Konkov v. Doubson CA6 ( 2024 )

Filed 5/14/24 Konkov v. Doubson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
FYODOR KONKOV, H050705
(Santa Clara County
Petitioner and Appellant, Super. Ct. No. 2009-6-FL-002532)
v.
NATASHA DOUBSON,
Respondent and Appellant.
This appeal stems from an accounting discrepancy regarding support payments
made pursuant to a post-dissolution settlement agreement. In connection with resolving
the discrepancy, the trial court issued two orders awarding a total of $14,000 in statutory
need-based attorney fees to Fyodor Konkov (husband), and $10,000 in contract-based
attorney fees to Natasha Doubson (wife) on the theory that she had enforced the
settlement agreement by seeking judicial intervention to address the accounting issue.
Both parties appealed.
Wife contends that the attorney fees provision in the settlement agreement
precluded the award of statutory need-based fees to husband, and that the trial court
abused its discretion in only awarding her $10,000 as the prevailing party. Husband
contends wife was not entitled to any fees because she did not enforce the settlement
agreement at all.
We conclude that the settlement agreement did not preclude the trial court’s award
of statutory need-based fees to husband. We also conclude that substantial evidence
supports the trial court’s determination that wife enforced the settlement agreement.
Finally, we conclude that the trial court’s award of $10,000 in attorney fees to wife
constituted an abuse of discretion because it was devoid of any explanation or logic as to
how the court determined the amount.
Accordingly, we reverse and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Marriage and dissolution
Wife and husband were married in August 1997. They had two children, born in
1998 and 2000, and later commenced dissolution proceedings in 2009.
B. 2016 settlement agreement
On November 3, 2016, wife and husband entered into a stipulation and order to
resolve various aspects of the dissolution proceedings (settlement agreement). The
settlement agreement stated that the parties “intended to make a final and complete
settlement and compromise of the support arrearages due to Husband and any and all
claims pending by Wife incident to the dissolution of their marriage.” Pursuant to the
settlement agreement, wife would make specified payments to husband over a period of
four years, to be characterized as child support arrears. The total payment amount would
vary depending on when wife made the payments—the more quickly she made the
payments, the less she was required to pay. At a minimum, she could pay $150,000 by
December 31, 2016; at a maximum, she was required to pay $182,500 by January 1,
2020.
In exchange, and upon full satisfaction of payment by wife, husband agreed to
waive rights to certain payments established by prior court orders, all child and spousal
support arrears, and any and all spousal support rights or claims against wife. The listed
waivers were “provisional and conditional and will only take effect upon Wife’s full
payment of the Payment owed to Husband….”
2
Upon execution of the settlement agreement, all pending court dates relating to
arrearages, attorney fees or other claims were vacated, and “all litigation in this case will
cease immediately….”
The settlement agreement also included an attorney fees provision, at issue in this
appeal, which stated: “In the event that either party shall be required to seek judicial
intervention for purposes of enforcing this Stipulation and Order, that party shall be
entitled to reimbursement of reasonable attorney’s fees and costs incurred in enforcing
this Stipulation and Order.”
C. 2020 request for order
On September 1, 2020, wife’s counsel e-mailed husband, communicating wife’s
intent to file a request for order regarding an alleged accounting discrepancy in wife’s
payments under the settlement agreement.1 According to wife’s counsel, the remaining
balance to be paid to husband at that time was $4,804.20, yet the records of the
Department of Child Support Services (DCSS) showed a remaining obligation of
$17,147.47.2
One week later, wife filed the request for order, in which she sought: (1) a
$15,000 credit for an alleged gift she made to husband in July 2017 when she “was of
unsound mind”; (2) a credit of $11,327.50 in Social Security “derivative benefits” that
husband allegedly had failed to obtain in connection with wife’s disability; (3) a
redetermination of wife’s remaining support obligations under the settlement agreement;
1
“In a family law proceeding, the term ‘request for order’ has the same meaning
as the terms ‘motion’ or ‘notice of motion’ when they are used in the Code of Civil
Procedure.” (Cal. Rules of Court, rule 5.63(a).)
2
The settlement agreement provided that wife would make her payments to
husband through DCSS. DCSS was created in 1999 as a new state agency for child
support enforcement. (Orange County Department of Child Support Services v. Superior
Court (2005) 129 Cal.App.4th 798, 806; see also Family Code § 17200 [“The
Department of Child Support Services is hereby created within the California Health and
Human Services Agency. The department shall administer all services and perform all
functions necessary to establish, collect, and distribute child support.”].)
3
and (4) an award of $9,625 in attorney’s fees pursuant to the fee-shifting provision of the
settlement agreement. With respect to the remaining support obligations, wife clarified in
the request for order that DCSS calculated a remainder of $14,994.73, rather than the
$17,147.47 she had identified in her e-mail to husband.
As to the attorney fees, wife claimed that she brought the request for order because
husband “did not agree” that the gift and derivative benefits should be credited, thereby
“forc[ing] [her] to seek judicial intervention to resolve a dispute,” and because DCSS had
“improperly imposed” more payment obligations than were set forth in the settlement
agreement.
DCSS submitted a response to wife’s request for order, stating its position that the
$15,000 gift was not a payment for child support because the parties “had a case open
with DCSS and all payments for support were to go through DCSS,” and wife’s own
attorney had said the payment was not for support. In addition, DCSS stated that a credit
for the derivative benefits wife sought would be “inappropriate under these
circumstances” because there was no court order requiring husband to apply for such
benefits based on wife’s disability, and she had provided no evidence husband actually
would have received any. DCSS also conducted an audit of wife’s payments and
determined that she owed $14,944.73 as of September 30, 2020.
Wife then submitted an ex parte application on November 4, 2020, seeking an
order for DCSS to stop withdrawing money from her salary pending the court’s decision
on her request for order. According to wife, after she had filed her request for order in
September 2020, DCSS had continued to withdraw money from her paychecks, but had
stopped transferring it to husband.
Following a hearing on the ex parte application in December 2020, the court
ordered that, “based on the agreement of the parties,” DCSS was to “release monies on
hold since 10/01/2020 to [wife],” and “cease further enforcement” pending the
evidentiary hearing on wife’s request for order.
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D. Husband’s request for attorney fees
In April 2021, husband filed a request for order seeking $40,400 in attorney fees.
Husband sought fees for multiple purposes, including responding to wife’s September
2020 request for order and defending against a separate civil action brought by wife.
According to husband, he was entitled to fees pursuant to Family Code section 2030,
which authorizes an award of “pendente lite” attorney fees to a party in a dissolution
proceeding “to the extent that the award is ‘reasonably necessary’ to compensate that
party for maintaining or defending the proceeding.” (Family Code, § 2030, subd. (a)(1)3;
In re Marriage of Guilardi (2011) 200 Cal.App.4th 770, 773 (Guilardi).)
Wife opposed the request on numerous grounds.4
E. First order awarding statutory need-based fees to husband
The court held a hearing on June 8, 2022 to consider husband’s request for
attorney fees. In its order entered on July 11, 2022, the court found it “equitable to award
$4,000 in attorney fees” to husband pursuant to sections 2030 and 3557 (order No. 1).
Section 3557 generally provides that, upon determining that an award of fees is
appropriate, that there is a disparity in access to funds to retain counsel, and that one
party is able to pay for legal representation for both parties, a court shall award
reasonable attorney’s fees to a custodial parent or a supported spouse in certain
circumstances. (§ 3557.)
The court also set the remaining issues between the parties for trial: (1) whether
wife met her obligations regarding child support and spousal support, and (2) the parties’
claims for attorney fees.
3
Undesignated statutory references are to the Family Code.
4
Wife also filed a second request for order on May 12, 2021, in which she sought
“clarification of the terms” of the settlement agreement. According to wife, husband had
“refused to acknowledge the discrepancy” in the DCSS accounting of her payments, and
was instead arguing that mother had failed to comply with the terms of the settlement
agreement, thereby voiding it and reviving all pre-existing claims.
5
F. Hearing on remaining issues
The trial court held the hearing on the remaining issues on September 22, 2022.
The parties submitted trial briefs in advance of the hearing.
In her trial brief, wife stated that she had dismissed two of the initial claims in her
September 2020 request for order. First, because she had commenced a separate civil
action in Santa Clara County Superior Court seeking to recover the $15,000 “gift” she
had paid husband in 2017, she filed a request to dismiss her gift rescission claim.
Second, in light of “newly emerged facts and circumstances,” wife also dropped her
claim for derivative benefits.
Wife’s only remaining claim, then, was her request for a declaration that DCSS
had erred in calculating the amount she had paid toward the $182,500 obligation. As she
stated in her trial brief, “the only claim raised in the [request for order] that the Court
needs to address is Claim #3, which asks to declare that as of September 4, 2020 Mother
was short by $2,651.46—and not $14,994.73 as reflected in DCSS’s records—towards
her obligation to pay $182,500.”
Wife also requested an additional award of attorney fees pursuant to the fee-
shifting provision of the settlement agreement. According to wife, she had been
“required to seek judicial intervention” because DCSS refused to correct its calculations
and husband refused to acknowledge that DCSS had erred. She sought a total of $55,975
in fees, which she then increased to $64,655 after filing her reply brief.
In his trial brief, husband argued that he should be paid the full $182,500 pursuant
to the settlement agreement. According to husband, some of that money was being held
“in suspense” by DCSS because wife had created a dispute by bringing her request for
order. Because he did not receive the full $182,500 by the deadline, husband argued, the
settlement agreement was void by its own terms, and his conditional waiver of spousal
support was no longer valid.
6
He also argued that wife was not entitled to any attorney fees under the settlement
agreement because she had not enforced its provisions; instead, her September 2020
request for order was “the sole trigger for the current litigation,” and husband had no
choice but to respond. As he explained it, wife’s action merely sought to clarify what she
owes and “she’s not enforcing anything.”
In his reply brief, husband also requested additional attorney fees of $29,178,
pursuant to sections 2030 and 3557 and the settlement agreement.
The court held a one-day trial on September 22, 2022. It then ordered DCSS to
complete its audit and submit it to the court, and for the parties to submit further
responses by November 4, 2022. In connection with their supplemental briefs, each party
sought additional attorney fees as well—a total of $72,355 for wife, and $25,613 for
husband.
G. Second order resolving remaining issues
The trial court issued its order resolving the remaining issues on December 23,
2022 (order No. 2). According to the court, the “primary issues in dispute” were: (1)
whether wife satisfied her obligation under the settlement agreement to pay a total of
$182,500 by November 1, 2020, thereby triggering the waivers in the settlement
agreement; and (2) whether wife was required to pay spousal support of $1,013 per
month in addition to the amount owed under the settlement agreement.
The court first determined that wife had satisfied her payment obligations under
the settlement agreement because she had timely made all payments to DCSS by the
deadline, notwithstanding that DCSS had refunded some of the money to her, which she
later returned upon discovering it. Therefore, under the terms of the settlement
agreement, husband waived his right to spousal support and to bring certain enforcement
claims against wife.
Second, the court addressed and rejected an argument husband raised for the first
time in his reply declaration—that “all payments, by law, must be applied first to current
7
child support, then current spousal support, then to arrears,” so that the $182,500
payment “is treated as child support arrears as per the stipulation and was paid down only
AFTER both current support payments were made.” The court held that “the parties
essentially agreed to delay enforcement of spousal support as it is a provision they are
waiving if [wife] satisfies her obligation under the [settlement agreement].”
With respect to the parties’ requests for attorney fees, the court held that wife was
entitled to fees because she had brought a motion to enforce the settlement agreement and
prevailed. As to the amount, the court first stated that “it is unclear whether the total
amount sought by wife is reasonable under the circumstances.” The court noted that wife
sought to recover fees incurred prior to her “motion for clarification” filed on May 13,
2021, but that the settlement agreement only allowed the prevailing party to recover legal
expenses incurred in bringing an enforcement action. The court then awarded her
$10,000 in attorney fees.
The court also awarded husband $10,000 in need-based fees pursuant to section
2030, based on the parties’ disparity in income.
H. Appeals
Wife filed a notice of appeal on December 27, 2022, in which she purported to
appeal both order No. 1 and order No. 2.
Husband then filed a notice of cross-appeal on February 21, 2023, which identified
December 27, 2022 as the date of the trial court action he was appealing. We construe
that as an appeal of order No. 2.
II. DISCUSSION
On appeal, wife argues that the fee-shifting provision of the settlement agreement
operates as a waiver of statutory need-based attorney fees, so husband was not entitled to
any fees pursuant to sections 2030 and 3557. She also argues that the trial court abused
its discretion in awarding her only $10,000 in attorney fees, and this court should modify
the award to $72,355.
8
Husband, proceeding on appeal in propria persona, argues wife was not entitled to
any attorney fees because she did not enforce the settlement agreement, and this court
should vacate order No. 2. In addition, he argues that he enforced the settlement
agreement, and that wife breached it by requesting modification, relitigating the support
arrears, and not paying him the full $182,500 by the deadline. Lastly, he argues that this
court should not vacate the orders to the extent they award him need-based fees under
section 2030.
A. Wife’s appeal
1. Fees awarded to husband
Wife challenges the $4,000 of statutory need-based fees awarded to husband in
order No. 1, and the $10,000 of statutory need-based fees awarded to him in order No. 2.
She claims that the language in the settlement agreement regarding attorney fees “means
that recovery of attorney fees incurred in enforcing the agreement should be governed by
the prevailing party standard, not by the need-based standard of Family Code § 2030.”
Accordingly, she argues, husband may not seek need-based fees except to enforce
statutory rights to child support or custody, which he did not do here.
a. Appealability of order No. 1
As noted above, order No. 1 was entered on July 11, 2022, but wife did not file her
notice of appeal until December 27, 2022. Wife argues that her appeal was timely
because (1) order No. 1 was not a final appealable order, so she was required to wait until
after entry of order No. 2 to appeal, and (2) even if order No. 1 was a final appealable
order, the deadline to appeal was 180 days from the date of entry pursuant to California
Rules of Court, rule 8.104(a)(1), because neither husband nor the trial court clerk issued
notice of entry of order.
The “one final judgment” precludes appellate review of intermediate rulings until
final resolution of the case. (Reddish v. Westamerica Bank (2021) 68 Cal.App.5th 275,
277-278 (Reddish); Code Civ. Proc., § 904.1.) One exception is the collateral order
9
doctrine, “under which some interim orders are deemed appealable ‘judgments’ because
they are essentially the same as a final judgment.” (Reddish, supra, 68 Cal.App.5th at p.
278.) “To be appealable, a collateral order must satisfy three elements: the order must (1)
finally determine (2) a matter collateral to the litigation and (3) require the payment of
money or performance of an act.” (Id., citing Marsh v. Mountain Zephyr, Inc. (1996) 43
Cal.App.4th 289, 297-298.)
A pendente lite attorney fees order—issued during the pendency of a proceeding
for dissolution of marriage—is directly appealable “ ‘where nothing remains for judicial
determination except the issue of compliance or noncompliance with its terms.’ ” (In re
Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457, 468, quoting In re Marriage of
Weiss (1996) 42 Cal.App.4th 106, 119.)
Wife argues the trial court retained the power to revoke order No. 1 because she
had requested that the court rescind its award on the grounds the fees were “sought
without probable cause to coerce Mother into a settlement in an unrelated civil case.”
She cites a statement made in her trial reply brief in September 2022 asserting that
husband had unreasonably opposed her request for order. In our view, nothing remained
for judicial determination with respect to order No. 1 other than compliance with its
terms, and wife’s statements in her reply brief in September 2022 did not alter that.
Order No. 1 was a final appealable order.
However, wife also argues that notice of entry of order No. 1 was never served.
The record in this appeal did not include any such notice of entry or proof of service. We
issued an order to augment the record with the notice of entry, or proof of service, of
order No. 1, if any such notice of entry or proof of service exists. The superior court
clerk certified that, after a due and diligent search, no such document could be found.
The 180-deadline in Rule 8.104(a)(1)(C) of the California Rules of Court therefore
applies and wife’s appeal of order No. 1 was timely. (Annette F. v. Sharon S. (2005) 130
Cal.App.4th 1448, 1456.)
10
b. Standard of review
Wife’s threshold argument is that the parties contractually waived their rights to
statutory attorney fees through the language in the settlement agreement, so that the trial
court was precluded from awarding husband any statutory need-based fees. She contends
the abuse of discretion standard applies.
Although an order granting an award of attorney fees is generally reviewed for
abuse of discretion, issues of law concerning entitlement to attorney fees are reviewed de
novo. (Roe v. Halbig (2018) 29 Cal.App.5th 286, 298 [discretionary decision on
propriety or amount of fees to be awarded, but “ ‘determination of the legal basis for an
attorney fee award is a question of law to be reviewed de novo’ ”]; Rickley v. Goodfriend
(2012) 207 Cal.App.4th 1528, 1533; Carpenter & Zuckerman, LLP v. Cohen (2011) 195
Cal.App.4th 373, 378.)
“Deciding whether to award pendente lite attorney fees and deciding the amount
of any fees awarded require family courts to resolve questions of law, make findings of
fact, and exercise discretionary authority to resolve certain issues.” (In re Marriage of
Knox (2022) 83 Cal.App.5th 15, 25 (Knox).) “Each of these aspects of the family court’s
decision is subject to a different standard of review. Its findings of fact are reviewed
under the deferential substantial evidence standard. [Citation.] Its resolution of a question
of law is subject to de novo review. [Citation.] Where the Legislature has committed a
particular issue to the family’s court discretion and the court must weigh various factors
and choose from a range of options, that discretionary determination will not be disturbed
if it falls within the range established by the applicable legal criteria. [Citations.]” (Id.)
Wife’s argument here presents a matter of contract interpretation—whether the
parties intended for the settlement agreement to operate as a waiver of the right to
statutory need-based fees, a legal question we review de novo. “When a trial court’s
interpretation of a written agreement is appealed and no conflicting extrinsic evidence
was admitted, the interpretation of the contract is a question of law which we review de
11
novo.” (Nava v. Mercury Casualty Co. (2004) 118 Cal.App.4th 803, 805, citing WYDA
Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710; Winet v. Price (1992) 4
Cal.App.4th 1159, 1165–1166.)
c. Analysis
To ascertain whether the attorney fees provision of the settlement agreement
precludes an award of statutory need-based fees, we apply the ordinary rules of contract
interpretation. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 (Gil).) “ ‘Under
statutory rules of contract interpretation, the mutual intention of the parties at the time the
contract is formed governs interpretation.... Such intent is to be inferred, if possible,
solely from the written provisions of the contract.... The “clear and explicit” meaning of
these provisions, interpreted in their “ordinary and popular sense,” unless “used by the
parties in a technical sense or a special meaning is given to them by usage” ..., controls
judicial interpretation.... Thus, if the meaning a layperson would ascribe to contract
language is not ambiguous, we apply that meaning....’ ” [Citation.]’ ” (Exxess
Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 709 (Exxess), quoting
Santisas v. Goodin (1998) 17 Cal.4th 599, 608 (Santisas).) “If the parties do not present
extrinsic evidence to interpret the attorney fee provision of a contract, the appellate court
determines de novo whether the contractual attorney fee provision entitles the prevailing
party to attorney fees.” (Gil, supra, at p. 743, citing Siligo v. Castellucci (1994) 21
Cal.App.4th 873, 880; Thompson v. Miller (2003) 112 Cal.App.4th 327, 334–335.)
As noted above, the attorney fees provision of the settlement agreement provides
in full: “In the event that either party shall be required to seek judicial intervention for
purposes of enforcing this Stipulation and Order, that party shall be entitled to
reimbursement of reasonable attorney’s fees and costs incurred in enforcing this
Stipulation and Order.”
In our view, this language does not operate as a waiver by the parties to receive
statutory need-based fees. The plain language of the provision in the settlement
12
agreement says nothing about statutory or need-based fees. Instead, the clear and explicit
meaning of the provision, interpreted in its ordinary and popular sense, is that it awards
fees to the enforcing party only when the specified conditions are satisfied: (1) in the
event that either party is required to seek judicial intervention, (2) for purposes of
enforcing the settlement agreement. (See, e.g., Exxess, supra, 64 Cal.App.4th at p. 709.)
The provision does not include any language waiving statutory need-based fees.
Wife analogizes to Guilardi, in which a different panel of this court held that the
prevailing party fee provision in a marital settlement agreement (MSA) constituted a
waiver of the right to receive need-based fees under section 2030. In that case, the wife
had unsuccessfully moved to set aside the MSA on the grounds of fraud, mistake and
duress. (Guilardi, supra, 200 Cal.App.4th at p. 772.) She then sought attorney fees for
the “ ‘prosecution of her statutory and noncontractual claims under Family Code sections
2100 et seq. and 2122 et seq. for the set aside of the parties’ Judgment for Dissolution
and Marital Settlement Agreement.’ ” (Id. at p. 773.)
The court first considered the plain language of the MSA’s fees provision, which
stated: “ ‘If either party brings an action or other proceeding to enforce this Agreement,
or to enforce or modify any judgment or order made by a court in connection with this
Agreement or to obtain any judgment or order relating to or arising from the subject
matter of this Agreement, the prevailing party shall be entitled to reasonable attorney’s
fees and other costs from the other party as established by the court of competent
jurisdiction.’ ” (Ibid.) The court also considered the fees provision in light of the
agreement’s stated overall purpose, which was to “ ‘[r]elinquish any and all past, present,
and future claims that each may have against the property or estate of the other party....’ ”
(Guilardi, supra, 200 Cal.App.4th at p. 775)
According to the court, that language “broadly encompasses claims either party
might bring against the other (or against that person’s estate) arising out of the
agreement,” and the court affirmed the trial court’s denial of the wife’s motion.
13
(Guilardi, supra, 200 Cal.App.4th at p. 775.) It agreed with trial court’s conclusion that,
although the MSA did not contain an express waiver of fees, “its broad language
conveyed an implicit waiver of any claims other than those available to the prevailing
party in the proceeding.” (Id. at p. 773.)
The case is inapposite, though, for two reasons. First, in Guilardi, the moving
party sought need-based fees after losing on her motion. Here, by contrast, husband
sought need-based fees to allow him to defend against wife’s request for order. Notably,
section 2030 authorizes an award of pendente lite attorney fees to a party in a dissolution
proceeding to the extent it is reasonably necessary to compensate that party “for
maintaining or defending the proceeding.” (Guilardi, supra, 200 Cal.App.4th at p. 773,
emphasis added; § 2030.)
The fees provision in the settlement agreement here, however, governs receipt of
attorney fees only for the party required to seek judicial intervention to enforce the
settlement agreement. In other words, section 2030 applies to both the party maintaining
an action and a party defending it, while the fees provision here applies only to the party
bringing the action. We do not construe the holding in Guilardi as extending to a party
seeking need-based fees to defend against a proceeding.
Second, the specific language in the settlement agreement here is distinct from the
MSA in Guilardi. For instance, the fees provision here applies only where a party “[is]
required to seek judicial intervention,” as compared to the provision in Guilardi, which
applied where “either party brings an action or other proceeding….” In addition, the
provision here applies only when judicial intervention was required to be sought for
purposes of enforcing the settlement agreement, while in Guilardi the provision more
broadly included any action or proceeding “to obtain any judgment or order relating to or
arising from the subject matter of this Agreement.” (Guilardi, supra, 200 Cal.App.4th at
p. 775.)
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The stated purpose of the settlement agreement here is also narrower than the
MSA in Guilardi. Here, the parties intended to make a final settlement “of the support
arrearages due to Husband and any and all claims pending by Wife incident to the
dissolution of their marriage,” whereas in Guilardi, the broader purpose was to relinquish
“any and all past, present, and future claims that each may have against the property or
estate of the other party....” (Guilardi, supra, 200 Cal.App.4th at p. 775.)
We do not find Guilardi analogous, and we do not perceive any implicit waiver in
the fees provision of the settlement agreement here.
Wife also challenges the trial court’s award of statutory need-based fees pursuant
to section 3557. As noted above, in order No. 1, the trial court awarded attorney fees to
husband pursuant to sections 2030 and 3557. Because we conclude that the trial court
was not precluded from awarding attorney fees to husband pursuant to section 2030, we
need not address wife’s arguments regarding section 3557.5
2. Fees awarded to wife
Wife argues that the trial court abused its discretion when it awarded her an
arbitrary amount of attorney fees.6 As summarized above, wife sought a total of $72,355
in attorney fees in connection with proceedings stemming from her September 2020
request for order through her supplemental brief filed in November 2022. In support, she
submitted billing records from her attorney documenting the work performed over that
time period with varying hourly rates. Her attorney billed (1) 136.4 hours between
August 2020 and August 2021 at $250 per hour, for a total of $34,100; and (2) 109.3
hours between January 18 and November 4, 2022 at $350 per hour, for a total of $38,255.
5
Wife did not challenge the amount of the attorney fees awards to husband, rather
only the entitlement.
6
This issue is only relevant if we reject husband’s argument in his cross-appeal
that wife did not enforce the settlement agreement and therefore is not entitled to any
fees. As we explain below, we do reject that argument.
15
The trial court declared in order No. 2 that wife “brought a motion to enforce the
[settlement agreement] and prevailed. As such, an award of attorney’s fees and costs is
warranted.” However, the court then stated: “[with] that being said, it is unclear whether
the total amount sought by Wife is reasonable under the circumstances.” The court
proceeded to summarize wife’s attorney’s claimed hours and fees totaling $72,355,
noting that it included “propounding discovery, meet-and-confer efforts, drafting the trial
brief and supplemental papers, and attending multiple hearings in connection to this
motion.”
In conclusion, the court stated only that it “awards [wife] $10,000 in prevailing
party fees.” It did not provide any explanation of how it arrived at that number.
Wife argues that the amount awarded to her “has no connection to the documented
hours.” We agree.
In general, “[t]he amount of attorney fees to be awarded is within the court’s
sound discretion, taking into account the type and difficulty of the matter, counsel’s skill
vis-a-vis the skill required to handle the case, counsel’s age and experience, the time and
attention counsel gave to the case, and the outcome. [Citation.]” (Padilla v. McClellan
(2001) 93 Cal.App.4th 1100, 1107; Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217.)
“The ‘experienced trial judge is the best judge of the value of professional services
rendered in his court, and while his judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly wrong.’ ” (Serrano v.
Priest (1977) 20 Cal.3d 25, 49.)
There are limits to that deference, though. “ ‘When the record is unclear whether
the trial court’s award of attorney fees is consistent with the applicable legal principles,
we may reverse the award and remand the case to the trial court for further consideration
and amplification of its reasoning. [Citations.]’ ” (Donahue v. Donahue (2010) 182
Cal.App.4th 259, 269 (Donahue), quoting In re Vitamin Cases (2003) 110 Cal.App.4th
1041, 1052.) Also, a trial court may not exercise its discretion whimsically, “ ‘and
16
reversal is appropriate where there is no reasonable basis for the ruling or the trial court
has applied “the wrong test” or standard in reaching its result.’ ” (Donahue, supra, 182
Cal.App.4th at p. 269, quoting Nichols v. City of Taft (2007) 155 Cal.App.4th 1233,
1239.) “ ‘A trial court’s award of attorney fees must be able to be rationalized to be
affirmed on appeal.’ ” (Donahue, supra, 182 Cal.App.4th at p. 269, quoting Gorman v.
Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101 (Gorman).) “ ‘It is the
essence of arbitrariness to make an award of attorney fees that cannot be justified by the
plaintiffs’ request, the supporting bills, or the defendant’s opposition.’ ” (Donahue,
supra, 182 Cal.App.4th at pp. 270-271, quoting Gorman, supra, 178 Cal.App.4th at p.
101.)
In Gorman, the court of appeal concluded that, “after much puzzlement and
frustration,” it could not “surmise any mathematical or logical explanation” for the trial
court’s reasoning in awarding precisely $416,581.37 in response to a request for
$1,350,538.83. (Gorman, supra, 178 Cal.App.4th at pp. 52, 101.) It explained that,
while it “might be able to conclude that the trial court was acting within its considerable
discretion to award reasonable attorney fees if the court had given any one of these
[previously stated] reasons or cited any other factor recognized in case law for reducing
the lodestar amount… [i]nstead, the number appears to have been snatched whimsically
from thin air.” (Id. at p. 101.)
Similarly here, we cannot discern any mathematical or logical basis for the trial
court’s award of $10,000 to wife, and the trial court provided no explanation as to how it
arrived at that amount.
We can glean only a few determinations that the trial court appeared to make in
this portion of order No. 2. First, its statement that “it is unclear whether the total amount
sought by Wife is reasonable under the circumstances,” followed by an award of less than
the requested amount, suggests the trial court considered wife’s request unreasonable or
excessive to some degree.
17
Second, the trial court appears to have determined that wife was not entitled to
recover any fees incurred prior to the request for order she filed in May 2021. The court
stated that, “Wife seeks to recover attorney’s fees and costs incurred prior to the filing of
her motion for clarification of the stipulated order on May 13, 2021. However, as noted
above, the stipulated order only allows the prevailing party to recover legal expenses
incurred in bringing an enforcement motion.”7
And third, the trial court appears to have intended some symmetry between the
awards to wife and husband, as it awarded $10,000 to each.
Yet, even if the trial court actually made those determinations, we cannot surmise
from them any mathematical or logical explanation for awarding precisely $10,000.
(Gorman, supra, 178 Cal.App.4th at pp. 52, 101; see also Ramos v. Countrywide Home
Loans, Inc. (2000) 82 Cal.App.4th 615, 624 [review was “complicated by the terse nature
of the trial court’s ruling itself, which [gave] virtually no explanation for the basis of the
substantially enhanced award of fees and costs”; “the order is subject to question
regarding the factual basis of the exercise of discretion made”].)
Nor does there appear to be any mathematical or logical explanation for the trial
court’s award of $10,000 to husband, on which the trial court may have based its award
to wife. Husband had requested $25,613 in fees, although the court stated in order No. 2
that husband sought “an unspecified amount.” It then concluded that, “[g]iven the
disparity in the parties[’] income, the Court finds it appropriate to award need based
fees,” and “the Court awards [husband] $10,000 in [section] [2030] fees.” Thus, even if
the trial court awarded wife $10,000 to match the amount it awarded husband—and we
7
Wife argues any such determination by the trial court constituted an abuse of
discretion because her attorney’s “services related to the enforcement of the settlement
agreement began not in May 2021 but in August 2020.” We need not address this issue
because we already conclude the trial court abused its discretion as explained herein, and
we remand for the trial court to exercise its discretion to determine the amount of
attorney fees to award wife.
18
do not address the propriety of such a hypothetical approach—the record is still devoid of
any reasonable explanation as to how that amount was established.
We caution that we do not hold that an award of $10,000—or any amount higher
or lower—constitutes an abuse of discretion. Instead, we hold only that, on this record,
we are unable to discern any reasonable basis or explanation for the court’s award and
therefore we must reverse.
B. Husband’s cross-appeal
Husband argues that wife did not enforce the settlement agreement and therefore
was not entitled to any attorney fees. He also argues that wife actually violated the
settlement agreement by requesting that it be modified, not timely complying with the
payment schedule, and relitigating the support arrears.
1. Standard of review
To review husband’s argument, we must determine what the parties intended
“enforcing” the settlement agreement to mean, and then whether wife did so here, thereby
establishing her as the prevailing party entitled to attorney fees. The first inquiry presents
a question of law which we review de novo, either in interpreting the settlement
agreement or, as explained below, answering the legal question of what it means to
“enforce” a contract. (Gil, supra, 121 Cal.App.4th at p. 743; Exxess, supra, 64
Cal.App.4th 698, 707 [applying de novo review to determine whether particular claims at
issue were brought to “enforce the terms” or “declare rights under” the contract at issue].)
The second inquiry requires us to review the trial court’s exercise of its discretion
and determine whether its findings are supported by substantial evidence. (Douglas E.
Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 239 (Douglas E.
Barnhart).) “[W]e will not disturb the trial court’s determination absent ‘a manifest
abuse of discretion, a prejudicial error of law, or necessary findings not supported by
substantial evidence.’ ” (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009)
173 Cal.App.4th 1533, 1539.) This presents mixed questions of law and fact, which
19
“concern the application of the rule to the facts and the consequent determination whether
the rule is satisfied.” (Crocker National Bank v. City and County of San Francisco
(1989) 49 Cal.3d 881, 888.)
2. Enforcing a contract
As summarized above, the trial court concluded that “[w]ife brought an order to
enforce the [settlement agreement] and prevailed.” The court did not provide any
discussion or analysis of what it means to “enforce” a contract. Nor have the parties
briefed the issue on appeal. Because this presents a strictly legal question, we address it
here in the first instance.
As a threshold matter, we conclude that wife’s requests for order constituted an
“action on a contract.” Civil Code section 1717, subdivision (a), provides: “In any
action on a contract, where the contract specifically provides that attorney’s fees and
costs, which are incurred to enforce that contract, shall be awarded either to one of the
parties or to the prevailing party, then the party who is determined to be the prevailing
party on the contract, whether he or she is the party specified in the contract or not, shall
be entitled to reasonable attorney’s fees in addition to other costs.”
In Exxess, plaintiff requested that the trial court determine the parties’ rights and
duties under their lease. The court of appeal explained that “such a claim is ‘on a
contract’ for purposes of [Civil Code] section 1717.” (Exxess, supra, 64 Cal.App.4th at
p. 707, citing City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50
Cal.App.4th 987, 999-1000; Las Palmas Associates v. Las Palmas Center Associates
(1991) 235 Cal.App.3d 1220, 1259.) “An action (or cause of action) is ‘on a contract’ for
purposes of section 1717 if (1) the action (or cause of action) ‘involves’ an agreement, in
the sense that the action (or cause of action) arises out of, is based upon, or relates to an
agreement by seeking to define or interpret its terms or to determine or enforce a party’s
rights or duties under the agreement, and (2) the agreement contains an attorney fees
20
clause.” (Douglas E. Barnhart, supra, 211 Cal.App.4th at pp. 241–242; see also, Eden
Township Healthcare District v. Eden Medical Center (2013) 220 Cal.App.4th 418, 427.)
Wife’s September 2020 request for order and May 2021 request for order
constitute an action on a contract under Civil Code section 1717, because they involved
and arose out of the settlement agreement, sought to determine the parties’ rights under
that agreement, and contained an attorney fees clause.
However, not all actions on a contract necessarily are brought to “enforce” the
contract. In Exxess, for instance, the court held that certain of the plaintiff’s claims were
not brought to “enforce the terms” of the lease at issue. (Exxess, supra, 64 Cal.App.4th at
p. 709.) Recognizing that Civil Code section 1717, subdivision (a) governs attorney fees
which are incurred to enforce a contract, the court explained that a tort claim does not
“enforce” a contract. (Ibid.) Accordingly, the plaintiff’s claims for constructive fraud
and breach of fiduciary duty had not been brought to enforce the lease. (Id. at p. 709,
citing Santisas, supra, 17 Cal.4th at pp. 615, 622; McKenzie v. Kaiser-Aetna (1976) 55
Cal.App.3d 84, 89 [action for negligent misrepresentation is not an action to enforce
terms of contract].)
3. Whether wife enforced the settlement agreement
As we have summarized, the trial court stated only that wife “brought a motion to
enforce the [settlement agreement] and prevailed.” The court did not provide any
explanation as to how or why wife’s requests for order enforced the settlement
agreement, or make any factual findings supporting its conclusion. Our resolution of this
issue here is compelled by two well-settled appellate doctrines: implied findings and
waiver.
“Under the doctrine of implied findings, the reviewing court must infer, following
a bench trial, that the trial court impliedly made every factual finding necessary to
support its decision.” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th
2142, 48 (Fladeboe).) “The doctrine of implied findings requires the appellate court to infer
the trial court made all factual findings necessary to support the judgment.” (Id., citing
Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942.) “The doctrine is a natural and
logical corollary to three fundamental principles of appellate review: (1) a judgment is
presumed correct; (2) all intendments and presumptions are indulged in favor of
correctness; and (3) the appellant bears the burden of providing an adequate record
affirmatively proving error.” (Fladeboe, supra, 150 Cal.App.4th at p. 48, citing In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux); Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
“If the party challenging the statement of decision fails to bring omissions or
ambiguities in it to the trial court’s attention, then, under Code of Civil Procedure section
634, the appellate court will infer the trial court made implied factual findings favorable
to the prevailing party on all issues necessary to support the judgment, including the
omitted or ambiguously resolved issues.” (Fladeboe, supra, 150 Cal.App.4th at pp. 59-
60, citing Arceneaux, supra, 51 Cal.3d at pp. 1133–1134.) “The appellate court then
reviews the implied factual findings under the substantial evidence standard.” (Fladeboe,
supra, 150 Cal.App.4th at p. 60, citing Michael U. v. Jamie B. (1985) 39 Cal.3d 787,
792–793.)
Applied here, the doctrine of implied findings requires us to infer that the trial
court made every factual finding necessary to conclude that wife “enforced” the
settlement agreement.8 We review those findings for substantial evidence.
When the substantial evidence standard applies, the appellant bears the burden of
demonstrating that the record does not contain evidence to sustain every finding of fact.
8
Husband has not argued on appeal that wife was not “required to seek judicial
intervention,” which is one of the conditions in the settlement agreement for entitlement
to attorney fees. Accordingly, we do not address the extent to which order No. 2 made
any such factual findings and whether they are supported by substantial evidence.
22
(Ashby v. Ashby (2021) 68 Cal.App.5th 491, 512, citing Boeken v. Philip Morris, Inc.
(2005) 127 Cal.App.4th 1640, 1658.) “That burden is a heavy one: ‘ “A party who
challenges the sufficiency of the evidence to support a particular finding must summarize
the evidence on that point, favorable and unfavorable, and show how and why it is
insufficient. [Citation.]” [Citation.] “[W]hen an appellant urges the insufficiency of the
evidence to support the findings it is his duty to set forth a fair and adequate statement of
the evidence which is claimed to be insufficient. He cannot shift this burden onto
respondent, nor is a reviewing court required to undertake an independent examination of
the record when appellant has shirked his responsibility in this respect.” ’ [Citation.]” (In
re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.)
Husband has failed to carry that burden here. He has not summarized the evidence
in the record supporting an implied finding that wife enforced the settlement agreement
by seeking an interpretation or definition of the parties’ rights and duties under the
agreement. He has not addressed, for instance, evidence showing that wife brought her
requests for order, at least in part, to resolve an apparent accounting discrepancy as to her
payments pursuant to the settlement agreement. In her trial brief, wife argued that “the
only claim raised in the [request for order] that the Court needs to address is Claim #3,
which asks to declare that as of September 4, 2020, [wife] was short by $2,651.46—and
not $14,994.73 as reflected in DCSS’s records—towards her obligation to pay $182,500.”
As support, she submitted, among other things, a copy of the DCSS audit provided in
August 2022, her paystubs, a spreadsheet showing that she had made her payments and
complied with her obligations under the settlement agreement, and relevant discovery
documents. Husband has not discussed this evidence and shown why it is insufficient.
Husband argues that wife’s actions sought to “modify” the agreement, rather than
enforce it. However, an appellant’s duty is not satisfied merely by identifying evidence
favorable to his position only.
23
Although the September 2022 hearing was not transcribed by a certified court
reporter, husband did not provide a settled statement of the proceedings either. (Cal.
Rules of Court, rule 8.137.) These record limitations make it impossible for us to
determine the nature of any alleged error. The failure to provide an adequate record
requires this court to resolve the issue against the appellant. (Jameson v. Desta (2018) 5
Cal.5th 594, 609-610.) Without a record, either by transcript or settled statement, we
must make all presumptions in favor of the trial court’s actions. (Ibid.; see also, In re
Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“Where no reporter’s transcript has been
provided and no error is apparent on the face of the existing appellate record, the
judgment must be conclusively presumed correct as to all evidentiary matters.”].)
We are mindful of the fact that husband is self-represented, but this does not
exempt him from compliance with the general rules set forth above. We must treat a
party who acts as his own attorney like any other party and hold him to the rules of
procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
Husband has waived his substantial evidence challenge.9
III. DISPOSITION
Order No. 1 is affirmed. Order No. 2 is reversed. We remand with directions to
the trial court to enter a new order awarding $10,000 in attorney fees to husband pursuant
to section 2030 and to exercise its discretion to determine the amount of attorney fees to
award wife for enforcing the settlement agreement. In the interests of justice, the parties
shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
9
For the same reasons, we also reject husband’s argument that wife breached the
settlement agreement by seeking to have it modified.
24
___________________________________
Wilson, J.
WE CONCUR:
__________________________________________
Greenwood, P.J.
______________________________________
Bamattre-Manoukian, J.
Konkov v. Doubson
H050705