McKINSTER, J.
Appellant Jean Nelson (wife) appeals an order of the family law court, ordering her to pay $349,024 to respondent Jimmie H. Nelson (husband) as a division of community property bank accounts, and to pay $62,034 in attorney fees to husband's counsel, including a component of $9,000 in attorney fees, which had been awarded as sanctions. There was a second order for attorney fees, which also happened to be in the amount of $9,000. Wife contends that the trial court's orders must be reversed. She argues that the court improperly achieved its result on the division of community property by selectively reopening the case and deciding it without a hearing or the opportunity to present more evidence. She further maintains the orders were unsupported by the evidence. Finally, she urges in particular, as to the two sums of $9,000 in attorney fees awards, those portions of the court's orders are improper because those awards were reversed by this court in two earlier appeals.
We affirm in part, but agree with wife that the two awards of $9,000 in attorney fees cannot stand and, therefore, reverse those portions of the court's order.
This is the latest in a series of appeals from various aspects of the family law litigation below.
Husband and wife met when they both worked in the same real estate brokerage. In 1970, husband opened his own brokerage, and wife continued to work for him. At some point, they began living together and in 1989, nearly 20 years after they had first met, they married The marriage lasted another 14 years, until they separated in 2003.
The parties bought real estate together both before and during the marriage. They maintained some joint bank accounts to provide for their jointly owned properties, but each also had some accounts in his or her own name. During the premarital phase of their relationship, they purchased some of the real properties in joint title, but others were held in the name of one or the other individually. Some of their investment accounts were held in both names, while some were not. Husband's two businesses, the real estate brokerage and a business called Budget Auto Sales, were held in husband's name only.
The various ways that the parties held title to real property, bank or investment accounts, and other assets, both before and during the marriage, complicated the evidence concerning the characterization and division of the assets during the dissolution proceedings.
As noted, the parties separated in 2003, after 14 years of marriage. Wife filed an amended petition for dissolution of the marriage on April 13, 2005. In general, husband's position on the division of assets was that the parties intended to "co-own all properties they acquired and share ownership of all profits they generated and all financial investments they made. He said that their agreement, not form of title, controlled the ownership of everything in the `pool.'" Wife's theory, on the other hand, was that the parties "followed generally accepted real estate rules regarding their transactions, with the result . . . that title alone controlled the ownership rights in real properties, investment accounts, stocks and bonds, with no provisions for reimbursements, tracings or other equitable claims."
As may be expected, with such different views on the proper characterization and division or distribution of assets, the trial of the property issues was rather protracted.
The trial of the property issues took place over several days in July 2007. At various times during the trial, the parties testified about various accounts that they had, and what moneys were in those accounts. After the trial, the court issued its statement of decision on November 26, 2007. As to the personal property and investment accounts, the trial court found in part:
"According to Exhibit 67, [wife] and [husband] acquired 60,000 shares of Magic Belt stocks together. The court finds that they are community property and orders them divided in kind.
"The parties' various bank and security accounts have not been established with any degree of certainty. While [wife] claims that many of the accounts are her separate property, based on the fact that the accounts were opened prior to marriage, or that they are held in her name, no evidence was presented as to the value of each of the accounts on the date of marriage, nor at the date of separation. Nor was any evidence presented as to any contribution from separate or community property sources during the marital period. According to the testimony of both parties, [wife] handled the finances in the relationship, even during the fifteen-or-so year period prior to the date of marriage. Testimony indicated that [wife] moved money into and out of accounts on a regular basis. There is simply no way, given the state of the evidence, for the court to divine the source of the funds invested either prior to, or during marriage. Accordingly, the court finds the following investment, bank and security accounts are community property and orders them divided equally.
"Washington Mutual savings account ($2800), Washington Mutual account #876 ($900), World Savings account #95-4 ($10,000), World Savings account #830-8 ($480), Washington Mutual Balboa condo account ($16,000, with the security deposit of $5,700 to be the equal obligation of both parties), World Savings #4773 ($129,600), Waterhouse/Ameritrade ($204,325), Ameritrade cash account ($16,900), Prudential/FSC ($139,900), Putnam Annuity account ($77,000), Scudder/FSC IRA ($99,200), Putnam IRA in [husband's] name ($14,500), Schoenfeld note ($20,000)."
The court later entered a judgment dividing these assets as indicated in its statement of decision.
After the judgment was entered, and after the time for appeal from the judgment had run, wife filed a motion to vacate the judgment and reopen the evidence, on the ground that husband had failed to disclose some bank accounts. Wife argued that these accounts had not been included in the judgment and, thus, had not been divided. Among other things, she asked that 100 percent of the omitted (concealed) assets be awarded to her pursuant to Family Code section 1101. Husband opposed wife's motion, urging that the omitted accounts were not concealed, as wife knew about their existence. Husband requested that wife be sanctioned for bringing a "spurious" motion. The trial court denied wife's motion and ordered her to pay $9,000 in sanctions to husband's attorney for bringing the motion.
On July 23, 2008, wife filed a notice of appeal from the ruling on her postjudgment motion. As we have already remarked, the time for appeal from the judgment itself had already run. Thus, any appeal was not from the judgment, but was solely from the postjudgment order denying wife's request to adjudicate the omitted assets. In an opinion filed December 15, 2009, this court reversed the trial court's ruling. (In re Marriage of Nelson, supra, E046359.) Wife's motion had identified marital assets that were not treated or distributed in the judgment. The trial court's ruling, denying wife's motion, had failed to recognize the court's duty to properly marshal and divide the community property—all of the community property. (Fam. Code, § 2556.) Accordingly, we reversed and remanded with directions to treat wife's motion as one to distribute unadjudicated assets; because wife's motion had merit in this respect, the order for sanctions was also reversed.
In the meantime, another storm was brewing, which ultimately led to a second appeal. Between the judgment in 2008 and this court's resolution of the first appeal in December 2009, husband had moved for an order to show cause (OSC) for contempt. He requested that wife be required to provide an accounting of the liquid assets, and asserted that wife had removed funds from various of the accounts, in violation of court orders restraining wife from transferring, encumbering, concealing or disposing of the property in her possession. That is, when husband's attorney attempted to collect certain money sums due on the judgment from some of the accounts, he found that the balances had been substantially depleted. Husband's attorney gave notice that he intended to conduct a judgment debtor examination and sent subpoenas duces tecum. Wife moved to quash the subpoenas, arguing that they were invalid because they had been sent after the discovery deadline, and because husband's attorney was disqualified from serving as the deposition officer. The trial court denied wife's motion to quash the subpoenas duces tecum, and sanctioned both wife and her attorney, ordering them to pay $9,000 in attorney fees to husband's counsel. Wife appealed this ruling and order.
On appeal, this court found some of the competing contentions of the parties unmeritorious. For example, wife argued that the subpoenas duces tecum were untimely, measuring the discovery cutoff date with respect to the property trial in 2007. We found this argument to be disingenuous, as the "trial" for purposes of these subpoenas duces tecum was the independent contempt proceeding. (In re Marriage of Nelson, supra, E048975.) Nevertheless, husband's argument that the subpoenas duces tecum were timely because they were issued 30 days before the date the contempt trial was set to begin was equally incorrect. The proper measure for discovery cutoff is 30 days before the date first set for trial of the action, not 30 days before some continued trial date. (In re Marriage of Nelson, supra, E048975.) Accordingly, we concluded that wife's motion to quash was meritorious, because the subpoenas duces tecum were issued well past the proper discovery cutoff date. We found no merit, however, in wife's further argument that husband's attorney was disqualified from serving as the deposition officer for the debtor's examination. Nevertheless, inasmuch as wife's motion to quash the subpoenas duces tecum as untimely was proper, we reversed the order denying her motion to quash, and also in turn reversed the $9,000 award of sanctions (attorney fees).
Wife's motion to quash had evidently succeeded in persuading some of the financial institutions, upon whom the subpoenas duces tecum had been served, to halt their preparation of papers in compliance with the subpoenas. Husband would therefore be unable to present the evidence he had sought at the trial of the OSC for contempt. (In re Marriage of Nelson, supra, E048975.)
Although husband's OSC for contempt was apparently unsuccessful, that was not the only avenue he had pursued. In August 2009, husband moved for an order to enforce the judgment. The moving papers alleged that the family law judgment had ordered an equal division between the parties of the liquid assets, e.g., bank and investment accounts, with a specified value of $696,906. Husband's one-half share was to be $348,453. The bulk of these assets were in wife's possession, custody or control. In addition to this division of property, the judgment had ordered wife to make an equalizing payment of $1,125 to husband, as well as to pay $53,034 to husband's attorney. None of these sums had been paid and, husband alleged, wife had instead removed funds from the accounts in violation of financial restraining orders. Husband also noted that the trial court had entered two orders against wife in the sum of $9,000 each (the second such order being joint with wife's attorney). Husband's motion requested the court to assume jurisdiction over the assets and the parties to enforce wife's obligation to transfer the funds to husband and to make the payments (with interest at the legal rate) to husband and his attorney. Husband's collection efforts against some of the accounts had succeeded in obtaining only $554 of the amounts owed.
Wife filed a response to husband's motion to enforce the judgment. She argued that the court had never entered a judgment in husband's favor for $348,453. Instead, the court had awarded each party "one-half of the balance" in each of the accounts, but "the Court did not determine the value of these accounts and was not in a position to do so . . . ." She contended that husband knew of the location of all the accounts referenced in the judgment, and that he could "establish to the Court the value of each of those accounts at the time of the entry of judgment." Husband could then "serve a Writ of Possession for that amount on each of the entities which control each of those accounts in order to effectuate his rights under the Judgment."
The trial court granted husband's motion in its entirety. It ordered husband to prepare, and the clerk to issue, writs of execution and abstracts of judgment as to the referenced amounts. The formal findings and order were filed on December 15, 2009, and ordered wife to pay directly to husband the sum of $349,024 (his one-half community property share of the accounts listed in the judgment, less the $554 that husband had so far been able to collect), plus interest of $95.62 a day from and after March 17, 2008. The court ordered the clerk to issue a writ of execution and an abstract of judgment consistent with its current order, as if the family law judgment of March 17, 2008, were a money judgment. Beyond this, the court ordered wife to pay directly to husband's attorney the sum of $62,034 (representing $53,034 ordered in the original 2008 family law judgment, plus one award of $9,000 in attorney fees as sanctions). Interest on the attorney fees payment of $53,034 was to run from the date of the original family law judgment on March 17, 2008, and interest on the $9,000 sanctions was to run from the order of July 30, 2008. The clerk was ordered to issue a writ of execution and abstract of judgment for these amounts. Finally, the court ordered wife to pay to husband's attorney another sum of $9,000, plus interest on and after June 10, 2009, the date of the second sanctions order. The court further ordered the clerk to issue a writ of execution and an abstract of judgment on this sanctions and interest award.
Wife has filed a timely notice of appeal from the court's enforcement order. She contends that the court must have "selectively reopen[ed] the case and rule[d] without a hearing and presentation of evidence," in finding the value of the funds in the various accounts, and giving husband a money judgment for half that value, i.e., of the assets retained by wife, to the extent husband had been so far unable to collect from those accounts.
Wife maintains that the trial court's original statement of decision, at the time of the trial on the property division issues, indicated that the "various bank and security accounts have not been established with any degree of certainty," and that there was "simply no way, given the state of the evidence, for the court to divine the source of the funds invested either prior to, or during marriage." Thus, she appears to argue that there could be no particular values found for any of the accounts, which it had ordered divided in the original judgment. In the same vein, wife reproduces in her brief the listing of the accounts, which were ordered divided, but omits the specification of which account and its value as found by the trial court.
Wife thus urges that it was an "abuse of discretion to reopen and enter a new judgment . . . without the opportunity to present evidence at a hearing of the values in the accounts at the time of judgment . . . ." Wife also asserts that the order below was not supported by the evidence, purportedly because husband's trial counsel had acknowledged in earlier proceedings that there was insufficient evidence to determine the amounts to be split.
Finally, in her reply brief, wife notes that the current order includes two awards of attorney fees, of $9,000 each, based upon orders made on July 30, 2008, and June 10, 2009, respectively, and points out that this court reversed both of those awards, one in each of the earlier two appeals.
We turn now to an examination of wife's claims.
The gist of wife's claim is that, "the Trial Court did not determine the value of these assets [i.e., bank and investment accounts] at the time of judgment and substantial evidence does not exist as to the value of these assets at the time of judgment."
Wife is able to make this argument only by quoting selectively from the trial court record, misconstruing the trial court's statements, and omitting essential information.
Wife's recitation of the awards of "One-half of the balance in . . ." various bank and investment accounts conveniently fails to include, as to each such asset, the information specifically identifying the asset, and the value the trial court had assigned to each. (See fn. 2, ante.) Contrary to wife's assertions, the trial court did assign a specific value to each such asset, at the time of trial, and ordered the balances in those accounts, at the stated amounts, to be divided equally between the parties. To pretend otherwise, as wife has done here, is simply disingenuous. Merely by looking at the judgment, we can easily see that the assets to be divided were valued in total at $731,605, one-half of which was $365,802. The money judgment amount, which the trial court ordered below ($349,024) employed the values stated in the property judgment, with adjustments for the few assets held by husband and the paltry sum he had successfully recovered from the depleted accounts.
The matters wife has seized upon to claim that the trial court found "no evidence" to set the values of the bank and investment account assets are misleading quote mines. Wife's claim at the property trial was that she had contributed the funds to those accounts and that the assets should be characterized as her separate property. She failed to produce sufficient evidence of tracing to establish her separate property claim to those assets. It was the tracing evidence that the court stated was lacking, i.e., the value of the assets before marriage and the value of the assets at the date of separation. The trial court made its remarks in the context of its determination of the characterization of the assets, not the evidence of valuation in general. Wife had failed to produce evidence of her separate property claims; the court accordingly treated the assets as community property to be divided equally between the parties.
Similarly, wife seizes upon the request of husband's attorney, made at the time the property judgment was under consideration by the court, to include in its statement of decision "an accounting of each of the listed accounts from the date of separation through and including the present . . . ." That is, husband was apparently concerned that wife, who had control over most of the accounts, had been using them since separation for her living expenses, and the amounts that she so used should be credited against her community property share. The trial court declined to include such an accounting of values between the date of separation and the date of trial or judgment, because there was no such evidence of those differential values at the specified, separate time points. That does not mean, however, that there was no evidence of the value of each account at the time of trial.
In short, there was evidence adduced at trial to support the valuation of the various bank and investment accounts, and those values were expressly stated in the property judgment. If wife had a quarrel with the specific valuations of those accounts, her remedy was to appeal the original judgment. She failed to do so within the jurisdictional time, and any attack on the sufficiency of the evidence to support the judgment is now foreclosed to her. (See Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 662 [appellate court has no jurisdiction to review untimely appeal]; In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [policy of liberal construction of appeal does not confer power on court to consider untimely appeal].)
The trial court did not "reopen" the case without permitting the parties to take evidence. Wife's claim otherwise is a blatant mischaracterization of the proceedings. There was no need to "reopen" anything and no need for further evidence. The trial court had found the values of the bank and investment account assets at the time of trial, and had expressly included those values in the original judgment. Husband's motion below was simply one to enforce the judgment, and to order wife to disgorge the stated amounts of those assets, which had already been established by the trial court in the original judgment several years earlier.
The trial court's order that wife pay to husband $349,024, plus interest, was proper.
The trial court also ordered wife to pay $62,034 to husband's attorney, consisting of $53,034 she had been ordered to pay in the original judgment, plus $9,000 in attorney fees (sanctions) in connection with the court's order of July 30, 2008. In addition, it ordered wife to pay $9,000 in attorney fees (sanctions) in connection with the trial court's order of June 10, 2009. Interest on the attorney fees award of $53,034 was to run from the date of the property judgment, and interest on the attorney fees (sanctions) awards was to run from the date of the respective sanctions orders.
Wife does not contest the order to pay $53,034, plus interest to run from the date of the original property judgment (Mar. 17, 2008). However, she correctly points out that each of the sanction orders, in the amount of $9,000, was reversed in connection with the respective appeals pertaining to each. (See In re Marriage of Nelson, supra, E046359; In re Marriage of Nelson, supra, E048975.) Those portions of the enforcement order therefore cannot stand.
Because this court had earlier reversed each of the $9,000 sanctions awards, the portions of the trial court's money judgment enforcement orders relating to the payment to husband's counsel of $9,000 plus interest from and after July 30, 2008, and to the payment to husband's counsel of $9,000 plus interest from and after June 10, 2009, must be reversed. We remand with directions to strike those portions of the money judgment order. In all other respects, the judgment is affirmed.
We note that, although wife's appeal is partially successful, i.e., as to her minor claim, her primary claim was proffered and supported disingenuously, by distorting and misrepresenting the record. Husband was therefore the prevailing party as to the main part of the judgment. For this reason, and in the interest of justice, we order that costs on appeal should be awarded to respondent Jimmie H. Nelson.
RAMIREZ, P. J. and KING, J., concurs.
