In re Marriage of Parker

Full title: In re the Marriage of SEANA and JOSHUA PARKER. SEANA PARKER-MONTES…

Court: California Court of Appeals, Fourth District, First Division

Date published: Aug 26, 2008

D050979, D051423 (Cal. Ct. App. Aug. 26, 2008)

Opinion

In re the Marriage of SEANA and JOSHUA PARKER. SEANA PARKER-MONTES, Appellant, v. JOSHUA PARKER, Appellant. D050979, D051423 California Court of Appeal, Fourth District, First Division August 26, 2008

NOT TO BE PUBLISHED

CONSOLIDATED APPEALS from a judgment and order of the Superior Court of San Diego County, No. DN130193, Harry L. Powazek, Judge.

HALLER, J.

Joshua Parker (Joshua) has filed two appeals and Seana Parker-Montes (Seana) has filed a cross-appeal challenging the trial court's rulings made during dissolution proceedings. In his first appeal, Joshua challenges the trial court's rulings related to property division, fees, and sanctions. In a cross-appeal, Seana challenges rulings related to attorney fees and sanctions. In his second appeal, Joshua challenges several rulings made by the trial court in a postjudgment order.

With one exception, we find no errors requiring alteration of the judgment or order. The single error arises from the trial court's ruling concerning a business bank account. We modify the judgment to correct this error and remand the matter for adjustment of the equalization calculations. In all other respects we affirm the judgment and postjudgment order. We deny the parties' requests for sanctions on appeal.

FACTUAL BACKGROUND

We shall summarize facts generally relevant to the appeals, and then present additional facts in our discussion of the various challenges raised by the parties.

The parties were married on April 11, 1992, and separated on September 19, 2003. Their marriage was dissolved effective September 2005. Child custody and property issues were adjudicated during separate trials. The current appeals concern rulings arising from the trial on the property issues.

The parties owned a home in Escondido and a commercial building (the Balboa Building) in San Diego. The Escondido home was encumbered by an equity line of credit (the residential loan) that had been drawn to purchase the Balboa Building. During the marriage the parties used funds from the Balboa Building to make the monthly payments on the residential loan. According to Seana, the parties viewed the residential loan as a business debt of the Balboa Building.

During the marriage, Joshua operated his own business, Dynamic Computer Partners, Inc. (Computer Partners). The business was located in the Balboa Building. In late 2003, after the parties separated, Joshua ceased Computer Partners' operations. In November 2003, Joshua commenced working for another company.

In October 2003, Seana was awarded the exclusive right to occupy the Escondido residence, where she resided with the parties' two children. After the separation Joshua managed the Balboa Building, and Seana expected that he would continue the parties' practice of using funds from the Balboa Building to make the payments on the residential loan. However, in 2004 he failed to do so. Accordingly, in May 2004, the court ordered that if the residential loan was not made current by June 2004, the Balboa Building would be listed for sale. In July 2004, the court gave Joshua the exclusive right to manage the Balboa Building, and for a period of time Joshua used the Balboa Building funds to make the payments on the residential loan.

However, in 2006 problems with payments on the residential loan again emerged. In August 2006, Seana filed an order to show cause informing the court that for the preceding two months Joshua had not made the monthly payments on the residential loan even though there were monies available in the Balboa Building account. In September 2006, the court ruled that if Joshua did not become current on the residential loan within 30 days, the court would appoint a receiver to manage the Balboa Building. The court stated that it had given exclusive use and control of the Balboa Building to Joshua "upon the condition that he remain current as to all payments associated with it." The court rejected Joshua's contention that the Balboa Building had not produced sufficient income to make the residential loan payments, noting that the loan "was paid on a regular and consistent basis by [Joshua] since the date of separation and has been a regular expense incurred of the 'building.' " In October 2006, Seana filed another order to show cause because the residential loan was 114 days in arrears and the home was nearing foreclosure. On November 6, 2006, the court appointed Marc Kaplan as a receiver to manage the building's finances. At the property division trial, Joshua presented a report from Kaplan indicating the Balboa Building did not have sufficient cash flow to bring the residential loan current and to make the regular monthly payments on the residential loan, and setting forth Kaplan's view that the court did not order the residential loan to be paid as a business expense of the Balboa Building. Seana, however, testified that she believed Joshua had purposefully depleted the funds from the Balboa Building prior to the receivership.

The various property division issues were resolved by the same judicial officer who had presided over the earlier portions of the lengthy dissolution proceedings. In the judgment dividing the property (filed May 16, 2007), the home was awarded to Seana, and Joshua was relieved of responsibility for the residential loan. The Balboa Building was ordered to be sold, with Joshua given the first option to purchase it. Joshua was awarded the value of Computer Partners. The court also made rulings pertaining to the parties' personal property, bank accounts, pension assets, and payment of expert fees. The court's rulings contemplated that the proceeds from the sale of the Balboa Building would allow for the equalization in the division of the community assets.

The court declined to award need-based attorney fees to Seana. However, the court ordered $15,000 sanctions against Joshua for his unreasonable conduct, including his failure to make the payments on the residential loan from the Balboa Building funds.

In his first appeal, Joshua (representing himself) challenges various aspects of the court's rulings regarding property division and the payment of fees, and asserts sanctions were not warranted. In her cross-appeal, Seana contends the court should have awarded need-based attorney fees and a greater amount of sanctions.

In his second appeal, Joshua raises various contentions challenging the trial court's postjudgment order, including that the court erred in (1) denying his requests to remove the receiver appointed to manage the Balboa Building and to hire a property management company; (2) declining his request to impose sanctions on Seana, her counsel, and the receiver; (3) awarding additional sanctions against him; and (4) failing to rule on his request that an IBM computer be returned to him.

The parties have also filed motions requesting sanctions on appeal.

DISCUSSION

Our review is governed by well-established appellate standards requiring that we draw all reasonable inferences in favor of the trial court's findings, defer to the trial court's resolution of evidentiary conflicts and credibility assessments, and recognize the trial court's broad discretion to determine the manner in which community property is divided to accomplish an equal division. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056; In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631.) We presume the judgment is correct, and the burden is on the appellant to establish error in the court's rulings. (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.) It is the appellant's duty to present arguments supported by record citations and legal authority, and the appellate court is not required to discuss or consider points that are not adequately presented. (People v. Stanley (1995) 10 Cal.4th 764, 793; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Pro. per. litigants are held to these same rules. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

Joshua's appellate briefing is, in many instances, unsupported by adequate argument, record citations, or legal authority. We have, nevertheless, exercised our discretion to consider as many of his points as possible. We note the same judicial officer presided over the entire dissolution proceedings, which occurred over the course of several years and involved the presentation of voluminous documents and the testimony of numerous witnesses. The trial court was called upon to make credibility resolutions and draw inferences with respect to the differing views presented by the parties. We have examined the record carefully to ensure substantial justice occurred in the division of community assets. However, it is not our role to disturb rulings that were derived from the court's credibility assessments and other factual conclusions.

FIRST APPEAL AND CROSS-APPEAL

I. Issues Related to the Property Division

Joshua raises a variety of arguments challenging the court's rulings on property division, including: (1) the court erred in its valuation of the family residence and in denying his request that Seana be assessed a Watts ¹ credit for the rental value of the residence; (2) the court did not give him enough time to purchase the Balboa Building and erred in precluding him from participating in the listing process for this building; (3) the court should have credited Seana with the value of Computer Partners, and alternatively should not have credited him with the value of the business's bank account; (4) the court erred in denying his request for reimbursement under Family Code² section 2640 based on his claim that he used separate property funds from a La Jolla property to acquire or improve community property; (5) the court erred in denying his request for Epstein ³ reimbursement based on his claim that he used separate property funds to meet community obligations after separation; and (6) the court erred in it rulings related to various other bank accounts, including (a) equally crediting both parties with the value of the Balboa Building bank account in 2005; (b) crediting him with the value of an account he claimed to have opened with funds from his mother after separation; (c) characterizing an Individual Retirement Account (IRA) as community property; and (d) crediting him with the value of several other bank accounts.

1 In re Marriage of Watts (1985) 171 Cal.App.3d 366.

2 Subsequent unspecified statutory references are to the Family Code.

3 In re Marriage of Epstein (1979) 24 Cal.3d 76.

A. The Family Residence

The court valued the Escondido residential property awarded to Seana at $480,000, and found that the outstanding debt on the property was $156,000. The court's valuation of the property was based on (1) a report provided by court-appointed appraiser Tom Guy, and (2) an adjustment based on the location of the residence in the Rancho Santa Fe School District. Joshua argues (1) the residence should have been valued at a higher amount, (2) the outstanding debt on the property was less, and (3) a Watts credit for the rental value of the residence should have been applied to Seana given her exclusive use of the residence after separation.

1. Value of Family Residence

In an initial December 2005 report, Guy appraised Seana and Joshua's residential property (the Parker property) at $550,000. However, in an updated November 2006 report Guy appraised the property at $430,000 due to a drop in the market and easement and leach line issues that emerged during further investigation. Joshua's experts (Bryan Burke and Jason Zilka) submitted reports opining the value of the property in October 2006 was $602,000 and $605,000. After reviewing Guy's reports and the reports submitted by Joshua's experts, the court concluded it was appropriate to rely on Guy's second report. However, the court added $50,000 to Guy's valuation of the property based on the location of the residence in the Rancho Santa Fe School District, which is a factor Guy had not included in his appraisal.

Challenging Guy's appraisal, Joshua notes that Guy's comparative properties included sales of raw land without homes, which he asserts was inappropriate given the modular home on the Parker property. We find no error.

Guy, who has been a real estate appraiser for 37 years, testified that the Parker property consisted of "a modular home on about 4.8 acres." The County of San Diego informed Guy that the property needed a new approval for a septic system because the existing permit had expired; portions of the leach field had been paved with asphalt, which was illegal; and a pump change had not been approved by the County. Guy testified that the usable area of the lot was limited to about one-half acre because of its hilly terrain and the flood area from a creek, and the septic system had the capacity to support only a three-bedroom residence. Further, construction of a permanent home on the property with a proper septic system would likely require that an easement be obtained through the creek.

Guy explained that when he selected real estate for purposes of comparable sales, he looked for property with similar circumstances—i.e., a lot with similar land features and that could accommodate construction of a house. When performing the comparative analysis, Guy adjusted the value based on factors (including the modular home factor) that increased or decreased the value of the comparable properties relative to the Parker property.

In his December 2005 appraisal, Guy compared three unimproved lots. The first comparable property, which sold for $295,000 in July 2005, had a creek, a similar amount of usable space as the Parker property, a septic permit, and (as a negative factor) proximity to high voltage power lines. The second comparable property, which sold for $455,000 in August 2005, was a smaller lot, but all the land was usable and there was a paved road and approval for a septic system. The third comparable property, which sold for $1,172,500, was superior to the Parker property because it had a two-acre usable area and was in a gated community that provided underground utilities and equestrian facilities. After adjusting the values of these three comparables, Guy estimated their comparative values to be $520,000, $555,000, and $617,500, respectively, and appraised the Parker property at $550,000 as of December 2005.

In his updated November 2006 analysis, Guy included two more comparable properties. The fourth comparable property, which sold for $466,000 in December 2006, had two acres of usable area, two creeks, and approved plans for construction of a house, septic system, and bridge. The fifth comparable property, which sold for $599,000 in June 2006, had a large usable lot fronting a creek and an already-constructed older home, a septic system, a garage, and a workshop. Guy adjusted the values of these two comparables to $431,000 and $429,000, respectively, and appraised the Parker property at $430,000 as of November 2006.

When performing the comparative analysis with the unimproved lots, Guy increased the comparable values by $75,000 to accommodate the fact that the Parker property had a modular home. Given this adjustment and Guy's explanations showing the propriety of using unimproved lots, Joshua's contention that the trial court could not properly rely on Guy's appraisal because he compared unimproved lots is unavailing. Notably, Joshua's expert Zilka also included comparable properties that were only raw land, and Joshua's expert Burke acknowledged that there had been no recent sales of comparable manufactured homes within the market area.

Joshua also argues the trial court was required to reject Guy's appraisal because he only used two comparable properties. This argument ignores the three comparables included in Guy's original report. Although Guy relied on his two most recent comparable properties in making his updated appraisal, Guy's analysis of all five comparable sales were presented to the trial court for its consideration.

Joshua asserts the court should have increased the value of the property by $100,000 instead of $50,000 based on its location in the Rancho Santa Fe School District. Real estate agent Carla Hayes testified that a Rancho Santa Fe School District location increased the value of property by $100,000; appraiser Zilka estimated that the increase in value from the school district was between $75,000 to $100,000; and appraiser Burke estimated the increase in value from the school district to be about $75,000. However, on cross-examination, Zilka acknowledged that a person who wanted to live in the Rancho Santa Fe School District would likely not be satisfied with several attributes of the Parker property, including the modular home, the need to obtain a new septic permit, and the paved-over leach lines. Consistent with this, appraiser Guy opined that buyers would not pay a premium for the Parker property based on school district location because there were problems with the property's usability. Considering all the evidence, the trial court could reasonably infer that although some increase in value was warranted because of the Rancho Santa Fe School District location, the increase was not as high as $75,000 to $100,000 because of several negative factors that made the property less desirable to purchasers who were concerned with school district location. Based on this inference, the record supports the trial court's decision to set the value increase at $50,000.

The trial court has broad discretion to value community assets based on the evidence presented at trial. (In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 632.) Joshua has presented no argument showing the trial court's valuation of the residential property was an abuse of discretion or unsupported by the evidence.

2. Debt on Family Residence

Joshua argues the debt on the family residence was $149,001, not $156,000 as found by the trial court. The record contains exhibits showing the $149,001 figure represents the principal balance due on the loan, whereas the $156,000 figure represents the approximate "paydown" (i.e., payoff) amount for the loan. It was reasonable for the trial court to select the payoff amount as the amount of debt on the residence for purposes of valuing the community obligations.⁴

4 Joshua requests that we order that the debt on the residence be placed in Seana's name and that his name be removed. This issue may be raised in the trial court on remand.

3. Request for Watts Credit for Rental Value of Family Residence

Joshua asserts the trial court erred in denying his request for a Watts credit to Seana.

A Watts credit may be awarded as a reimbursement to the community for the value of one spouse's exclusive use of the family residence after separation. (See In re Marriage of Watts, supra, 171 Cal.App.3d at p. 374; In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552.) The trial court has broad discretion and may consider all the circumstances when determining whether it is equitable to order reimbursement in a particular case. (See In re Marriage of Watts, supra, 171 Cal.App.3d at p. 374; In re Marriage of Braud (1996) 45 Cal.App.4th 797, 818-819.)

Joshua requested that a Watts credit be applied to Seana based on the rental value of the residence occupied by Seana during the dissolution proceedings. Seana, on the other hand, requested a reimbursement of $6,920.79, the amount she had borrowed from a relative to bring the residential loan current after Joshua failed to comply with the court's orders to make the payments from the Balboa Building funds. The court denied both requests.

Explaining its reasoning, the court stated it would have been inclined to grant a Watts credit, but declined to do so because Joshua had failed to present credible evidence as to the rental value of the residence.⁵ The court also stated: "[Seana's] request for reimbursement of funds paid by her as a result of [Joshua's] non-compliance with the court's payment order is denied based upon the court's findings as to [Joshua's] WATTS credit as set forth herein."

5 The court noted that Joshua had presented his personal opinion that the rental value of the residence was $2,050, but that he had provided no expert testimony on this point. The court stated that although expert testimony was not mandated, it found that Joshua had not met his burden to present credible evidence as to the rental value.

Although the trial court cited insufficient rental value evidence when denying Joshua's request for a Watts credit, a review of the court's decision in its entirety reveals that the court's ruling denying the Watts credit was also informed by its denial of Seana's reimbursement claim. Drawing all inferences in favor of the judgment, we find the denial of Seana's reimbursement claim provides support for the denial of Joshua's request for a Watts credit. After the parties separated and Seana was awarded use of the residence, the trial court ordered that the payments on the residential loan (which loan had been drawn to purchase the Balboa Building) were to be paid from the community property Balboa Building funds. After Joshua failed to comply with the court's orders and the residential property was at risk for foreclosure, Seana had to obtain a significantly large separate property loan to bring the loan current.⁶ The trial court could reasonably exercise its equitable powers to conclude Joshua should not be compensated for the rental value of the residence given that his conduct forced Seana to borrow money to protect the value of the community residence, and Seana was not being compensated for her separate property contribution to the community debt attached to the residence.

6 Joshua contends that he did not make the residential loan payments because the Balboa Building was not generating enough income to do so. We discuss this issue when we evaluate the court's ruling requiring Joshua to pay receiver Kaplan's fees.

Given this showing in support of the court's denial of the Watts credit request, we need not evaluate the court's reliance on a finding that Joshua had not provided credible evidence as to the rental value of the residence.

B. Sale of the Balboa Building

The court valued the Balboa Building at $1,390,000 and found the outstanding debt on the building was $308,204. The court gave Joshua 30 days from the date of its decision to purchase the building, and if he did not do so, the court awarded Seana the right to select a broker and list the property for sale.

In his first appeal, Joshua argues the trial court did not give him enough time to purchase the building and the court should have allowed him to participate in the selection of the broker and in the listing process. However, in the second appeal, Joshua acknowledges the Balboa Building was sold to a third party in February 2008 for $1,250,000. Accordingly, his challenges are now moot.

Even considering Joshua's contentions on their merits, we find no abuse of discretion. Regarding the time allotted for Joshua to make the purchase, the court stated: "[Joshua] is given a 30-day time frame from the date of this correspondence . . . which must be exercised in writing to purchase the building. Said buyout is to consider the findings and orders and equalization payment. Should the payment not be rendered within said time frame, [Seana] solely shall have the ability to select a broker and to list said building for sale."

Drawing all inferences in favor of the judgment, we construe this to mean that within 30 days Joshua needed to state in writing that he would purchase the building and make arrangements for the necessary financing. The record does not suggest, and we will not presume, that the trial court would not have accepted good faith efforts by Joshua to accomplish the purchase within the allotted time and granted any necessary extensions. The court's ruling placing control of the sale in Seana's hands is supported by the court's prior ruling necessitating an appointment of a receiver to manage the building based on Joshua's failure to comply with the court's orders to use the Balboa Building funds to make the payments on the residential loan. Given Joshua's lack of previous cooperation, the court reasonably exercised its discretion to remove Joshua from the sales process to ensure he would not attempt to obstruct the court's order that the property be sold.

C. Computer Partners

Joshua asserts the trial court (1) should not have credited him with the value of Computer Partners, and (2) erroneously credited him with the value of a bank account that was included in the valuation of Computer Partners. We reject his first contention, but agree with his second contention.

1. Award of Value of Computer Partners to Joshua

Seana testified that Computer Partners was making significant amounts of money at the time of separation, but that Joshua told her he was closing the business because he wanted to avoid child and spousal support. Court-appointed appraiser Chris Summers valued the business at $35,000 at the time of separation (set at September 30, 2003). Seana requested that Joshua be credited with the value of the business given his unilateral decision to shut it down. Joshua requested that Seana be credited with the value of the business, contending he was forced to close the business because Seana's withdrawal of funds caused the bank accounts to be frozen and prevented him from meeting payroll. He reiterates this argument on appeal.

Seana acknowledged that she withdrew $20,006 from Computer Partners' bank account on September 23, 2003, leaving $42,581.42 in the account. To support his argument that Seana's withdrawal forced him to close Computer Partners, Joshua presented the testimony of Ed Kaiser, the bank official who handled his business account. Kaiser testified that on September 25, 2003, Joshua came to the bank, distraught, because his wife had removed money from his account. Joshua showed the bank a restraining order that he had obtained from the court and asked that his existing account with the bank be closed and that a new account be opened with only Joshua as the authorized signer. Based on this request, the bank froze the original account. Thereafter, the bank was informed that the restraining order did not apply to financial affairs; accordingly the bank closed the new account and reverted back to the original account.

Kaiser also testified that during the process of switching these accounts, Joshua's access to certain credit card deposits was delayed for a few days. Because of this delay, Joshua told Kaiser that he did not have the money to meet payroll for his business. On October 1, 2003, the bank wrote Joshua a letter stating it was closing the new account and reverting to the original account, and informing him that the delayed deposits would become available to him on October 2, 2003. According to Kaiser, " 'The only funds that Mr. Parker could not use in his business were those credit card deposits that were in limbo for a few days because of the opening of a new account, closing of the old account, and reopening of the old account.' "

The court noted the conflict between the parties' versions of the business closure, rejected Joshua's version, and credited Joshua with the $35,000 value of the business. The court explained that Kaiser's testimony showed that although there was a temporary account freeze and loss of access to certain deposits, shortly thereafter Joshua had full access to his funds. Based on Kaiser's testimony, the record supports the court's conclusion that the problem with Joshua's access to certain funds was short-lived. The court could reasonably find that Joshua had not presented a justification for unilaterally closing the business, and accordingly it was equitable to attribute the value of the business to him.

Joshua also appears to dispute that Computer Partners was a community asset because he apparently started the company in 1990, which was before the parties' marriage in 1992. However, the community acquired a significant interest in the value of the business because it was operated during the 11-year marriage. (See In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 851-853.) Joshua does not contend that an apportionment formula should have been used to allocate the value of the business as between separate and community property, and he does not cite to evidence showing the value of his separate property investment in the business. Absent such evidence, the trial court's implicit decision not to allocate a portion of the $35,000 value of the business as Joshua's separate property was reasonable. Given that the business operated in large part during the marriage, the record supports an inference that the expert's $35,000 valuation of the business represented a value acquired from the community's efforts.

2. Computer Partners' Bank Account (California Bank & Trust Account No. 2631)

The court found that the balance on the bank account used by Computer Partners (California Bank & Trust account number 2631) on the date of separation was $62,587.42. The court credited $20,006 of this amount to Seana based on her withdrawal of funds on September 23, 2003, and credited $42,587.42 of the account to Joshua. Joshua contends this latter ruling constituted a duplicate credit to him, because this account was included within the valuation of Computer Partners. He asserts the reference to cash assets in the expert's valuation report for Computer Partners includes this account.

We agree with Joshua's contention. The expert's report valued the business at the time of separation at $35,000, based on a calculation of assets and liabilities. The parties do not dispute this valuation. The report identifies the cash assets as $29,225. Because Computer Partners used a bank account to manage its cash assets, the cash assets identified in Summers's report equate with the money in the business's bank account. Because Joshua was credited with the value of the business at the time of separation, including the value of its bank account, he should not have again been credited with the value of the business's bank account based on a separate assessment of that account.

We note that Seana has not cited to anything in the record suggesting the trial court credited Joshua with the monies in the business account because it found he had made nonbusiness related draws on the account. Seana provided information showing $42,587.42 cash in the account on September 23, 2003, and Summers reported $29,225 cash assets on September 30, 2003. Bank documents submitted into evidence show that during this period in September monies were being deposited into and withdrawn from the business bank account, which would account for fluctuations in the cash balance. Absent a showing Joshua made withdrawals for personal expenses, he should be credited with the value of the business's cash assets only once. Indeed, on appeal Seana does not directly dispute that the business's cash assets should have been credited to Joshua only once. Rather, she asserts there was no evidence that the expert's valuation incorporated California Bank & Trust account number 2631. This contention is unavailing. Although the expert's report does not specify a bank account number for the cash assets, it is clear from the record that California Bank & Trust account number 2631 was the account used for Computer Partners.

Accordingly, we shall modify the judgment to remove the $42,587.42 credit to Joshua based on California Bank & Trust account number 2631, and remand for the trial court to adjust the equalization calculations.

D. Request for Section 2640 Reimbursement for Use of Funds from La Jolla Condominium

Joshua requested that the community reimburse him under section 2640 based on his claim that the community used separate property funds derived from a La Jolla condominium that he acquired before the marriage. The trial court denied the request, finding that Joshua had not carried his burden to trace the use of the separate property funds to acquire any community property asset. The court noted the family residence in Escondido was purchased in 1994; the La Jolla condominium was not sold until five years later (in 1999); and the purchase of the Balboa Building in 2001 did not occur until two years after the sale of the La Jolla property. Joshua contends the court erred in denying his section 2640 reimbursement claim. We are not persuaded.

As a general rule, separate property funds used for community purposes during the marriage are presumed to be a gift to the community and this use is not reimbursable. (In re Marriage of Nicholson & Sparks (2002) 104 Cal.App.4th 289, 294.) Section 2640 creates a limited statutory exception to this rule, providing for reimbursement of contributions to the acquisition or improvement of property in the community estate if the contribution is traced to separate property. (§ 2640, subds. (a), (b); In re Marriage of Nicholson & Sparks, supra, 104 Cal.App.4th at p. 294; In re Marriage of Braud, supra, 45 Cal.App.4th at pp. 822-823.) The burden is on the spouse seeking section 2640 reimbursement to trace the acquisition of the community asset to separate property funds. (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1058; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1288.) For example, the spouse may show that separate property funds were on deposit and actually used at the time of the expenditure, or that at the time of the expenditure community expenses exceeded community income so that the separate property funds were necessarily used. (In re Marriage of Braud, supra, 45 Cal.App.4th at pp. 823-824; In re Marriage of Walrath (1998) 17 Cal.4th 907, 920-921, fn. 5.) Absent adequate tracing, the community property presumption controls and the claim for section 2640 reimbursement fails. (In re Marriage of Braud, supra, 45 Cal.App.4th at p. 823.)

To support his section 2640 reimbursement claim, Joshua cites evidence showing that he acquired the La Jolla condominium in 1989; the parties were married in 1992; the parties refinanced the La Jolla property in 1998; and the La Jolla property was sold in 1999. Although this evidence can support a finding that funds from the La Jolla condominium were used for community purposes, it does not trace the funds to acquisition or improvement of any particular community property asset.

Joshua also contends that at trial Seana agreed that the original loan on the Escondido family residence was paid off with the proceeds from the sale of the La Jolla condominium. To support this assertion, he cites Seana's testimony that the original loan on the family residence was paid off prior to securing the line of credit against the residence to purchase the Balboa Building. However, this testimony does not identify the source of monies used to pay off the loan on the Escondido family home.

Joshua further argues the trial court did not allow him to present the testimony of bank official Kaiser to establish that the La Jolla condominium funds were used to pay off the original loan on the family home. The record shows Kaiser was permitted to testify only as a rebuttal witness because he was not timely disclosed on Joshua's expert witness disclosure list. Joshua does not dispute that Kaiser was solely a rebuttal witness. Because Kaiser's testimony was limited to rebuttal issues, Joshua cannot rely on a contention that his testimony could have been used to establish Joshua's section 2640 reimbursement claim. Moreover, the record does not show that Joshua proffered Kaiser's testimony on the tracing issue. At one point Joshua told the court that Kaiser was a rebuttal witness who could testify regarding "the balance on the [La Jolla] condo." Later, however, when Kaiser was called as a witness and the parties and the court discussed the scope of his permissible testimony, Joshua did not attempt to proffer testimony from Kaiser on the issue of reimbursement for use of funds from the La Jolla condominium.

Absent evidence tracing the acquisition or improvement of community property assets to separate property funds, there is no basis to overturn the trial court's denial of Joshua's section 2640 reimbursement claim.

E. Claim of Epstein Reimbursement for Postseparation Payment of Community Debts

Joshua requested Epstein reimbursement based on his claim that after separation he used $8,083.10 of his separate property funds to make payments on community property obligations. (In re Marriage of Epstein, supra, 24 Cal.3d at p. 84 [spouse who, after separation, uses separate property funds to pay community obligations is normally entitled to reimbursement from the community].) In denying this request, the court noted that it was entitled to consider all the circumstances when determining whether Epstein reimbursement is appropriate, and concluded that reimbursement for Joshua's Epstein claims was not appropriate. Joshua challenges this ruling on appeal. We find no error.

Joshua requested reimbursement for the following three contributions that he claimed constituted separate property payments on community obligations.

(1) Payments he made on a GM Credit Card: To support this claim, Joshua submitted GM credit card statements dated April and May 21, 2004, and checks totaling $2,989.49 to GM in 2004 and 2005. Joshua has not cited to evidence showing the GM credit card statements for 2004 reflected debts incurred prior to the parties' separation in 2003 so as to constitute community debts. Based on this evidentiary lack, the record supports the court's denial of this claim for reimbursement.

(2) Loans made to Computer Partners: To support this claim, Joshua submitted checks totaling $1,973.94 (apparently drawn on his personal account) that were denominated as loans to the computer company in 2004.⁷ Given Joshua's testimony that Computer Partners ceased operations towards the end of 2003, the trial court was not required to conclude that he had established legitimate separate property contributions to a community obligation.

7 The reporter's transcript shows the trial court sustained an objection to the checks proffered by Joshua to support his claim for reimbursement for loans made to the computer company. Notwithstanding this evidentiary ruling, in its written decision the trial court referred to the monetary amounts reflected in the checks. Accordingly, we will presume the court considered them.

(3) Payments on the residential loan: Joshua submitted checks totaling $2,104.12 (apparently drawn on his personal account) showing payments on this loan in October 2004 and January 2005. Because during this period Joshua had access to community funds from the Balboa Building and the ability to shift money between accounts, the trial court was not required to find he had established a reimbursable separate property contribution based on these payments.

Joshua argues the trial court did not give him an opportunity to testify to support his claims for Epstein reimbursement. To support this assertion, he cites to a portion of the record showing that he objected at trial because he believed the court was not allowing him enough time to fully testify to present his case. However, this objection was not specifically directed towards the issue of his Epstein claims. Absent some suggestion that he had additional material evidence that he was foreclosed from presenting on the Epstein issue, he has not carried his burden to show a basis for reversal of the court's denial of these Epstein claims.

F. Other Accounts

1. Balboa Building Account (California Bank & Trust Account No. 1173)

Seana submitted into evidence a bank statement dated September 30, 2005, reflecting a balance of $8,892 in a bank account used for the Balboa Building (California Bank & Trust Account No. 1173). Seana argued that Joshua should be credited with the entire amount of the value of the account as represented in the 2005 statement because he had made repeated draws on the account unrelated to the Balboa Building. In contrast, Joshua argued Seana should be credited with $9,000 based on her admitted withdrawal of $9,000 from this account to retain an attorney at the time of separation. The trial court did not adopt either party's position, but instead ordered that each party be credited with one half the $8,892 value of the account set forth in the 2005 bank statement submitted by Seana (i.e., $4,446 each).

The record supports the court's ruling. Both parties presented evidence to support their claims that the other made personal draws on this account. Based on a finding that both parties used the account for personal purposes, the trial court was entitled to conclude that both parties should be credited with the receipt of value from this account.

In his briefing on appeal, Joshua does not directly dispute that the court could properly credit Seana's evidence that he used the Balboa Building account for personal draws, and he does not challenge the precise figure ($4,416) attributed to him for those draws. Rather, he contends the court should have credited Seana with $9,000—not $4,446—based on this account. The court could reasonably conclude that it was equitable to simply divide the value of the account evenly between the parties based on the amount reflected in the 2005 statement submitted by Seana. Certainly, as urged by Joshua, the court could have credited Seana with $9,000 based on her withdrawal of this amount, but by the same token it could have granted Seana's request to credit Joshua with $8,892 based on an inference that he regularly used the account for his personal purposes before appointment of the receiver.⁸ The court's choice to instead divide the account value equally based on the document submitted by Seana, crediting each party with the receipt of $4,446, achieves essentially the same result for equalization purposes. Joshua has not carried his burden to show an abuse of discretion.

8 Joshua does not contend that the precise amount of his personal draws during the years he managed the building prior to the receivership were reasonably ascertainable so as to require the court to select a specific amount to attribute to him.

Joshua also asserts that, apart from his request for a $9,000 credit to Seana, the court should not have credited the parties with the value of this account, because the account is still part of the Balboa Building which will be divided upon the sale of the building. It is apparent the court's ruling was derived from the parties' requests that the other party be credited for the value of their personal draws on the account before the November 2006 receivership. The court did not err in crediting each party for one-half the value of the account based on the 2005 statement submitted by Seana.

2. Claim of Separate Property Funds from Mother (Washington Mutual Account No. 755)

The trial court credited Joshua with the value of $15,000 for Washington Mutual account number 755. The court rejected Joshua's argument that this money was a separate property gift from his mother, finding that he had not carried his burden to trace the money or to rebut the community property presumption. Joshua asserts the court erred in finding this account was a community property asset.

The parties separated on September 19, 2003. Seana presented a bank statement showing that Joshua opened Washington Mutual account number 755, in his name only, on September 26, 2003, with a deposit of $15,000. She testified that she believed Joshua earned the funds from Computer Partners and placed them in a different account to hide them. Joshua testified that when his business account was frozen after the parties' separation, his mother gave him $15,000 so he could keep his business running. He stated he used the money to open Washington Mutual account number 755, and when it became apparent he could not keep the business open he returned the money to his mother. Joshua submitted a copy of a check from his mother, made out to Computer Partners, dated September 23, 2003, for $15,000.

Other than his own testimony, Joshua does not cite evidence showing that he returned the $15,000 to his mother. The trial court apparently did not credit his testimony, and on appeal we defer to the court's credibility assessment. (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.) Further, even assuming the court credited Joshua's claim that he opened the account with $15,000 from his mother, the court could reasonably infer that his mother's contribution to the business (not to Joshua personally), albeit made after separation, was a gift to the community because the business operated as the community's source of income. Notably, Joshua's mother did not testify at trial to specify her intentions for the $15,000 check to Computer Partners. The record supports the court's ruling that Washington Mutual account number 755 was a community asset in Joshua's possession that should be credited to him.

3. Washington Mutual IRA Number 0464

The trial court found that Washington Mutual IRA number 0464 had a value of $2,956 and that it should be divided equally between the parties. Joshua contends this IRA was a separate property asset that he opened before the marriage and that it should not be divided.

Seana submitted a 1995 statement showing the Washington Mutual IRA in Joshua's name. Seana testified that both she and Joshua had IRA's before their marriage, and that during the marriage they closed these IRA's and opened the Washington Mutual IRA. When asked on cross-examination if he had liquidated the IRA he opened prior to the marriage, Joshua answered that he did not "recall whether it was liquidated or not." Further, he testified he did not have any documents to show the Washington Mutual IRA was the same IRA he had opened before the marriage. Nevertheless, to support his claim that the Washington Mutual IRA was the IRA he opened before the marriage, he submitted a 1991 income tax return (i.e., before the parties' 1992 marriage) referencing a $2,000 IRA deduction.

The trial court was entitled to credit Seana's statement that the Washington Mutual IRA was opened during the marriage to establish it as community property. The IRA deduction listed in Joshua's premarriage 1991 income tax return did not show that this referred to the Washington Mutual IRA; Joshua acknowledged he had no documents to show that his premarriage IRA was the Washington Mutual IRA; and he could not recall if he had liquidated his premarriage IRA. Given the state of the evidence, the record supports the court's ruling characterizing the Washington Mutual IRA as a community asset.

4. Other Miscellaneous Accounts

Joshua challenges the court's rulings regarding several additional bank accounts, including Washington Mutual account number 9427 and California Bank & Trust account number 1052. Seana testified that she withdrew $8,000 and $12,000, respectively, from these accounts. The court credited her with these amounts and credited Joshua with the remaining balances ($1,141.04 and $2,780.24, respectively). Joshua asserts there was no evidence he received the balance of the accounts. The court was entitled to credit Seana's testimony, and infer that Seana left the balance in these accounts for Joshua.

Joshua contends the trial court failed to rule on the Parker Family Trust, Belle Forre Inc., and the Belle Forre Money Purchase Pension Plan, but he fails to explain what rulings were missing from the court's decision. The record shows the two above-described accounts (Washington Mutual account no. 9427 and California Bank & Trust account no. 1052) were related to the Parker Family Trust and Belle Forre Inc., respectively.⁹ Thus, the court ruled on these matters. Further, the court ruled on the Belle Fore Money Purchase Pension Plan.

9 Belle Forre Inc. owns a portion of the Balboa Building and was apparently set up for tax purposes.

Joshua also challenges the court's disposition of a different Washington Mutual account in the name of one of the children. Seana testified that she used the money in the child's account, and the court credited her with the value of this account. Thus, this ruling inured to Joshua's benefit in the division of community assets.

Finally, Joshua challenges the court's decision to credit him with $1,593 for the value of Wells Fargo account number 7707, which was apparently an account in his name only. He asserts this account was opened after separation. He has cited no evidence to support this contention, and thus has failed to carry his burden to show error in the court's ruling.

The record reflects the court exercised its discretion to credit the parties with valuations based on the evidence it was provided relevant to these accounts. Joshua has not cited any evidence that supports a conclusion that the court abused its discretion in these rulings.¹⁰

10 As noted, many of Joshua's appellate contentions are not accompanied by adequate appellate record citations and/or are difficult to decipher, but we have nevertheless exercised our discretion to address them as fully as possible. Because it is Joshua's burden to present adequate argument and record citations (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979), we decline to address several matters that appear to relate to minor issues.

II. Fees and Sanctions

Regarding fees owed to various professionals, Joshua asserts: (1) the trial court erred in requiring him to pay receiver Kaplan's fees; (2) the court erred in requiring the parties to pay additional fees to the minors' attorney; (3) he should not be responsible for some of the fees owed to the children's therapist (Dr. Lori Love); and (4) the court erred in ordering the parties to pay equally the balance of fees owed to Summers for the Computer Partners appraisal and the balance of fees owed to Dr. William Dess for a child custody evaluation. Regarding attorney fees, Seana contends the court erred in denying her request for need-based attorney fees. Regarding sanctions, Joshua argues the court erred in awarding sanctions against him, whereas Seana asserts the amount of sanctions awarded against Joshua was too low. Both parties also request sanctions on appeal.

A. Professionals' Fees

1. Receiver Kaplan's Fees

The court ordered that Joshua pay the fees charged by Kaplan for serving as the receiver for the Balboa Building, finding that Kaplan's fees were incurred entirely from Joshua's conduct of failing to make the residential loan payments from the Balboa Building funds.¹¹ Joshua argues that Kaplan's fees should be split equally between him and Seana. We find no abuse of discretion in this ruling.

11 For the most part, the court ordered that the fees owed to the professionals were to be paid from the parties' share of funds that would be awarded to them from the sale of the Balboa Building and held in Kaplan's trust account.

Joshua asserts that he failed to make the residential loan payments because the Balboa Building was not generating enough income to do so, and cites receiver Kaplan's report to support this claim. In his December 2006 report, Kaplan states "there have been little surplus funds available" to make the residential loan payments, and opines that the court had ordered the Balboa Building to pay the loan from the building's cash flow, not as a business expense. Although in December 2006 Kaplan identified a cash flow problem and opined the residential mortgage should only be paid from cash flow, this was not controlling on the issue of Joshua's duty to pay the residential mortgage with Balboa Building funds prior to the receivership. In September 2006 when the court rejected Joshua's assertion that the Balboa Building did not have funds to pay the residential loan, the court stated that the loan "was paid on a regular and consistent basis by [Joshua] since the date of separation and has been a regular expense incurred of the 'building'." (Italics added.) The record supports that the court rejected Kaplan's cash flow interpretation of its order, and instead ruled that Joshua had been required to pay the residential loan by incorporating it into the building's business expenses.

Moreover, the trial court could reasonably conclude that Joshua was not being responsible and forthright in his management of the community assets given that he unilaterally stopped paying the residential loan and allowed the family home to come close to foreclosure. For example, Seana testified that she found out about the foreclosure notice only when she called the bank to see if Joshua had brought the loan current. Based on a finding that Joshua's proper management of community assets was in doubt and hence a receivership was necessary, the record supports making Joshua responsible for the receiver's fees.

2. Minors' Counsel Fees

During the course of the dissolution proceedings, the court appointed Attorney Gary Plavnick to represent the children. The County of San Diego (County) paid Attorney Plavnick $6,162 for his fees ($60 per hour). The court ordered that the parties equally reimburse the County for those fees. Further, the court found the parties had the financial ability to provide an additional amount to Attorney Plavnick to compensate him at his regular hourly rate. The court assessed each party an additional $3,500 for this purpose.

Joshua contends the court was barred under principles of res judicata from increasing the amount of fees to be paid to Attorney Plavnick because it had previously ordered the parties to pay him at the county rate. The contention is unavailing. The court's order appointing the minors' counsel reserved jurisdiction to require the parties to reimburse the County and to make further orders for costs on behalf of the minors. (See § 3153.) Joshua has cited no legal authority to support his claim that the court was barred from increasing the fees due to Attorney Plavnick based on his regular hourly rate.

3. Minors' Therapist Fees (Dr. Love)

During the dissolution proceedings, the court ordered that the children be provided with therapy services. Seana requested a therapist covered by the parties' insurance, whereas Joshua requested a therapist who was not covered by the insurance but who could provide longer term counseling and who had a higher level of expertise. The court granted Joshua's request, appointed one of the therapists he requested (Dr. Love), and ordered the "cost to be born[e] by" Joshua.

Joshua paid for Dr. Love's services for a period of time, but later disputed his responsibility for her charges for court appearances at the child custody trial and for counseling sessions attended by Seana. At the conclusion of the property trial, the court ordered that Joshua was responsible for paying Dr. Love's outstanding fee balance of $1,700.24, citing its earlier order requiring Joshua to pay for Dr. Love's services given that he wanted a therapist outside the parties' insurance coverage.

On appeal, Joshua does not dispute that the trial court had the discretion to require him to pay Dr. Love's costs based on his request for a therapist outside the parties' insurance coverage. However, he contends (1) the court's order requiring him to pay for Dr. Love's counseling sessions was not meant to encompass Seana's counseling sessions with the therapist, and (2) he should not be required to pay for Dr. Love's court appearances at the custody trial because Dr. Love was called as a witness by Seana and the trial court ordered each party to bear their own costs at that trial.

Contrary to Joshua's contention on appeal, the court's order requiring Joshua to pay for Dr. Love's costs reasonably encompasses Seana's sessions with the therapist. Dr. Love's billing statement shows that some of the sessions were for "children with mom" and other sessions were for "children with dad." This supports a finding that the counseling sessions were for the children, regardless of which parent was in attendance, and that Joshua should pay for them based on his selection of a therapist outside the parties' insurance coverage.

As to the issue of payment for Dr. Love's court appearances at the child custody trial, although the court could have differentiated between therapy services and court appearances, it was not required to do so. The court made a general ruling making Joshua responsible for Dr. Love's fees based on Joshua's request for a therapist outside the parties' insurance coverage. The court could reasonably apply this order to all of Dr. Love's fees even if Dr. Love provided services (such as court appearances, or consultations or reports related to the litigation) that might not typically be billable to an insurance company. It was not an abuse of discretion for the trial court to decline to parcel out portions of Dr. Love's fees that were not chargeable to Joshua.

4. Fees Owed for Summers's Valuation of Computer Partners and Dr. Dess's Child Custody Evaluation

The court found the outstanding balance on the fees owed Summers for the valuation of Computer Partners was $2,840.63, and the parties should each pay one-half of this liability (i.e., $1,420.32 each). Likewise, the court found the parties should each pay one-half of the $1,450 fees still owed to Dr. Dess for a report on child custody and visitation issues (i.e., $725 each). Joshua contends that by the time of trial he had paid one-half or more of the total fees owed these experts, and thus Seana should have been ordered to pay the remaining balance.

Regarding Summers, the record shows that during the dissolution proceedings the court ordered that Summers's fees should be paid by "the community," with the court reserving jurisdiction over these costs. At the property division trial, Seana calculated the amounts paid by the parties to Summers, and concluded that she owed $1,854.32 and Joshua owed $986.31 of the outstanding balance. The trial court did not adopt her calculations but instead ordered an equal division of the fee balance. Thus, the court implicitly concluded that Joshua should pay a greater portion of Summers's fees than Seana. Drawing all inferences in favor of the judgment, the record supports this ruling. Seana earns about $796 per month (earning $11 per hour on a part-time basis) whereas Joshua earns about $8,316 per month. Additionally, prior to the receivership, Joshua had access to community funds from the Balboa Building. Given these differences in their financial situations, the court could reasonably conclude Joshua should pay a greater portion of Summers's fees. (See Evid. Code, § 731, subd. (c) [court has discretion to determine apportionment of court-appointed expert fees between parties].)¹²

12 As we shall discuss below, the trial court rejected Seana's request for need-based attorney fees, finding there was no vast disparity in income between the parties. This ruling is supported based on the court's imputation of income to Seana and her new husband's earnings. Nevertheless, given that Seana herself earned substantially less than Joshua, it was not unreasonable for the trial court to decide it was equitable to require Joshua to pay an extra amount of expert fees, while not requiring him to assist Seana with her attorney fees.

At the time of Dr. Dess's appointment, the court ordered Joshua to advance the costs and reserved jurisdiction over allocation of the costs at the time of trial. There was no subsequent order requiring that these costs be shared equally by the parties. At the property trial, Joshua proffered evidence showing he had paid for most of Dr. Dess's fees. The court declined to consider this evidence, and in its final ruling ordered the parties to equally share the balance of fees owed.¹³ As with Summers's fees, this ruling implicitly rejected an equal division of fees and imposed a larger responsibility on Joshua to pay the fees. Again, based on the difference in earnings between the parties, the court's ruling was not unreasonable. Joshua has not carried his burden to show the court's equal division of these fee balances was an abuse of discretion.

13 When Joshua requested admission of checks showing his payments to Dr. Dess, he told the court there was an order to split these fees and Seana had not reimbursed him. The court refused to admit the checks, but stated Joshua "could seek enforcement on and deal with it appropriately." However, as we stated, the record does not show the court made an order equally allocating Dr. Dess's total costs between the parties.

B. Need-Based Attorney Fees

The court concluded there was not "a vast disparity" in income between the parties, and accordingly the parties should bear their own attorney fees and costs. In her cross-appeal, Seana asserts the trial court should have awarded need-based attorney fees because Joshua's financial situation is far superior to hers.

Section 2030 authorizes a family law court to order one party to pay the other party's attorney fees "if necessary based on the income and needs assessments." (§ 2030, subd. (a)(1).) The assessment is made by evaluating "(A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." (§ 2030, subd. (a)(2).) In assessing ability to pay, the court is not restricted to salary alone, but may consider all the evidence concerning the parties' income, assets and abilities. (§ 2032, subd. (b); In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 630.) A trial court has broad discretion on the issue of a section 2030 attorney fees award. (In re Marriage of Duncan, supra, at p. 630.)

The trial court calculated that Seana's monthly income was $1,606 in child support, $1,907 in gross imputed income, and $4,676 in income from her new husband.¹⁴ Based on these calculations, Seana's total monthly income was $8,189. Joshua's monthly income was $8,316 in gross earnings. Seana does not challenge these figures. However, she fails to include her new spouse's income when asserting that Joshua's financial resources are far superior to hers. A trial court is not precluded from considering new spouse income when evaluating whether to award need-based attorney fees.¹⁵ When Seana's new spouse income is included in the income calculation, the record supports the trial court's finding that there was no great disparity between the parties' incomes, and reasonably denied Seana's request for need-based attorney fees.

14 The trial court imputed income to Seana based on an assessment that she could earn $11 per hour on a full-time basis.

15 Although there is a statutory bar to consideration of a new spouse's income for purposes of calculating child support (§ 4057.5), there is no such bar to need-based attorney fees.

C. Trial Sanctions

At trial, both parties requested sanctions against the other. The court found that "each party has made significant allegations which have caused the other to suffer unnecessary and extraordinary amounts of attorney fees." The court noted that although Joshua has had several attorneys, he represented himself during the bulk of the litigation. Accordingly, the court denied his request for sanctions.

Addressing Seana's request for sanctions, the court found that each party bore some responsibility for the amount of litigation and costs, but that Joshua bore "a significant portion of this responsibility." The court cited various tactical maneuvers by Joshua that caused unnecessary litigation. These included (1) Joshua's failure to comply with the court's orders to make payments on the residential loan, and (2) his pursuit of an unlawful detainer action against the maternal grandfather which resulted in an eviction notice directed at Seana and the children.¹⁶ Based on his conduct, the court ruled that Joshua should pay $15,000 sanctions to Seana.

16 To support the sanctions order, the court also noted inappropriate letters written by Joshua to various professionals involved in the case; Joshua's assertions that court-appointed experts were not impartial; and Joshua's suggestions that the court itself was not impartial. The court stated that its summation of Joshua's conduct was "a small representation" of his inappropriate maneuvers designed to achieve his intended results.

Joshua contends the record does not support ordering sanctions against him. Seana contends the amount of sanctions should have been substantially higher.

Section 271, subdivision (a) authorizes the trial court to award attorney fees and costs as sanctions based "on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." Sanctions may be awarded for unreasonable conduct that flouts the policies of settlement and increases the costs of litigation. (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991, disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.) In deciding the issue of sanctions, the trial court is also required to consider the parties' financial situations and should not order a sanction that would impose an unreasonable financial burden on a party. (§ 271, subd. (a).) On appeal, we review a sanctions order for abuse of discretion. (In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 991.)

The trial court did not abuse its discretion in concluding that Joshua's actions were unreasonable and unnecessarily increased the litigation costs. The record supports that Joshua unilaterally stopped making the monthly payments on the residential loan from the Balboa Building funds. At trial, Seana testified that her credit was "ruined" because of the nonpayments. Seana discovered the foreclosure threat through her own inquiries to the bank, and she had to repeatedly request relief from the court to address the problem until ultimately the court concluded it was necessary to appoint a receiver to manage the Balboa Building. Even if the Balboa Building developed cash flow problems at some point, the court could conclude sanctions were warranted because Joshua could have made the residential loan payments as part of the building's business expenses, and/or because Joshua did not manage the community assets in a responsible manner when he stopped making the residential loan payments and allowed the family home to be at risk for foreclosure.

The trial court could also reasonably conclude that Joshua acted unreasonably by pursuing an unlawful detainer action against Seana's father (the maternal grandfather). The unlawful detainer action had its genesis in earlier accusations made by Joshua that the children were at risk because the grandfather (who at some point was living at the family residence) was an alcoholic and child molester. Based on these allegations, in July 2006 Joshua filed an unlawful detainer action against the grandfather. After the allegations were investigated by the authorities and the children were found not to be at risk, in August 2006 the trial court in the family law proceeding concluded the molestation allegations were falsified and accordingly awarded $5,000 sanctions against Joshua for making them. Notwithstanding this ruling, Joshua continued to pursue the unlawful detainer action and in October 2006 obtained a writ of execution for possession of the property. At this point, Seana sought judicial relief and succeeded in obtaining an order withdrawing the writ of execution.¹⁷ Based on its conclusion that the molestation accusations were falsified, the trial court could reasonably find that Joshua's pursuit of the unlawful detainer action was not a legitimate attempt to protect the children but was designed to pressure Seana.

17 Although it appears that the unlawful detainer action was directed solely at the grandfather, at least one document identifies "all occupants" as subject to eviction. Seana appeared before the family law court seeking relief from the writ of execution in the unlawful detainer action, explaining that the sheriff told her she and the children had to leave the residence as well. The family law court directed her to the unlawful detainer court. When the parties appeared in the unlawful detainer action, the court ordered withdrawal of the writ of execution.

Seana requested sanctions in the amount of $47,751.90. In support of this request, she provided the trial court with a detailed accounting of fees incurred to litigate various matters. On appeal, she contends the trial court's award of $15,000 in sanctions was too low. The same judicial officer presided at numerous hearings and at the trials that occurred during the dissolution proceedings. The trial court was familiar with Joshua's financial resources and his conduct during the course of the litigation, and was in the best position to evaluate the amount of sanctions to be imposed on Joshua. Seana has not presented any argument that supports our interference with the court's determination on this point.

III. Opportunity to Present Joshua's Case

In various instances throughout his briefing on appeal, Joshua (who represented himself during the property division trial) claims he was not provided sufficient time to testify to support his claims. The record shows that although time limits were placed on Joshua's testimony and he objected that he was not being given enough time, the court was flexible in the time allotment, permitted him to delineate the matters he wished to address prior to the conclusion of his testimony, and gave him a full opportunity to present his documentary evidence. Joshua has not shown that he identified for the trial court additional information that he was prepared to present into evidence were he given more time, and that this information could provide a basis for reversal of the court's rulings. To the extent Joshua's arguments on appeal fail because he does not cite to evidence in the record supporting his claims, we are not persuaded by his assertions that any evidentiary deficiencies were caused by time constraints placed on his testimony.

Joshua also contends the court erred in denying him the opportunity to present oral closing arguments. The trial court allowed the parties to present written closing arguments, and both parties did so. Joshua has not shown error or prejudice in the court's ruling.

SECOND APPEAL

In his second appeal, Joshua challenges a postjudgment order in which the trial court (1) denied his request to remove Kaplan as the receiver for the Balboa Building; (2) refused his request for sanctions against Seana, her counsel, and the receiver; (3) awarded additional sanctions against him; and (4) failed to rule on his request that an IBM laptop computer be returned to him.

A. Joshua's Motion for Reconsideration and Request for Removal of Kaplan

On May 24, 2007, Joshua filed an appeal from the trial court's judgment in the property trial. On that same date, Joshua also filed a motion with the trial court requesting (1) reconsideration of the court's rulings in the judgment entered on May 16, 2007, and (2) removal of Kaplan as receiver of the Balboa Building.

On August 2, 2007, the trial court denied Joshua's motion. The court found that because Joshua had filed a notice of appeal, it had no jurisdiction to rule on the reconsideration motion. (Code Civ. Proc., § 916.) The court also found that even if it considered the reconsideration motion on its merits, Joshua had not presented any new evidence or factors that could not have been presented at trial. (Code Civ. Proc., § 1008.)

As to the receivership issue, Joshua had requested that Kaplan be removed and that Attorney Frederick Hale and a property management company (Utopia Management) be appointed to manage the Balboa Building. The court rejected Joshua's contentions that Kaplan was biased against him and untrustworthy, found Kaplan had met his responsibilities as receiver, and denied Joshua's request for a change in the receiver. The court found that appointment of a maintenance company such as Utopia Management might be appropriate, and that it would consider such an order if requested by Kaplan.

In his reply brief on appeal, Joshua clarifies that he is not challenging the trial court's denial of his motion for reconsideration. However, he contends the court erred in denying his request to remove Kaplan and hire Hale and Utopia Management. This issue is moot because the Balboa Building was sold in February 2008. Moreover, Joshua's appellate briefing cites to no information defeating the reasonableness of the court's finding that Kaplan was the appropriate person to complete the receivership duties.

B. Joshua's Request for Sanctions

On May 30, 2007, Joshua filed a motion requesting sanctions against Kaplan, Seana, and her counsel under section 271. The court denied his request, finding Joshua had not carried his burden to prove sanctions were warranted. Joshua asserts the court should have granted his sanctions request. He delineates a variety of perceived wrongs committed by these parties, including perjury and Seana's failure to list particular items of property for sale. He has not established that his allegations of wrongdoing are accurate or that these parties engaged in conduct that required the trial court to grant his sanctions request.

C. Award of Additional Sanctions Against Joshua

Seana made two postjudgment requests for sanctions. The first request, for $3,000, was made in a May 29, 2007 ex parte motion in which Seana asserted that Joshua had failed to provide her with the parties' motor home so she could arrange for its sale on consignment. The second request, for $3,500, was made in her response to Joshua's postjudgment motions for reconsideration and to replace receiver Kaplan.

In its August 2007 ruling on Joshua's postjudgment motions, the court granted Seana's requests for sanctions, setting the amount at $5,000. The court awarded sanctions on the basis that (1) Joshua filed a motion for reconsideration that was defective under Code of Civil Procedure section 916; and (2) Joshua failed to notify Seana that he delivered the motor home to the dealer for consignment sale, which caused Seana to incur additional attorney fees and costs including the May 29 ex parte motion. Joshua challenges this award of sanctions against him.

As noted, section 271 authorizes sanctions when a party engages in unreasonable conduct that increases the cost of litigation, and a trial court has broad discretion in this arena. (In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 991.) The court could reasonably decide to impose sanctions based on Joshua's simultaneous filing of a reconsideration motion and a notice of appeal, which sought relief from the same judgment in two judicial forums at the same time, and both of which required a response from Seana's attorney. Notably, the record shows that after Joshua filed his reconsideration motion, Seana's attorney sent him a letter informing him that because he had filed an appeal his reconsideration motion could not go forward; requesting that Joshua withdraw his reconsideration motion; and stating if he did not do so attorney fees would be requested based on the necessity of responding to the reconsideration motion. Contrary to Joshua's assertion on appeal, it was not necessary that he file a notice of appeal while a reconsideration motion was pending. (See Cal. Rules of Court,¹⁸ rule 8.108(e) [motion for reconsideration extends time for filing of appeal]; see Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 [trial court loses jurisdiction to hear motion challenging same judgment that has been appealed].)

18 Subsequent references to rules are to the California Rules of Court unless otherwise specified.

Joshua asserts sanctions were not warranted based on his filing of both a reconsideration motion and notice of appeal because he filed two reconsideration motions, one on April 25, 2007, and one on May 24, 2007. The record shows that on April 25, Joshua filed an ex parte application stating he requested a stay of the court's property division orders, an order shortening time, and a "motion for reconsideration to avoid formal appeal."¹⁹ Even if this motion were deemed an adequate reconsideration motion, the court could reasonably find that Joshua acted unreasonably, and increased Seana's litigation costs, when he subsequently filed both a reconsideration motion and a notice of appeal at the same time.

19 The court's property division rulings were rendered on April 13, 2007, and entered as a judgment on May 16, 2007.

Further, the record supports a finding that Joshua acted unreasonably and increased Seana's litigation costs when he delivered the motor home to the dealer without notice to Seana. The property division judgment gave Seana the right to arrange for a consignment sale of the motor home. In April 2007, Seana's counsel repeatedly sent letters to Joshua requesting that he deliver the motor home to Seana so she could arrange for the sale. When Joshua failed to deliver the motor home to her, in May 2007 she commenced communicating with him by email, requesting that he directly deliver the motor home to Ed Hughes, the owner of The Vehicle Store, who was interested in selling the vehicle. Subsequent emails revealed there was a problem with space availability at The Vehicle Store's lot, and in an email on May 22 the parties discussed whether it might be necessary to find another dealer or to obtain a court order permitting a listing for sale to a private party.

Thereafter, Joshua delivered the motor home to The Vehicle Store, but failed to inform Seana of this fact. Believing the matter was still unresolved, on May 29, 2007, Seana filed an ex parte motion to address various issues, including the motor home issue. Seana informed the court that she did not know where the motor home was and requested that Joshua be ordered to turn it over to her within 24 hours. At the May 29 hearing on this motion, Joshua informed the court that he had transported the motor home to The Vehicle Store as requested by Seana.²⁰

20 It is not clear from the record precisely when the motor home was in fact delivered to The Vehicle Store. According to Seana, Hughes told her that Joshua delivered the vehicle to The Vehicle Store on June 8.

At the July 2007 hearing on Joshua's reconsideration motion, the trial court asked Joshua if he had given Seana, her attorney, or Kaplan notice that he had delivered the motor home to The Vehicle Store. Joshua responded that he had notified Seana by email. However, when the court asked to see a copy of the email giving such notice, the emails presented by Joshua did not reflect such notice.

The record supports findings that Joshua did not notify Seana of the delivery of the motor home, and if he had done so, she would not have had to incur attorney fees to address the motor home issue in the May 29 motion. The court could reasonably conclude that Joshua had shown a disregard for cooperative enforcement of the court's orders, thus warranting sanctions against him.

Joshua contends the trial court abused its discretion in awarding $5,000 sanctions when Seana requested only $3,500 sanctions. As stated, Seana made two postjudgment sanctions requests, asking for $3,000 sanctions in her May 29 ex parte motion, and asking for $3,500 in her response to Joshua's reconsideration motion. The court deferred ruling on the $3,000 sanction request until the hearing on the reconsideration motion. Thus, the court's ruling granting $5,000 sanctions was based on Seana's request for $6,500 total sanctions, not only her request for $3,500 sanctions.

Joshua also contends the sanctions award must be reversed because Seana did not submit an income and expense declaration at the time of her postjudgment request for sanctions as required by local rules. (San Diego Superior Court Rules, rule 5.6.2 [requiring income and expense declaration executed within 90 days of hearing involving financial issues such as support, attorney's fees and costs]; see also rule 5.128 [requiring current income and expense declaration, including attorney fees information, when relevant to issues].)

Section 271 requires the court to consider "the parties' incomes, assets, and liabilities," and to refrain from imposing an award that would impose "an unreasonable financial burden" on the sanctioned party. (§ 271, subd. (a).) However, the section also provides that the party requesting sanctions "is not required to demonstrate any financial need for the award." (Ibid.) Further, an award of section 271 sanctions is not limited to the fees and costs directly arising from the sanctioned party's unreasonable conduct, but an amount may be imposed to generally sanction the party based on the extent and severity of the improper conduct. (See In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.) Because section 271 is not a need-based statute and does not require a correlation between the sanctioned conduct and specific attorney fees, it was not essential that Seana demonstrate her current financial situation and attorney fees by submitting an income and expense declaration. (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 403 [failure to submit income and expense declaration as required by rule 5.128 does not create jurisdictional barrier to section 271 award].)

Here, the court had information from the trial (including income and expense declarations and Seana's attorney fees information) which permitted it to make a reasoned determination of an appropriate amount of postjudgment sanctions that would not impose an undue hardship on Joshua and that would not exceed the total fees incurred by Seana. If Joshua's financial situation had changed significantly since the time of trial, he could have submitted his own current income and expense declaration. Joshua has not carried his burden to show reversible error from the lack of a current income and expense declaration from Seana.

D. The IBM Computer

In an amended motion for reconsideration filed on June 4, 2007, Joshua requested that an IBM computer be returned to him. Joshua notes that the court's postjudgment order fails to rule on this request, and he requests that we render a decision on this matter. We construe the court's order as implicitly denying Joshua's request for the IBM computer. (See In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)

Joshua contends the computer should be returned to him because he was awarded the value of Computer Partners, and the computer belonged to Computer Partners. The record shows that in December 2003, Joshua was ordered to turn over an IBM computer to Seana. Joshua has not cited any evidence showing this particular IBM computer was part of the value of Computer Partners. On appeal, Joshua contends the IBM computer contains tax data needed by Computer Partners. The record does not show he presented this argument to the trial court. He has not established that the court was required to change its December 2003 ruling and order return of the computer to him.

SANCTIONS ON APPEAL

Both parties have requested sanctions on appeal. Seana asserts sanctions should be awarded against Joshua because his appeals were without merit and brought for purposes of delay and harassment, and his deficient presentation of the record increased her attorney's burden to prepare a meaningful appellate record. (See Code of Civ. Proc., § 907; rule 8.276.) Joshua was entitled to request review of the trial court's rulings made during the property division trial, and as set forth above, we have found one item of reversible error in the judgment. Thus, his appeal from this judgment cannot be deemed frivolous. At this juncture, we also decline to award sanctions against him for the second appeal. However, because the second appeal borders on frivolous, we suggest that he exercise caution before appealing further rulings from the trial court as the dissolution proceedings are completed.

We agree with Seana that Joshua's presentation of the record was deficient, which placed a greater burden on Seana's counsel to prepare a comprehensible appellate record. Because in the first appeal we are modifying the judgment in Joshua's favor, typically we would be inclined to order that the parties pay their own costs for that appeal. However, because of the increased burden placed on Seana's appellate attorney, we will require Joshua to pay Seana's costs for the first appeal, as well as for the second appeal in which Seana prevailed on all issues. (See rule 8.278(a)(3).)

As to Joshua's requests for appellate sanctions against Seana, he has presented no basis to justify such an award.

DISPOSITION

The judgment is modified to remove the $42,587.42 credit to Joshua based on the value of Computer Partners' bank account (California Bank & Trust account no. 2631). As so modified, the judgment is affirmed. The postjudgment order is affirmed. The matter is remanded for an adjustment to the equalization calculations based on the modified judgment. Joshua to pay Seana's costs for these appeals.

WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.