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Filed 2/17/11 Marriage of Chandler CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO In re the Marriage of TONNI CHANDLER and RICHARD F. CHANDLER. TONNI CHANDLER, Plaintiff and Respondent, v. A127595 RICHARD F. CHANDLER, (Alameda County Super. Ct. No. V0181686) Defendant and Appellant. I. INTRODUCTION In a now almost 12-year-old family law proceeding, appellant (the father of two children by his prior marriage) attempts to appeal from the family court s refusal, at hearings held on October 22 and November 4, 2009, to set aside or modify a November 30, 2005, child support order (the 2005 order). Because, among other things (1) the 2005 order was, in view of its age, now unappealable, (2) in any event, appellant never appealed from it, and (3) prior to the two 2009 hearings, appellant filed no motion or notice of motion regarding the 2005 order, we dismiss the appeal both because it is from a non-appealable order and is patently frivolous. Further, after receiving further briefing on the issue, we order sanctions imposed on both appellant and his counsel payable to both respondent (the children s mother) and this court. The specifics regarding those sanctions and their payees are set forth in the final section of this opinion. 1 II. FACTUAL AND PROCEDURAL BACKGROUND The parties marriage was dissolved by a judgment of dissolution entered by the family law court on February 25, 1999. On June 16, 2000, that court ordered appellant, the father, to pay guideline child support of $1,150 per month for the support of the couple s two minor daughters. However, on March 28, 2002, the court reduced that obligation to zero, subject to a reservation of jurisdiction to modify the support payments retroactively to the date of the order. In 2005, there were many significant developments relating to the appeal now in front of us. Those developments started with a May 13, 2005, hearing before the Alameda family law court involving, among many other things, the issue of child support payments. After post-hearing briefing, on September 2, 2005, the court (Judge Jacob Blea) entered a 26-page Statement of Decision regarding the matters it had heard and considered. Perhaps most importantly in that Statement of Decision was the court s observation that, especially regarding his ability to pay child support, appellant s testimony was completely lacking in credibility. Based on records, information and [appellant s] deposition and trial testimony, it appears [appellant] is prepared to say or do anything to avoid paying child support. (CT 192.) More specifically, the court found that appellant had, in filings or deposition testimony before the hearing, (1) underreported his own income for 1999, (2) made inaccurate claims concerning his former wife s (i.e., respondent here) income over a several-year period, (3) failed to make good faith efforts to secure gainful employment after being laid off in 2003, (4) owed retroactive child support payments totaling almost $37,000 for the period from April 2002 to April 2005, etc., etc. The court concluded by ordering appellant to pay $1,737 monthly for child support and awarding respondent, his former wife, attorney fees as a sanction under both Family Code section 2711 and Code of Civil Procedure section 2030. 1 All subsequent statutory references are to the Family Code unless otherwise noted. 2 Even more importantly for present purposes, a few months after issuing this Statement of Decision, the court issued its 2005 order, i.e., its Findings and Order After Hearing, on November 30, 2005. In it, the court finalized and formalized the rulings it had made in its September 2005 Statement of Decision. Appellant never appealed from that order and, of course, it became final shortly thereafter. (See Cal. Rules of Court, rule 8.104.) Things began to heat up again four years later, i.e., in 2009.2 On March 26, appellant secured an order to show cause (OSC) as to why his child support payments should not be modified.3 Specifically, appellant sought to modify the 2005 order and its requirement that he pay the monthly $1,737. But the only FACTS IN SUPPORT of this request identified by appellant in this filing were that his income is now less than the amount that was used in the existing order and that he was informed and believe that [respondent wife s] income is now greater than the amount that was used in the existing order, i.e., the 2005 order. No declaration by either appellant or his attorney was attached to the OSC, only a copy of the 2005 order, and the various attachments to it. On the same day, appellant also filed an Income and Expense Declaration which listed his age, current salary ($8,333 per month), etc. In that form, he asserted that he estimated respondent s current monthly income as a real estate agent to be $30,000. Notably, especially considering the fraud allegations appellant is now making, appellant made no responsive entry to the final inquiry on the court form, i.e.: Other information I want the court to know concerning support in my case (specify): Apparently some discovery took place over the next several months, including a subpoena for a deposition, form interrogatories, special interrogatories, and requests for the production of documents. During the course of this, appellant sent respondent, his 2 Unless otherwise stated, all further dates noted are in 2009. 3 Respondent contends that this order was secured after she had invoked the assistance of the Department of Child Support Services to help her collect the money owed her by appellant. A reference to such an attempt by respondent is made in the August 4 filings by her in the Alameda family law court, but we find no other evidence in the record supplied us of respondent s effort to invoke that Department s aid. 3 former wife, an e-mail stating that the litigation is going to get way more complicated10X. Do you want to talk about this? Respondent replied to the March 26 filing on August 4, by filing her own order to show cause, seeking attorney fees for opposing appellant s OSC, enforcement of the 2005 order, payment of previously ordered attorney fees, continued child support, etc. Those filings also included declarations by both respondent and her attorney. Appellant replied to these filings by a September 8 filing of a responsive declaration to his former wife s order to show cause, a declaration to which were attached a memorandum of points and authorities, a further declaration of appellant, a copy of the 2005 Statement of Decision, two income and expense declarations apparently from respondent (one of which was apparently never filed), interrogatory answers filed by her earlier that year, and miscellaneous newspaper clippings, real estate ads, etc. In these pleadings, and for the very first time, appellant alleged that respondent had committed fraud when disclosing her real estate assets in 2005, as a result of which, under sections 2121 and 2122, there is a strong likelihood that the entire 2005 order may be set aside. More filings followed, one by respondent on September 11, another by appellant on September 14, and one by respondent on September 18. These and their numerous attachments basically argued regarding what had and had not been previously represented regarding respondent s real estate assets and income (mostly the former). According to several of these pleadings, the matter had been set for a full hearing before the family law court on November 4. However, on September 29, respondent filed a request for an order for a hearing in advance of November 4, specifically for an order dismissing, as time-barred, appellant s attempt to reopen the 2005 order based on the alleged fraud of respondent. This request was supported by an attorney s declaration, a memorandum of points and authorities and, as was becoming normal in this litigation, many attachments from the prior (the previous five-years) record. Apparently, respondent received an order shortening time from the court because, on October 6, her counsel filed an Order to Show Cause setting a hearing 4 for October 22 on her request for attorney fees and costs and to Strike [appellant s] pleadings [and] dismiss fraud claims. Appellant filed a response to this OSC on October 19 basically asserting that he had a right to have his fraud and income concealment allegations heard at the long cause hearing on November 4, 2009 and reiterating his allegations that, in 2005, respondent had misstated both her earnings and assets. Significantly, several of the attachments provided the court that allegedly supported this fraud allegation were pages from 2005 editions of the Oakland Tribune and the Pleasanton Weekly on which appeared advertisements noting that respondent was then offering condominiums for sale. The following day, October 20, respondent filed a Rebuttal Declaration (plus attachments) arguing that appellant had presented no evidence supporting his argument that the 2005 order should be vacated or changed, nor any showing that his claims are not time-barred. On October 22, a brief hearing was held before Alameda County Family Law Commissioner Nancy Lonsdale. She started the hearing by noting that we re already set on November 4th with the child support order. It just wasn t clear to me why this was on today. If someone s trying to set aside a 2005 order, it s not going to happen. Respondent s counsel agreed, but appellant s counsel argued that the issue regarding the validity of the 2005 support order should not to be considered now but, rather, at the long-cause hearing set for November 4. Counsel for both parties argued concerning the timeliness of appellant s request to reconsider the 2005 order, whereupon the court asked appellant s counsel: Sir, I can t see anything in any of the papers here that shows that any of this [i.e., the claimed fraud regarding her real estate holdings] predated the 2005 order. The following dialogue then ensued: MR. DOWNS: We have information and we believe that it did. THE COURT: Stop telling me you have information. Tell me what information you have. 5 MR. DOWNS: We want to question her on the witness stand. We want the Court to order her to appear for testimony, appear at a deposition, and submit to questions regarding 2005, 2006, and 2007. After this, the court made clear that it was not going to reconsider the 2005 order. You ve told me nothing to indicate that there was any improper or insufficient information that predated the 2005 order or would have misled the Court at that time. . . . [¶] I am not going to go behind a 2005 divorce decree order. So I want that clearly understood and I don t want this issue to come up again at that hearing. Appellant s request was thus dismissed with prejudice. On, apparently, October 26, the trial court sent to the parties and later filed a onepage order regarding its October 22 rulings. The order recited that respondent-wife s application for a motion to strike from appellant-husband s pleadings reference to allegations of fraud related to the May 13, 2005 child support proceeding and references requesting set aside of the November 30, 2005, court order was granted, as also was respondent s application for determination that [appellant s] request to set aside the November 30, 2005, child support order (after hearing May 13, 2005) is time-barred and for dismissal of [appellant s] request for set aside with prejudice. 4 Between the October 22 and November 4 hearings, the parties filed additional papers, i.e., (1) an opposition by appellant to respondent s request for attorney fees, to which was attached a copy of the reporter s transcript of the October 22 hearing, (2) a request for judicial notice filed by respondent, to which was attached a copy of Judge Blea s September 2005 Statement of Decision, and (3) another declaration by respondent s counsel in support of his request for attorney fees, to which was attached a copy of a 2005 deposition of appellant. 4 This one-page order was attached to Commissioner Lonsdale s Findings and Order After Hearing dated October 26, and apparently faxed to counsel on that date. However, it was apparently not formally signed by the Commissioner until January 5, 2010, and then filed on January 7, 2010. Appellant makes no claim, however, that he was not aware of either the order or its language at the time he filed his notice of appeal on December 18. 6 The long cause order to show cause came before the court (also Commissioner Lonsdale) as scheduled on November 4. Appellant s counsel made brief mention of the issue he had tried to raise at the October 22 hearing, and stated that his client was not waiving our objection to that order. Other than that, the entire thrust of the November 4 hearing (including respondent s testimony) pertained to the amount of child support appellant still owed. After the hearing, the court issued an order finding that appellant was in arrears on such payments through March 1 in the amount of almost $185,000, and also owed attorney fees to respondent in excess of $48,000. On December 18, appellant filed a notice of appeal purportedly from the court s orders of both October 22 and November 4. That notice stated that the appeal is from an order after judgment under Code of Civil Procedure section 904.1, subdivision (a)(2), and also from orders Dismissing fraud allegations under [Code of Civil Procedure] § 904.1, [subdivision] (a)(10) and 906. III. DISCUSSION Although appellant purportedly appeals from both the family law court s orders of October 22 and November 4, the only mention made of the latter hearing in appellant s sole brief to us5 is a short reference to the fact that at that hearing, he had renewed his objection to the court s ruling dismissing the fraud allegations. Thus, what is before us is really a purported appeal from the court s order of October 26, quoted above, ruling on the requests made by appellant at the October 22 hearing. We reject, and hence dismiss, this purported appeal because, for the reasons set forth hereafter, it is both untimely and frivolous. We also sanction appellant and his counsel for bringing this purported appeal. Clearly, of course, a court order regarding support payments required for children is appealable. (See § 3554.) So are post-judgment orders regarding modification of support payments. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906; 5 Appellant filed no reply brief in this court. 7 In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 497; In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1287.) However, pursuant to California Rules of Court, rule 8.104(a), such appeals must be taken within 60 days of the entry of the appealable order. In this case, appellant is effectively attempting to appeal from the 2005 support order requiring certain fixed payments by him to and for his and respondent s two children and from the October 26 order of Commissioner Lonsdale declining appellant s request to set aside that order on the ground that it was secured by fraud. And his one brief to us offers absolutely no bases upon which we can or should hear such a belated appeal. Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. (In re Pedro N. (1995) 35 Cal.App.4th 183, 189; see also Adoption of Alexander S. (1988) 44 Cal.3d 857, 864; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) There was no timely notice of appeal from the 2005 order and thus no jurisdiction vested in this court. Further, the family law court never entered any order, appealable or otherwise, on October 22, 2009, because, among other reasons, appellant never filed any motion seeking an order. Code of Civil Procedure section 1003 makes clear that, to secure an order, an application for such is required, and that application is a motion. Any and all such motions require written notice (see Code Civ. Proc., §§ 1005 and 1010) served upon the opposing party. No such notice or even a motion itself without notice was filed or otherwise made either at or in advance of the October 22 hearing.6 6 In his letter brief to us (responsive to this court s request for such regarding the propriety of dismissal and sanctions), appellant argues that he effectively made such a motion via his responsive declaration to respondent s August 4 OSC. He cites language therein such as [w]e hereby request a long cause hearing on a motion to set aside the November 30, 2005, order and [appellant] believes that once he is granted a full evidentiary hearing and the truth comes out, . . . extensive concealment will be shown and the 2005 order will be set aside. However, in no way, shape, manner or form do these phrases amount to a notice of motion, much less a motion, as required by the Code of Civil Procedure sections cited above. 8 At that hearing, appellant s counsel never presented any motion to the court. Rather, after the Commissioner specifically noted that [i]f someone s trying to set aside a 2005 order, it s not going to happen, the first response that counsel made related not to the 2005 order, but rather to object to the filing of the rebuttal pleadings . . . two days ago. Those pleadings were filed late, i.e., two days ago and hence should not be considered by this Court. As a result, he concluded, the court should consider respondent s counsel s request to knock out a number of issues on November 4, and not then. After some responsive argument from respondent s counsel, appellant s counsel referred to appellant s motion to modify support (presumably meaning the OSC appellant secured on March 26), and went on to contend that, in support of that motion, various and sundry things had been revealed which respondent did not originally disclose in her income and expense declaration filed in opposition to that OSC. Appellant s counsel then said that, based on the filings of his client s former wife, they had uncovered a number of things which went to oppose their [respondent s] motion for arrears [and] which will be evidence used to . . . set aside the 2005 order, things that she did not disclose at that time, lucrative deals that were underway at that time. We have evidence that will support those allegations. That is all before the Court on November 4th. That counsel went on to explain that, because he had a small law office he was not able to impose [sic: oppose] that order shortening time, which should not have been granted as requested . . . because there was a hearing already set on November 4 on these issues, . . . where we are going to be able to question her regarding matters respondent allegedly declined to testify to at a previous deposition regarding any business dealings in 2005, 2006, and 2007 which we believe will uncover significant evidence that she was not being forthcoming which [sic: when] she concealed income in 2005. The court then said, obviously a bit incredulously: You re telling me because somebody else set a hearing on November 4th, you re going to try to convince me that I m going to set aside a 2005 order? Appellant s counsel responded affirmatively, 9 stating that we have evidence and we have been conducting discovery which shows that she concealed income at that time. The debate between counsel, with occasional questions from the court, continued for a few minutes more, and then concluded with the Commissioner insisting to appellant s counsel: Stop telling me you have information. Tell me what information you have to which, as noted above, appellant s counsel responded: We want to question her on the witness stand. We want the Court to order her to appear for testimony, appear at a deposition, and submit to questions regarding 2005, 2006, and 2007. 7 This response promptly led the court to conclude the argument by saying: I ve heard enough. I am not going to reconsider the 2005 order. You ve told me nothing to indicate that there was any improper or insufficient information that predated that 2005 order or would have misled the Court at that time. Having examined both the filings made prior to the October 22 hearing and the arguments of counsel on that day, we agree with the family law court s ruling. We do for at least three reasons. First of all, appellant s counsel s statements were an effective admission that, as of that date, he and his client then had no evidence of any fraud committed by respondent on or before the entry of the 2005 order. Second, the trial court s ruling was one made when there was no motion before the court to vacate or reconsider the 2005 order, only a request that that court permit continued litigation (i.e., discovery) about what assets and income respondent had around the time of the 2005 order and thereafter. The failure of appellant to either articulate any evidence of fraud prior to entry of the 2005 order or present the court with any hearing, any type, size or shape of a motion to vacate or modify the 2005 order because of alleged fraud is fatal to his position on appeal. Third, the record before both us and the court below makes clear that respondent s contract giving her authority to list and sell the East Bay condominiums at issue was not executed until August 28, 2005, long after the entry of 7 This statement by counsel, in and of itself, completely undermines appellant s current argument that appellant knew, prior to the hearing, of the specifics of respondent s purported fraud. 10 Judge Blea s May 2005 Statement of Decision, which of course provided the basis for the 2005 order. This failure is reinforced by the wording of Commissioner Lonsdale s October 26 order, referenced and quoted in part above. At no point is the word motion used in that order. All that was granted by her was respondent s motion to strike from [appellant s] pleadings reference to allegations of fraud relating to the May 13, 2005 child support proceeding and references requesting set aside of the November 30, 2005 court order and his similar request for set aside of the November 30, 2005 order (after hearing May 13, 2005) because such was time-barred as a matter of law. Clearly, that October 26 order demonstrates that, at the October 22 hearing, the Commissioner heard exactly what we can read from the reporter s transcript of that hearing (and from the clerk s transcript of the abundant pleadings preceding it): there was never any motion or application, written or oral, made by appellant or his counsel at or before that hearing to set aside, vacate, reopen, etc., the 2005 order. There was only a verbal request at that hearing that he be allowed to call respondent, appellant s former wife, to the witness stand and question her on the witness stand . . . regarding 2005, 2006, and 2007. In support of his position, appellant cites no relevant cases,8 and only two statutes, namely, sections 3690 and 3691. These statutes pertain to when and why a family law court may set aside or modify post-judgment support orders because of, among other reasons, fraud. (See § 3691, subd. (a).) These two sections provide, in relevant part: (a) The court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, 8 With one exception, which we deal with below, the only case citations in appellant s brief to us are those in a two-paragraph section dealing with the standard of review. Without ever suggesting, much less concluding, what that standard is in this case, appellant cites five cases which deal with (in the order cited in those paragraphs) the abuse of discretion, de novo, and substantial evidence standards of review. 11 provided in this article. [¶] (b) In all proceedings under this division, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original order and that the moving party would materially benefit from the granting of the relief. (§ 3690.) The grounds and time limits for an action or motion to set aside a support order or any part or parts thereof, are governed by this section and shall be one of the following: [¶] (a) Actual fraud. Where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud. [¶] (b) Perjury. An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury. (§ 3691.) But there is also a third section, not cited by appellant, which is relevant; it is section 3692, which provides: Notwithstanding any other provision of this article, or any other law, a support order may not be set aside simply because the court finds it was inequitable when made, nor simply because subsequent circumstances caused the support ordered to become excessive or inadequate. Significantly, these statutes9 make clear that a modification in a child support order requires a motion or an application. Thus, section 3690, subdivision (b), speaks of a moving party while section 3691 uses, indeed several times, the words action or 9 Although not mentioned in appellant s brief to us, section 213, subdivision (a), permits a responding party in a family law OSC or order-modification proceeding to seek affirmative relief alternative to that requested by the moving party. This is so because any such alternative relief must be regarding the same issues raised by the moving party. (§ 213, subd. (a).) Here, the moving party was seeking an order regarding child support arrears; appellant s request of the court was miles away from that subject. 12 motion. We have no difficulty in concluding that these statutes, again the only ones cited in appellant s brief to us,10 make quite clear that, before there can be an appeal from a court action which adversely affects a party in a domestic relations proceeding under either of these statutes, that party must have made a motion in that court. This appellant did not do. Very few cases have cited or interpreted the three statutes quoted above. One recent one that has is In re Marriage of Tavares (2007) 151 Cal.App.4th 620 (Tavares), the only other case cited in appellant s brief to us (although there incorrectly asserted by him to be inapplicable). In Tavares, the appellant-father appealed from an order of an Orange County family law court determining the child support arrears for his 16-yearold son. In his appeal, the father contended that the trial court should have modified his arrears to account for periods [the mother] allegedly concealed the boy and/or incurred no childcare expenses. (Id. at p. 623.) For a variety of reasons, a panel of the Fourth District rejected this contention. One of those reasons was that a parent who has skipped the opportunity to modify a support order may not undermine accrued arrears by later contesting expenses. [Citing, among other sections, § 3692.] (Ibid.) After quoting the salient portion of section 3692, the Tavares court noted, in words that are pertinent here to appellant s attempt to reopen the issue of his former wife s 2005 (and later) assets and income: Father protests that he does not wish to set aside the orders establishing his childcare support obligation, but that is precisely the effect of his proposal for an accounting and recalculation of arrearages. The trial court was not required to 10 In his letter brief to us, appellant suggests that sections 2121 and 2122 validate this appeal. Although these sections were cited to the trial court, they were not mentioned in appellant s sole brief to us on appeal. In any event, they are not pertinent here as, by their terms, they pertain only to motions in the trial court to set aside a judgment of dissolution, and not to attacks on post-judgment support orders. (See §§ 2121 & 2122.) More importantly, those sections do not extend the time limit established by the California Rules of Court for the filing of appeals. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 110-113.) 13 countenance father s disguised attempts at a prohibited retroactive modification of support. Notably, section 3691 qualifies section 3692 s prohibition against setting aside earlier support orders. Section 3691 allows the trial court to set aside the order where one party has committed perjury or fraudulently prevented the other party from fully participating in the proceeding to determine support. (See § 3691, subds. (a) & (b).) But father alleged neither of these predicates. He participated in both the 1995 and 1996 support hearings. He does not claim mother induced him to forgo a claim or alter his participation in the support hearings in any way. And he does not contend mother committed perjury in securing childcare support at the amounts the court ordered in 1995 and 1996. To the contrary, as father phrases it, the support orders had been based only on initial estimates of childcare costs, the accuracy of which lapsed. If father harbored a suspicion the court s childcare support orders no longer reflected actual costs, his remedy was to seek prospective modification of his support obligation. [Citations.] He never did so. Father excuses his failure to seek modification on grounds childcare costs are only known to [the] Other Parent and, here in particular, mother allegedly secreted herself and [the son] beginning in 1995, preventing him from verifying childcare costs with her, the child, [or] the daycare provider. But if mistrust arises or one parent goes so far as to conceal the child, that is all the more reason for the other parent to test courtordered support, including childcare, with a modification petition. Consequently, even if father had alleged below that mother committed fraud or perjury in securing childcare support at the amounts the court ordered, the claim would have been far too late. Section 3691 affords relief only where the complaining party acts within six months after the date on which the . . . party discovered or reasonably should have discovered the fraud or perjury. (§ 3691, subds. (a) & (b).) Had father filed a modification petition anywhere close to the time he claimed mother began concealing [the son] in 1995, he could have discovered evidence concerning whether the child was in daycare, how much it cost, and hence whether mother wrongly secured 14 childcare support at the level ordered. Section 3691 therefore does not assist father. (Tavares, supra, 151 Cal.App.4th at pp. 626-627, emphasis supplied.) Although the issues are slightly different, the principles enunciated in Tavares clearly apply here, and do so quite adversely to appellant. In short, Tavares means that a divorced parent may not come into a family law court and attempt to defend against a former spouse s contention of child support arrears by belatedly raising an issue of some sort of failure of that former spouse, when he has never affirmatively pursued or alleged that failure himself, by motion, application, or petition. Such is exactly the case here. (Cf. also In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 964-965.) Finally, appellant s brief to us does not comply with California Rules of Court, rule 8.204(a) because it does not contain anything remotely resembling a statement of appealability, i.e., a statement as to how and why the order being appealed from (assuming there was such an order) was and is appealable. On that basis alone, we could dismiss this appeal. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-557; see also 3 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010), § 16:399.1.) To summarize the many defects and flaws in appellant s purported appeal: 1. He never appealed from the 2005 order of the Alameda family law court, and the time within which to do so has long since expired; 2. He never filed a notice of motion, motion, application, or petition, to alter, modify, or even reexamine the 2005 order and, indeed, effectively conceded at the October 22 hearing that he did not then have any evidence of fraud underlying that order; 3. By its order of October 26, the trial court never denied any motion filed by appellant; rather it granted respondent s applications (a) to strike from appellant s pleadings reference to allegations of fraud related to the May 13, 2005 child support proceeding and references requesting set aside of the November 30, 2005 court order and (b) for [a] determination that [appellant s] request for set aside of the November 30, 2005 order (after hearing May 13, 2005) is time-barred as a matter of law and hence dismissing appellant s request to set aside the 2005 order; 15 4. At the October 22 hearing, appellant never presented any (even verbal) motion, application or petition to modify or vacate the 2005 order but, after repeated pressure from the court, his counsel argued only that he wanted respondent to appear at a deposition, and submit to questions regarding 2005, 2006, and 2007. The refusal of the family law court to grant this request of appellant is not an appealable order. 5. Appellant never complied with California Rules of Court, rule 8.204(a) in his brief to us. For all these reasons, we dismiss appellant s purported appeal as both untimely and frivolous. IV. DISPOSITION Because we find this appeal to be frivolous, we also impose sanctions on both appellant and his counsel as set forth below. (See, e.g., Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1162-1163 (Huschke); In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516-521 (Gong); Pollock v University of Southern California (2003) 112 Cal.App.4th 1416, 1433; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 35; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 102-103; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17.) First, and pursuant to those authorities, as sanctions for bringing and unnecessarily prolonging this frivolous appeal, appellant and his counsel shall pay this court $8,500 to compensate it for costs incurred in processing it. (See Huschke, supra, 168 Cal.App.4th at p. 1163; Gong, supra, 163 Cal.App.4th at p. 520.) Appellant shall pay 90 percent of that amount and his counsel the remaining 10 percent. Those payments must be made in full no later than 10 days after the remittitur herein is filed and must be sent to the Clerk/Administrator of the Court of Appeal. Pursuant to section 6086.7, subdivision (a)(3), of the Business and Professions Code, upon issuance of the remittitur, the Clerk/Administrator is directed to send a copy of this opinion to the State Bar of California. Second, sanctions payable to respondent are also imposed on appellant and his counsel. Those sanctions shall consist of an amount, to be determined by the trial court 16 on remand, to compensate respondent for the reasonable attorney fees incurred by her in defending this appeal. The amount of those sanctions shall also be payable 90 percent by appellant and 10 percent by his counsel. This opinion constitutes a written statement of our reasons for imposing sanctions. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 313.) The appeal is dismissed because, as set forth above, it is both from an unappealable order and is patently frivolous. The matter is remanded to the trial court for a determination of the amount payable by appellant and his counsel to respondent by way of sanctions as set forth above. _________________________ Haerle, J. We concur: _________________________ Kline, P.J. _________________________ Lambden, J. 17
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