Filed 8/25/22 Marriage of Whittlesey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of AUDREY and 

ANDREW WHITTLESEY.

AUDREY DALE WHITTLESEY,

 Appellant,

v.

ANDREW BOLGIANO WHITTLESEY,

 Respondent.

 G060180

 (Super. Ct. No. 16D006973)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Franz E. 

Miller, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Sullivan Law & Associates, Richard P. Sullivan and Steve Ra for 

Appellant.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Law Offices of 

Teresa McNamara, Teresa McNamara; Law Offices of Lisa R. McCall and Lisa R. 

McCall for Respondent.

* * *
2

After judgment was entered in a marital dissolution matter, the trial court 

denied the wife’s request for attorney fees and for prejudgment interest. The court found 

the wife did not make an initial showing of lack of parity in the parties’ ability to retain 

counsel, justifying the court’s denial of a need-based attorney fees request under Family 

Code section 2030.1 The court properly exercised its discretion in denying the request for 

attorney fees pursuant to section 1101, subdivision (h), as the court had awarded the wife 

100 percent of the community property assets the husband transferred in breach of his 

fiduciary duties. For the same reason, the court did not err in denying an award of 

prejudgment interest on those community property assets. The wife now appeals. We 

affirm the judgment.

I

FACTS AND PROCEDURAL BACKGROUND

Audrey Whittlesey2filed a petition for legal separation from Andrew 

Whittlesey in August 2016, after 55 years of marriage. Andrew responded to the petition 

with a request for dissolution of the marriage. A status only judgment of dissolution was 

entered in February 2017.

The parties stipulated to the appointment of the Honorable Franz E. Miller 

(Ret.) to hear all remaining matters as a temporary judge; trial was conducted over 

multiple days in February 2020. After trial, the parties filed multiple briefs and 

supporting documents regarding attorney fees. The court issued three oral or written 

tentative rulings, and three statements of decision.

1

 Unless otherwise specified, all further statutory references are to the Family Code.

2

 We refer to the parties by their first names to avoid confusion because those involved 

share the same last name.
3

Judgment on reserved issues was entered in March 2021. As is relevant to 

this appeal, the judgment provides as follows:

1. Andrew breached his fiduciary duty to Audrey by transferring several 

community property assets to his girlfriend.3 Because the court found that Andrew acted 

with fraud, malice, and/or oppression in doing so, Audrey was awarded 100 percent of 

these assets pursuant to section 1101, subdivision (h);

2. Audrey failed to prove Andrew breached his fiduciary duty as to other 

transfers of community property;

3. Andrew was required to make a $1,131,214 million equalization 

payment to Audrey;

4. Each party would bear their own attorney fees and costs;

5. The court chose not to exercise its discretion to award Audrey attorney 

fees under section 1101, subdivision (h), in addition to the award of 100 percent of those 

community property assets;

6. Audrey did not request need-based attorney fees under section 2030. 

Even if she had, the court found she had failed to show any inequity between the parties’

ability to pay attorney fees, in light of “the magnitude of assets, inclusive of the 

magnitude of the assets [Audrey] gains from the award under Family Code § 1101(h), the 

substantial multi-million dollar value of the community estate being divided, and the fact 

that both sides spent over one million dollars in attorney’s fees and costs contesting the 

issues of this case, and all other applicable statutory factors.” The court therefore 

exercised its discretion not to award her need-based attorney fees; and

3

 At the time of these transfers, Audrey was (and still is) suffering dementia. After 

Audrey and Andrew’s marriage was dissolved, Andrew married the girlfriend.
4

7. Although the court had discretion to award prejudgment interest, it did 

not do so in this case because, among other things, it was awarding 100 percent of the 

improperly transferred community property interests to Audrey.

Audrey filed a notice of appeal.4

II

DISCUSSION

A. Standard of Review

The issue of attorney fees “‘in a dissolution proceeding is left to the sound 

discretion of the trial court.’” (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 

630.) We must affirm the order granting or denying attorney fees “unless ‘“no judge 

could reasonably make the order made.”’” (Ibid.) Similarly, we review for abuse of 

discretion the trial court’s order awarding or denying prejudgment interest. (Esgro 

Central, Inc. v. General Ins. Co. of America (1971) 20 Cal.App.3d 1054, 1064.)

B. Attorney Fees

On appeal, Audrey challenges the trial court’s decisions not to shift

attorney fees under sections 2030 and 2032, and not to award her attorney fees for 

Andrew’s breach of fiduciary duty under section 1101, subdivision (h).5

4

 Andrew filed a notice of cross-appeal. On the parties’ stipulation, this court dismissed 

the cross-appeal.

5

 In the trial court, Audrey also requested attorney fees under sections 271 and 2107, 

subdivision (c). The court denied the request under these sections. Audrey does not 

make any argument in her appellate briefs specific to these issues; they have therefore 

been forfeited. An argument not separately raised under its own heading and supported 

by cogent argument and citation to authority is deemed waived. (Winslett v. 1811 27th 

Avenue LLC (2018) 26 Cal.App.5th 239, 248, fn. 6; Pizarro v. Reynoso (2017) 10 

Cal.App.5th 172, 179; Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114; see 

Cal. Rules of Court, rule 8.204(a)(1)(B).)
5

1. Sections 2030 and 2032

The purpose of need-based attorney fees under sections 2030 and 2032 is to 

“ensure that each party has access to legal representation” in marital dissolution matters. 

(§ 2030, subd. (a)(1); In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 

974-975; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) To determine 

whether a party is entitled to fees under those statutes, the court must first make findings 

on “whether an award of attorney’s fees and costs under this section is appropriate, 

whether there is a disparity in access to funds to retain counsel, and whether one party is 

able to pay for legal representation of both parties.” (§ 2030, subd. (a)(2).)

Once a party’s entitlement to fees has been determined under section 2030, 

the trial court proceeds to decide what amount of fees would be “just and reasonable 

under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) This 

determination requires the court to consider the factors set forth in section 4320. (§ 2032, 

subd. (b).) “The fact that the party requesting an award of attorney’s fees and costs has 

resources from which the party could pay the party’s own attorney’s fees and costs is not 

itself a bar to an order that the other party pay part or all of the fees and costs requested. 

Financial resources are only one factor for the court to consider in determining how to 

apportion the overall cost of the litigation equitably between the parties under their 

relative circumstances.” (§ 2032, subd. (b).)

a. Audrey did not request need-based attorney fees under section 2030.

The first question we must consider is whether Audrey made a request for 

attorney fees under section 2030. Her appellate briefing assumes that a trial court may 

order one party to pay the other’s attorney fees in a dissolution matter under section 2032 

without first finding under section 2030 that such an award is necessary to achieve parity 

between the parties in their ability to retain counsel. The language of section 2030 

requires the trial court to make findings that (1) an attorney fees and costs award is 
6

“appropriate,” (2) “there is a disparity in access to funds to retain counsel,” and (3) one 

party is able to pay for both parties’ legal representation, before considering whether an 

award of attorney fees by one party to the other is appropriate. (§ 2030, subd. (a)(2);

Mooney v. Superior Court (2016) 245 Cal.App.4th 523, 536 [error to make attorney fees

award absent “disparity” findings].) The language of section 2032, subdivision (a),

makes clear that the trial court “make[s] an award of attorney’s fees and costs under 

Section 2030 or 2031.” Therefore, if Audrey did not request fees under section 2030 and 

make an initial showing that there was a disparity between her and Andrew’s access to 

funds to retain counsel, the trial court would not have erred in denying an award of 

attorney fees under section 2032.

In Andrew’s posttrial brief regarding attorney fees, he stated: “[D]uring 

trial, Audrey’s counsel represented that he was withdrawing Audrey’s claim for needbased fees pursuant to Family Code §2030 and sanctions pursuant to Family Code §271.”

Audrey’s trial court briefs regarding attorney fees and costs do not 

affirmatively show a request or evidentiary proof that attorney fees should be shifted due 

to financial need. Her first brief regarding attorney fees, costs, and sanctions, filed in 

March 2020 after the court had orally issued its tentative ruling and findings, says the 

following regarding section 2030: “Family Code §2030 et. seq. gives the Court power to 

make an award of attorney’s fees and costs based on the parties’ respective needs and 

ability to pay. At the time of filing the dissolution action, [Audrey] was unaware that the 

community estate was worth over $25 million. Accordingly, [Audrey] had to engage in 

massive discovery and independent investigation as to the true nature and extent of the 

estate, as [Andrew] was not trustworthy. [¶] All the fees and costs incurred by 

[Audrey]’s counsel were reasonable and necessary, in light of [Andrew]’s recalcitrance in 

this action (using community funds without proper notice and consent).” As of that time, 

Audrey had incurred $1.7 million in fees. The brief did not identify any of the section 

4320 factors.
7

Audrey filed another brief regarding attorney fees and costs in July 2020. 

Again, this brief did not claim entitlement to attorney fees under section 2030 but did 

contend, under section 2032, that “a consideration of all the relevant circumstances 

makes it just and equitable for an award of contributory attorney’s fees and costs by

[Andrew].” (Capitalization omitted.)

In the statement of decision issued August 6, 2020, the trial court stated: 

“The tj[6]awaits further briefing and declarations on any claim for fee shifting under 

Family Code sections 2030 et sequitur [¶] [but] . . . it is extremely unlikely the tj would 

engage in any fee shifting given the magnitude of assets each party will receive.” In an 

amended statement of decision, the court restated the foregoing language, but added that 

“[e]ach party shall bear his or her attorney fees.” After Audrey objected to the amended 

statement of decision, in part, because the court had not allowed any argument on the 

issue of attorney fees, the court vacated the statement of decision and ordered a 

telephonic argument regarding attorney fees.

Audrey filed a supplemental brief regarding attorney fees and costs. The 

substance of this brief addresses only her claim to an award of attorney fees as a sanction 

under sections 1101 and 2107—not under the fee-shifting provisions of section 2030.

At the telephonic hearing on September 30, 2020, the parties focused on the 

availability of attorney fees under sections 1101, subdivision (h), and 2107; section 2030 

was not mentioned.

The trial court’s finding that Audrey did not “request attorney fees payment 

on a needs basis under Family Code § 2030 et sequitur” is supported by substantial 

evidence.

6

 The temporary judge referred to himself as the “tj” in many orders and other 

documents.
8

b. The trial court did not err by denying Audrey’s request for need-based 

attorney fees.

Even if Audrey had properly raised the issue, we would conclude that the 

trial court did not err by denying a request for need-based attorney fees shifting under 

section 2030. After a spouse demonstrates an inequity in the parties’ ability to retain 

counsel, the court must then decide whether to shift fees and by how much. (§ 2032.) As 

Andrew notes in his respondent’s appellate brief, in making a need-based fees order the 

court must first determine whether an award of attorney fees is appropriate, and only then 

does the court consider the section 4320 factors as part of its determination as to what 

amount of an award is just and reasonable.

When the parties have roughly equal financial means, the court may in its 

discretion choose not to make a fee-shifting award under section 2030. (Hogoboom & 

King, Cal. Practice Guide: Family Law (The Rutter Group 2022) ¶ 14:159.2, p. 14–63; 

In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 658 [court did not err in 

denying one spouse’s fee request, although the other spouse had a larger income, because 

both spouses had “‘considerable indebtedness’ and neither could afford counsel”]; In re 

Marriage of Duncan, supra, 90 Cal.App.4th at pp. 630-631 [no abuse of discretion in 

denying § 2030 request for fees and costs where husband’s income was much greater

than wife’s income, but wife was awarded significant amount of liquid assets in 

dissolution].)

The trial court may consider the parties’ relative need and ability to pay in 

light of their circumstances after the property division. (§ 2032, subd. (c); In re Marriage 

of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1110-1111; In re Marriage of 

Duncan, supra, 90 Cal.App.4th at p. 631; Hogoboom & King, Cal. Practice Guide: 

Family Law, supra, ¶ 14:169, pp. 14–68 to 14–69.)

Audrey contends the trial court failed to consider any of the “relative 

circumstances” applicable to the decision on “how to apportion the overall cost of 
9

litigation equitab[ly] between the parties.” Therefore, she argues, the court failed to 

exercise any discretion, resulting in an abuse of discretion. (Riskin v. Downtown Los 

Angeles Property Owners Assn. (2022) 76 Cal.App.5th 438, 445-446.) Audrey’s briefing 

in the trial court acknowledged “most of the [section] 4320 factors are not applicable in 

this case, due to the parties’ age and size of the marital estate,” but urged the court to 

consider section 4320, subdivisions (h) (age and health of parties), (k) (balance of 

hardships between the parties), and (n) (any other factors the court determines are just 

and equitable). In her appellate briefing, Audrey contends that the following factors 

supported her request for fees under section 2032: (1) her cognitive decline and 

residence in an assisted living home; (2) Andrew’s bad faith in transferring community 

property to his girlfriend, which the trial court described as “despicable”; (3) Andrew’s 

bad faith settlement offers; (4) Audrey’s need to hire expert witnesses including a 

handwriting expert, business and property appraisers, and a forensic accountant; and 

(5) the need to engage in extensive discovery.

The judgment states the trial court considered Andrew’s transfer of 

community property and the resulting award of that property to Audrey, as well as the 

impact of the parties’ litigation strategies on the fees incurred. “[Audrey] has provided 

no showing as to inequity arising from each party bearing their own fees and costs. 

Given the magnitude of assets, inclusive of the magnitude of the assets [Audrey] gains 

from the award under Family Code § 1101(h), the substantial multi-million dollar value 

of the community estate being divided, and the fact that both sides spent over one million 

dollars in attorney’s fees and costs contesting the issues of this case, and all other 

applicable statutory factors, the Court declined to award an attorney fee shift pursuant to 

Family Code §§ 2030 and 2032.”

The trial court specifically considered all of the factors Audrey claims were 

relevant, and the judgment also states that the court had considered “all other applicable 

statutory factors.” A trial court does not need to address each of the section 4320 factors 
10

separately to establish a proper exercise of discretion. (In re Marriage of Diamond 

(2021) 72 Cal.App.5th 595, 603-604.) The court here properly exercised its discretion in 

reaching its decision not to award need-based attorney fees.

Audrey’s reliance on In re Marriage of Dietz (2009) 176 Cal.App.4th 387

(Dietz) is misplaced. As is relevant here, that opinion holds: “The proper legal standard 

for determining whether to award attorney fees [under sections 2030 and 2032] is not 

whether the proceedings were brought in good faith or in earnest, or even whether the 

party requesting attorney fees and costs had the resources to pay attorney fees without 

considering other factors.” (Id. at p. 406.) As a need-based award should not be made by 

determining whether one party acted in good faith, so too it should not be made based on 

one party’s bad faith conduct. Also, while the alleged excessiveness of one party’s 

litigation strategies may be an appropriate factor to consider under section 4320 (if one 

gets to that point in the analysis), the trial court is in the best position to consider the 

appropriateness of the parties’ settlement offers, the extent and nature of the discovery, 

and the need for expert witnesses.

2. Section 1101, Subdivision (h)

Section 1101 provides remedies for one spouse’s breach of fiduciary duty 

vis-à-vis the other spouse’s community property. If the breaching spouse acts with 

malice, fraud, and/or oppression, the trial court shall award to the nonbreaching spouse 

100 percent of the undisclosed or transferred asset. (§ 1101, subd. (h).) The court also 

has the discretion to award attorney fees to the nonbreaching spouse. (In re Marriage of 

Rossi (2001) 90 Cal.App.4th 34, 42 [“‘The clear import of the language in subdivision (h) 

is that an award of attorney fees is discretionary, over and above the mandatory award of 

the entire asset at issue’”]; In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 993

[same].)
11

In this case, the court found Andrew breached his fiduciary duty to Audrey 

by transferring community property assets to his girlfriend and awarded Audrey 

100 percent of those community property assets, totaling $1,701,845. However, the court 

exercised its discretion not to award attorney fees to Audrey. The judgment reads, in 

relevant part: “Under all the circumstances of the case, the Court deemed the assets 

awarded to be sufficient sanctions regarding that malfeasance and exercised its discretion 

to not award attorney fees pursuant to this section.”

Audrey compares the trial court’s use of the size of the marital estate to 

deny attorney fees as equivalent to the trial court’s error in Dietz, supra, 176 

Cal.App.4th at page 406. In Dietz, the court was considering a request by one spouse for 

an award of attorney fees from the other spouse “‘based on their relative circumstances.’” 

(Id. at p. 405.) The court was not considering a trial court’s exercise of its discretion to 

deny attorney fees under section 1101, subdivision (h). Under section 1101, 

subdivision (h), there are no required findings and no statutory factors to consider; an 

award of attorney fees under this statute is solely a matter of what the court in its 

discretion believes is an appropriate sanction.

Audrey claims the trial court’s decision “results in a miscarriage of justice”

because the court focused on the amount of the community property being transferred to 

Audrey without focusing on the fees Audrey incurred to obtain that result—$720,000. 

Neither in the briefs nor in the documents filed in the trial court does Audrey provide any 

evidentiary support for this claim. (See Andrew’s trial brief listing outstanding issues: 

“[Audrey] alleges 40% of her attorney fees were expended on the issues of secret 

stock/cash transfers and Canterbury house/funds. As is discussed below, [Audrey]’s 

figures on these issues have no basis within the supporting documentation and in fact, the 

evidence presented at trial show the figures are a farce. However, by [Audrey]’s alleged 

breakdown, [Audrey] wasted 40% or approximately $720,000 on issues which could 
12

have been resolved two years ago if [Audrey] engaged in the settlement discussions 

[Andrew] put forth.”

More importantly, the trial court explicitly stated it had considered “all the 

circumstances of the case” and that the award of the community property assets to 

Audrey was a “sufficient sanction[]” against Andrew. Section 1101, subdivision (h),

gives the court the discretion to impose sanctions against a spouse breaching a fiduciary 

duty in addition to the award of the property to the nonbreaching spouse. The record 

indicates to this court that the trial court exercised its discretion not to award more 

sanctions. We find no error.

C. Prejudgment Interest

The trial court’s judgment reads as follows regarding prejudgment interest: 

“As a general rule, pre-judgment interest is not obtainable in the absence of statutory 

and/or common law authority; Civil Code § 3288 provides for interest in cases not based 

on contract (and, in particular, those involving fraud, etc.), at the jury’s discretion; the 

section applies to court trials, such as this one, as well. [Citation.] The Court considered 

all of the dynamics in the case, including but not limited to its award of 100% of certain 

community property assets to [Audrey] pursuant to Family Code § 1101(h), and the Court 

exercises its discretion not to award pre-judgment interest on any of the assets with 

respect to which it [was] sought. As such, [Audrey]’s request for the addition of . . .

prejudgment interest on numerous assets is denied.”

Andrew argues initially that prejudgment interest is not permitted in family 

law cases. Andrew argues that because harsher penalties—namely, the award of 

100 percent of the affected assets—are available under section 1101, prejudgment interest 

is not available. Andrew cites no published case supporting his argument, and the 

relevant authorities are to the contrary.
13

Prejudgment interest may be awarded in the discretion of the trier of fact in 

any “action for the breach of an obligation not arising from contract” and in “every case 

of oppression, fraud, or malice.” (Civ. Code, § 3288; Bullis v. Security Pac. Nat. Bank 

(1978) 21 Cal.3d 801, 814, fn. 16.) “For more than a century it has been settled that one 

purpose . . . of prejudgment interest in general, is to provide just compensation to the 

injured party for loss of use of the award during the prejudgment period—in other words, 

to make the plaintiff whole as of the date of the injury.” (Lakin v. Watkins Associated 

Industries (1993) 6 Cal.4th 644, 663-664.) Prejudgment interest is available unless 

expressly prohibited by a statutory scheme. (Doppes v. Bentley Motors, Inc. (2009) 174 

Cal.App.4th 1004, 1009-1011.)

Andrew relies on California Rules of Court, rule 5.17, which provides: “A 

party in a family law proceeding may only ask that the court make orders against or 

involving the other party, or any other person, that are available to the party in these 

rules, Family Code sections 17400, 17402, and 17404, or other sections of the California 

Family Code.” Section 1101, subdivision (h), provides that the remedies for a breach of 

fiduciary duty by a spouse include but are not limited to awarding the full value of the

community property asset to the nonoffending spouse. We note that section 1101, 

subdivision (h), does not prohibit an award of prejudgment interest.

While we have found no published case that specifically holds that 

prejudgment interest may be awarded in a family law matter, in some cases the appellate 

court has addressed the issue of prejudgment interest without questioning its availability. 

(See In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1488 [wife waived the 

issue of prejudgment interest on damages due to husband’s alleged breach of fiduciary 

duty]; Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326, 1344-1345 [affirming award 

of prejudgment interest under Civ. Code, § 3288 to surviving spouse for the period in 

which she was unable to use her community property interest in deceased spouse’s stock 

in defendant corporation].)
14

Based on all the foregoing, we conclude that the trial court had the 

authority to award prejudgment interest to Audrey in its discretion.

We further conclude, however, that the trial court did not abuse its 

discretion by opting not to award prejudgment interest to Audrey. Audrey argues that the 

court failed to exercise any discretion in reaching its decision. To the contrary, as noted 

above, the court considered the total amount Audrey was receiving by being awarded the 

full value of the specified community property assets, as well as the “dynamics” of the 

case. A trial court need not explain in detail everything it considers in order to establish 

it has exercised its discretion. Here, the court fully explained why it was choosing not to 

order prejudgment interest as a further sanction against Andrew for his breach of 

fiduciary duty. We find no error.

III

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal, with the 

exception of costs related to the appeal of the Nido Way property, as to which the parties 

stipulated they would bear their own costs when dismissing that issue from the present 

appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOTOIKE, J.