.App.4th 814, 822.) The burden is on the appellant not just to show error, but to show injury from it by demonstrating that absent the error, a different result would have obtained. (Ibid.)

"In addition to providing an adequate record to demonstrate error, an appellant's burden includes the obligation to present argument and legal authority on each point raised. This requires more than merely stating that the judgment or some part of it is erroneous, leaving the reviewing court to figure out why. It is not the appellate court's function to construct theories or arguments that would call the validity of the judgment into question and defeat the presumption of correctness. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [" 'This court is not inclined to act as counsel for . . . any appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion' "].) Moreover, rule 8.204 of the California Rules of Court requires that each brief "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority" and "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [appellant must clearly state each argument under separate heading and develop such arguments in a coherent fashion that the court can readily identify and evaluate].)

Accordingly, when an appellant asserts a point but fails to support it with reasoned argument and legal authority, the court may treat it as waived and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775 [issue deemed waived where appellant failed to support claim with argument, discussion, analysis, or citation to the record]; Stoll v. Stuff (1994) 22 Cal.App.4th 22, 25 [error not discussed in body of opening brief is waived as there is no serious effort to raise the issue on appeal].)

We acknowledge that husband is representing himself on appeal and that he has not had the legal training that would benefit him in advocating his positions. But the rules of civil procedure, and thus those on appeal, apply with equal force to self-represented litigants. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) "When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [as with attorneys, self represented litigants must follow correct rules of procedure].)

Based on these fundamental principles, we find that husband's briefing is wholly deficient and he has thus forfeited any claims on appeal other than the ambiguity as to the amount of sanctions awarded--an issue that we clearly perceive by our review of the trial court's order alone. While we do not relish a finding of forfeiture, husband's briefing in this case falls well short of meeting his burden on appeal to demonstrate error with articulated claims supported by argument with citation to legal authority and the appellate record.

II. No Abuse of Discretion or Other Prejudicial Error Appear in the Record in Any Event

Although we have concluded that husband has forfeited most claims on appeal, to the extent we can discern the smatterings of his claims of error, no abuse of discretion or prejudice appear in any event based on our review of the record.

Husband's opening brief*fn4 contains the bare statement that the court's order was based "on two main falsehoods," which are identified as wife's claims below that husband had (1) used intimidation and threats in an effort to force her to sign husband's proposed marital settlement agreement, and (2) had failed to produce documents relative to his financial interest in his company. And his brief complains that the trial court's page limitations imposed on the parties' briefing regarding attorney fees were "not appropriate to [allow him to] address all the issues and misrepresentations that had arisen during this long divorce proceeding[]."

Section 271, subdivision (a), which provides for an award of attorney fees as sanctions in a family law matter, states 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 the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. 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. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award."

This section "advances the policy of the law 'to promote settlement and to encourage cooperation which will reduce the cost of litigation.' [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction." (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) In order to be sanctionable under section 271, which imposes just a minimum level of professionalism and cooperation (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1107), conduct need not rise to the level of bad faith or frivolousness. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 58-59.) And the party requesting sanctions under section 271 need not show a separate injury as a result of the opposing party's misconduct. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.) All that is required is that a party's dilatory and uncooperative conduct frustrated the policy of promoting settlement and cooperation among litigants. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479-1480.) Further, a settlement offer that is so onerous that it will not seriously be considered by the opposing party is not designed to promote settlement, but to antagonize or to gain an unfair advantage--conduct that may itself warrant section 271 sanctions as "flout[ing] the policy in favor of settlement." (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 992, 993, disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.) While a trial court has broad discretion under section 271, this discretion is exceeded if there is no foundational evidence that the party being sanctioned frustrated the promotion of settlement and reduction of litigation costs. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 531 [sanction could not rest on conduct by related third party]; In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1083 [sanction could not stand where trial court had applied erroneous standard in ruling on visitation issue that was basis of husband's conduct found to be sanctionable].)

In assessing the propriety of a sanctions award under section 271, an appellate court will "indulge all reasonable inferences to uphold the trial court's order. [Citations.] We will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it. [Citations.]" (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 178.) Under this standard of review, the trial court's order will be overturned only if, considering all of the evidence viewed most favorably in support of the order, no judge reasonably could have made it. (In re Marriage of Daniels, supra,19 Cal.App.4th at p. 1106; In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.) " 'While sanctions are discretionary, the term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. . . .' [Citation.]" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.) " 'We review any findings of fact that formed the basis of the for the award of sanctions under a substantial evidence standard of review.' [Citation.]" (Marriage of Corona, supra, 172 Cal.App.4th at p. 1226.)

Applying these principles and standards here, we conclude that the trial court acted well within the applicable bounds of discretion and that its findings regarding husband's conduct are amply supported by substantial evidence appearing in the record. In support of its sanctions order, the court specifically cited husband's insistence on wife's agreement to his proposed settlement although the terms were unfair to her. The court also cited husband's bait and switch settlement tactics and his recalcitrance and evasiveness in discovery. There is evidence in the record of all of these instances, particularly in the form of wife's uncontested declaration that was part of her request for sanctions. And this type of conduct is well within the scope covered by section 271. Although husband now contends in a single statement that wife's assertions regarding his conduct concerning the proposed settlement agreement are "falsehoods," it is not our role to assess credibility, particularly in the absence of contrary evidence in the record. Accordingly, our review reveals no abuse of the trial court's discretion in its imposition of sanctions against husband under section 271.

As noted, husband also contends in a single sentence that the trial court's page limitations imposed in connection with papers filed on the issue of attorney fees were "not appropriate," suggesting that this restriction somehow hampered his ability to oppose wife's request. But as we read the record, the parties in settling the remaining issues with the involvement of a temporary judge also agreed by stipulation to the page limitations, which then became the order of the court. Such an agreement cannot form the basis of a claim on appeal as it amounts to invited error or waiver of the claim. Moreover, as wife points out, a review of the record reveals that husband did not nearly exhaust the page limitations in his filing below. He used but seven of the allocated 20 pages, and he offered no evidence at all relative to the issue of attorney fees. He has accordingly shown no prejudice even if we were inclined to question the court's ruling limiting the length of briefing, which we are not in the circumstances presented here.

DISPOSITION

The order is reversed and the matter is remanded solely for the trial court to clarify whether its award of sanctions against husband was intended to be $7,500 or $10,000. Each party to bear its own costs on appeal.

WE CONCUR: Mihara, Acting P.J. McAdams, J.


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