Marriage of Sa and Martino CA6

Filed 11/19/14 Marriage of Sa and Martino CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re Marriage of THOMAS A. SA and H039875
CELESTE MARTINO. (Santa Clara County
Super. Ct. No. 1-97-FL-068680)

THOMAS A. SA,

Respondent,

v.

CELESTE MARTINO,

Appellant.

Celeste Martino appeals from an order awarding her supplemental attorney fees
under Family Code sections 2030 and 3557 for her efforts to recover child support arrears
1
from her former husband, Thomas A. Sa. Martino contends that the court abused its
discretion by awarding her an insufficient amount to cover her attorney fees. We will
affirm the order.
Background
The parties’ marriage was dissolved in December 1999, when their son was five
years old. They agreed at that time that Sa would pay Martino $700 a month in child
support, along with half of the childcare costs and half of all agreed-upon educational
expenses. In November 2004, when their son was 10 years old, Martino moved to
1
All further statutory references are to the Family Code.
modify child support and tuition allocation, claiming loss of employment and
concomitant inability to pay half of the child’s private school tuition. The court increased
child support to $1,615 per month until March 1, 2006, at which time income of $5,000 a
month would be imputed to Martino and child support would be reduced to $1,239 a
2
month. Sa would also be subject to an “Ostler-Smith” order for any bonus he might
receive over his annual base salary of $156,744, reduced by Sa’s payment of Martino’s
half of the tuition for the 2004-2005 school year. The parties were to bear their own
attorney fees.
On February 15, 2012, when their son was 17 and in his last year of high school,
Martino filed an order to show cause, claiming arrears in the Ostler-Smith payments and
seeking $7,500 in attorney fees for the period from 2005 through 2011. In response, Sa
submitted a declaration along with evidence of payments he had made to Martino,
including voluntary increases in base child support in 2007 and 2009, so that by 2011 he
was paying $1,800 a month. Sa also provided e-mail correspondence in which he and
Martino had agreed that he would pay Martino’s share of the child’s tuition and deduct it
from his Ostler-Smith payments. He claimed overpayment to Martino of $9,500,
opposed Martino’s attorney fee request as unreasonable, and sought attorney fees from
her as a sanction for filing a “false motion.”
The matter initially came on for hearing on April 12, 2012, but the court decided
to continue it because Martino’s counsel had not filed the necessary paperwork to comply
with the California Rules of Court procedures for claiming attorney fees under
3
section 2030. When the proceedings resumed on May 3, the court heard argument and

2
See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 52 (court may award
percentage of parent’s bonuses as part of child support); accord, In re Marriage of
Mosley (2008) 165 Cal.App.4th 1375, 1387.
3
The court was referring to California Rules of Court, former rule 5.93. That rule was
subsequently renumbered as rule 5.427, effective January 1, 2013.

2
then, noting the disparity in the parties’ financial positions, ordered Sa to pay $5,000 in
attorney fees under section 2030 and $3,500 in costs. The court then added, “And the
message that I’m sending is that I’m not going to fun scorched-earth litigation. And
you’re going to have to make do with the modest award that I’ve given you at this time.
And this Court’s a big fan of folks who meet and confer and try to resolve things without
running up attorney’s fees.”
Settlement negotiations eventually culminated in an agreement with respect to
child support arrears. On February 5, 2013, the parties signed a “Stipulation and Order”
providing for a $75,000 payment to Martino. The attorney fees issue, however, remained
unresolved.
Martino then sought her additional attorney fees and costs. Citing sections 2030,
3557, and 271, she requested $33,667, along with $3,747.47 in costs, less the amounts
“advanced” in the May 3, 2012 order, plus $2,100 in anticipated fees and costs for her
reply and the hearing. Sa vigorously opposed the request. Each party accused the other
of resisting settlement in bad faith. Martino asserted that Sa had “sandbagged his
Ostler-Smith obligation and simultaneously manufactured an offset,” and she had never
agreed to pay half of their son’s private school tuition. Sa met these allegations with his
own account of the history of the parties’ postseparation relationship. He reminded the
court that he had previously had to resort to finding bank statements and copies of checks
to Martino going back seven years and that he had voluntarily increased his monthly
support amount. He also maintained that Martino had agreed to share the tuition cost,
and that until now, when their son was about to graduate, she had never questioned the
arrangement in which he would offset her share against his Ostler-Smith obligation. Sa
requested attorney fees as a sanction for Martino’s “repeated attacks on [his] character,
honesty, and conduct in these proceedings”; her bad faith in reneging on the tuition
agreement; and her refusal to attempt to resolve the issues between them.

3
 The superior court issued a tentative decision finding Martino’s request to be
“unreasonable and unnecessary and unworthy of an augmentation of the original award of
attorney fees and costs.” After a hearing on the matter, however, the court found an
additional amount to be justified. The court first denied both parties’ requests for
sanctions under section 271, finding that “although there were legitimate factual and legal
disputes about several aspects of [Martino’s] request for determination of Smith/Ostler
arrears, each party engaged in conduct that frustrated the policy of the law to promote
settlement of litigation and reduce the cost of litigation.” Addressing Martino’s request
under sections 2030 and 3557, the court noted the significant “complicating factors” that
had increased the attorney fees incurred by Martino. In light of those factors and the
disparity in the parties’ access to funds for legal representation, the court determined that
an additional $3,000 to Martino was warranted. The court expressly recognized that this
amount was “substantially less” than Martino claimed to have incurred, but it was the
amount “reasonably necessary for the cost of maintaining the underlying proceeding.”
From that May 20, 2013 order, Martino brought this timely appeal.
Discussion
With only the most cursory acknowledgment of the scope and standard of this
court’s review, Martino revisits the history of this litigation, skewing the facts to favor
her position below. Rather than focusing on the sufficiency of the evidence supporting
the court’s order, she contends that the court “disregarded substantial evidence” in
determining her need for support and that it should have reached a contrary result. She
misconceives our role, however. The existence of substantial evidence supporting the
appellant’s position is not sufficient for a reversal of the lower court’s decision. We do
not reweigh the facts, viewing them in the appellant’s favor, nor do we determine
whether substantial evidence supported the appellant’s factual assertions. On the
contrary, when the court’s factual findings are challenged we determine whether
substantial evidence supports the lower court’s order. (In re Marriage of Cryer (2011)

4
198 Cal.App.4th 1039, 1047.) We view the record it in the light most favorable to the
prevailing party and give that party “the benefit of every reasonable inference.” (In re
Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151, italics added; In re Marriage of
Rossi (2001) 90 Cal.App.4th 34, 40.) It is the family court in the first instance that “sits
as trier of fact and . . . is called upon to determine that a witness is to be believed or not
believed. This is the nature of fact finding.” (In re Marriage of Greenberg (2011) 194
Cal.App.4th 1095, 1099.) Martino’s one-sided account of the events below is “an
argumentative presentation that . . . disregards the most fundamental rules of appellate
review” and “the admonition that she is not to ‘merely reassert [her] position at . . .
trial.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.) “As Justice
Mosk well put it, such ‘factual presentation is but an attempt to reargue on appeal those
factual issues decided adversely to it at the trial level, contrary to established precepts of
appellate review. As such, it is doomed to fail.’ ” (Ibid., quoting Hasson v. Ford Motor
Co. (1982) 32 Cal.3d 388, 398-399.)
It has also not escaped our notice that the record contains no billing statements
justifying Martino’s $33,667 request, even though her attorney apparently submitted
copies of them to opposing counsel. She acknowledges that the lower court did not have
these statements either, but merely asserts that Sa “chose not to submit [them] . . . and
[Martino] was not allowed to do so.” On appeal, Martino fails to explain why “the
requested fees should be presumed accurate and appropriate under the circumstances.”
On the contrary, “where items in a cost bill are properly challenged, they are put in issue,
and the burden of proof is upon the party claiming them as costs.” (Melnyk v. Robledo
(1976) 64 Cal.App.3d 618, 624; Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) In
any event, the family court based its decision on its determination of what was
reasonable. “The ‘experienced trial judge is the best judge of the value of professional
services rendered in his court, and while his [or her] judgment is of course subject to
review, it will not be disturbed unless the appellate court is convinced that it is clearly

5
wrong.’ [Citation.]” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The lower court was
under no obligation simply to take counsel’s word for the accuracy and justifiability of
the amounts claimed. Nor are we.
Contrary to Martino’s assumption, the family court had “considerable latitude to
make a just and reasonable fee award.” (In re Marriage of Cryer, supra, 198 Cal.App.4th
at p. 1054.) Its decision is not reviewed de novo, but must be upheld absent “a clear
showing of abuse of discretion.” (In re Marriage of Czapar (1991) 232 Cal.App.3d
1308, 1318-1319.) “The discretion invoked is that of the trial court, not the reviewing
court, and the trial court’s order will be overturned only if, considering all the evidence
viewed most favorably in support of its order, no judge could reasonably make the order
made.” (In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296; accord, In re Marriage
of Sullivan (1984) 37 Cal.3d 762, 769; In re Marriage of Keech (1999) 75 Cal.App.4th
860, 866.)
The court’s exercise of discretion must, of course, reflect consideration of the
appropriate statutory factors. (In re Marriage of Hatch (1985) 169 Cal.App.3d 1213,
1219; accord, In re Marriage of Keech, supra, 75 Cal.App.4th at p. 866.) To this end,
sections 2030, 3557, 2032 provide the relevant guidance. In proceedings to enforce a
child support order, section 3557 expresses the Legislature’s paramount concern:
“Notwithstanding any other provision of law, absent good cause to the contrary, the
court, in order to ensure that each party has access to legal representation to preserve each
party’s rights, upon determining (1) an award of attorney’s fees and cost under this
section is appropriate, (2) there is a disparity in access to funds to retain counsel, and
(3) one party is able to pay for legal representation for both parties, shall award
reasonable attorney’s fees” to the “custodial parent or other person to whom payments
should be made.” (§ 3557, subd. (a)(1)(A).)
Section 2030 also expresses the state’s policy to “ensure that each party has access
to legal representation . . . by ordering, if necessary based on the income and needs

6
assessments, one party, except a governmental entity, to pay to the other party, or to the
other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and
for the cost of maintaining or defending the proceeding during the pendency of the
proceeding.” (§ 2030, subd. (a)(1).) Accordingly, if the court finds a “disparity in access
and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (Id.,
subd. (a)(2).) In addition, the order may, as the court did in this case, augment the
original award “as may be reasonably necessary for the prosecution or defense of the
proceeding . . . .” (Id., subd. (c).)
Section 2032 adds that the award must be “just and reasonable,” which is
determined by evaluating the “need for the award to enable each party, to the extent
practical, to have sufficient financial resources to present the party’s case adequately,
taking into consideration, to the extent relevant, the circumstances of the respective
parties described in Section 4320.” (§ 2032, subd. (b).) “In assessing the applicant’s
relative ‘need’ and the other party’s ability to pay, the court may take into account ‘all
evidence concerning the parties’ current incomes, assets, and abilities, including
investment and income-producing properties.’ ” (In re Marriage of Terry (2000) 80
Cal.App.4th 921, 933, quoting In re Marriage of Drake, supra, 53 Cal.App.4th at
p. 1167.) In addition to the parties’ relative financial resources, the relevant
circumstances include the nature and difficulty of the litigation, the skill required and
employed by the attorney, and the time necessarily consumed in pursuing the litigation.
(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318.) The court may also
consider the parties’ trial tactics. (In re Marriage of Falcone & Fyke (2012) 203
Cal.App.4th 964, 975; In re Marriage of Drake, supra, at p. 1167; In re Marriage of
Sharples (2014) 223 Cal.App.4th 160, 165.) The purpose of these provisions “is not the
redistribution of money from the greater income party to the lesser income party,” but
rather “parity: a fair hearing with two sides equally represented.” (Alan S. v. Superior
Court (2009) 172 Cal.App.4th 238, 251.)

7
 To the extent that Martino accuses the family court of failing to take into account
the parties’ respective financial circumstances, she is simply wrong. The court expressly
recognized and applied the mandates stated in sections 2030 and 3557, not only in the
May 2012 order but also on this occasion in May 2013, “based upon the disparity in
access to funds to retain counsel, and [Sa’s] ability to pay attorney fees for both parties.”
The court’s decision to add $3,000 to the previous award reflects a proper consideration
of the applicable factors in determining what was “reasonably necessary” for Martino to
pursue the issue of child support arrears, including the determination that her counsel’s
fees were excessive due to what one court has called “overlitigation.” (In re Marriage of
Turkanis and Price (2013) 213 Cal.App.4th 332, 356.) The family court in this case
found that, notwithstanding its warning one year earlier, Martino had overlitigated this
case even beyond the effect of the “complicating factors.” Through her attorney Martino
had made “false or misleading” claims that Sa’s Ostler-Smith payments were “unknown”;
she had delayed in seeking arrears and failed to provide a clear explanation of her factual
and legal contentions; and she had failed to question Sa’s deductions from his
Ostler-Smith payments for her half of their son’s tuition until 2012. Also complicating
the court’s evaluation were the nature of the stock awards received by Sa and the effect
4
on Ostler-Smith support of Sa’s voluntary increases in base child support payments. For
his part Sa had taken an unreasonable position on the extent of his Ostler-Smith
obligation and by asserting that Martino’s request was barred by res judicata.
We cannot find fault with any of the court’s reasoning. “ ‘ “The exercise of sound
discretion by the trial court in the matter of attorney’s fees includes also judicial
evaluation of whether counsel’s skill and effort were wisely devoted to the expeditious
disposition of the case . . . [S]ervices [that] have no apparent effect other than to prolong

4
On this point the court rejected the testimony of Martino’s expert, whose calculations
the court found to be “incorrect.”

8
and to complicate domestic litigation cannot be deemed “reasonably necessary” [citation]
“to properly litigate the controversy.” ’ [Citation.]” (In re Marriage of Turkanis and
Price, supra, 213 Cal.App.4th at p. 356.) The record in this case discloses no “ ‘arbitrary
determination, capricious disposition, or whimsical thinking’ ” by the family court, and
we therefore cannot say that no judge would reasonably have made the same order. (In
re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316; In re Marriage of Battenburg
(1994) 28 Cal.App.4th 1338, 1343; In re Marriage of Hargrave (1985) 163 Cal.App.3d
346, 355; In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) Martino thus fails to
meet her burden to show abuse of the court’s sound discretion in determining that her
claim for additional fees was excessive and that a justifiable amount was $3,000.
Reversal is not required.

Disposition
The order is affirmed.

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 _________________________________
ELIA, J.

WE CONCUR:

_______________________________
RUSHING, P. J.

_______________________________
MÁRQUEZ, J.