Opinion
D058220
11-10-2011
In re the Marriage of SARACIA and WILLIAM P. SHANNAHAN. WILLIAM P. SHANNAHAN, Appellant, v. SARACIA SHANNAHAN, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. D483710)
APPEAL from a postjudgment order of the Superior Court of San Diego County, Lisa Foster, Judge. Affirmed. Sanctions for frivolous appeal granted.
William P. Shannahan appeals from a postjudgment order denying his request for a downward modification of spousal support to his former spouse, Saracia Shannahan, and awarding Saracia $20,000 as Family Code section 2030 attorney fees or alternatively section 271 sanctions. Saracia asks us to consider issuing an order to show cause (OSC) as to why William and/or his counsel should not be sanctioned for filing a frivolous appeal. We affirm the postjudgment order, and order William to pay sanctions for a frivolous appeal.
All statutory references are to the Family Code unless otherwise indicated. As is customary in family law cases in which the parties share a surname, we refer to the parties by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
We have addressed matters involving these parties in two prior appeals. (In re Marriage of Shannahan (Dec. 1, 2010, D053701, D955292) [nonpub. opn.]); In re Marriage of Shannahan (July 18, 2011, D057453) [nonpub. opn.].) We limit our discussion here to the facts and procedural circumstances surrounding William's April 2010 order to show cause for modification of spousal support, and Saracia's petition for attorney fees and sanctions.
In August 2008, a judgment was entered dissolving William and Saracia's over 20-year marriage and dividing certain property. In part, the judgment ordered that following its entry, William would pay Saracia $5,000 per month in spousal support "until [Saracia] receives her full share of the community estate as set forth herein." It ordered Saracia to have exclusive use of a residence (the Virginia Way residence) during that period as nontaxable support, and required William to be responsible for that property's lease payments. The judgment reduced support to zero in the first month following Saracia's receipt of her share of the community estate.
In April 2010, William filed an OSC to modify his spousal support from the present amount of $5,000 per month to $3,850 per month. In a supporting declaration, William addressed his average income and expenses, the parties' marital standard of living, and the various section 4320 factors. William stated his average income had gone down, while his expenses had gone up "considerably . . . ." Specifically, he asserted the fair market value of his retirement accounts had dropped from $3.1 million to $2.1 million, and his actual rate of return was just over $10,000 per month. He averred that other than his retirement account, the only resources available to him were his monthly $1,766 social security payment, leaving him with only $12,766 to meet his own obligations and spousal support. According to William, he had "no meaningful income available to [him] from [his] law practice . . . ." He stated that by virtue of his obligation to pay lease payments on the Virginia Way residence, his total spousal support responsibility was $8,875, which was just under 70 percent of his gross monthly income, leaving him without sufficient funds to meet his own minimum needs.
Section 4320 provides in part: "In ordering spousal support under this part, the court shall consider all of the following circumstances:
"(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
"(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
"(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
"(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
"(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
"(d) The needs of each party based on the standard of living established during the marriage.
"(e) The obligations and assets, including the separate property, of each party. "(f) The duration of the marriage.
"(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. "(h) The age and health of the parties.
"(i) Documented evidence of any history of domestic violence . . . . "(j) The immediate and specific tax consequences to each party. "(k) The balance of the hardships to each party.
"(l) The goal that the supported party shall be self-supporting within a reasonable period of time. . . . [¶] . . . [¶]
"(n) Any other factors the court determines are just and equitable."
With regard to his expenses, William asserted he began paying $5,000 in rent in January 2009 after his former residence had burned down; his support payments were increased in August 2008 to $5,000; he had borrowed over $50,000 to pay for their daughter's education expenses; and he funded their children's living expenses in the amount of about $2,200 per month.
William pointed out that the court's prior judgment had set the marital standard of living as "upper middle class" and found both parties' approximately $15,000 in monthly expenses to be reasonable and in keeping with that standard of living. He challenged that finding, pointing to Saracia's income and expense declarations filed in 2004, 2005 and 2009, and household tax returns assertedly showing the gross and net spendable income from 1993 to 2004. William stated those returns showed the family had average net income of $92,500 per year, or $3,584 per month, per spouse. He argued in view of that evidence, Saracia should not receive $8,850 in monthly spousal support.
Among other documents, William lodged an income and expense declaration showing $1,766 in social security income and $19,375 in monthly expenses. On it, he stated he had paid his attorney over $118,000 and still owed over $138,900. He submitted tax Schedule K-1s for 2008 and 2009 showing business losses of $55,595 and $51,261 respectively, and $39,975 in interest income for 2009. He provided single-page statements — presumably for his law firm but not identifying it as the subject — showing both "income and loss" and "balance sheets" for 2008, 2009, and the first three months of 2010, all showing net losses in each year. William submitted a summary of assets showing $1,988 in his bank accounts, and $2,164 in a UBS brokerage account.
Pursuant to Evidence Code sections 452, subdivision (c), and 459, this court takes judicial notice that the Internal Revenue Service's Form 1120S, also known as a Schedule K-1, is used to report a partner's share of income from an S corporation. (See Shareholder's Instructions for Schedule K-1 (Form 1120S) <http://www.irs.gov/pub/irs-pdf/i1120ssk.pdf.html> [as of Sept. 14, 2011].)
All of the statements are identical in format. For example, the 2008 statement reads:
December 31, 2008
Income and Loss Statement
+------------------------------------------+ ¦Gross Receipts ¦$614,375.00 ¦ +---------------------------+--------------¦ ¦Less Operating Expenses ¦($699,970.00) ¦ +---------------------------+--------------¦ ¦Net Operating Loss ¦($55,595.00) ¦ +---------------------------+--------------¦ ¦Less Net Operating Expenses¦($37,822.00) ¦ +---------------------------+--------------¦ ¦Net Loss ¦($93,417.00) ¦ +------------------------------------------+
December 31, 2008
Balance Sheet
+---------------------------------------------------------+ ¦Assets ¦ ¦ ¦ +-------------------------------+-----------+-------------¦ ¦Current Assets ¦$62,350.00 ¦ ¦ +-------------------------------+-----------+-------------¦ ¦Fixed Assets ¦$26,953.00 ¦ ¦ +-------------------------------+-----------+-------------¦ ¦Other Assets ¦$375,860.00¦ ¦ +-------------------------------+-----------+-------------¦ ¦Total Assets ¦ ¦$465,163.00 ¦ +-------------------------------+-----------+-------------¦ ¦Liabilities and Net Worth ¦ ¦ ¦ +-------------------------------+-----------+-------------¦ ¦Current Liabilities ¦$270,155.00¦ ¦ +-------------------------------+-----------+-------------¦ ¦Net Worth ¦$195,008.00¦ ¦ +-------------------------------+-----------+-------------¦ ¦Total Liabilities and Net Worth¦ ¦$465,163.00 ¦ +---------------------------------------------------------+
Saracia opposed William's modification request on grounds William had not shown a material change in circumstances justifying his request. She argued he had not made a clear showing that his income had decreased, that her income had increased, or that her needs had decreased. She argued William's financial documentation was inadequate as it did not account for his retirement accounts and lacked current profit and loss schedules for his law practice. According to Saracia, William could not collaterally attack the prior support orders but was limited to raising facts arising after entry of those orders. She maintained the existing order was insufficient to meet her increased needs. Finally, Saracia pointed out that pursuant to the judgment, William was to provide her with a means of spousal support until she had received all of the property and funds due her under the judgment, and William had not paid anything due her but instead had impeded her collection efforts.
Saracia filed a companion motion for attorney fees and section 271 sanctions. In her supporting declaration, she explained her financial situation had worsened due to her legal costs and the fact William had not paid any of her attorney fees the court had previously ordered him to pay. Saracia asserted William had paid his attorneys from borrowed funds, but at the same time stated he received no income from his law practice. She maintained it was impossible to ascertain his true income from William's profit and loss statements. She asked the court to award her $15,000 in fees and $10,000 in sanctions for William's "bad-faith" conduct in filing the motion.
At the hearing on the matter, the family court began by emphasizing it would not reconsider the judgment's findings concerning the parties' upper middle class marital standard of living and reasonable monthly expenses. It explained the support amount ordered did not allow either party to live at the marital standard of living. The court stated it would judge the modification request against these standards. During the parties' respective arguments, the court remarked that William's K-1s and profit and loss statements were insufficient to allow it to assess his income, and absent an accounting it could not rule on his motion. It offered to permit William to engage a forensic accountant to determine his income available for support, including from his retirement accounts. It gave William 30 days to decide and advised the parties if William declined to do so, it would deny his motion.
William thereafter filed a supplemental brief advising the court he did not believe further accounting would persuade the court to grant his motion. He reiterated the veracity of his financial information, and urged the court to grant his motion on the showing he had made.
In a written statement of decision, the court denied William's modification request, finding William did not provide sufficient information about his income for it to determine whether there was a change of circumstance warranting a modification of the spousal support ordered in the judgment. It granted Saracia's motion for attorney fees and sanctions, awarding Saracia $20,000 in fees, either as a section 271 sanction or alternatively as a fee award under section 2030 based on the parties' disparity in income and the fees incurred by Saracia in responding to William's motion and filing her own companion motion. William appeals from this postjudgment order.
DISCUSSION
I. Modification of Spousal Support
A. General Principles and Appellate Standard of Review
" 'Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.] Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. [Citations.] It includes all factors affecting need and the ability to pay.' [Citation.] 'A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order.' " (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz).)
" 'Appellate review of orders modifying spousal support is governed by an abuse of discretion standard, and such an abuse occurs when a court modifies a support order without substantial evidence of a material change of circumstances.' [Citations.] . . . ' "So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it.(Dietz, supra, 176 Cal.App.4th at p. 398; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480 ["Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order"].) As long as the court follows established legal principles and bases its findings on substantial evidence, we will uphold the order whether or not we agree with it or would make the same order if we were the trial court. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246; Schmir, 134 Cal.App.4th at p. 47.) B. Advisory Opinion
Relying on the unremarkable proposition that a spousal support modification order must be based on current facts and circumstances (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576), William begins his appeal with an assertion of his belief that his evidence was in "strict compliance with the local rules and should have been considered sufficient to meet his burden of proof on the motion." William does not discuss the local rules to which he refers or develop the argument any further. Rather, he states: "Here, William's point is simply that, whenever that time comes when he renews his motion, the trial court should then be operating under express direction from this Court (issued in its disposition of this appeal) to the effect that the trial court must also consider all of the then-current evidence on the other side of the equation relating to Saracia's present circumstances and needs, and cannot treat the previous finding that she had $15,000 in reasonable monthly expenses as a 'done deal,' like [the family court] did here." (First italics added.)
Saracia attacks these arguments on several grounds, including that they improperly seek an advisory opinion. We agree. "The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court." (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912; see also Leibler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1614, fn. 8.) In substance, William asks for an appellate holding that would bind the family court on his future modification requests, if he decides to bring one. We do not pass on questions about a motion that might or might not occur in the future. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 173 [courts will "not be drawn into disputes which depend for their immediacy on speculative future events"]; Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 186.)
In his reply brief, William denies this was the point of his appeal; he argues he does in fact challenge the family court's order to the extent it failed to take into consideration Saracia's present needs and thus applied an erroneous legal standard, namely one that applied an "absolute and irrefutable presumption that Saracia's reasonable expenses, six years later, remained $15,000 per month." William states he seeks "a clear declaration, applicable to this case, of what [he] submits is already the settled law: that support modification motions must be examined, on both the 'needs' side, and on the 'ability to pay' side of the equation, with reference to the parties' present circumstances." Without such a ruling, William argues, he might be "bound for his lifetime to continue to pay Saracia spousal support in an amount that was calculated to meet her (supposed) needs in 2004."
Our reading of William's opening brief, however, confirms our conclusion that William in fact seeks an advisory opinion. First, at the conclusion of his first argument, William asked us to reverse the order denying his motion and remand the matter "with express directions to analyze William's next motion to modify — if and whenever filed — with reference to both his present ability to pay, but also with reference to Saracia's present need." (Italics added.)
Second, William did not make any arguments challenging the correctness of the court's present decision denying his request for modification. He explains, in footnotes, that he does not "dissect or discuss" his papers and evidence because the court's ruling was primarily grounded not on the substance of the evidence, but on the erroneous threshold legal conclusion that Saracia's reasonable needs were $15,000 per month. However, if William sought to meaningfully challenge the trial court's order on appeal, he would have to explain how the evidence before the family court constituted substantial evidence of changed circumstances, either as to his own needs and ability to pay the court-ordered support, or Saracia's need for support at the level ordered. As the moving party below, William had the burden of establishing a material change in circumstances warranting modification of the spousal support order (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78-79), and he bears the appellate burden to show the court's ultimate decision constituted an abuse of discretion. (See In re Marriage of Matthews (2005) 133 Cal.App.4th 624, 632 [court of appeal will affirm decision of the lower court if it is correct on any theory of law applicable to the case, regardless of the grounds on which the lower court reached its conclusion].) Without meaningful argument challenging the sufficiency of the evidence of the court's express or implied findings, we have no basis to reverse the present order on grounds the court erred. (Holmes v. Petrovitch Development Co. (2011) 191 Cal.App.4th 1047, 1073.) C. William's Appellate Challenge to the Order Denying Modification is Forfeited
Given William's failure to mount a sufficiency of the evidence challenge to the family court's findings and order concerning the existence of a material change of circumstances, even if we were to decide William's appeal did not merely seek an advisory holding, we would nevertheless conclude his claims of error are forfeited. (Holmes v. Petrovitch Development Co., supra, 191 Cal.App.4th at p. 1073.) William's bare contention that the family court applied an improper presumption concerning the amount of Saracia's monthly expenses or needs does not meet his appellate burden to show he presented evidence of a material change of circumstances warranting modification of the support order. D. William Has Not Shown Prejudice From Any Asserted Error
For the reasons expressed above, we likewise reject William's challenge on grounds he has not demonstrated that any alleged error was prejudicial. In evaluating the effect of any errors, we are governed by article VI, section 13 of the California Constitution, which precludes reversal unless " 'the error complained of has resulted in a miscarriage of justice.' " (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) A "miscarriage of justice" occurs when it appears there is a reasonable probability that the appealing party would have realized a more favorable result in the absence of the error; probability in this context meaning merely a " 'reasonable chance, more than an abstract possibility.' " (Id. at p. 800.) Under Cassim, we are required to " 'determine whether prejudice actually occurred in light of the entire record.' " (Id. at pp. 801-802.) We do not presume error; rather, William has the burden of persuading us the court erred in ways that resulted in a miscarriage of justice. (In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) He has not explained how, but for the court's asserted misapplication or misunderstanding of the law, it is reasonably probable it would have reached a result more favorable to him. Such an analysis requires, at minimum, a discussion as to how his evidence demonstrated a material change of circumstances with respect to his ability to pay or Saracia's needs under the applicable legal standards. (Dietz, supra, 176 Cal.App.4th at p. 396.)
II. Order that William Pay $20,000 in Saracia's Attorney Fees
William contends the court erred by sanctioning him $20,000 or alternatively ordering him to pay that amount for Saracia's attorney fees. He maintains his modification motion was brought in good faith and in compliance with local rules, providing no basis to sanction him, and there was no equitable basis to award Saracia her attorney fees based on her income or needs. According to William, he has already paid Saracia's attorneys hundreds of thousands of dollars, and Saracia has valuable assets in addition to "an affirmed [j]udgment against William awarding her millions of dollars" which are all sufficient for Saracia to pay her own attorneys. A. Family Court's Findings and Order
On the issue of attorney fees, the family court's order provides:
"William's failure to provide sufficient evidence of his income frustrates the policy of the law to promote settlement of litigation. It would be impossible to settle the issue of spousal support without fully disclosing to Saracia information regarding William's income. One example of his wholesale failure to provide adequate information is the 'Income and Loss Statements' lodged by William in support of his motion to modify support. . . . William is an experienced tax attorney and the sole shareholder of William P. Shannahan, Inc. APLC. For each of the last two years, William lists 'gross receipts' from his law practice in excess of $600,000. In each of the last two years, William also lists 'Operating Expenses' that exceed his gross receipts. There is no indication of what those expenses are or whether they are reasonable or even related to the business. Moreover, in his Income and Expense Declaration, William states under penalty of perjury that he has paid $118,903.46 in attorney's fees as of April 21, 2010[,] and that the source of the funds used to pay those fees was 'income and loan from business.' No loan to William is reflected on any of the 'Income and Loss Statements' lodged by William.
"Moreover, William's Income and Expense Declaration does not add up. He claims to have $19,375 in monthly expenses and no income other than $1,766 in social security benefits and monthly retirement account withdrawals of $11,000. Yet, mysteriously, William lists no debt on his Income and Expense Declaration.
"Section 271 allows the Court to make an award of attorney's fees as a sanction after considering all of the evidence concerning the parties' incomes, assets, and liabilities. Although the Court has found it cannot determine William's income with sufficient certainty to adjudicate his motion to modify spousal support, what information William and Saracia have provided makes plain that an award of attorney's fees will not 'impose an unreasonable financial burden' on William. . . . Based on his monthly expenses and lack of debt as well as his professed ability to 'borrow' funds from his law practice, William is able to pay an award of attorney's fees. William, as noted, lists no debt, and pending the resolution of the appeal of the Judgment, he is in complete control of what he claims to be approximately $2.4 million in retirement accounts.
"Saracia, by contrast, has income totaling less than $600 per month, approximately $1,000 in the bank, and credit card debt exceeding $35,000. Moreover, as Saracia demonstrated, William lives in a luxurious beach front home on Camino de la Costa in La Jolla. The home comprises over 5,000 square feet and a swimming pool, for which William claims he pays $5,000 a month in rent. Saracia by contrast lives in a home on Virginia Way awarded to William in the Judgment. However, the Judgment provides that Saracia can continue to live in the Virginia Way residence until William satisfies the dissolution Judgment — something he has steadfastly refused to do. The Virginia Way residence is significantly smaller, has a leaky roof, and is sparsely and modestly furnished. The parties' standards of living are not comparable.
"Accordingly, the Court orders William to pay as a sanction under Family Code [section] 271 attorney[] fees in the amount of $20,000. Alternatively, based on the findings just made, the Court finds there is a disparity in the parties' incomes and that the reasonable amount of attorney's fees incurred in responding to William's motion and in filing her Companion motion is $20,000."
The family court's order was phrased in the alternative. Thus, we will uphold it if it is proper as either a section 271 sanction or a needs-based award. B. Award as a Section 271 Sanction
Section 271 provides in part that "the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction." (§ 271, subd. (a).) In awarding fees under this section, "the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." (Ibid.)
Section 271 authorizes a fees and costs award as a penalty for obstreperous conduct, but by the statute's terms the penalty is aimed at conduct that frustrates settlement of family law litigation. (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1520; In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1477; In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.) Section 271 does not require the conduct to be frivolous, taken solely for the purpose of delay, grounded in an improper motive such as harassment, or indisputably without merit. (Freeman, at p. 6.) Nor is the amount limited to costs and fees attributable to the bad conduct. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.) Subject to the condition that the award not constitute an unreasonable financial burden, the trial court has broad discretion to award section 271 sanctions. (Robert J. v. Catherine D., at p. 1520; Corona, at p. 1225.)
In view of the family court's wide discretion to award section 271 fees, "we will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] 'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.' " (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226.)
In challenging the sanctions order, William disagrees with the court's finding that he frustrated the policy of the law to promote settlement of litigation, asserting "the evidence he filed regarding his income was detailed, was scrupulously accurate, and complied with all relevant local rules." For this proposition, William cites his reply declaration below referencing rule 5.6.3 of the Superior Court of San Diego County, Local Rules, which identifies documents required to be attached to a parties' income and expense declaration, including "profit and loss statements and balance sheets for the two prior calendar years and the current year-to-date." He maintains the court may have found insufficient detail to grant his motion, but it erred in concluding he was frustrating the policy of the law to promote settlement of litigation by filing it. William explains he declined the court's invitation to submit further evidence because he believed no additional evidence would satisfy his motion, given the court had "conclusively presum[ed]" Saracia's needs were $15,000 per month.
These arguments do not demonstrate that the family court plainly abused its discretion by entering a sanctions order that no judge could reasonably make. (In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1225.) The family court did not base its findings on William's noncompliance with local rule requirements. Rather, it expressly found William's income statement was incomplete in that it did not set forth the nature of over $600,000 in operating expenses that, according to William, exceeded his law firm's gross receipts and resulted in net losses since 2008. The court also pointed out the inconsistency between William's law firm's balance sheets and the statement in his sworn income and expense declaration that he had paid his attorneys over $118,000 from "income and loan from business." (Capitalization omitted.) Implicitly, the family court found William had not disclosed income that he was using to pay his attorneys or otherwise pay his monthly expenses, as William had declared no debts in his income and expense declaration. Given William's insufficient and contradictory disclosures about his income, the court found it would be impossible for William and Saracia to settle the issue of spousal support.
William fails to explain how these express and implied findings — which we conclude are supported by the evidence recited above — do not warrant imposing a section 271 sanction. Nor does he challenge the financial impact of the sanctions order upon him, other than to point out that he has been previously ordered to pay Saracia's attorney fees in various amounts. William has not met his burden to show an abuse of discretion in the sanctions order or any other reversible error.
William does not state that he has since paid the fees ordered. Saracia maintains he has not paid $292,000 of the amounts ordered, but has paid his attorneys over $369,000 as of October 31, 2009.
Having upheld the attorney fees award as a section 271 sanction, we need not address whether the court also properly made the order as a needs-based award under section 2030.
III. Saracia's Request for Sanctions for a Frivolous Appeal
Saracia requests that this court decide whether William should be sanctioned for pursuing a frivolous appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646 (Flaherty).) She argues William has wasted, transferred, and encumbered assets; made collection efforts difficult; and refused to account. She asserts he has engaged in a pattern of actions that merits sanctions, including raising the issues in this appeal, which she maintains are frivolous. William was apprised of this court's intention to consider the issue of sanctions by letter from the clerk dated September 15, 2011. (Cal. Rules of Court, rule 8.276(c).)
California Rules of Court, rule 8.276(a)(1) allows a court to impose sanctions on a party or an attorney for the taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous "when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (Flaherty, supra, 31 Cal.3d at p. 650; see Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 22.) "California courts apply both objective and subjective standards to determine whether an appeal indisputably has no merit. 'The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person's perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit.' " (Airlines Reporting Corp., at p. 22.) "Courts should employ sanctions sparingly to deter only the most egregious conduct." (Ibid.)
We hold that William's pursuit of an improper advisory opinion, and his inadequate analysis pertinent to the questions at hand, render his appeal objectively frivolous under the Flaherty standard. We also hold William's appeal is subjectively frivolous. Having reviewed our prior opinions, we conclude William's appeal was filed to keep Saracia embroiled in legal proceedings to hinder her efforts to recover the substantial money judgments and attorney fee awards against him (one of which was the subject of our July 18, 2011 opinion), and thus is pursued solely in an attempt to delay enforcement of these various judgments and attorney fees awards. (Accord, Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1316.)
We are aware that sanctions should be sparingly used to "deter only the most egregious conduct" (Flaherty, supra, 31 Cal.3d at p. 651), and that merely because an appeal lacks merit does not, alone, establish it is frivolous. (See Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.) "An appeal, though unsuccessful, should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law." (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1296.) These factors are not present here. Under all of the facts and circumstances presented in this case, no reasonable attorney could have contemplated William's appeal of the family court's order denying modification and awarding sanctions would be meritorious.
In deciding the measure of sanctions, relevant inquiries are the goals of compensating the parties for expenses occasioned by the appeal and to deter similar conduct in the future. (Flaherty, supra, 31 Cal.3d at p. 647.) The amount of attorney fees reasonably incurred in responding to a frivolous appeal is one possible measure of sanctions. (See Keitel v. Heubel (2002) 103 Cal.App.4th 324, 343.) Another possible measure is the cost imposed on the court system by the waste of time and resources in processing and deciding a frivolous appeal. (Ibid.) A 2008 case cites a cost analysis by the clerk's office for the Second Appellate District that estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520; Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1163-1164 [relying on that cost analysis to set amount of sanctions payable to the court].)
Saracia does not describe any attorney fees or expenses she has incurred on this appeal; in her responsive declaration to William's motion for modification she stated she owed her appellate counsel approximately $100,000, and owed other legal fees of over $600,000. Because we have nothing before us concerning Saracia's expenses for the present appeal, we direct our focus on the undue burden this appeal has placed on the legal system and the consumption of this court's precious resources. Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources. [Citations.] Accordingly, an appropriate measure of sanctions should . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal.(Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433; see also Huschke v. Slater, supra, 168 Cal.App.4th at p. 1161.) Under the circumstances, we impose a $8,000 sanction on William payable to this court's clerk.
DISPOSITION
The postjudgment order is affirmed. We find William's appeal to be frivolous and assess sanctions against him in the amount of $8,000 for the cost to the taxpayers of processing this appeal, which sum shall be due and payable to the clerk of this court within 30 days of the issuance of the remittitur. Saracia is entitled to her costs on appeal.
O'ROURKE, J. WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.