Filed 5/2/14 Marriage of Controulis and Hazard CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


In re the Marriage of STEPHEN
CONTROULIS and JARI HAZARD.

STEPHEN CONTROULIS,
         Respondent,
v.                                                                       A136260
JARI HAZARD,                                                             (Contra Costa County
         Appellant.                                                       Super. Ct. No. D99-01707)


         Jari Hazard (wife) appeals from an order filed on August 22, 2012, which, among
other things, granted respondent Stephen Controulis’s motion to terminate spousal
support, and denied her motion to increase spousal support and imposed discovery
sanctions of $20,000 against her. Wife challenges the order on various grounds, none of
which requires reversal. Accordingly, we affirm.
                                                       FACTS 1
         A.        Background
         On April 6, 1999, after almost 14 years of marriage, Stephen Controulis (husband)
filed a petition for dissolution of his marriage to wife. The parties had two children, who


1
       We set forth only those facts as are necessary to resolve the issues raised on this
appeal. The facts are taken from the record provided by wife, which consists of a 10-
volume clerk’s transcript; all exhibits save two that were admitted at trial; and a partial
reporter’s transcript of the trial proceedings on June 19 and 20, 2012.


                                                             1
were then four and seven years old. The court (Hon. Judith S. Craddick) entered a
judgment of dissolution, status only, and awarded parties joint legal and physical custody
of the children, whose primary residence would be with father and mother’s parenting
time to be agreed to by the parties.
       On February 11, 2002, the court issued a permanent spousal support order,
awarding wife the monthly sum of $4,975, based on the parties’ marital standard of
living. Husband was ordered to pay spousal support effective January 1, 2002 and “until
the remarriage of wife, the death of either party, or further order of the court.” The court
also ruled: “No income is imputed to [wife] at this time; however, the law requires that
upon making a spousal support order that the supported person is informed that it is the
goal of this state that each party shall make reasonable good faith efforts to become self-
supporting within a reasonable period of time. Generally, that period of time is one-half
the length of the marriage. In this case, the duration of the marriage was 14 years.
Therefore, the law contemplates that the person receiving spousal support shall make
reasonable and good faith efforts to become self-supporting within 7 years. Failure to
make reasonable efforts to become self-supporting may be one of the factors considered
by this court as a basis for modifying or terminating support.”
       After the resolution of additional financial issues and husband’s request for a
modification of the February 11, 2002, order, the court issued an order on December 20,
2002, confirming that husband was to pay permanent spousal support in the sum of
$4,975 per month and that no income would be then imputed to wife. The court again
admonished wife of her obligation to make reasonable efforts to become self-supporting
within seven years, and reminded her that she could not wait “until the [seven] years is
imminent” before she made such efforts to become self-supporting.
       B.     Current Litigation
       On June 10, 2010, husband moved to terminate spousal support. In support of his
request, husband asserted that wife had a bachelor’s degree in psychology (1982), a
Master’s Degree in counseling (1985) and a Ph.D. in higher education administration
(1993), and that since February 2002 she had made little or no effort to become self-


                                             2
supporting despite the court’s admonitions. Husband further alleged that wife was
capable of earning income equal to or exceeding spousal support (about $60,000 per
year), and she had some income of her own and access to at least $100,000 in cash or
liquid assets.
       Wife opposed termination of spousal support and made a motion seeking an
increase in spousal support. She asserted that the original spousal support award never
met the parties’ marital standard of living as it was insufficient to allow her to obtain
reasonable health insurance, regular psychiatric care on the level necessitated by her
psychiatric disorder, and housing for the children equal to that provided by husband. She
further asserted that in the dissolution proceeding she had presented evidence that she had
a psychiatric disorder that then rendered her totally disabled from part or full-time
employment based on reports by her expert witnesses. Wife also submitted a letter from
her then treating psychiatrist, Phyllis Cedars, M.D., who was prepared to testify to the
specifics of wife’s psychiatric disability and inability to tolerate stress. Wife contended
that despite her ongoing pathology, she had attempted numerous endeavors to make
money with the goal of becoming self-supporting but she was unsuccessful, and she was
never able to use her education to obtain employment because of her psychiatric
disability.
       On June 19, 2012, the parties appeared for trial before Hon. Charles S. Treat.
Husband was represented by counsel and wife appeared in propria persona. After
denying wife’s request for a continuance, the court commenced the trial. The court
informed the parties that it would consider both husband’s motion for termination of
spousal support and wife’s motion to increase spousal support. The court also confirmed
“that in this trial [wife] was entitled (and expected) to make her full and best case for not
only the maintenance of support, but its increase.”
       After wife made her opening statement, the court took judicial notice of husband’s
exhibits Nos. 1-10, and exhibits Nos. 1-8 were admitted into evidence. The court also
admitted into evidence husband’s exhibits nos. 12-30, and 33-38. Husband testified in
his case-in-chief and also presented the testimony of the following witnesses: wife, wife’s


                                              3
now former psychiatrist Phyllis Cedars, M.D., husband’s psychiatric expert Stephen M.
Raffle, M.D.,2 and husband’s accounting expert CPA Jeff A. Stegner.3 After husband
rested, wife presented her case in chief. Wife testified in a narrative form regarding her
retention of her former counsel, her attempts to respond to husband’s discovery requests,
the reasons she thought her spousal support should be increased and why a termination of
spousal support was not supported by the evidence. At the conclusion of wife’s case,
husband’s counsel gave a closing argument. The court took the matter under submission
in order to read some of the exhibits that had been admitted into evidence, including the
report of a court-appointed expert Betty Kohlenberg.4 The court told the parties that it
did not “intend to issue a detailed factual exposition,” but would issue “a brief statement
[summarizing] . . . the reasons for [its] ruling.”
       The court filed a decision summarizing “the most important reasons” for
terminating spousal support “in either direction, effective July 1, 2012,” and denying
wife’s motion for an increase in spousal support. The court explained: “I am not finding
that [wife] has in fact become self-supporting. Clearly she has not. I find that [wife] has


2
       In his designation notice of his psychiatric expert, husband indicated the expert
was willing to testify on the following issues: “[t]he nature and extent of any mental
condition or disorders suffered by [wife],” “whether [wife] has been and/or continues to
be disabled from employment as a result of such condition(s);” “whether and to what
extent [wife’s] ability to seek and/or maintain employment is or has been impaired by
reason of such condition(s);” “whether such condition(s) are likely to impair or disable
[wife] from seeking or maintaining employment in the future;” “[t]he extent, if any, that
[wife’s] ability to respond to legal discovery and/or to otherwise participate in the current
legal proceedings is or has been impaired by reason of any mental condition or disorder
she suffers.” Additionally, the expert’s testimony would include “a description of [his]
examination and testing of [wife], and his impressions and diagnoses derived therefrom.”
3
        In his designation notice of his accounting expert, husband indicated the expert
had agreed to testify at trial and was “expected to testify about the annual earnings of
[wife] from her eBay business, based on information produced by [wife] and by PayPal.”
4
        Before trial, the court had appointed Betty Kohlenberg to examine, evaluate, and
assess (1) wife’s ability to obtain employment, with or without additional training or
education, (2) the availability of employment opportunities commensurate with wife’s
abilities; and (3) wife’s earning capacity in such employment.


                                               4
made virtually no efforts to become self-supporting since the judgment in this case.
[Wife] acknowledges being warned several times by Judge Craddick, in 2000-01, that she
had an obligation to become self-supporting, and that seven years was a presumptively
reasonable time for her to do so. By her own candid testimony, however, [wife] took no
serious steps at all to become self-supporting for many years. This was not laziness,
forgetfulness, or procrastination. It was a conscious decision that she would not work or
attempt to work, and an attitude that she refused to consider any career path that she was
not ‘interested in.’ While she did open her EBay-based home business, she is quite clear
that she never intended that as a means of self-support, but rather as a way of keeping
herself occupied and making herself get out of the house. Not until the present motion
was filed did she make even halting efforts at seeking real employment, and that only
ineffectively. Her testimony and her actions speak quite clearly: Her intention (and,
most likely, her expectation) have always been simply to live off [husband’s] spousal
support for the rest of her life. She has succeeded in doing so for nearly the length of the
marriage. [Wife] evinces no consciousness that she has any obligation to provide for
herself. [¶] I am not as convinced as [husband] or Dr. Raffle are, that [wife] is reliably
capable of working at a conventional job outside the home. It is true, I think, that the
level of dysfunction [wife] displayed in court is situational – instigated by her extreme
distress at the prospect of losing spousal support – and therefore not necessarily to be
expected in all settings. Nevertheless, I believe she is dubiously employable at best,
because of her abrasive and impulsive personality. . . . For present purposes, however, I
accept that [wife’s] inability to work with others is something that she can’t help. [¶] But
I believe that [wife], if she would make up her mind to try, is capable of doing a great
deal more than she is doing to support herself through home-based self-employment or
independent contractor work. I accept Dr. Raffle’s opinion that [wife] has intentionally
and systematically tried to depict herself as more disabled than she really is, by
attempting to cheat on Dr. Raffle’s tests. Her conduct of her EBay business evinces a
capability for sustained, organized and successful enterprise, with attention to detail and
orientation toward a goal. Further, I have read several examples of [wife’s] writing. She


                                              5
is a talented writer, fully capable of well-organized, clearly expressed, and well-thought-
out exposition of a nuanced set of ideas. Neither of these can be squared with the
dysfunctional scatterbrain she pretends to be. I am not her career counselor, but I believe
she can find ways of harnessing these talents that can work around her lack of
interpersonal skills. [¶] Bluntly, there is a very good reason why [wife] has not succeeded
in any such enterprise: because she has not only refrained from trying, but consciously
rejected any prospect of trying. If there is any doubt about her ability to become self-
supporting, she has intentionally created that doubt by her own actions and decisions.
She cannot willfully refrain from trying to support herself, and consciously sabotage all
efforts to show whether or not she could support herself – and then plead that she should
remain on the spousal-support dole indefinitely because she is not supporting herself.”
When neither party requested a formal statement of decision or made a motion for
reconsideration or for a new trial, the court filed its “findings and order after hearing” on
August 22, 2012. Wife now appeals. 5
                                       DISCUSSION
I.     Issuance of a Gavron Warning in Initial Spousal Support Orders
       As noted, in the dissolution proceeding, the court issued orders on February 20,
2002 and December 20, 2002, which contained Gavron warnings (In re Marriage of
Gavron (1988) 203 Cal.App.3d 705, 712) (Gavron), admonishing wife that she was
expected to make reasonable efforts to become self supporting within seven years of
January 2002.6 Wife now argues the Gavron warnings were inadvisable because it was


5
       We deem wife’s August 10, 2012, notice of appeal from the June 22, 2012,
decision to be a premature notice of appeal from the August 22, 2012, order. (Cal. Rules
of Court, rule 8.104(d)(2).) Also, on December 16, 2013 and again on February 27,
2014, husband has written to this court asking us not to schedule oral argument on certain
dates. However, on June 3, 2013, this court sent oral argument waiver notices to both
parties. Because no request for oral argument was timely made by either party, oral
argument was deemed waived by this court on June 14, 2013. Consequently, we deny
husband’s requests regarding the scheduling of oral argument as untimely.
6
       After Gavron was decided, the Legislature enacted Family Code section 4330,
which reads: “(a) In a judgment of dissolution of marriage or legal separation of the

                                              6
unreasonable to expect her to become self-supporting in light of her severe psychological
issues and extended absence from the work force. However, wife forfeited review of this
issue by not appealing from the February and December 2002 orders. (See, e.g., In re
Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413; In re Marriage of Ostler &
Smith (1990) 223 Cal.App.3d 33, 50.) Even assuming those earlier orders were not
appealable, as wife argues, we are not now in a position to address this issue because wife
has not provided a complete record of the proceedings that formed the bases for the
February and December 2002 orders. (See, e.g., Wagner v. Wagner (2008) 162
Cal.App.4th 249, 259 [appellant’s failure to include hearing transcript foreclosed court’s
review of claim of error].)




parties, the court may order a party to pay for the support of the other party an amount,
for a period of time, that the court determines is just and reasonable, based on the
standard of living established during the marriage, taking into consideration the
circumstances as provided in Chapter 2 (commencing with Section 4320). [¶] (b) When
making an order for spousal support, the court may advise the recipient of support that he
or she should make reasonable efforts to assist in providing for his or her support needs,
taking into account the particular circumstances considered by the court pursuant to
Section 4320, unless, in the case of a marriage of long duration as provided for in Section
4336 [presumption that marriage of 10 years or more, from date of marriage to the date of
separation, is one of long duration], the court decides this warning is inadvisable.”
        Section 4320 provides, in relevant part, that in ordering spousal support, the court
shall consider various circumstances including “[t]he goal that the supported party shall
be self-supporting within a reasonable period of time. Except in the case of a marriage of
long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of
this section generally shall be one-half the length of the marriage. However, nothing in
this section is intended to limit the court’s discretion to order support for a greater or
lesser length of time, based on any of the other factors listed in this section, Section 4336,
and the circumstances of the parties.” (Id., subd. (l).) In this case, Judge Craddick
apparently determined that notwithstanding the fact the parties had been married for
almost 14 years at the time of their separation, a reasonable period of time for spousal
support was seven years starting from January 2002, and that Gavron warnings were
appropriate.


                                              7
II.    Denial of Wife’s Request for a Trial Continuance
       A.     Relevant Facts
       On April 23, 2012, wife’s counsel filed a motion to withdraw and sought an ex
parte order shortening time for the motion to be heard as trial was then set for June 19
and June 20, 2012. The basis for the relief was that the attorney-client relationship had
broken down such that there was a conflict of interest. Wife opposed the motion, arguing
that her counsel had decided to withdraw after wife refused to settle the matter. Wife
asserted the proposed settlement was not in her best interest but was enticing to counsel
who would be paid her attorney fees pursuant to settlement. On May 24, 2012, Judge
Treat referred counsel’s motion to withdraw to another judge for an in camera hearing to
“prevent any bias . . . at trial.” On the same day, after an in camera hearing, Hon. Trevor
White granted counsel’s motion to withdraw.
       Within one week of the court’s decision on counsel’s motion to withdraw, wife,
representing herself, filed two motions seeking pendente lite attorney fees and costs and
an increase in spousal support. Wife explicitly stated that the trial was set for June 19
and 20, 2012, and, “I need to make this point: I do NOT want a continuance.” Instead,
she sought $35,000 to hire an attorney to attempt to settle the matter. In the event the
case did not settle, wife intended to represent herself, as she neither wanted nor could
afford another attorney and she felt certain the outcome would be the same whether or
not she had legal representation. Wife moved ex parte to advance the hearing date of her
motion for pendente lite relief to a date before the start of the trial, which request was
opposed by husband and ultimately denied by Judge Treat during the first week in June.
       At the beginning of the trial on June 19, 2012, wife made an oral motion to
continue the trial date until after the court considered her motion for pendente lite
attorney fees and costs, which was then scheduled to be heard on July 11. She explained
to the court that she wanted to retain an attorney because she was unable to represent
herself in this complicated case. Alternatively, she requested a settlement conference
because no attorney was willing to take her case without payment. She asserted her
depression and anxiety had kept her from getting further involved in the matter and being


                                              8
present at previous hearings. Husband opposed the request for a continuance, noting,
among other things, that the trial date had been set for six months, the request for a
continuance was being raised for the first time that morning, and he had three witnesses
ready to appear at the scheduled two-day trial.
       The court denied wife’s request for a trial continuance “for several reasons. [¶]
First, we’ve had a settlement conference. And the indication that I received is that
although I don’t know the details, you had received what your then counsel thought was a
good settlement offer and you declined to consider it. [¶] Second, your request for
continuance is itself untimely. That should have been presented well before now. [¶]
Third, I already granted a motion for attorney’s fees for what I felt was adequate. Your
attorney then was of the view it was insufficient, but it was what I thought was adequate
in the circumstances. [¶] Fourth, my understanding of the reasons that you are without an
attorney is not because you lack fees but because your attorney . . . convinced Judge
White there was a conflict that required her to withdraw.”
       B.     Analysis
       Wife presents several arguments in support of her claim that the trial court abused
its discretion in denying her request to continue the trial date. We conclude her
contentions are unavailing.
       “Continuances are granted only on an affirmative showing of good cause requiring
a continuance. [Citations.] Reviewing courts must uphold a trial court’s choice not to
grant a continuance unless the court has abused its discretion in so doing.” (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 (Falcone & Fyke); see
Cal. Rules of Court, rule 3.1332 [provisions governing continuances].)
       Contrary to wife’s contention, the record does not demonstrate she was incapable
or unable to file a timely motion to continue the trial date due to her psychological
problems. After her counsel’s withdrawal, wife, representing herself, was able to file two
cogent motions for pendente lite relief and an increase in spousal support, in which she
explicitly eschewed any need for a continuance of the trial date. Once the court refused to
advance wife’s request for pendente lite relief in early June, 2012, she had more than


                                              9
sufficient time to request a continuance of the trial date. Nevertheless, wife waited until
the morning of the trial to make an oral request for a continuance, which was unfair to
husband who had prepared for trial and subpoenaed witnesses. Given the uncertainty that
wife would be able to retain counsel to appear in court and try the case within a
reasonable time even if granted pendente lite attorney fees, the court reasonably denied
the request for a trial continuance.
       We are not persuaded by wife’s argument that the trial court should have granted a
trial continuance because of her appearance and conduct in court. At the time the court
denied wife’s request for a trial continuance, she had not said or exhibited any conduct
that called into question her ability to proceed with the trial. The court’s recognition that
the courtroom was a difficult setting for wife, “even more so than the typical” in propria
persona litigant, does not establish an abuse of discretion in denying the trial continuance.
III.   Termination of Spousal Support and Denial of Increase in Spousal Support
       Wife challenges the termination of her spousal support and the denial of her
request for an increase in spousal support on the grounds that the court failed to follow
established legal principles and based its findings on insufficient evidence. As we now
discuss, we conclude wife’s arguments are unavailing.
       To the extent wife asks us to consider the court’s statements in its written decision,
in support of her assertion of error, we are precluded from doing so. (In re Marriage of
Ditto (1988) 206 Cal.App.3d 643, 647 (Ditto).) Where, as here, the parties did not
request a formal statement of decision, “we must assume the court made whatever
findings [were] necessary to sustain” the order. (Michael U. v. Jamie B. (1985) 39 Cal.3d
787, 792-793, superseded on other grounds by statute as stated in In re Zacharia D.
(1993) 6 Cal.4th 435, 448.)7 “A statement of decision allows the trial court to review its
memorandum of intended decision and ‘to make . . . corrections, additions or deletions it


7
       Wife’s reliance on In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282,
305; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1285, 1296; In re Marriage
of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1106, is misplaced as in those
cases the trial courts issued statements of decision.


                                              10
deems necessary or appropriate.’ [Citation.] Such statement thus enables a reviewing
court ‘to determine what [law] the trial court employed . . . .’ [Citation.] It is the
statement of decision which allows the court to place upon the record its view of facts
and law of the case. [Citation.] A failure to request a [statement of decision] results in a
waiver of such findings.” (Ditto, supra, at p. 647.) “Because a statement of decision was
not requested, the trial court did not have the opportunity to amend; the [order] therefore
governs” and “it will be presumed on appeal that the trial court found all facts necessary
to support the [order].” (Id. at pp. 648, 649.) Thus, the only issue before us is whether
there is “ ‘substantial evidence’ to support the [trial] court’s ‘implied findings.’ ” (In re
Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274.)
       Wife argues that the record contains affirmative evidence demonstrating that
during the 10 years since the entry of the spousal support orders she was not capable of
becoming self-supporting and she made reasonable efforts to become self-supporting
consistent with her ability to do so but she was unsuccessful in her endeavors. However,
we must reject wife’s “attempt to reargue on appeal those factual issues decided
adversely to [her] at the trial level” as “contrary to established precepts of appellate
review.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) Whether wife was
capable of supporting herself and made reasonable efforts to become self-supporting
were “question[s] addressed peculiarly to the trial court which heard [wife’s] testimony
and observed [wife’s] demeanor at trial,” together with the other testimonial and
documentary evidence admitted at the trial. (In re Marriage of Sheridan (1983) 140
Cal.App.3d 742, 749.) As an appellate court, we cannot grant relief by relying solely on
“ ‘isolated bits of evidence,’ ” as wife urges. (DiMartino v. City of Orinda (2000) 80
Cal.App.4th 329, 336 (DiMartino).) Of more significance is the fact that wife has failed
to provide us with either a reporter’s transcript or a settled statement in lieu of the
reporter’s transcript of the testimony elicited during husband’s case-in-chief.
Consequently, we must resolve wife’s claim of error against her for failure to “furnish an
adequate record of the . . . proceedings.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-
1296 [appellants had burden “to provide an adequate record to assess error;” appellants


                                              11
“should have augmented the record with a settled statement of the proceeding;” and
“[b]ecause they failed to furnish an adequate record of the . . . proceedings, [their] claim
must be resolved against them”].)8
IV.    Trial Court’s Order Directing Wife to Pay $20,000 in Discovery Sanctions
       A.     Relevant Facts
       On or about August 2010, husband served his first discovery requests using form
interrogatories (13 questions), an initial set of special interrogatories (52 questions), and a
demand for the production of documents (26 general categories and 24 categories relating
to the special interrogatories). The form interrogations requested information about
wife’s health and current financial circumstances, her efforts to seek employment and her
business ventures since 2002. The first set of special interrogatories and document
demands sought information pertaining to wife’s income, financial accounts, real
property ownership, and other information about her economic circumstances and
standard of living. Wife filed no motion for a protective order. In October and
November 2010, husband extended wife’s time to provide responses. But, as of



8
        In her reply brief, wife argues that if we deem the missing trial testimony
necessary to address her appellate arguments, we should sua sponte exercise our authority
to augment the record with the missing reporter’s transcript and to waive payment for the
transcript in order to avoid a miscarriage of justice. However, we will not order a
transcript at public expense “where alternative measures are reasonably available” to a
litigant as in this case. (Graziano v. Appellate Department (1978) 84 Cal.App.3d 799,
801.) Our appellate rules permit litigants to proceed by using a settled statement in lieu
of a reporter’s transcript, but wife failed to make the required application in the superior
court. (See Cal. Rules of Court, rule 8.137(a).) Wife makes no argument that “the trial
was too complex or protracted to permit the preparation of an adequate settled statement
from memory or notes.” (People v. Goudeau (1970) 8 Cal.App.3d 275, 281-282.) We
recognize wife was not represented by counsel at the time she was required to designate
the record on appeal and serve and file a motion in the superior court requesting the
preparation of a settled statement instead of a reporter’s transcript. (See Cal. Rules of
Court, rules 8.121(a), 8.137(a).) Nevertheless, as a litigant appearing in propria persona,
she “ ‘is entitled to the same, but no greater, consideration than other litigants and
attorneys,’ ” and she “ ‘is held to the same restrictive rules of procedure as an attorney.’ ”
(Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)


                                              12
December 1, 2010, wife’s only substantive response was the submission of copies of her
federal income tax returns for 2007 through 2009.
       On December 16, 2010, husband filed his first motion to compel discovery
responses and sought monetary sanctions pursuant to Family Code section 2719, which
requests were opposed by wife. The trial court held a hearing on January 26, 2011, at
which counsel were present without their clients. The court suggested that wife seek the
appointment of a guardian ad litem. The court then made the following orders:
(1) husband was to pay the costs of subpoenaing wife’s medical records after wife signed
the necessary authorizations for the release of the documents, and (2) wife was to sign
under oath that the copies of her tax returns were true and correct copies. The court
continued the matter to May 13, 2011, at which time the court intended to further
consider husband’s request that wife file responses to discovery seeking information
about her psychological condition and efforts to become self-supporting.
       After the court’s order and in response to wife’s request for consideration under
the Americans with Disability Act, the parties reached an agreement with the court’s
assistance regarding the outstanding discovery. Pursuant to the agreement, wife signed
releases allowing husband’s counsel to obtain wife’s tax returns directly from the IRS
9
        Family Code section 271 reads: “(a) Notwithstanding any other provision of this
code, 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. In making an award
pursuant to 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. [¶] (b) An award of attorney’s fees and costs as a sanction pursuant to this
section shall be imposed only after notice to the party against whom the sanction is
proposed to be imposed and opportunity for that party to be heard. [¶] (c) An award of
attorney’s fees and costs as a sanction pursuant to this section is payable only from the
property or income of the party against whom the sanction is imposed, except that the
award may be against the sanctioned party’s share of the community property.”


                                             13
and wife’s medical records directly from her physician. Husband’s counsel also agreed
to obtain requested information about wife’s eBay sales directly from either eBay and/or
PayPal (the company through which it was believed virtually all of wife’s eBay sales
were processed). On May 20, 2011, the court issued an order directing wife to produce
all the information she had provided to her tax attorney who had prepared her 2010 tax
return. Wife’s counsel also agreed that wife would submit responses to the outstanding
discovery requests, section by section, on a weekly basis.
       In June 2011, wife filed a motion for pendente lite attorney fees and costs, which
request was opposed by husband. In early August 2011, husband agreed to grant wife an
extension of time to respond to the outstanding discovery until after the hearing on wife’s
request for pendente lite attorney fees and costs. On August 10, 2011, husband was
directed to pay to wife the sum of $35,000 as pendente lite attorney fees within one week
of the court’s order. Husband granted wife an extension of time to submit her discovery
responses until August 24, 2011.
       Husband did not receive any discovery responses from wife, and on October 24,
2011, he filed a second motion to compel responses to the outstanding discovery
propounded in August 2010 and a second set of 13 special interrogatories that had been
served on wife in response to her declaration regarding her 2011 earnings from any
business ventures, and again sought monetary sanctions under Family Code section 271,
which requests were opposed by wife. At a hearing on December 13, 2011, husband
appeared with counsel and wife’s counsel appeared without her client. The court granted,
in part, husband’s motions to compel discovery compliance. Wife was directed to submit
responses to the form interrogatories and the second set of special interrogatories by
court-imposed dates. Compliance with the other propounded discovery (first set of
special interrogatories and document demand) was deemed moot as wife had served her
responses to that discovery on Friday, December 9, 2011. The court continued the matter
to March 29, 2012, at which time the court intended to resolve any issues relating to the
adequacy or completeness of wife’s discovery responses and husband’s requests for
attorney fees and sanctions. In response to the court’s order, wife filed a declaration


                                             14
addressing husband’s complaints about her discovery responses. She also sought
additional pendente lite attorney fees and costs, which request was opposed by husband.
       At the March 29, 2012 hearing, the court issued an order regarding the remaining
outstanding discovery issues: (1) husband’s motion to compel was granted, in part, and
wife was directed to file amendments to her responses to certain interrogatories and the
document demand; and (2) husband’s request for sanctions was granted but the court
reserved for further consideration “at the time of trial” the appropriate monetary award
because the court needed to hear “further evidence relative to [wife’s] psychiatric
condition and financial condition.” At a further hearing on April 23, 2012, the court
directed wife to be in “full compliance” with its March 29, 2012, discovery order by
April 27, 2012, and she was awarded an additional sum of $25,000 as pendente lite
attorney fees.
       At the conclusion of the trial, the court granted husband’s request for “discovery
sanctions.” The court explained: “On March 29, 2012, the Court spent considerable time
addressing a number of problems with [wife’s] discovery responses. ([Wife] still has not
complied with my order from that hearing.) I stated at the time that at least some
discovery sanctions would be appropriate, but deferred setting a number until trial. My
reason for delay was to assess the evidence concerning [wife’s] mental-health issues and
the extent, if any, to which they may have caused the inadequacy of her discovery
responses. I observed that most of the deficiencies appeared, at first view anyway, to be
simply a matter of sloppy lawyering by [wife’s] (now-former) counsel . . .; but I wanted
to reserve judgment to assess whether any of the problem might have arisen from things
[wife] could not really help. [¶] I find no evidence that any of [wife’s] mental-health
issues disabled her (or her attorney) from responding timely and properly to [husband’s]
discovery. [Wife] herself testified that she cooperated fully in discovery and responded
fully and timely to her attorney’s demands – a description seriously at odds with what her
attorney had represented to me in several prior hearings. Which of those versions is true
I cannot say. But I can say that although [wife] has no reluctance to point out her own
faults when she thinks they help her position, she vehemently and credibly disclaims any


                                             15
inability to comply with discovery. Instead, I believe that the seriously deficient level of
[wife’s] discovery response is part of her conscious campaign to maintain her spousal
support by refusing to cooperate in litigating [husband’s] motion. What part of the
deficiency is due to [wife’s] obstructive attitude, and what part due to [her former
counsel’s] sloppy lawyering, I cannot say. But both are sanctionable. [¶] Having
reviewed the live and documentary proof on this subject, I award $20,000 in discovery
sanctions to [husband]. [Husband] is authorized to deduct these sanctions from [wife’s]
share of the omitted accounts.”10
           B.    Analysis
           We conclude wife’s arguments challenging the trial court’s award of sanctions do
not require reversal.
           Husband sought monetary sanctions pursuant to both Family Code section 271 and
Code of Civil Procedure sections 2023.030, 2030.290, and 2031.300. The trial court did
not identify the statutory basis for the sanctions award in either its June 22, 2012 decision
or its August 22, 2012 order. Nevertheless, given the court’s explanation for its award,
“[t]he more reasonable interpretation” of its August 22, 2012 order is that the court
awarded a monetary sanction against wife pursuant to Family Code section 271. (In re
Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1082; see Fam. Code, § 271, subds. (a),
(c).) 11



10
       As part of this post-dissolution proceeding, the parties asked the court to
determine their joint request for a division of several community-property nonqualified
financial accounts, collectively worth a little over $100,000, which had not been
previously divided between the parties. The court agreed, “[a]s [husband] suggested and
[wife] agreed,” that “those [accounts] should be divided in kind now. [Husband] is
directed to take all necessary steps to accomplish that. [Wife] is directed to cooperate
reasonably in those steps, such as by signing any necessary consents or forms.” On this
appeal wife does not challenge the court’s distribution of the funds in these financial
accounts.
11
       Consequently, we do not further address whether the award was properly made
pursuant to the Code of Civil Procedure sections governing sanctions for discovery
misuse. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 [“under settled

                                               16
       Family Code section 271, “advances the policy of the law ‘to promote settlement
and to encourage cooperation which will reduce the cost of litigation.’ [Citation.]
Family law litigants who flout that policy by engaging in conduct that increases litigation
costs are subject to the imposition of attorneys’ fees and costs as a sanction.” (In re
Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177 (Petropoulos).) “ ‘A sanctions
order under [Family Court] section 271 is reviewed for abuse of discretion. [Citation.]
Accordingly, 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.” ’ ” (Falcone & Fyke, supra, 203 Cal.App.4th at p. 995.)
       We find unavailing wife’s challenge to the sufficiency of evidence supporting the
court’s award of sanctions. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178
(Parker).) She asserts the court mischaracterized her testimony and failed to consider the
conduct of her former counsel. However, as we have noted, we cannot grant relief from
the court’s order by relying on “isolated bits of evidence,” as wife suggests. (DiMartino,
supra, 80 Cal.App.4th at p. 336.) More importantly, in ruling on the matter of sanctions,
the trial court relied on both documentary evidence and the testimony elicited at the trial.
Thus, it was wife’s responsibility to include a reporter’s transcript or a settled statement
in lieu of the reporter’s transcript of the testimony elicited in husband’s case in chief.
Having failed “to designate an adequate record for this court to evaluate [her] claim, . . .
we presume the [order] imposing sanctions . . . . is correct.” (Parker, supra, at p. 1178;
see id. at pp. 1175-1176, 1178 [court upheld judgment imposing $92,000 sanctions
pursuant to Family Code section 271 against husband because he failed to include
reporter’s transcript of 13-day trial].)
       We also reject wife’s challenges to the court’s imposition of a monetary sanction
against her alone and not her counsel. “ ‘[W]hile [Family Code] § 271 impose[s] duties

appellate principles we may affirm the court’s sanctions order on any ground supported
by the record”].)


                                              17
upon counsel as well as counsel’s client to cooperate in seeking to resolve the litigation
[citation], those duties are enforced under the statute by means of a fees and costs award
against the party, not counsel – even when the sanctionable conduct lies solely with a
party’s counsel.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1535-
1536, fn. 17, quoting from Hogoboom & King, Cal. Practice Guide: Family Law (The
Rutter Group 2010) § 14:237, p. 14–63; see Fam. Code, § 271, subd. (c).) Additionally,
before imposing a sanction payable by wife, the trial court had no duty, either sua sponte
or if requested, to hold a hearing to determine the culpability of wife’s counsel. Before a
court may impose a Family Code section 271 sanction, notice and an opportunity to be
heard must be given to the party against whom the sanction is proposed to be imposed.
(Id., subd. (b).) In this case wife was afforded all the due process to which she was
entitled –the court specifically informed her that at trial it would consider monetary
sanctions for discovery noncompliance, she was given an opportunity and did address the
issue at trial, and she did not move for either reconsideration or a new trial on the
sanction issue. (See Petropoulos, supra, 91 Cal.App.4th at pp. 178-179.) 12
V.     Trial Court’s Award of Pendente Lite Attorney Fees to Wife
       A.     Relevant Facts
       Before trial, husband initially voluntarily paid wife $2,500 as attorney fees and
costs and the trial court later directed husband to pay wife $60,000 as attorney fees and
costs. After her counsel withdrew, wife, representing herself, filed a motion on May 29,
2012, seeking an order directing husband to (a) pay all the fees and costs wife then owed
to her former counsel and experts hired by former counsel, and (b) pay fees to allow wife
to hire new counsel for settlement. In support of her request, wife submitted a
declaration in which she expressly stated that she did “NOT want a continuance” of the
trial then scheduled for June 19 and 20, 2012. She asserted she neither wanted nor could
12
       To the extent wife seeks relief based on complaints that her former counsel was
ineffective, “[w]e need not assess the validity of these charges, for we are aware of no
authority, and [wife] has cited us none, which would permit [an] . . .appellate court to
grant [any relief] . . . to an unsuccessful litigant in a civil case . . . on the grounds of
incompetency of counsel.” (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978.)


                                              18
afford a new attorney and would be representing herself if the matter went to trial. Wife
further asserted that although her former counsel had submitted a list of proposed expert
witnesses, wife did not consent to those witnesses appearing on her behalf and she did not
want to spend money for those witnesses to appear. However, she asked that her
therapist be allowed to speak on her behalf and she wanted the court-appointed
vocational evaluator, Betty Kohlenberg, to testify but wife claimed she did not have the
money to pay for the witness to appear at trial. Approximately two weeks before trial,
wife filed an ex parte motion to advance the hearing date of her attorney fees motion to a
date before the start of the trial, which request was opposed by husband and denied by the
court.
         At the conclusion of the trial, the court commented in its written decision that it
had declined to advance the hearing date scheduled for wife’s pending motion for
attorney fees because it “was an attempt to seek a different result on the same attorney fee
motion [the court had recently] ruled on on April 23, 2012;”and wife had “no legitimate
reason to expect a different result.” In all events, the court found wife’s motion for
attorney fees was moot. The court explained: “[Wife] pointedly stated that she did not
want to continue the trial. There was no plausible prospect that she would be able to hire
counsel who could be ready for the trial date, no matter how much attorney fees [the
court] might award. [Wife] also sought funds to enable her to call two experts – but the
report of one of those experts was in fact admitted and considered, while [wife] chose not
to offer the other’s report because she disagreed with it. [¶] In any event, the motion
sought fees only to enable her to litigate the then-pending spousal support issue. That
issue is now resolved by this Decision, and there is no reason to entertain a request for
fees for further litigation of it.”
         B.     Analysis
         We reject wife’s contention that the trial court was required to award her the full
amount she requested for pendente lite attorney fees and costs “based on the disparity in
income between the parties alone.” In awarding pendente lite attorney fees and costs, the
court is required to consider not only “the wealth and available resources of the parties,”


                                               19
but also “the complexity of the issues involved in the litigation, . . . and the litigation
costs already incurred and expected to be incurred through trial.” (In re Marriage of
O’Connor (1997) 59 Cal.App.4th 877, 884.) On this record, wife has failed to
demonstrate that the court abused its discretion in its award of pendente lite attorney fees
and costs of $60,000, which sum was slightly more than an entire year of spousal support
that wife had been receiving from husband. 13

                                       DISPOSITION
       The August 22, 2012 order is affirmed. Respondent Stephen Controulis is
awarded costs on appeal.



                                                    _________________________
                                                    Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




13
       Because the matter of attorney fees was an issue for the trial court, we deny wife’s
request that we now grant her $23,102.98 in attorney fees, which she currently owes her
former attorney, on the ground that husband’s excessive discovery conduct led to much
of the attorney fees incurred by her.


                                               20
