Filed 7/17/14 Marriag e of Davis CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of JESSIE and JAMES L. DAVIS. 2d Civil No. B243382 (Super. Ct. No. 1343373)

(Santa Barbara County)

JESSIE DAVIS,
Appellant,

v.
JAMES L. DAVIS,
Respondent.

Jessie Davis (wife) appeals from a judgmen t dissolving her marriage to James Davis (husband). Wife contends that the trial court erroneously (1) denied her motion to continue the trial, (2) denied her request for attorney fees, (3) refuse d to impose sanctions against husband, and (4) failed to order that all spousal support be nontaxable to her. We affirm. Background For over 30 years, husband was married to his first wife, Nancy Davis. They separated in 2006, and their marriage wa s dissolved in the spring of 2008. Husband married wife in September 2008. They separated 20 months later. They did not have any children. On May 7, 2010, wife filed a petition for dissolution of the marriage. The trial court ordered husband to pay wife temporary spous al support of $10,000 per month, retroactive to May 20, 2010.2 In March 2011 the trial court issued an order to show cause why husband should not be held in contempt. The gr ounds for the contempt proceedin g were that, in violation of previous court orders, husband had not made spousal support payments of $83,548 and had not paid wife's attorney fees of $45,000. In February 2012 all of the issues in the contempt proceeding were settled by husband's conveya nce to wife of residential property in Kentucky. The property was appraised at $325,0 00. The court found that wife had received "improved real property in Kent ucky that has no debt and that she is listing for sale at $325,00." At the time of trial in Apr il 2012, wife was 41 years ol d and husband was 69 years old. After the trial, the court filed a 31-page statement of decision. The court noted that wife had claimed that (1) she was "unable to work due to . . . back injuries," (2) husband had "supported [the parties] w ith his $12 million of earnings dur ing marriage," (3) husband had
"made it clear he had secreted his money in offshore accounts out of reach of his [former] wife," (4) "there is an estate of $40 to $80 m illion in dispute with his [former] wife," and (5) "that the marital standard of living in this marriage was $125,000/mo[ nth]; the couple spent $2.5 million during the 20 [-]month marriage." Wife requested that the comm unity property, including the $12 million in earn ings, be divide d equally between the pa rties. After taxes, her share of the earnings "would be about $3.6 million." Wi fe estimated that husband's present income is $10 million per year. She sought spousal support of $62,500 per month "for up to three or four years, plus one semester." Wife testified at the trial; the court conclu ded that she was not a credible witness. The court stated: "I could not find any plau sible evidence from her testimony that husband ever 'earned' any money during the marriage; in general her testimony was not cohesive; the documents presented were not convincing; her demeanor in testifying . . . was not persuasive." "The testimony of offshore accounts . . . appeared implausible; she may well have speculated or hoped that husband had off shore accounts, . . . but the Court in a
dissolution action needs hard ev idence, not speculation." In contrast to wife, the trial court found Pamela Mannix to be a "very credible"
witness. Mannix testified as follows: In Ja nuary 2012 an Indiana court appointed her as3 husband's "Guardian Ad Litem." Husband cu rrently lives in two residences: one in Kentucky and the other in Indiana. He pa ys monthly rent of $800 for the Kentucky residence and $600 for the Indi ana residence. Husband has "[f]rontal lobe dementia" and "sits in a rocking chair watching television all day." Husband asked Mann ix to assist him in June 2010. At that time, she believed that he was mentally im paired. The trial court stated,
"I am satisfied that husband has dementia." Mannix further testified: Husband's monthly social security inco me is $1,143, and he has "no other money." To pa y for his rent and maintenance, husband borrowed about $18,000 from Mannix and her husband. He also "borro wed around [$]6,000 two or three times from his daughter." In addition, husband borrowed $25,000 from Mannix's brotherin-law to pay for his present attorney. He owes a "big" de bt to the Internal Revenue
Service. As Guardian Ad Lite m, Mannix applied to the Stat e of Indiana for permission to sell 12 vehicles owned by husband. He needs to sell them to have funds to pay attorney fees and "be able to live. He's got to survive, and he has no cas h to do so." Mannix estimated that, if all 12 vehicles are sold, husband will receive approximately $ 300,000. In 2008 and
2009 husband filed tax returns for his company, Davis Metal Sa les. Mannix examined the returns, which showed that the companies had "[z] ero activity."
The trial court also found Steven Garne r, a forensic accountant, to be a "very credible" witness. He testified that, on the da te of husband's marriage to wife in September 2008, husband had financial accounts with a net worth of $2,044,255. On February 29, 2012, the only remaining accoun t was a checking account with a balance of $433. Garner
examined husband's tax returns for 2008, 2009, and 2010. The returns showed that he owed

no tax. The trial court found husband's former wife, Na ncy Davis, to be "a credible witness." Nancy Davis testified as follo ws: She and husband have thr ee children. In 2007 their "money was equally divided," and they each received approximately $2.4 million. They own a 500-acre farm that has not yet been di vided. They purchase d the farm for $2.4
million in 1988. If the farm we re sold at auction, they pr obably "could double it [the purchase price] and get [$]5,000,000." Document s filed by wife have cr eated a cloud on the4 title to the farm. Husband had a metal business that he closed in 2003. Husb and owes child support arrearages, has been unable to contribut e to his children's college education, has not paid the insurance on the farm, and is "behind on the taxes."
The trial court determined that "there was no community property acquired during the marriage," so "[t]here is no property to be divided." The court granted husband's motion to terminate spousal support, re troactive to May 19, 2011. Th e court observed that, as of that date, wife had been awar ded 12 months of tem porary spousal support. It explained: "[T]his was only a 20[-]month marri age and there is no reason not to follow the general rule that 'permanent spousal support' will equal a duration of 1/2 th e length of the marriage or 10
months." The court found that wife "clearly has the necessa ry marketable skills to be employed" and that she "can be self[-]supporting." The court noted that it had previously awarde d wife attorney fees of $160,000. It
refused to award additional fees. The court fo und that husband's tota l unpaid arrearages for spousal support and attorney f ees were $161,203. The court also found "that wife has now received [from husband] real property (worth $325,000) [in settlement of the contempt proceeding] plus she had prev iously been paid $30,000 in cash and [her] attorney had received $15,000 in cash." The court conclude d that it was "absolutely satisfied wife and
her counsel have been awarded al l they are entitled to under the unique facts of the case." Denial of Continuance
Wife contends that the trial court abused its discretion in denying her request to continue the trial because husband had not paid her need-based attorn ey fees and had not complied with court-compelled discovery. Wi fe argues: "Without the money [i.e., payment of her attorney fees, she] was economically cu t-off from all possible out -of-state evidence.
She made clear to the court that Kentucky was where the releva nt witnesses (and [husband]) could be deposed. Without such evidence, she c ould not present her case." Wife continues: "In the days leading to trial, [husband] produced records fro m only one of at least three banks, dumping 4,000 statemen t pages through the day prior to trial confirmation. The
court abused its discre tion by denying [wife's] request for c ontinuance so she could at least have time to review and analyze the massive trove of documents. [¶] Instead, the court set5 trial to commence six days foll owing trial confirmation . . . ." "Without allowing access to discovery in advance of trial, it was a de facto denial of trial on the merits and a fair day in
court."
"Trial continuances are disfavored and may be granted only on an affirmative showing of good cause. [Citations.]" ( Thurman v. Bayshore Transit Management,
Inc. (2012) 203 Cal.App.4th 1112, 1127; see also Cal. Rules of Court, rule 3.1332(c) ["[E]ach request for a continuance must be c onsidered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance."].) A request for a continuance mu st be made "by a noticed motion . . . with supporting declarations." ( Id ., rule 3.1332(b).) " 'The decision to grant or deny a continua nce is committed to the sound discretion of the trial court. [Citation.] The trial court's exer cise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.]' " ( Thurman v. Bayshore Transit Management, Inc. , supra , 203 Cal.App.4th at p. 1126.) "It is the appellant's burden on appeal to show the trial court abused its discretion. [Citation.]" ( Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 957.) Wife has not carried her burden on appeal . In the argument portion of her opening brief, wife was required to set forth the affirmative showing of good cause for the
continuance that she had made at the he aring on the motion for a continuance. In determining whether a trial c ourt abused its discretion, we c onsider the record before the court when it made its ruling. (See People v. Thomas (2012) 53 Cal.4th 771, 798.) Wife was also required to support the showing of good cause by referenc es to the record. Contrary to these requirements, wife's argum ent does not set forth the showing of good cause and does not contain any supporting record references. 1 " ' "It is the duty of a party to

1 Wife's reply brief contains numerous r ecord references. But she still does not present argument with supporting record refere nces establishing the requisite affirmative showing of good cause fo r the continuance at the hearing in the trial court. In any event, argument and record references in the reply brief are "too late beca use [husband] did not6 support the arguments in its briefs by approp riate reference to the record, which includes providing exact page citations." [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]' [Citation. ] [¶] . . . This rule applies to matter referenced at any point in the brief, not just in the stat ement of facts. [Citation.]" ( Sky River LLC v. Kern County (2013) 214 Cal.App.4th 720, 740-741.) " 'The appellate court is not required to search the record on its own seeking error.' [C itation.] Thus, '[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]' [Citations.]" ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) The ap plication of this ru le is particularly appropriate where, as here, the record is volumi nous. The clerk's transcri pt alone consists of 13 volumes and 3,900 pages. Even if the trial court had erred in deny ing wife's motion for a continuance, "[a] judgment is reversible only if any error or irregularity in the u nderlying proceeding was prejudicial. [Citations, fns. Om itted.] Therefore, any error in failing to grant a request for a continuance . . . is reversible only if it is ta ntamount to the denial of a fair hearing. [Citations.] There is no presumpt ion of prejudice. [Citations.] Instead, the burden to demonstrate prejudice is on the appellant. [Citation.]" ( Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527-528.) Wife has failed to carry her burden of demo nstrating that the denial of a continuance
was tantamount to the denial of a fair hearin g. Wife was represented by counsel throughout the trial. It is speculative whether the granting of a con tinuance would have led to the discovery of admissible evidence that would have resulted in a more favorable outcome for
wife. Denial of Attorney Fees At the conclusion of the trial, the court refu sed to award wife attorney fees in excess of the $160,000 it had previously awarded. In its statement of decision, the court declared:

have the opportunity to respond." ( Provost v. Regents of University of Cal. (2011) 201 Cal.App.4th 1289, 1305.)7 "Wife's attorney has requested $250,000 in fees and costs in this case; this Court has previously awarded $160,000. There was no justification for this trial; wife had no viable claims to present; there is no basis for husban d to have to pay for wife's attorney fees incurred for this trial or to get ready for this trial. . . . [I]t is clear that any additional fees are
unwarranted." Wife asserts that the trial cour t abused its discretion because it failed to make the analysis required by Family Code sections 2030 and 2032. 2
" 'It is well established in California that , although the trial court has considerable discretion in fashioning a need-based fee awar d [citation], the record must reflect that the trial court actually exercised that discreti on, and considered the statutory factors in exercising that discretion.' [Citation.] Thus, 'it is an abuse of discretion for trial courts to deny motions for pendente lite attorney fees and costs in ma rital dissolution proceedings without considering the needs of the requesting spouse and the ability to pay of the spouse against whom the award is sought.' [Cita tion.] Similarly, trial courts 'have a duty at the conclusion of the case to make a just and re asonable award of attorney fees and costs, considering the circumstances of the parties.' [Citation.]" ( In re Marriage of
Cheriton (2001) 92 Cal.Ap p.4th 269, 315.)
The trial court did not abuse its discretion. It properly considered the circumstances of the parties. The court noted that the Kent ucky "real property transferred [by husband to wife] in settlement of the contempt action has a fair market value of $325,000, much more than what was at issue on the contempt citation. " The court pointed out that in the contempt action "the total demanded was $1 28,548.39 plus attorney fees and costs in pursuing [that]
action." The court also properly consid ered that wife's trial claims were wholly without merit and that "[t]here was no justification for the tr ial." A court should not award attorney fees that were not "reasonably necessa ry." (§ 2030 , subd. (a)(1) ["In a pr oceeding for dissolution of marriage, . . . the court sha ll ensure that each party has acc ess to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reas onably necessary for attorn ey's fees . . . ."];

2 All statutory references are to the Family Code.8 Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 252, fn. 15 [" 'An award measured summarily by what the applicant has be en billed or what his or her attorney is presently owed is an abuse of discretion if it
does not reflect consideration of whether th e fees allegedly incurred were reasonably necessary' "].) ( Id. at p. 255.) On a motion for attorney fees in a marital dissolution proceeding, " 'the trial court's order will be overturned only i f, considering all the evidence viewed most favorably in support of its order, no judge could reas onably make the order made. [Citations.]' [Citation.]" ( In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) In view of the parties' circumstances and the lack of merit of wife's trial claims, it cannot be said that no judge could have reasonab ly limited wife's attorn ey fees to $160,000.
Sanctions Wife argues that the trial court abused its discretion by refusing to impose sanctions against husband pursuant to section 271. "S ection 271 provides that a family court may impose an award of attorney fees and costs 'in the nature of a sanction' where the conduct of a party or attorney 'frustrates the policy of the law to promot e settlement of litigation and, where possible, to reduce the cost of litiga tion by encouraging co operation between the parties and attorneys.' (§ 271, subd. (a).)" ( In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.) "[S]ec tion 271 vests family law cour ts with an additional means
with which to enforce this state's public policy of prom oting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel." ( Id ., at p. 1318.) Pursuant to section 271, in the trial c ourt wife requested "m onetary sanctions of $3,600,000, representing the after-tax value of the community asset here in dispute [i.e., wife's share of the alleged earnings during the 20-month marri age], discovery of which was dramatically prejudiced by Husband's rebelli on against court orders to pay fees, and his undisputed hiding of hundreds of thousands of dollars by whic h he could have paid those
fees as ordered." Wife has forfeited this i ssue because the argument portion of her opening9 brief does not include any supporting record references. ( Sky River LLC v. Kern County , supra , 214 Cal.App.4th at pp. 740-741.) In any event, the trial court did not abuse its discretion. It found that there was no community property and that wife's tes timony concerning hidden offshore accounts was "implausible." The court noted that it had previo usly "granted wife very significant attorney fees and sanctions . . . in reliance upon her attorney's contention that husband was consistently uncooperative . . . ." The court concluded that "under all the circumstances there is no justification for additional sanc tions or sanctioned-based fees/costs." (Underlining omitted.) The trial court's ruling wa s not unreasonable, especially in view of
husband's strained financial ci rcumstances. "The only strict ure imposed by this statutory provision [section 271] is th at the sanctions may not im pose an unreasonable financial burden on the party sanctioned . . . ." ( In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 995.) Taxation of S pousal Support In its statement of decision, the court d eclared: "Wife's request that her spousal support payable after April 1, 2011, be nontax able to her and nonded uctible to husband is granted." (Underlining omitted.) We reject wife's argument that all spousal support, including support payable before April 1, 2011, should be n ontaxable to her because the parties made an agreemen t to that effect. "Spousal support payments that qu alify as alimony under federal law are deductible by the payor spouse and taxable to the payee spouse, although the parties may elect to characterize the payments as nondedu ctible and excludable." (11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband & Wife, § 347, p. 452.) The issue of spousal support before April 1, 2011, was settled in February 2 012 as part of the contempt settlement. The settlement agreement stated that it "would satisfy and resolv e all issues . . . before the Court" in the contempt proceeding. The A ffidavit of Facts Constitu ting Contempt showed that, through March 2011, husba nd had failed to pay spousal support of $83,548. The settlement agreement mentione d nothing about the taxati on of spousal support.10 During the trial, wife's coun sel told the court that the Kentucky property received by wife pursuant to the contempt settlement had be en "traded off" for "spousal support through March of 2011." The following colloquy th en occurred between the court and wife's
counsel: "THE COURT: Your request, if I understand it correctly, is you want [husband] to be responsible for the taxes on spous al support only goes back [ sic ] to the payment that was due April 1, 2011? "[Counsel]: Yes. "THE COURT: And then pr ospectively thereafter? "[Counsel]: Yes "THE COURT: I got it." Accordingly, the trial court did not err wh en it granted "[w]ife's request that her spousal support payable after April 1, 2011, be nontaxable to her and nondeductible to husband." (Underlining omitted.) Disposition The judgment is affirmed. Husband shall recover his costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.11 Thomas P. Anderle, Judge
Superior Court County of Santa Barbara

________________ ______________

Randy Warren, for Appellant.

Paul A. Roberts and Marcus S. Bird ; Hollister & Brace, for Respondent.