Sweeney v. Evilsizor CA1/1

Filed 4/19/16 Sweeney v. Evilsizor CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOSEPH SWEENEY,
Defendant and Appellant,
A144781
v.
KERI EVILSIZOR, (Contra Costa County
Super. Ct. No. MSD1301648)
Plaintiff and Respondent;
JOHN EVILSIZOR et al.,
Objectors and Respondents.

Appellant Joseph Sweeney appeals from a trial court order denying requests for
attorney fees projected to be incurred in a then-pending appeal and already incurred in a
civil lawsuit involving his former spouse, respondent Keri Evilsizor, and her parents,
respondents John and Mary Evilsizor.1 We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND

This is the fourth appeal we have considered in this dissolution proceeding.
Joseph and Keri were married in November 2010 and had one child, a daughter, in
November 2012. They separated months later, and dissolution proceedings were initiated

1
Because three of the parties in this opinion share a surname, we refer to all parties by
their first names in the interest of clarity.
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shortly thereafter. Keri’s parents were later added as parties because assets under their
control could be subject to disposition by the court.
The trial court has characterized this as a “highly contentious case.” The disputes
have continued on appeal, with all parties appealing adverse rulings at one point or
another, and this court declining to set aside any of those rulings. In Evilsizor v. Sweeney
(2014) 230 Cal.App.4th 1304 (Evilsizor I), we affirmed a sanctions award against Keri’s
father for failing to promptly withdraw a motion to quash a subpoena. In In re Marriage
of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416 (Evilsizor II), we affirmed a
restraining order against Joseph to prevent him from disseminating information he had
surreptitiously downloaded from Keri’s mobile phones. This appeal is the second appeal
involving disputes about Joseph’s entitlement to attorney fees.
Early in the proceedings, in July 2013, the trial court ordered Keri to pay Joseph
$10,000 for attorney fees. Keri initially paid half of that amount, but she resisted paying
the rest.
Soon after the trial court issued the $10,000 award, Keri’s parents sued Joseph and
Keri in a separate lawsuit, civil action C13-01866 (hereafter “the civil lawsuit”), for fraud
and breach of contract in connection with loans the parents allegedly extended to Joseph
and Keri. Keri quickly agreed to a settlement of that case, but the trial court enjoined her
from executing the settlement, joined the case with the dissolution proceedings, and
stayed the case during the pendency of the dissolution proceedings.
In January 2014, Joseph filed a motion for attorney fees and costs, which we will
refer to as his “first fees request.” In it, he sought $131,918.73 in fees (and $870 in costs)
from Keri’s parents and $22,917.50 in fees (and costs of a pending custody evaluation)
from Keri. He also sought $26,664.15 for fees he allegedly incurred in the civil lawsuit.
In support of the motion, he submitted approximately 150 pages of evidence and
argument, including evidence and argument about his, Keri’s, and Keri’s parents’
financial positions, and evidence about the amount of attorney fees he incurred in the
civil lawsuit. Keri and her parents opposed the motion with their own extensive evidence
and argument.

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 A hearing was held in June 2014 to consider various pending matters, including
Joseph’s first fees request. On the day of the hearing, Keri apparently paid the remaining
$5,000 owed to Joseph under the July 2013 order, and she was ordered to pay him $5,000
more. Thus, as of June 2014, Keri had been ordered to pay a total of $15,000 to Joseph
for attorney fees. At the conclusion of the hearing, the court ordered additional financial
information from Keri and Keri’s parents and continued the hearing to the following
month.
After hearing arguments at the continued hearing on July 25, 2014, the trial court
found that Joseph lacked substantial assets and that Keri appeared to be receiving
assistance from her parents to pay litigation expenses. Based on these findings, the court
awarded Joseph a total of $125,000 in additional attorney fees, but it denied his request
for $26,664.15 to pay for fees he allegedly incurred in the civil lawsuit. The court stated,
“[W]ith respect to the amounts . . . that [Joseph] asked for amounts from the civil action
while it was separate, . . . I don’t think he can get that in this case.”
The $125,000 fees award was composed of $75,000 for fees already incurred (of
this amount $60,000 was to be paid by Keri and $15,000 was to be paid by her parents)
and $50,000 for Joseph’s anticipated future fees (of this amount $40,000 was to be paid
by Keri and $10,000 was to be paid by her parents). The award was expressly made
“subject to reallocation at the time of trial.” The court stated that “given everything I’m
hearing, it’s possible that ultimately some of the facts will not turn out to be as they look
at this moment, so I’m completely reserving all reallocation issues to time of trial. If it
turns out that what it appears to be the case today is, in fact, not at all the case, then we
will make the appropriate adjustment.”

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 Keri and her parents appealed from the $125,000 fees award but Joseph did not.
We recently affirmed the award in that appeal.2 (Evilsizor v. Sweeney (Mar. 22, 2016,
A143054) [nonpub. opn.] (Evilsizor III).)
In December 2014, while Evilsizor III was pending, and only four-and-a-half
months after obtaining the $125,000 fees award, Joseph filed another motion for attorney
fees, which we shall refer to as his “second fees request.” In it, he sought $12,600
($4,200 from Keri and $8,400 from her parents) for fees he expected to incur in
Evilsizor III and $3,600 (from Keri) for fees he expected to incur in the same appeal
regarding the trial court’s denial of Keri’s request to change the daughter’s surname. He
also repeated his request for attorney fees incurred in the civil lawsuit, this time
requesting slightly more ($28,589). The motion was denied following a hearing on
January 22, 2015,3 and this appeal followed.
II.
DISCUSSION

1. The Standard of Review
“A motion for attorney fees is left to the trial court’s sound discretion and will not
be disturbed on appeal absent a clear showing of abuse,” that is, “ ‘ “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 Bendetti (2013) 214 Cal.App.4th 863, 868-
869.)

2
In their brief, respondents ask that the court take judicial notice “of the Appeal in
Appeal Number: A1143054 [sic].” To obtain judicial notice by a reviewing court, a party
must file a separate motion. (Cal. Rules of Court, rule 8.252(a)(1); Ct. App., First Dist.,
Local Rules of Ct., rule 9(a), Judicial Notice Requests.) Notwithstanding respondents’
noncompliance with the rules, the court nonetheless takes judicial notice of the record
and opinion in No. A143054 given their relevance to the current appeal. In that appeal,
we also rejected Keri’s appeal of an order denying a request to change the surname of her
and Joseph’s daughter.
3
At the January 2015 hearing, the parties accepted, and the trial court approved, a
stipulation under which Joseph received an additional $4,000 in attorney fees to enable
him to be represented at an upcoming settlement conference.
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 Furthermore, a trial court’s order is presumed to be correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557.) “[I]t is settled that: ‘A judgment or order of the lower court
is presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown [by the
appellant]. This is not only a general principle of appellate practice but an ingredient of
the constitutional doctrine of reversible error.’ ” (Id. at p. 564.) “The burden of
affirmatively demonstrating error is on the appellant.” (Fundamental Investment etc.
Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
2. The Family Code Authorizes Trial Courts to Allocate Between Parties in
Dissolution Proceedings Attorney Fees Actually or Projected to Be Incurred.

Under Family Code, section 2030,4 a trial court in a dissolution proceeding “shall
ensure that each party has access to legal representation . . . by ordering, if necessary
based on the income and needs assessments, one party . . . 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.” In determining whether such an order is appropriate, the trial court must
determine whether the award and its amount “are just and reasonable under the relative
circumstances of the respective parties.” (§ 2032, subd. (a).) It must therefore consider
“the parties’ respective needs and incomes, including their assets and liabilities.” (In re
Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.) The court must take into
consideration several factors, including those that “the court determines are just and
equitable.” (§ 4320, subd. (n); see § 2032, subd. (b).) And it may award attorney fees
payable by unrelated third parties who have been joined in the dissolution action.
(Marriage of Bendetti, at p. 869; In re Marriage of Siller (1986) 187 Cal.App.3d 36, 40;
§ 2030, subd. (d).)
“The public policy purpose behind sections 2030 and 2032 is ‘ “leveling the
playing field” and permitting the lower-earning spouse to pay counsel and experts to

4
All statutory references are to the Family Code unless otherwise specified.
5
litigate the issues in the same manner as the spouse with higher earnings.” [Citation.]
. . . A spouse should not have to utilize support payments designed to pay living
expenses to fund litigation in the dissolution proceeding. [Citation.]” (In re Marriage of
Tharp (2010) 188 Cal.App.4th 1295, 1315-1316.)
A request by a party in a dissolution proceeding for an award of fees that have not
yet been, but are expected to be incurred, is referred to as a request for “pendente lite”
fees.5 These requests are common in dissolution proceedings, and a trial court abuses its
discretion if it denies such a request without considering the needs of the party making
the request and the ability to pay of the party from whom the request is made. (In re
Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1215-1216.) Thus, the court must
consider the parties’ financial positions when it decides whether to award pendente lite
fees. But it may also consider other factors, such as the complexity of the issues, the
costs already and expected to be incurred, and the parties’ trial tactics. (In re Marriage of
Falcone & Fyke (2012) 203 Cal.App.4th 964, 975; In re Marriage of O’Connor (1997)
59 Cal.App.4th 877, 884.)6
3. The Trial Court Did Not Abuse Its Discretion in Denying Joseph’s Second
Request for Pendente Lite Fees.

As we have mentioned, the $125,000 fees award granted in July 2014 as a result of
Joseph’s first fees request included $50,000 in pendente lite fees. The question presented
here is whether Joseph has satisfied his burden of showing that the trial court abused its
discretion—i.e., that no reasonable judge could have reached the same conclusion—when
it denied his second request for additional pendente lite fees brought four-and-a-half
months after the July 2014 award. We conclude he has not.

5
“Pendente lite” is a Latin phrase meaning “while the action is pending.” (Garner, Dict.
of Modern Legal Usage (3d ed. 2011) p. 665.)
6
Respondents argue that we must affirm the denial of Joseph’s request for additional
pendente lite fees because the award was sought “before [the fees] were actually
litigated” and because Joseph ended up representing himself in the appeal. These
arguments miss the point of pendente lite fees, which is to enable a party that lacks
resources to obtain representation for future anticipated litigation.
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 As we explained in Evilsizor III, before ruling on Joseph’s first fees request, the
trial court had received extensive financial information from the parties and had
considered the appropriate factors, including Joseph’s needs and the ability of the other
parties to pay. Regarding Joseph’s needs, the trial court found that Joseph lacked
substantial assets. It stated, “I don’t see that [Joseph] has substantial assets that actually
could be used at this point.” Regarding the ability of Keri’s parents’ to pay fees, the
court stated that, while “any participation by [the parents] on attorney’s fees has to be
limited to the issues which their participation is relevant,” “I have looked at their 2012
tax return . . . and looking at that, as well as the [income and expense statement], that
they have assets and income that are available to them to pay fees.” Regarding Keri’s
ability to pay fees, the court explained, “She had a very high income until she was
ordered to pay [Joseph] support out of that income, and then suddenly she was terminated
[by her parents]. . . . And her parents seemed to be willing to continue to fund for
litigation. So I think one way or another she has access to money to pay attorneys.”
In affirming the $125,000 fees award, we concluded that the trial court properly
exercised its discretion in ordering Keri’s parents to pay both a portion of Joseph’s fees
already incurred and a portion of his pendente lite fees. (Evilsizor III, supra, A143054.)
Far from disagreeing with that conclusion, Joseph argued for it. And in his brief in this
appeal, he continues to emphasize the importance of the evidence presented to and relied
on by the trial court when it granted the $125,000 fees award.
Joseph’s contention that the trial court abused its discretion in denying his second
request for more pendente lite fees is hard to reconcile with his prior positions. His
argument is that, although the trial court correctly understood and applied the relevant
factors in granting his first fees request, it abused its discretion by misunderstanding or
misapplying these factors in denying his second fees request submitted months later. We
are not persuaded by this argument, and we find no support in the record for it. There is
simply no basis for us to conclude that the court was unaware of the evidence and
arguments it had considered in connection with the first fees request when it considered
the additional evidence and argument submitted in support of the second fees request. To

7
the contrary, the record shows that the court thoughtfully considered the evidence and
relevant factors. And in a ruling that we think only underscores the reasonableness of its
ruling, the trial court expressly acknowledged its authority to reallocate fees later in the
litigation.
A challenge similar to the one Joseph makes here was considered and rejected in
In re Marriage of O’Connor, supra, 59 Cal. App.4th at pages 883-884. In that case, the
appellate court concluded that “[t]he trial court was eminently well qualified to rule on
husband’s request for additional attorney’s fees and costs, having previously ruled on
several motions brought by wife for summary adjudication of issues, and having at three
separate hearings considered the parties’ extensive factual arguments on their cross-
motions for attorney’s fees as sanctions. . . . With this background, the court’s decision-
making process followed section 2032 to the letter. The court considered the complexity
of the issues involved in the litigation, the wealth and available resources of the parties,
and the litigation costs already incurred and expected to be incurred through trial. In
addition, the court acknowledged that an award of pendente lite fees was subject to
revision in the future.”
As the trial court in O’Connor exercised proper discretion, so did the trial court
here.
4. Joseph’s Second Request for Fees Incurred in the Civil Lawsuit Was
Properly Denied.

In his second fees request, Joseph again sought from Keri’s parents the attorney
fees he incurred in the civil lawsuit, which was brought by Keri’s parents against both
Joseph and Keri in connection with loans the parents allegedly extended to Joseph and
Keri. The civil lawsuit was eventually stayed pending resolution of the dissolution
proceedings, but Joseph alleged that he incurred $28,589 in attorney fees before the stay
was imposed. On appeal, he argues that the trial court was required as a matter of law to
have awarded him those fees. He is mistaken.
Section 2030 allows for awards of attorneys fees to be augmented or modified “as
may be reasonably necessary for the prosecution or defense of the [dissolution]

8
proceeding, or any proceeding related thereto . . . .” (§ 2030, subd. (c), italics added.)
This language authorizes a trial court in a dissolution proceeding, under appropriate
circumstances, to award to a spouse attorney fees incurred in certain related independent
civil actions.7 (In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, 1497; In
re Marriage of Green (1992) 6 Cal.App.4th 584, 590-591.) The court may even, again
under appropriate circumstances, require a non-spouse who is a party in the related action
to pay the fees. (In re Marriage of Siller, supra, 187 Cal.App.3d at p. 42.) The court’s
authority under section 2030 to award fees incurred in separate action turns on whether
that action is sufficiently related and whether the award will serve the purpose of section
2030, which is to provide a spouse with funds adequate to properly litigate the dissolution
action in light of the spouses’ respective financial positions. (In re Marriage of Seaman
& Menjou, supra, 1 Cal.App.4th at pp. 1496-1497.)
None of these general principles mean that the trial court here was authorized,
much less required, to order Keri’s parents to pay Joseph the fees he incurred in the civil
lawsuit. To begin with, the civil lawsuit has not been found by the trial court to be
“related” within the meaning of section 2030. “[T]here are limits as a matter of law as to
whether another action is ‘related’ to a [dissolution proceeding] within the meaning of
[section 2030]. Simply because divorcing spouses are parties to another action does not
automatically mean it is statutorily ‘related.’ For example, a collection action brought
against the spouses by an unpaid creditor would normally not be ‘related’ to the
dissolution action, even though the obligation is a community obligation. On the other
hand, an action filed by one spouse against the other for the purpose of harassment or
intimidation is clearly related to the dissolution action within the meaning of [section
2030].” (In re Marriage of Green, supra, 6 Cal.App.4th at pp. 591-592, fn. 7.)

7
Section 2030 was enacted in its current form in 2005. The pre-2005 version of section
2030 was section 4370. Although section 2030 is worded slightly differently from its
predecessor, they have been interpreted to have the same effect. (Burkle v. Burkle (2006)
144 Cal.App.4th 387, 401.)
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“Normally, whether another action is ‘related’ to the marital case within the meaning of
section [2030] is a factual question for determination by the trial court.” (Id. at p. 591.)
Here, while there is nothing to prevent the trial court from considering such a
finding in the future, the court has not found that the civil lawsuit is related to the
dissolution action for purposes of section 2030. The civil lawsuit may be a legitimate
claim by Keri’s parents, in which case it would not be related, or it may have been filed
in collusion with Keri for the purpose of harassing or intimidating Joseph, in which case
it would be related. Until and unless the court finds that the civil lawsuit is related for
purposes of section 2030, it lacks authority to award Joseph the fees he has incurred in
that action.
Our ruling at this juncture does not necessarily end the matter. In subsequent
proceedings, whether in connection with interim fees requests or at the conclusion of the
dissolution proceeding,8 the trial court may award Joseph attorney fees incurred in the
civil lawsuit if it finds that the civil lawsuit is related within the meaning of section 2030
and the award is necessary to provide Joseph with funds adequate to properly litigate the
dissolution action in light of the spouses’ respective financial positions and other relevant
factors. (In re Marriage of Seaman & Menjou, supra, 1 Cal.App.4th at pp. 1496-1497.)
The court may also deny those fees if it finds that the civil lawsuit is unrelated or the
award is unnecessary to provide Joseph with funds adequate to properly litigate the
dissolution action.

8
Trial court orders regarding “fee requests in conjunction with interim motions, without
more, cannot preclude the court from exercising its responsibility on this issue at the end
of the case. Trial courts have a duty to award appropriate attorney fees and costs
pendente lite pursuant to [section 2030]. [Citation.] However, trial courts also have a
duty at the conclusion of the case to make a just and reasonable award of attorney fees
and costs, considering the circumstances of the parties.” (In re Marriage of Green,
supra, 6 Cal. App.4th p. 593.)
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 5. Joseph’s Constitutional and Statutory Rights Were Not Violated at the
January 2015 Hearing.

Joseph also argues that the trial court violated his due process and statutory rights
at the January 2015 hearing. He claims that the court violated his rights by failing to
recognize that Keri’s parents essentially “conceded [his] motion” by not opposing it in
writing, “hastily” ending the hearing without giving him an opportunity to rebut the
argument of Keri’s counsel, and failing to make findings as required under section 2030.
None of these arguments have merit. To begin with, Keri’s parents did not
concede the second fees request; they expressly opposed it at the hearing. In any event,
we are aware of no authority that required the trial court to rule in Joseph’s favor simply
because Keri’s parents did not file a written opposition.
Joseph was also given sufficient opportunity to argue his points. He filed
extensive evidence and argument, and he recognized at the hearing “the extent of what I
have to say is mostly in my papers.” He was permitted to make an oral presentation, and
contrary to his contentions, he was given an opportunity, which he exercised, to give a
brief rebuttal. While the hearing may have been shorter than Joseph preferred, and while
Joseph may have wanted to make additional points, the trial court could reasonably have
determined that there was no need for prolonged argument given its familiarity with the
issues. Nothing in the record supports the conclusion that the trial court violated Joseph’s
rights or abused its discretion in the way in which it conducted the hearing.
Joseph’s argument also fails that the trial court did not make findings. The
argument is inaccurate, and it was forfeited. It is inaccurate because the court did make
findings. While it is true that the findings entered after the January 2015 hearing were
abbreviated, these findings were made in the context of the extensive findings made six
months earlier in connection with the first fees request. And the argument was forfeited
because Joseph never asked the trial court for additional findings, and he raises the
argument for the first time on appeal. Absent extenuating circumstances, we do not
consider procedural defects or erroneous rulings where an objection could have been, but

11
was not, presented to the trial court. (In re Marriage of Hinman (1997) 55 Cal.App.4th
988, 1002.)

III.
DISPOSITION
The trial court’s February 13, 2015, order denying Joseph Sweeney’s second fees
request is affirmed. Respondents shall recover their costs on appeal.

_________________________
Humes, P.J.

We concur:

_________________________
Dondero, J.

_________________________
Banke, J.

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