Filed 8/31/26 Prince v. Prince CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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