Filed 8/28/23 Marriage of Presti and Chu CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re the Marriage of MATTHEW

PRESTI and JANEY CHU. B309231

, B317198

MATTHEW PRESTI

,

Appellant

,

v.

JANEY CHU

,

Respondent

. Los Angeles County

Super. Ct. No. 20PDFL00918

APPEAL S from orders of the Superior Court of Los Angeles

County

. Amy M. Pellman and Sarah J. Heide l

, Judge s. Case

No

. B309231 is affirmed

. Case No. B317198 is reversed in part

and remanded for further proceedings.

L aw Offices of Lisa R. McCall, Lisa R. McCall and Erica M.

Baca for Appellant.

James Karagianides ; McAlarnen & Sun and Julie

McAlarnen for Respondent.

______ _____________________2 Th ese are consolidated appeals from orders of the Los

Angeles Superior Court in the parties’ dissolution proceeding

. At

issue is whether the trial court erred in (1) denying appellant

Matthew Presti’s request for modification of a Ma rch 2019

stipulated child support order (case No. B309231) ; and

(2) granting respondent Janey Chu’s request for sanctions

against Matthew and denying Matthew’s request for sanctions

against Janey (case No. B317198)

. 1 We answer the first issue in

the negat ive because Matthew failed to timely raise below the

grounds he now urges for reversal. As to the second issue, we

conclude the court failed to properly exercise its discretion in

awarding fees against Matthew because it relied on findings

unsupported by the record and considered inappropriate factors

,

but we find no abuse of discretion in its denial of Matthew’s

request for sanctions against Janey

.

We therefore affirm the trial court’s denial of Matthew’s

request to modify the March 2019 order

, reverse i ts sanctions

order as against Matthew , and affirm its denial of Matthew’s

request for sanctions against Janey. We remand for

reconsideration of Janey’s request for sanctions subject to the

limitations imposed by this opinion.

BACKGROUND

Matthew and Janey wed in July 2009 . I n March 2011, they

had a daughter, K.P. In January 2012, the couple separated. For

the duration of their marriage, they lived in Orange County

where Matthew held an information technology position with

1 Despite their different surnames , we follow the parties’

lead in referring to them by their first names

.3

Citigroup. Following their sepa ration, Janey moved to Los

Angeles County

. Court proceedings in Orange County followed . In

November 2012 the Orange County Superior Court entered a

status only dissolution judgment , reserving other issues for later

resolution

. In July 2013, it entered a judgment on child custody

issues

, which provided K.P. would spend the substantial majority

of her time with Janey

. In March 2015, the court entered a

stipulated judgment on child support issues

, which required

Matthew to pay Janey child support of $1,123 per month. The

judgment described this rate as “guideline”

— a reference to the

statewide uniform guideline for child support payment amounts

adopted pursuant to Family Code 2 division 9, part 2, chapter 2,

article 2. (§§ 4050

– 4105.)

Matthew lost his job a t Citigroup in September 2017. A

few months later

, in June 2018, he moved to Los Angeles County,

near where Janey and K.P. lived.

With the parties living closer together

, they agreed to

revisit their custody and support arrangements . In March 2019,

the y stipulated to an order whereby K.P. would stay with each

parent approximately half the time and neither would pay the

other child support.

The March 2019 stipulation and order was prepared on an

Orange County Superior Court form that made no mention of

whether the “$0” support payment was above, below, or at the

guideline amount

. It did, however, contain the five statements

section 4065, subdivision (a) makes mandatory for the court to

2 Undesignated statutory references are to the Family Code.4

approve a below

- guideline support stipulation. 3 Despite

containing the statements required for a below

- guideline support

stipulation, Janey claims

, 4 and Matthew does not dispute, that

t he Orange County Superior Court entered the March 2019 order

without making the findings it would have been required to make

under section 4056 to issue a child support order that was below

guideline

. 5

3 S ection 4065 provide s, in relevant part , that “the parties

may stipulate to a child support amount subject to approval of

the court. However, the court shall not approve a stipulated

agreement for child support below the guideline formula amount

unless the parties declare al l of the following: [¶] (1) They are

fully informed of their rights concerning child support

. [¶] (2 ) The order is being agreed to without coercion or duress

. [¶] (3 ) The agreement is in the best interests of the children

involved

. [¶] (4 ) The needs of the children will be adequately

met by the stipulated amount

. [¶] (5) The right to support has

not been assigned to the county

. . . and no public assistance

application is pending. ” ( Id. , subd. (a).)

4 Janey’s claim is not supported by prop er citation to the

record. For the proposition, she cites a brief she filed with the

trial court. “A trial brief is not evidence, it is argument.” ( In re

Marriage of Pasco (2019) 42 Cal.App.5th 585, 591 ( Pasco ) .)

5 S ection 4056 provides, in relevant pa rt, that “the court

shall s tate, in writing or on the record, the following information

whenever the court is ordering an amount for support that differs

from the statewide uniform guideline formula amount under this

article: [¶] (1) The amount of suppo rt that would have been

ordered under the guideline formula

. [¶] (2) The reasons the

amount of support ordered differs from the guideline formula

amount

. [¶] (3) The reasons the amount of support ordered is

consistent with the best interests of the c hildren. ” ( Id. , subd. (a).)5

1. Matthew’s Efforts to Modify the March 2019 Order

Just a few months after agreeing to the March 2019 child

support order , Matthew decided he wanted child support

payments from Janey. In Au gust 2019

, he filed a request for

modification with the Los Angeles Child Support Services

Department. A few months later, the Los Angeles Child Support

Services Department advised Matthew it was unable to assist

him because the parties’ dissolution proce eding was still pending

in Orange County. Matthew then filed a request to modify the

March 2019 child support order in Orange County Superior

Court , but failed to properly serve Janey

, thereby delaying its

hearing

. Before the Orange County Superior Court was able to

hear the matter, Janey moved to transfer venue to Los Angeles

County. The Orange County Superior Court granted Janey’s

motion. Following the t ransfer , in July 2020, Matthew renewed

his request for modification in the Los Angeles Superior Cou rt.

Matthew’s request stated he sought “ [child] support

[payments] within guidelines.” He did not assert that the March

2019 order was below gui deline when entered

. This is important

because, a s discussed further below, a party seeking to modify a

child support order ordinarily must show circumstances have

changed since the previous order

. B ut section 4065,

subdivision (d) does not require a party to show changed

circumstances to request modification of a below

- guideline child

support order

.

I nstead of asserting he did not have to show changed

circumstances

, Matthew support ed his request with a discussion

of his circumstances . He explained he had been laid off from his

job at Citigroup in 20 17; that he had thereafter moved to Los

Angeles; and that sinc e moving to Los Angeles the parties had6

agreed to split time with K.P. equally. He continued that, since

obtaining equal time with K.P.

, he had been “aggressively looking

for [jobs]” but “having a difficult time finding employment.” The

job market in Los Angeles proved weaker for his skillset than the

market in Orange County. This brought Matthew “to the

realization that the cost of living [in Los Angeles ] is much more

expensive than it is in Orange County and [he] [wa]s burning

through [his] savings qui ckly as a result.”

Janey opposed Matthew’s request

. She ar gued that, to

obtain a modification of the March 2019 order, Matthew was

required, but failed, to show a material change in his

circumstances. Circumstances had not changed because, w hen

Matthew and Janey entered into the March 2019 stipulation,

Matthew was already unemployed, had already moved to Los

Angeles, and had already obtained a 50

- 50 timeshare of physical

responsibility for K.P.

The trial court , Judge Amy Pellman presiding, heard

Matthew ’s modification request in August 2020. At the hearing,

the court pressed Matthew , who was representing himself, to

articulate changed circumstances. Matthew expressed “concern[]

that we’re even questioning the fact there’s no change in

circumstance

, ” bu t never took the position that no such showing

was required under section 4065, subdivision (d)

. Janey’s counsel

argued there was no evidence the March 2019 stipulated order

was below guideline, and further asserted it was “presumptively

a guideline suppo rt” because it was

, according to Janey,

unaccompanied by findings that the court is r equired to make

under section 4056, subdivision (a) to support below

- guideline

orders. The court was receptive to this argument, calling the

“point that this was a guidel ine support

. . . well taken.” It7

denied Matthew’s request for modificatio n. It explained on the

record that Matthew failed to demonstrate changed

circumstances. The minute order that followed stated

, “ The

Court finds that there is a lack of change in c ircumstances. ”

Several months later, the trial court entered formal

findings that echoed the minute order : “The Court finds that

[Matthew] did not meet his burden of proof to show any change of

circumstances warranting a modification of the March 13, 201 9

Order

. ” T he court did not address whether the March 2019 order

was either guideline or below guideline.

2. Matthew’s Request to Vacate

Two weeks after the hearing on his modification motion

,

Matthew filed a notice of intention to move to vacate pursua nt to

Code of Civil Procedure section 663

. For the first time, he

asserted the March 2019 support order was below guideline

, and

he invoked section 4065, subdivision (d) to excuse a showing of

changed circumstances. When he filed his motion to vacate

,

Ma tthew also filed a request that it be heard before

November 18, 2020

. This date was significant, he explained

,

because it was the statutory deadline for the court to decide his

motion to vacate under Code of Civil Procedure section 663a,

subdivision (b). The trial court granted Matthew’s scheduling

request, setting the hearing for October 22, 2020.

Janey opposed Matthew’s motion to vacate on multiple

grounds

. These included that Matthew could not raise the

benefit of sectio n 4065, subdivision (d) on a motion to vacate

because he had not established in the modification proceeding

that the March 2019 order was below guideline.

At the October 22, 2020 hearing

, the trial court (Judge

Pellman again presiding) considered Matthew’s arguments and8

expressed an inclination to “ revisit ” denial of Matthew’s request

to modify the March 2019 order. The court felt a full hearing was

the “fair est ” way to address his points

, but Janey’s counsel

steadfastly argued such a hearing was pointless under Code of

Civil Procedu re section 663 given the lack of evidence the

March 2019 order was below guideline. Despite agreeing with

Janey’s counsel that “that’s actually true under the 663,” the

court stated : “What I can

. . . do, if parties don’t agree, is set the

matter for a h earing on

– [ sic ] and vacate.” The court then

offered a hearing date of February 8, 202 1

, which counsel for both

parties accepted. Shortly thereafter, Janey’s counsel asked,

“what exactly is set for hearing on February 8?” The court

responded “[w]e’ll d o it in accordance with 663

. ” Janey’s counsel

expressed understanding, and the hearing ended.

Counsel for Matthew did not share Janey’s counsel’s

understanding. She prepared a form of order stating that the

motion to vacate had been granted and sent tha t to Janey’s

counsel on November 6, 2020. Janey’s counsel responded 10 days

later that she disagreed the trial court had vacated its denial of

Matthew’s request for modification

, arguing the hearing had

merely been continued

. Matthew’s counsel then filed an ex parte

motion to clarify on November 19, 2020

, advising that if the

motion to vacate had not been granted on October 22, it had been

denied by operation of law on November 18, and Matthew would

need to promptly appeal denial of his modification reque st

. The

court denied the motion for clarification, stating it had not

decided Matthew’s motion to vacate and reiterating that the

matter would go forward on February 8, 2021.9 Matthew filed a notice of appeal of the denial of his request

for modification o n November 20, 2020. 6

The trial court

, Judge Sarah Heidel presiding, held a

hearing on Matthew’s motion to vacate in February 2021. It

denied the motion as untimely because the statutory period to

consider it under section 663a had expired.

3. Janey’s R equest for Sanctions and Matthew’s

Cross

- r equest

In September 2021 , pursuant to section 271

, Janey filed a

request for sanctions against Matthew of $134,860.07 for conduct

dating back to 2012

. The request recite d that “ $75,587.62

represents the fees and c osts [Janey] incurred in connection with

[Matthew’s ] custody li ti gation [from 2012] th r ou g h 2018. The

remaining $59,272.45 represents the fees and costs [Janey] has

incurred since 2019

. . . .”

Matthew opposed Janey’s request and made a cross

- request

for sanctions against Janey in the amount of $20,000. Among

other things, Matthew argued Janey could not recover for conduct

before March 2019 because, by stipulations dated October 2016

and March 2019, the parties had agreed to waive the right to

recover att orney fees for the periods 2012 through 2016 and 2018

through 2019.

The trial court ( Judge Heidel again presiding) heard the

sanctions matters in October 2021. For reasons detailed later in

this opinion, the court granted Janey’s request in the amount o f

$38,092.70 and denied Matthew’s request.

6 Matthew’s notice of appeal also referred to the trial court’s

October 22, 2020 order

. He does not argue grounds for reversal of

this order so his appeal from that order is waived.10 Matthew timely appealed this order

. W e consolidated that

appeal with the earlier appeal of the denial of his request for

modification on November 20, 2020.

DISCUSSION

1. Modification

a. Appealability

Janey notes Matth ew appealed from the trial court’s

August 20, 2020 minute order stating his request for modification

was denied, but not its subsequent December 2020 findings and

order further memorializing that decision. Janey asserts that

this “rais[es] a question as t o whether his first notice of appeal

was premature.” Janey does not attempt to answer this

“question” or suggest we should not consider Matthew’s appeal of

the denial of his request for modification.

We have discretion to treat a notice of appeal filed af ter the

superior court has announced its intended ruling, but before it

has rendered an appealable order, as filed immediately after the

entry of the appealable order. (Cal. Rules of Court,

rule 8.104(d)(2), (e).) To the extent Matthew’s first notice of

appeal may have been premature, we exercise that discretion and

treat the notice as filed upon entry of the court’s December 2020

findings and order.

b. Standard of r eview

We review an order on a request for modification of child

support for abuse of d iscreti on

. ( In re Marriage of Leonard (2004)

119 Cal.App.4th 546, 555

. ) In this context, the trial court’s

exercise of discretion entails “ ‘ “ a duty to exercise an informed

and considered discretion with respect to the [parent’s child]

support obligation

, ” ’ ” and our deference is “ tempered

significantly by the state’s uniform child support guideline

. . . .11

‘ [T]he trial court’s discretion is not so broad that it “may ignore or

contravene the purposes of the law regarding child support.” ’ ”

( Ibid.

, citation s omitted. )

c. Purposes of California’s c hild s upport l aws

“ ‘ California has a strong public policy in favor of adequate

child support. [Citations.] That policy is expressed in statutes

embodying the statewide uniform child support guideline.

[Citations.] ’ [Citation.] ‘ The guideline seeks to place the

interests of children as the state ’ s top priority. ’ [Citation.] In

setting guideline support, courts are required to adhere to the

principles set forth in section 4053, which include: (1) ‘ A

parent ’ s fir st and principal obligation is to support his or her

minor children according to the parent ’ s circumstances and

station in life ’ ; (2) ‘ [b]oth parents are mutually responsible for the

support of their children ’ ; (3) ‘ [e]ach parent should pay for the

support of the children according to his or her ability ’ ; (4) ‘[ c]hild

support orders in cases in which both parents have high levels of

responsibility for the children should reflect the increased costs of

raising the children in two homes and should minimize

si gnificant disparities in the children ’ s living standards in the

two homes ’ ; and (5) ‘ [c]hildren should share in the standard of

living of both parents. Child support may therefore appropriately

improve the standard of living of the custodial household to

improve the lives of the children. ’ ” ( In re Marriage of Bodo

(2011) 198 Cal.App.4th 373, 385

, fn. omitted ( Bodo ) .)

d. Guideline s upport and s tipulated e xceptions

To implement these policies, courts are ordinarily required

to set child support in accordance with the mathematical formula

in section 4055. (

Bodo

, supra

, 198 Cal.App.4th at p. 385.) Th is

formula takes into account

, among other things, the parents’12

respective net incomes and their relative share of time having

primary physical responsibility for the supported chi ldren. (See

§ 4055, subd. (b).) Support orders may deviate from the guideline

only in limited circumstances, including

, as relevant here, where

the “parties have stipulated to a different amount of child support

under subdivision (a) of Section 4065.” (§ 4057, subd. (b )(1).)

When stipulating to a below

- guideline support payment

,

the parties must make the declarations required by

subdivision (a) of section 4065, recited in footnote 3

, ante

. And

regardless of whether the stipulated amount is above or below

guideline, a court considering any nonguideline stipulation must

make the findings required by subdivision (a) of section 4056,

recited in footnote 5

, ante , including what the a mount of the

guideline payment would have been in the absence of the

stipulation. (See § 4056, subd. (a)(1).) This is a “sua sponte

obligation ” the law imposes upo n a cour t

. ( In re Marriage of

Laudeman (2001) 92 Cal.App.4th 1009, 1014 ( Laudeman ).)

e. Modif

ication of s tipulated s upport a mounts

S ection 3651 provide s, in relevant part, that “a support

order may be modified or terminated at any time as the court

determines may be necessary.” ( Id.

, subd. (a).) This is true

“whether or not the support order is based upon an agreement

between the parties.” ( Id

. , subd. (e).)

Generally, a party seeking modification of a child support

order bears the burden of introducing “ ‘ admissible evidence of

changed circumstances as a necessary predicate for

modification. ’ ” ( In re Marriage of Williams (2007)

150 Cal.App.4th 1221, 1234.) A narrow exception to the changed

circumstances requirement applies to requests for modification of

below

- guideline stipulated orders. ( Ibid. ) Where such a13

stipulation has been made

, “no c hange of circumstances need be

demonstrated to obtain a modification of the child support order

to the applicable guideline level or above.” ( § 4065, subd. (d).) In

such a scenario, therefore, the party seeking the modification to

guideline need only sho w the prior stipulated order was below

guideline. ( See In re Marriage of Hein (2020) 52 Cal.App.5th 519,

536 [ Evid. Code

, § 500 rule imposing burden of proof on party to

whose case fact is essential applies in proceedings under the

Family Code].) This ru le has been described as an unqualified

right to “ ‘ “ renege” ’ on [a below

- guideline] stipulation at any

time

, and without ‘ “ grounds. ” ’ ” ( Laudeman

, supra

,

92 Cal.App.4th at p. 1015.)

Matthew cites two cases, In re Marriage of Thomas (1981)

120 Cal.App .3d 33 and In re Marriage of Catalano (198 8 )

204 Cal.App.3d 543, for the proposition that a prior stipulation

may be modified based on a showing of current circumstances

alone. A similar argument based on these same authorities was

rejected in In re Marri age of Cohen (2016) 3 Cal.App.5th 1014,

1023

– 1025 and we reject it for the same reasons. As to Catalano

,

a change of circumstances was actually found

, rendering the

point on which Matthew relies dicta

. ( Cohen

, at pp. 1023

– 1024

, citing Catalano

, at p. 549 .) As to Thomas

, this summary opinion

was no t well supported by authority and, if more closely

considered, would have required the party seeking modification

to at least show proof of prior circumstances in order to obtain

modification. ( Cohen

, at p. 102 5.) In any event, Thomas

described the authority to consider modification based on current

circumstances alone as discretionary. ( Thomas

, at p. 35.) Th us,

th at the Thomas trial court did not abuse its discretion in

modifying without changed circumstance s does not compel the14

conclusion that the trial court here abused its discretion in

declining to modify in the absence of changed circumstances.

f. The trial court did not abuse its discretion in

rejecting Matthew’s modification request

.

Matthew requested mod ification of the stipulated

March 2019 $0 support order based on a changed circumstances

theory. He asserted that, since the date of the stipulation, his

cost of living was higher than he expected it to be

, he was not

having the success he had hoped in fi nding a new job, and

, as a

result, he was burning through his savings

. For whatever

reason, he failed in his August 2019 request to claim the benefit

of section 4065, subdivision (d)

. As Janey explains, “he did not

even attempt to carry” the burden of sh owing the 2019 stipulated

order was below guideline. The trial court denied Matthew’s

request for failure to “meet his burden of proof to show any

change of circumstances warranting a modification of the

March 13, 2019 order.”

i. The trial court did not er r in finding

no changed circumstances

.

On appeal, Matthew does not argue he demonstrated

changed circumstances to the trial court, assuming they were

required. For completeness, we agree with Janey that the court

did not abuse its discretion in denying Ma tthew’s request for

modification for failure to show changed circumstances. When

Matthew and Janey entered into the March 2019 stipulation,

Matthew was already unemployed, had already moved to Los

Angeles, and had already obtained a 50

- 50 timeshare of phy sical

responsibility for K.P. The only change in circumstances

Matthew identified were the disappointment of his expectations,

the passage of time, and its attendant effect on his savings. It15

was well within the trial court’s discretion to conclude these

changes were inadequate to support his request to modify the

March 2019 order.

ii. Matthew forfeited his argument that

section 4065, subd ivision (d) excused a

showing of changed circumstances

.

Matthew argues the trial court should not have required a

showing of changed circumstances because the March 2019 order

was not guideline. W e agree with Janey that the applicability of

the section 4065, subdivision (d) exception is not properly before

us.

“ ‘[I]t is fundamental that a reviewing court will ordinarily

n ot consider claims made for the first time on appeal which could

have been but were not presented to the trial court.’

. . . Such

arguments raised for the first time on appeal are generally

deemed forfeited.” ( Perez v. Grajales (2008) 169 Cal.App.4th 580

,

591

– 592

, citations omitted .) “ ‘ “ ‘ The purpose of this rule is to

encourage parties to bring errors to the attention of the trial

court, so that they may be corrected. ’ ” ’ ” ( People v. Gonzalez

(2020) 57 Cal.App.5th 960, 975.) “[I] t is unfair to the trial judge

and the adverse party to take advantage of an alleged error on

appeal where it could have easily been corrected in the trial

court. ” ( Glassman v. Safeco Ins. Co. of America (2023)

90 Cal.App.5th 1281, 1326.)

At the August 2020 hearing

, Matthe w failed to object on

the grounds that section 4065, subdivision (d) excused him from

proving changed circumstances. At best, he expressed “concern[]

that we’re even questioning the fact there’s no change in

circumstance.” Matthew’s apparent belief that it was undeniable

his circumstances had changed would not have put the trial court

on notice of his position that he did not have to prove changed16

circumstances

. Absent a clear invocation of a statutory right, we

will not reverse for a trial court’s failu re to develop an appellant’s

theory for them. ( Cf. Planned Protective Servs. v. Gorton (1988)

200 Cal.App.3d 1, 13 [ declining to consider issue under doctrine

of invited error where the appellant failed to raise claimed

statutory right to trial court

, ren dering trial court “not informed

about” the issue ]

, disapproved on another ground in Martin v.

Szeto (2004) 32 Cal.4th 445, 451, fn. 7.)

It is true that Matthew raised the section 4065,

subdivision (d) exception to the trial court in his Code of Civil

Proc edure section 663 motion to vacate. However, t his was

inadequate to preserve the issue for appeal because it did not

give the court the opportunity to correct the error he claimed.

Code of Civil Procedure section 663 authorizes a trial court

to vacate a j udgment for an “[i] ncorrect or erroneous legal basis

for the decision, not consistent with or not supported by the

facts

. . . . ” ( Id. , subd. 1.) The statute does not authorize the

court to make additional

, supplemental or different findings.

( Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 682;

see also Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1350 [Code

C iv

. Proc.

, § 663 cannot “ be used to secure additional findings

that were not made before judgment was entered ”]

, reversed on

another gro und in Hassell v. Bird (2018) 5 Cal.5th 522, 234

. )

For Matthew to have prevailed on his motion to vacate, the

trial court would have had to make a finding that the March 2019

order was, in fact, below guideline. The record evidence Matthew

claims supports such a conclusion is insufficient to support Code

of Civil Procedure section 663 relief without a prior finding.

A lthough a $0 support order may be below guideline

, it is not

manifestly below guideline as a matter of law. The guideline17

amount is inheren tly factual. Because Matthew failed to obtain a

finding that the March 2019 order was below guid e line

, his

motion to vacate did not afford the trial court the opportunity to

correct the error he claims and did not preserve the issue for

appeal.

iii. Matthew’s other claims of error fail

because the trial court did not enter

a child support order.

Matthew argues the trial court erred in imputing to him

income without an adequate basis and in failing to make the

findings required when deviating from the amount of guideline

support. We find no error in this regard. For the reasons already

stated, the court properly denied Matthew’s request for

modification, leaving in place the child support terms of the

stipulated March 2019 order. Because it did not make any ne w

order for child support, the court was not required to, and did not,

make any calculation of Matthew’s income ; likewise, it was not

required to, and did not, make the findings required for a child

support order that deviates from the guideline amount.

2. Sa nctions Orders

a. Standard of r eview

A sanctions order under section 271 i s reviewed for abuse of

discretion. ( In re Marriage of Falcone & Fyke (2012)

203 Cal.App.4th 964, 995.) Accordingly, we will overturn such an

order only if “ ‘ no judge could reasonabl y make [it.] ’ ” ( Ibid .) It is

an abuse of discretion to rely upon improper factors in reaching a

decision. ( In re Marriage of Loyd (2003) 106 Cal.App.4th 754,

761; see also People v. Whitaker (2013) 213 Cal.App.4th 999, 1008

[“Generally, a trial court a buses its discretion by basing a

discretionary decision on improper factors.”].) This includes

relying on finding s unsupported by the record. ( Pasco

, supra,18

42 Cal.App.5th at p. 590 .) Likewise, a court abuses its discretion

by failing to consider releva nt factors. ( Oldham v. California

Capital Fund, Inc

. (2003) 109 Cal.App.4th 421, 430 .) We review

any findings of fact that formed the basis for the award for

substantial evidence. ( In re Marriage of Falcone & Fyke

, at

p. 99 5.)

b. Applicable l aw

Section 271 provides “ 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 lit igation by encouraging cooperation between the

parties and attorne ys.” ( Id., subd. (a).) Awards under

section 271 are appropriate to address “ obstreperous conduct

which frustrated the policy of the law in favor of settlement, and

caused the costs of the litigation to greatly increase. ” ( In re

Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106.) The

statute is aimed a t conduct which “ ‘ has unreasonably increased

the cost of litigation. ’ ” ( In re Marriage of Blake & Langer (2022)

85 Cal.App.5th 300, 31 0.)

An award under section 271 is “in the nature of a sanction.”

( Id., subd. (a).) Unlike some other san ctions statutes

, section 271

does not require a showing of mal intent o r bad faith

. ( Compare

§ 271, subd. (a)

, with Code Civ. Proc.

, § 128.5, subd. (a) [providing

for sanctions for “bad faith” conduct that is “ frivolous or solely

intended to cause unnecessary delay”] ; see also In re Marriage of

Melone (1987) 193 Cal.App.3d 757, 764 [no bad faith

requirement ]

, superseded by statute as stated in In re M arriage

of Daniels, supra

, 19 Cal.App.4th at p. 1108 ; In re Marriage of

Tharp (2010) 188 Cal.App.4th 1295, 1318 [ § 271 contains no19

frivolity or purpose of delay requirement ].) I t is sufficient that

the party’s conduct frustrated the policies favoring sett lement or

cooperation in the litigation process. It is not sanctionable

merely to engage in aggressive litigation conduct or to take a

position that is unsuccessful. Public policy does not prohibit

zealous advocacy. It is only when the conduct becomes

u nreasonable that sanctions may be awarded

. (See In re

Marriage of Quay (1993) 18 Cal.App.4th 961, 970 ; In re Marriage

of Corona (2009) 172 Cal.App.4th 1205, 1227 ( Corona ) [“ sanctions

under [§] 271 are justified when a party has unreasonably

increased the cost of litigation ” (italics added) ] .)

In determining the amount of a sanction award, the trial

court must consider “all evidence concerning the parties’ incomes,

assets, and liabilities.” (§ 271, subd. (a).) The party requesting

the award need not “demo nstrate any financial need for the

award.” ( Ibid .) However, the court may not “impose[] an

unreasonable financial burden” on the sanctioned party. ( Ibid .)

c. Analysis

Matthew argues the trial court erred in awarding

$33, 873.75 in sanctions to Janey

. 7 He a lso argues it erred in

denying him $20,000 in sanctions he requested against Janey

.

For the reasons that follow, we agree the sanction award against

7 He does not dispute the trial court’s aw ard of sanctions for

$4,218.95 of attorney fees Janey incurred when Matthew refused

to cooperate in getting K.P. a COVID

- 19 test before a planned

trip to Hawaii with Janey. This amount shall not be revisited on

remand but, to the extent the court orders o ther sanctions

against Matthew, it should be considered in connection with the

determination of whether the aggregate award “imposes an

unreasonable financial burden” on Matthew. (§ 271, subd. ( a).)20

Matthew was error but do not find error in the trial court’s

decision not to sanction Janey.

Even though t ying its award to specific attorney fees was

not required ( Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142,

1155 [§ 271 sanctions requestor “ need not establish with great

precision an amount directly caused by the improper conduct ”]),

t he trial court explain ed the sanctions against Matthew were for

“fees associated with the motion to vacate the August 20, 2020

child support order (where [Matthew] pursued competing legal

theories and took an appeal while the motion to vacate was still

pending)

, and

. . . for t he cost of preparing [Janey’s] request for

order for the Section 271 fees.” The fees for the motion to vacate

amounted to $24,643.75

, and the fees for the sanctions request

amounted to $9,230. The court based its award on detailed

factual findings and “a dditional context [Janey] described in her

declaration and moving papers

. . . .”

T he trial court denied Matthew’s request for sanctions

against Janey without reference to any specific findings

, concluding only that Matthew “failed to meet his burden that

such fees are appropriate.”

Matthew makes several arguments as to why the trial

court erred in awarding Janey sanctions and contends Janey’s

conduct was manifestly sanctionable under section 271. Some of

his arguments com pel the conclusion that remand is necessary

f or rec onsideration of the fee award against Matthew in

accordance with th is opinion.

We need not address Matthew’s points that are not well

taken. For example

, we reject his argument that there was

inadequate evidence of the parties’ respect ive financial situations

to support the sanctions order because the information before the21

court at the time of the hearing was not current. The court was

entitled to rely on historical income and expense information in

setting amount of award

. (See Coron a

, supra

, 172 Cal.App.4th at

p. 1227 .) I f Matthew wished to update his income and expense

declaration to show a reduced ability to pay, he had the right to

do so. His decision not to cannot form the basis for error. ( Ibid .)

And, contrary to Matthew’s c laim, the court did not sanction him

for losing his request to modify the March 2019 order.

Finally, w e do not believe Matthew has shown the trial

court abused its discretion in denying his request for fees against

Janey. While Matthew raises valid conce rns about Janey seeking

fees for conduct that was the subject of prior waivers, his

argument on appeal is merely that “[ her ] conduct was

sanctionable

. ” (Italics added.) That is not an adequate argument

to demonstrate an abuse of discretion. Trial courts have broad

discretion in determining whether to sanction under section 271.

( In re Marriage of Eben

- King & King (2000) 80 Cal.App.4th 92,

122.) That the trial court could have sanctioned Janey does not

mean that it had to

, or that no judge could reasona bly decline to

sanction her

.

That said, w e do find error in the trial court’s sanction

order against Matthew

. First, certain findings the court relied

upon in ordering sanctions are contrary to the record. Second,

the court impermissibly considered Mat thew’s conduct during a

period for which the parties had already resolved the issue of

fees.

The trial court’s findings that are contrary to the record

include that Matthew failed to notify the court of the necessity of

ha ving his motion to vacate heard wi thin the period prescribed

under Code of Civil Procedure section 663a

, subdivision (b)

— that22

he “attempt[ed] to raise the timeli ness argument only after the

October 22, 2020 hearin g”; that he appealed denial of his

modification request “while the motion to vacate was still

pending ” ; and that noticing an intention to take live testimony at

the February 8, 2021 hearing was somehow inappropriate

.

Matthew did raise the issue of timeliness before the

October 2020 hearing. In fact, the reason the hearing was held

on October 2020 was so that Matthew’s motion could be heard

within the statutory period. He stated this explicitly three times

in his ex parte motion requesting the hearing.

Further, Matthew’s November 20, 2020 notice of appeal

was not filed while his m otion to vacate was still pending. As the

trial court determined on February 8, 2021, it had been denied by

operation of law on November 18, 2020. (See Garibotti v. Hinkle

(2015) 243 Cal.App.4th 470, 483 [failure to rule on Code Civ.

Proc.

, § 663 motion within statutory period results in denial as a

matter of law].) Matthew advised the trial court of this fact in his

November 1 9

, 2020 motion for clarification. But instead of

acknowledging this and taking the motion to vacate off calendar,

the trial cour t said it “ha[d] not made a final determination as to

motion to vacate” and the hearing would go forward o n

February 8, 2021. If Matthew had waited until after the

February 2021 hearing to file his notice of appeal, he risked

rendering his appeal untimely

. By the same token, there was nothing unreasonable in

Matthew preparing for the February 8, 2021 hearing on his

motion to vacate as if it was going forward, despite having

treated it as having already been denied in filing his notice of

appeal. The trial court, even after Matthew informed it that it

lost jurisdiction to consider the motion to vacate on November 18,23

2020

, maintained that it would hear the matter on February 8.

Under the circumstances, it was entirely reasonable for Matthew

to prepare for the February 8 hearing, including by filing

appropriate notices with respect to the conduct of that hearing.

We acknowledge here, as discussed above, that the motion

to vacate was an improper vehicle for challenging the denial of

Matthew’s support modifica tion request

. But it was not s o

facially unmeritorious that the trial court dismissed it out of

hand. Indeed, the court stated that it was inclined to revisit its

denial of Matthew’s request for modification

, apparently

considering the possibility that t he March 2020 order was below

guideline as a matter of law

. On remand, the court should

consider the reasonableness of Matthew’s motion in the first

instance

. (See In re Marriage of Abrams (2003) 105 Cal.App.4th

979, 991 [reversing § 271 sanctions order where underlying

litigation conduct “ was not so devoid of merit that no reasonable

person would have pursued it ” and noting statements by judge at

a prior hearing tending to support theory].)

The trial court also abused its discretion in considering

condu ct that was the subject of prior settlements in deciding to

sanction Matthew. T he court found

, based on stipulations dated

October 17, 2016 and March 13, 2019

, that “ fees resulting from

conduct from those time periods cannot serve as the basis for

future Section 271 fees.” Yet the court went on to find that it

could “consider the conduct covered by the March 13, 2019

stipulation in determining whether such fees are appropriate.”

To say that an award may result from “ consider [ ing ]”

presettlement conduct i s effectively providing an award on

account of that conduct. The parties stipulated that they would

not recover f

ees on account of certain conduct occurring prior to24

March 2019. To circumvent this agreement is to undermine the

policy in favor of settleme nt

— the very policy section 271 is

intended to promote. On remand, the trial court should not

consider conduct as to which the parties waived any fee recovery

in deciding whether to award sanctions against Matthew

.

Because we vacate the trial court’s award of $33,873.75 in

sanctions against him

, we need not consider Matthew’s

arguments that the award “impose [d] an unreasonable financial

burden” on him within the meaning of section 271

.

DISPOSITION

The order denying Matthew’s request for modification of

the March 2019 stipulated child support order is affirmed (case

No. B309231) . The sanctions order (case No. B317198) is

reversed to the limited extent of the $33,873.75 portion of the

award against Matthew he challenges on appeal . The sanctions

order is affi rmed in all other respects . The matter is remanded to

the trial court for reconsideration of Janey’s request for sanctions

against Matthew subject to the limitations imposed by this

opinion. The parties shall bear their own costs on appeal.

GRIMES

, Acting P. J.

WE CONCUR :

WILEY, J

.

VIRAMONTES, J.