Demand for Reimbursement of Medical Expenses

[saddad2]

Soc,

In a previous post (may 17) you wrote

"In CA, however, which was the subject of the question, the statute expressly says to provide the other parent with a demand for reimbursement no later than 30 days from the date that healthcare services are rendered.

The statute doesn't expressly state what happens if you don't provide the demand notice timely, but it's reasonable to assume that this would be at a minimum, evidence of unreasonable delay necessary to establishing the first prong of a Laches defense (unreasonable delay and unfair prejudice), or perhaps this indicates an absolute bar to further enforcement. There is at least one unpublished appellate ruling that suggests that 30 days is an absolute bar to reimbursement for healthcare costs."

Do you have any links or info you can share on the appellate ruling that you speak of?

I'm in the same boat as the previous poster.  My X stock piles the med. receipts for years at a time just so she can call me a Deadbeat but, she never sends me the receipts for reimbursement (crazy huh?)





 

[socrateaser]

Number your questions, and don't intersperse facts and questions!

An "unpublished" ruling cannot be cited in a memorandum of points and authorities as part of a motion on the question, so although I can give you the citation, you can't use it in court. However, you can copy the relevant text of the ruling into your argument without actually citing the decision itself.

TEXT OF DECISION

In re Marriage of McClellan, No. C041745 (Cal.App. Dist.3 04/30/2003)

[1]      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada)

 
[2]      C041745

 
[3]      

 
[4]      April 30, 2003

 
[5]      IN RE THE MARRIAGE OF JOAN MARIE AND GREGORY SCOTT MCCLELLAN.
JOAN MARIE MCCLELLAN, RESPONDENT,
v.
GREGORY SCOTT MCCLELLAN, APPELLANT.

 
[6]      (Super. Ct. No. 56503)

 
[7]      The opinion of the court was delivered by: Kolkey, J.

 
[8]      NOT TO BE PUBLISHED

 
[9]      California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

 
[10]     Appellant Gregory Scott McClellan appeals from an order requiring him to reimburse respondent Joan Marie McClellan $2,137.35 for her net share of child care, counseling, and uninsured health care expenses incurred over a period exceeding two years. *fn1 Gregory also challenges that portion of the order awarding Joan $2,500 in attorney fees, which were ordered in part because Gregory's trial tactics turned the process of proving the parties' reimbursement claims into a multi-day hearing. We reject Gregory's various challenges to the validity of the reimbursement and the attorney fee award and shall affirm the order.

 
[11]     FACTUAL AND PROCEDURAL BACKGROUND

 
[12]     Under various court orders, Joan and Gregory had been required (1) to share equally the costs of counseling since 1997, and (2) to pay half of the other parent's expenses for child care and uninsured health care for their three children since 1999.

 
[13]     In May 2001, these arrangements were modified by an order that incorporated Gregory's share of child care expenses into a monthly child support payment of $99 from Gregory to Joan. However, the parents would continue to share each other's expenses for counseling and uninsured health care.

 
[14]     In November 2001, Joan filed a motion for reimbursement of past-due child care, counseling, and uninsured health care expenses, contending that she had provided Gregory with copies of bills and other proofs of payment during the past several years, but that he had not paid any amount. Joan also claimed that Gregory was previously ordered to reimburse her $1,100 for child care but had not. Finally, Joan sought attorney fees, contending that Gregory's tactics had escalated costs and that her efforts to resolve matters amicably were unsuccessful. Joan attached to the motion copies of bills, statements, receipts, and checks for counseling and medical expenses, which were incurred during the 1999-2001 period. In contrast, child care expenses were documented only by a list of monthly payments from May 1999 to May 2001.

 
[15]     Gregory filed a responsive declaration, stating that he would only consent to a reimbursement order "after full documentation of reimbursement costs had been supplied by both parties." Gregory also claimed that Joan's child care expenses were not documented properly because there were no receipts to support the dollar amounts requested. He further asserted that Joan's reimbursement claims were untimely under deadlines established by prior court orders. Gregory also expressed doubt that Joan's motion could be heard in light of his pending appeal of a prior child support order, which addressed some issues related to the reimbursement. *fn2 Finally, Gregory disputed the basis of Joan's request for attorney fees, contending that he had made numerous attempts to resolve the reimbursement issues by correspondence to Joan or her attorney, which went unanswered.

 
[16]     At the initial hearing on the motion, Gregory refused to stipulate to the court commissioner acting as a temporary judge. The commissioner accordingly stated that he would act as referee and submit his findings and a recommended decision to the superior court. When asked for a time estimate for the hearing, Gregory told the commissioner that the hearing would take a couple of days. But the commissioner expressed the view that proving whether Joan was entitled to reimbursement should entail a fairly simple hearing. Nonetheless, lacking time to hold a lengthy proceeding that day, the court continued the hearing.

 
[17]     The court commissioner eventually heard the motion several months later in proceedings lasting one-and-one-half court days. At these hearings, Joan presented documentary exhibits, each representing one month of payments for expenses from May 1999 through May 2001, in support of her claims for reimbursement. However, Joan was examined on each item within the monthly exhibit, briefly on direct by Joan's counsel and at length on cross by Gregory (who represented himself in the proceeding), such that only a few months of exhibits had been covered after the first half-day session. At the succeeding full-day session, the court limited Gregory's cross-examination to five minutes per month on the exhibits, which the court reiterated were simple and did not require a great amount of examination. Later, noting that the examination as to each month was repetitive and unnecessary to a determination of which claims should be allowed, the commissioner requested the parties to proceed year-by-year and withdrew the five-minute limitation on cross-examination. Despite these efforts to expedite the proceedings, completion of Joan's presentation took most of the day.

 
[18]     Gregory then presented his case, including, in a single exhibit, all his claims for reimbursement of child care, counseling, and uninsured health care. Joan's counsel agreed to this procedure, subject to cross-examination. Both Gregory's presentation of his claims and counsel's cross-examination were completed by the end of the day, and the court took the matter under submission.

 
[19]     On April 3, 2002, the commissioner issued findings of fact and a recommended order, regarding allowable child care, counseling, and uninsured health care claims. The commissioner divided the parties' allowed expenses by half and offset them against each other to yield a net amount of $1,722.60 for child care and $414.75 for counseling and health care, payable by Gregory to Joan. The court also awarded Joan $2,500 in attorney fees under Family Code section 2030. On May 22, 2002, the superior court ratified the commissioner's findings. Gregory appeals. *fn3

 
[20]     DISCUSSION

 
[21]     I. Timely Ratification of the Commissioner's Findings and Order

 
[22]     As Gregory points out, Family Code section 4251, subdivision (c), *fn4 provides for ratification of the commissioner's findings of fact and recommendation within 10 court days. This did not occur in this case because the commissioner's decision filed April 3, 2002 was not ratified until May 22, 2002. Gregory argues that this ratification "clearly falls outside of the statutory [sic] allowed time frame for said review to occur, [and] as such [the] commissioner's ruling should not be allowed to stand." We disagree.

 
[23]     The procedure for decision by a commissioner and ratification by a superior court judge, including the timing thereof, was explained in County of Orange v. Smith (2002) 96 Cal.App.4th 955, 961: "Family support cases must be referred to a child support commissioner. (§ 4251, subd. (a).) Section 4251, subdivision (b) provides in relevant part, `The commissioner shall act as a temporary judge unless an objection is made by the local child support agency or any other party.' (Italics added.) Subdivision (c) explains, `If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days.' In other words, one must object to a commissioner twice (before and after the commissioner rules in the case) to have the matter reviewed by a superior court judge."

 
[24]     As mentioned, Gregory objected at the hearing to the commissioner acting as a temporary judge. But there is no record of any objection to the commissioner's findings of fact and recommended order, which accordingly was ratified by the court pursuant to section 4251, subdivision (c). The fact that the superior court did not ratify the decision within 10 days, despite the absence of an objection, does not require us to treat the recommended order as if there were an objection.

 
[25]     Section 4251, subdivision (c), provides in full: "If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. Any party may waive his or her right to the review hearing at any time."

 
[26]     We conclude that section 4251, subdivision (c), does not require us to vacate a commissioner's findings and recommended order simply because ratification was delayed. The function of the time limit is to cut off objection to the recommendation, not to deprive the court of the power to ratify. The requirement that ratification occur "[w]ithin 10 court days" (§ 4251, subd. (c)) also serves to ensure that a recommended order, to which no timely objection is made, achieves finality within a reasonably short time, rather than force the prevailing party to remain in limbo unduly.

 
[27]     But it makes no sense to set aside a recommended order to which no objection is timely made solely because the court has not acted within the prescribed time. Why should the superior court's inaction penalize the prevailing party when the other party has not objected, as here? If the section were so interpreted, a mere (and likely inadvertent) delay on the part of the court could invalidate a decision to which neither party had a right to a de novo hearing by virtue of the absence of objections. In such a case, the parties would be left with no valid decision and the prospect of repeating the whole process. We cannot interpret section 4251 to lead to so absurd a result.

 
[28]     As a result, we construe the words "shall ratify" in section 4251, subdivision (c), as directory, not mandatory. "[T]here is no simple, mechanical test for determining whether a provision should be given `directory' or `mandatory' effect. `In order to determine whether a particular statutory provision . . . is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]. . . .' [Fn. omitted.]" (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910 (Morris).)

 
[29]     In this case, no purpose would be served in invalidating a decision to which no timely objection was made. Instead, the purpose of the reference to 10 days within which to ratify a decision, unless objection is made, appears to be to serve to limit the period for objection.

 
[30]     As we observed in Board of Education v. Sacramento County Bd. of Education (2001) 85 Cal.App.4th 1321 (Board of Education), "[w]ith respect to statutorily prescribed time limits in particular, the high court has articulated the following principles: `Time limits are usually deemed to be directory unless the Legislature clearly expresses a contrary intent. [Citation.] "In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory `unless a consequence or penalty is provided for failure to do the act within the time commanded.'" [Citation.] As Morris v. County of Marin, supra, 18 Cal.3d 901, 908, held, the consequence or penalty must have the effect of invalidating the government action in question if the limit is to be characterized as "mandatory."' [Citation.]" (Id. at p. 1327, quoting California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145.)

 
[31]     In this case, all of the tests point to making the 10-day period for ratification directory. First, making it mandatory would defeat the purpose of the enactment, which is to provide for ratification where no timely objection or error appears. Second, the only specified consequence for a failure to act within 10 days is that the decision is to be ratified, not invalidated where the ratification does not take place within the 10 days. Indeed, since 10 days is allowed for objection, a literal reading of the statute -- providing ratification "[w]ithin 10 court days" -- would require the court to ratify the decision neither earlier nor later than the full 10-day period, giving the court only hours to comply with the statute. Even the eleventh day -- after the losing party had the full 10 days to object -- would be too late to ratify the commissioner's decision, based on Gregory's interpretation.

 
[32]     In sum, Gregory's interpretation is neither practical nor reasonable. Accordingly, we conclude that the statutory language in section 4251, subdivision (c), providing that a judge "shall ratify" the recommended order within the prescribed period, is directory.

 
[33]     For these reasons, the superior court's ratification of the commissioner's findings and recommended order more than 10 court days after that decision was rendered was not invalid.

 
[34]     II. Timely Notification of Reimbursement Claims

 
[35]     Gregory next contends: "In accordance with Family Code Section 4063[, subdivision] (b), claims for reimbursement must be made within 30 days after accruing the costs. It is clear that the majority of [Joan's] claims for reimbursement do not fall within the 30-day allowable time frame, and as such the commissioner had no authority to award any reimbursements that were not within the allowable time as legislated."

 
[36]     Section 4062, subdivision (a), provides: "The court shall order the following as additional child support: [¶] (1) Child care costs related to employment or to reasonably necessary education or training for employment skills. [¶] (2) The reasonable uninsured health care costs for the children as provided in Section 4063."

 
[37]     In turn, section 4063 sets forth the procedures for an order for health care costs. Section 4063, subdivision (a)(2), provides that the order shall include the time period for the parent to reimburse the other parent. And section 4063, subdivision (b), provides in pertinent part that "when either parent accrues or pays costs pursuant to an order under this section, that parent shall provide the other parent with an itemized statement of the costs within a reasonable time, but not more than 30 days after accruing the costs." Finally, section 4063, subdivision (b)(3), provides that the parent shall make the reimbursement within the time period specified by the court, "or, if no period is specified, within a reasonable time not to exceed 30 days from notification of the amount due . . . ."

 
[38]     The commissioner found that Joan had made a timely request under section 4063 for payment of uninsured health care costs.

 
[39]     To the extent that Gregory challenges the commissioner's factual findings, "

• ur review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial court's conclusions." (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128 (Chandler).) "`On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. [Citation.] We accept all evidence favorable to the prevailing party as true and discard contrary evidence. [Citation.]'" (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 472 (Lusby), quoting In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151 (Drake).)

 
[40]     As a threshold matter, we note that Gregory has not specified the uninsured health care cost claims to which he objects as untimely. Gregory's brief contains no citation to the record in support of his factual representation that the majority of Joan's claims for reimbursement fall outside the time limit set forth in section 4063, subdivision (b). Indeed, we cannot find in Gregory's brief any citations to the record identifying the reimbursement claims to which he objects on that basis.

 
[41]     Furthermore, the court ordered the parties to make lists of bills for which they were seeking reimbursement at least one week prior to the hearing date and to provide them to the other side. Following that exchange, the parties were to prepare a list of objections to the claims for reimbursement for submission at the hearing. But Gregory did not prepare such a list of objections, so we cannot refer to it as a method of identifying the reimbursement claims that he considers untimely. *fn5

 
[42]     To be sure, Gregory objected generally at the hearing that Joan's reimbursement claims did not comply with section 4063, but then, as now, he did not specify which claims were untimely.

 
[43]     In sum, there is no way for this court to determine the claims for which Gregory asserts the receipt of defective notice. (Cf. Lusby, supra, 64 Cal.App.4th at p. 475.) The record contains some 140 pages of exhibits that Joan presented at the hearing. And the reporter's transcript of the presentation of Joan's claims runs almost 200 pages. Furthermore, the inquiry involves more than a simple review of the record, because ascertaining when Joan sent receipts to Gregory requires matching receipts to testimony or other evidence of transmission.

 
[44]     Therefore, we conclude that Gregory's contention has been waived. Rule 14(a)(1)(C) of the California Rules of Court requires each brief to "support any reference to a matter in the record by a citation to the record." "It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011; Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 (Grant-Burton); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) An appellate court may disregard a factual contention not supported by a proper citation to the record. (See Grant-Burton, supra, at p. 1379; Duarte, supra, at p. 856.)

 
[45]     That Gregory is not represented by counsel on appeal does not entitle him to ignore his obligation to support his contentions properly on appeal. A party appearing in propria persona is "entitled to the same, but no greater, consideration than other litigants and attorneys" and "is held to the same restrictive rules of procedure as an attorney." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, questioned on another ground in Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1268, fn. 13; Stokes v. Henson (1990) 217 Cal.App.3d 187, 198; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

 
[46]     Even were we to consider the contention on its merits, Joan confirmed to the commissioner at the outset of the hearing that she would testify that all the expenses for which she was seeking reimbursement, not just uninsured health care costs, were presented in conformance with section 4063 and prior court orders. It was her practice to send Gregory at the beginning of each month documentation of the costs incurred the previous month, along with a transmittal letter itemizing and summarizing those costs.

 
[47]     Having failed to cite any evidence that Joan did not adhere to this practice for any particular item, Gregory has not shown that there is no substantial evidence to support the commissioner's finding that Joan's claims were presented in a timely fashion. *fn6 (Chandler, supra, 60 Cal.App.4th at p. 128; Lusby, supra, 64 Cal.App.4th at p. 472.)

 
[48]     III. Effect of Gregory's Appeals

 
[49]     We quote Gregory's next contention in full: "The commissioner was well aware that some of the reimbursement claims in question are currently under appeal, and in the past had refused to hear these requests as the commissioner believed until the appeal was determined there was no authority to enforce an order issued. [¶] Respondent [Gregory] is baffled as to why the commissioner appears to have reversed himself regarding this, and went on to hear this matter."

 
[50]     Gregory again waives the point. He fails to cite any part of the record identifying which particular reimbursement claims in this case were also involved in his pending appeals. (See Grant-Burton, supra, 99 Cal.App.4th at p. 1379; Duarte, supra, 72 Cal.App.4th at p. 856.) Reviewing Gregory's brief as a whole, his only citation to a specific, prior reimbursement claim on appeal is $1,100 for past child care expenses owed to Joan since 1999. As to that claim, at the hearing in the instant case, the commissioner and Joan's counsel both acknowledged that Gregory had appealed the order requiring him to pay this sum; therefore, the court would not consider that order as a reimbursement claim in the present proceeding.

 
[51]     Gregory also makes a reference in his brief to "reimbursement regarding medical and dental costs . . . currently actively under appeal in the Yuba County case." Yet, he neither identifies these costs nor gives us a citation in the record to them. We frankly do not know what Gregory is referring to. We may disregard any factual contention not supported by a proper citation to the record. (Grant-Burton, supra, 99 Cal.App.4th at p. 1379.)

 
[52]     In addition, Gregory fails to cite any authority for the proposition that the prior pending appeal precluded the court from considering the reimbursement claims. A point merely asserted without any authority for the proposition is deemed without foundation and requires no discussion. (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1281 (Allen), rejected on another point in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315; see also Harding v. Harding (2002) 99 Cal.App.4th 626, 635 (Harding).)

 
[53]     In any event, we conclude that no issue related to the prior pending appeals figured in the proceedings or decision in this case. There was nothing to prevent the commissioner from hearing and determining the parties' reimbursement claims.

 
[54]     IV. Abuse of Discretion in Allowing Claims

 
[55]     Gregory charges that "[t]he commissioner throughout the entirety of these hearings clearly abused his discretion and showed clear prejudice . . . in randomly allowing many of Petitioner's [Joan's] reimbursement claims which had no valid supporting evidence, while disallowing Respondent's [Gregory's] claims, even though the supporting documentation submitted by [Gregory] was, in some instances, superior in nature to that of [Joan], and in other instances the lack of documentation was due to loss of documents due to a residence fire" at Gregory's home. Gregory argues that the commissioner "had an obligation to use the same set of standards which should have been applied to all reimbursement claims regardless of whom submitted said claims," but that the record shows "the commissioner strove to aid [Joan] in her reimbursement claims, while at the same time setting up impediments to [Gregory's] claims."

 
[56]     We have quoted most of this section of Gregory's brief. It is devoid of citation to the record or legal authority. Under the principles and authorities already discussed, the point is waived and we need not consider it. (See Grant-Burton, supra, 99 Cal.App.4th at p. 1379; Duarte, supra, 72 Cal.App.4th at p. 856; Harding, supra, 99 Cal.App.4th at p. 635; Allen, supra, 94 Cal.App.4th at p. 1281.)

 
[57]     V. Attorney Fees

 
[58]     Gregory lastly claims that the commissioner abused his discretion in awarding $2,500 in attorney fees to Joan under section 2030, because Gregory's financial resources were less than Joan's. *fn7

 
[59]     This contention barely escapes waiver. (See Grant-Burton, supra, 99 Cal.App.4th at p. 1379; Duarte, supra, 72 Cal.App.4th at p. 856.) Gregory asserts: "It is well documented throughout this family law proceeding that [Joan's] income and assets are far greater than mine, and that the court has allowed a fee waiver on my behalf." But Gregory cites only to the pages in the reporter's transcript where he told the commissioner at the hearing that he had not worked for two-and-one-half months and to the clerk's transcript where the court fee waiver signed by the commissioner is located. Gregory asserts (without citation to the record) that "the court is well aware of my financial situation, as well as [Joan's], as at least yearly Income and Expense Declarations have been filed with the court by both myself and [Joan], and as such there is no question as to incomes and ability to pay legal fees."

 
[60]     Gregory's failure to cite to sufficient evidence in the record to support his argument could be deemed to waive his contention. (Grant-Burton, supra, 99 Cal.App.4th at p. 1379; Duarte, supra, 72 Cal.App.4th at p. 856.) It is, after all, Gregory's burden as appellant to affirmatively demonstrate error. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)

 
[61]     In any event, we conclude that the commissioner took appropriate factors into consideration in making the award, including Gregory's earning capacity and trial tactics.

 
[62]     Section 2030, subdivision (a), provides in relevant part that "the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party . . . to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding."

 
[63]     Section 2032 guides the exercise of the court's discretion in making an award of attorney fees under section 2030. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) Subdivision (a) of section 2032 provides that "[t]he court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." Subdivision (b) of section 2032 further provides that "in determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."

 
[64]     The circumstances described in section 4320 (which sets forth the factors for determining spousal support) -- referenced in section 2032 -- include a party's ability to pay, "taking into account the . . . party's earning capacity, earned and unearned income, assets, and standard of living." (§ 4320, subd. (c), italics added.)

 
[65]     "[T]he trial court is not restricted in its assessment of ability to pay to a consideration of salary alone, but may consider all the evidence concerning the parties' income, assets and abilities. [Citations.]" (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768 (Sullivan), italics added.) "`[T]he cases have frequently and uniformly held that the court may base its decision on the [paying spouse's] ability to earn, rather than his

[or her] current earnings . . . ' for the simple reason that in cases such as this, current earnings give a grossly distorted view of the paying spouse's financial ability. [Citation.]" (Id. at p. 769; see also In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630 (Duncan); Drake, supra, 53 Cal.App.4th at p. 1167.)

 
[66]     Assuming that Gregory is correct that the parties' income and expense declarations would show his income to be far less than Joan's, the commissioner was entitled to consider Gregory's earning capacity and plainly did so. Indeed, Gregory had attached to his opposition papers the commissioner's earlier ruling on Gregory's motion to modify child support. In that ruling, the Yuba County commissioner found that Gregory "does indeed have an earning capacity of at least $3,000 per month from self-employment sources." *fn8 Joan was found to have "an average monthly gross income of $3,529." Thus, there was no great disparity in the financial positions of the parties that would militate against an award of attorney fees and costs to Joan. (§§ 2032, subd. (b), 4320, subd. (c).)

 
[67]     Still, one commentator has suggested that "consideration of the parties' `relative' circumstances may preclude a § 2030 fee award between parties of roughly equal financial means." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) ¶ 14.159.2, p. 14-41.)

 
[68]     Nonetheless, section 2032, subdivision (b), expressly provides that "[f]inancial resources are only one factor . . . to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."

 
[69]     Another factor is whether a party's conduct has contributed to the other party's increased litigation costs. Thus, "in determining whether to award attorney fees to one party, the court may also consider the other party's trial tactics." (Drake, supra, 53 Cal.App.4th at p. 1167; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 168.) The intransigence of one party which prolongs the litigation and thus significantly increases the other party's attorney fees can justify a fee award to the latter party. (In re Marriage of Dick, supra, at p. 168.)

 
[70]     Here, as the commissioner noted, Gregory saved attorney fees by representing himself, but his unreasonable conduct of the litigation drove up Joan's fees. Examples of this abound. *fn9 The proceedings with respect to the first exhibit that Joan presented at the hearing, regarding child care expenses incurred in May 1999, set the tone of the hearing. That exhibit consisted of eight charges for child care expenses, ranging from $17 to $100 and totaling $452 for the month, each expense documented by a receipt (most signed by the provider) and some also by a copy of a check.

 
[71]     Gregory cross-examined Joan extensively regarding each of these relatively small bills on matters plainly indicated on the face of the documents. Addressing a receipt and the accompanying monthly contract for $25 for child care, Gregory asked: "Can you show me in this document which receipts you have to substantiate that the kids were in the clubhouse?" Joan indicated that the receipt was imprinted with the words "Nevada City School District, Clubhouse Child Care" where the name of their son, "Mitchell," was written in. Gregory's next question was: "Can you show me how they determined the $25 bill?" Joan referred to the calculations written on the form. Gregory later asked: "The receipt that you have given us for $25, was that paid by check or by cash?" Joan pointed to the "x" in a box on the receipt labeled "CHECK." Gregory continued with these questions: "Can you reconcile from this statement how they came up with the $25?" and "If you can't reconcile this, how do you expect me to reconcile it?" (The commissioner ruled that the latter question was argumentative.) Gregory then questioned Joan about proof of her work schedule on particular days in May 1999; Joan testified that she never paid for day care on a day that she did not work but had no present recollection of her work schedule in May 1999. Gregory's examination on the other receipts continued in a similar vein, with questions regarding, e.g., which child was in day care, how the receipt was computed, how Joan determined the children were actually in day care on that date, what proof Joan had that the money was actually paid, which facility and location provided the care, how Joan could prove that she was working when the children were in day care, and so on.

 
[72]     Repetitive and unnecessary cross-examination, such as this, on matters obvious and unimpeachable prolonged the hearing to one-and-one-half days without useful purpose, while creating the need for an award to cover most of Joan's litigation costs. Gregory did not experience a similar increased financial burden because he chose to represent himself. *fn10

 
[73]     "A motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] `[T]he trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]' [Citation.]" (Sullivan, supra, 37 Cal.3d at pp. 768-769; Duncan, supra, 90 Cal.App.4th at p. 630.)

 
[74]     We cannot say that the commissioner abused his discretion in awarding Joan attorney fees in the amount of $2,500 under the circumstances. *fn11 (See Sullivan, supra, 37 Cal.3d at pp. 768-769; Duncan, supra, 90 Cal.App.4th at p. 630.)

 
[75]     DISPOSITION

 
[76]     The order is affirmed.

 
[77]     We concur:

 
[78]     SIMS, Acting P.J.

 
[79]     ROBIE, J.

 
 
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  Opinion Footnotes
 
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[80]     *fn1 For the sake of clarity and out of no disrespect, we shall refer to the former spouses by their first names -- a common practice in this type of case.

 
[81]     *fn2 We note that this is Gregory's third appeal from orders relating to child support. Gregory appealed from the original child support order of $68 per month payable to him in case No. C035589. We remanded solely for recalculation of the monthly child support figure in order to take into account a deduction for Gregory's health insurance premiums. Gregory also appealed a modified child support order requiring him to pay Joan $99 per month in case No. C039508. We affirmed. We take judicial notice of the unpublished decisions of this court in those cases. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37, fn. 2.)

 
[82]     *fn3 Joan has not filed a respondent's brief. Since Gregory has waived oral argument, the appeal is therefore submitted on the record and Gregory's opening brief. (Cal. Rules of Court, rule 17(a)(2).)

 
[83]     *fn4 Unless otherwise designated, all further statutory references are to the Family Code.

 
[84]     *fn5 Gregory stated at the continued hearing that he did not recall the commissioner ordering the parties to prepare a list of objections at the earlier hearing. The order, however, is detailed in the court's minutes: "Court advises parties that they should prepare lists of bills on which they are requesting reimbursement at least one week prior to trial or 1/29/02 and provide them to [the] other side. Following that exchange, parties should have a list of any objections to reimbursement prepared for submission at [the] hearing." While the reporter's transcript of the hearing does not include this order, it appears the order was made at the close of the proceeding. Indeed, the transcript, for some reason, ended before the order was issued. We base this observation on the fact that unlike the other transcripts in the record, this particular transcript does not conclude with the words, "End of proceeding." The transcript therefore does not support the conclusion that the commissioner never made the order.

 
[85]     *fn6 Gregory also makes an alternative argument concerning Joan's purported untimeliness in submitting documentation: "Further, Petitioner [Joan] had previously been ordered to submit documentation for reimbursement claims to Respondent [Gregory] within a specified time period, which Petitioner chose to ignore and failed to ever supply Respondent with said documentation." Gregory cites to a July 13, 2001 order, requiring both parents, within 30 days, to serve each other with a verified declaration of amounts incurred for child care and health care costs through May 31, 2001, after which they were to meet and confer to determine if past payments were not equal and a balance was due to one or the other, which the court would then add to any existing arrearage. This contention is presented without a separate heading or subheading showing the nature of the question to be presented or the point to be made, in violation of rule 14(a)(1)(B) of the California Rules of Court. We may disregard contentions not properly briefed. (See Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830- 1831, fn. 4.) In addition, there is no evidence in the record cited in support of this contention, furnishing another basis for us to consider the point waived. (See Grant- Burton, supra, 99 Cal.App.4th at p. 1379; Duarte, supra, 72 Cal.App.4th at p. 856.)

 
[86]     *fn7 The commissioner ruled: "Petitioner [Joan] requests attorney fees. At the Yuba County motion for support, the court found the incomes of the parties comparable. [Joan] has a greater portion of her income devoted to the children, for whom she has more timeshare. [Gregory] saved himself the expense of an attorney but he should share the expenses incurred by [Joan], whose expenses were disproportionately high as a result of [Gregory's] failure to resolve these relatively simple issues in good faith. [Gregory's] hearing tactics further exacerbated the attorney fees. On need and ability to pay, having considered the prior Income and Expense Declarations of both parties, [Joan's] inheritance, the known assets and liabilities of the parties, and the reasonableness of the fees incurred, I. award [Joan] the sum of $2,500 in fees pursuant to Family Code § 2030."

 
[87]     *fn8 In case No. C039508, we upheld the Yuba County commissioner's finding.

 
[88]     *fn9 The commissioner gave several examples in connection with setting on his own motion a hearing for an award of attorney fees as a sanction under section 271: "Just one particularly egregious example is [Gregory's] professed willingness to settle all issues, including those on appeal, provided that he nonetheless . . . maintain[ed] his pending appeals . . . . Another example is [Gregory's] repeated statements that he was confused about things that would have been clear to the average person. Another example is the deplorable state of [Gregory's] exhibits, which required extensive Court time to analyze, ferret out duplicates, find misfiled documents, and search for proper supporting documents. Still another example is [Gregory's] representation to the Court that this simple hearing would take several days. In fact it took a day and a half, during which most of the time was taken by [Gregory] in superfluous cross- examination on [Joan's] exhibits, cross- examination that I. had already limited by virtue of imposing time limits. Reasonably, hearing on these claims should not have taken more than an hour if the parties had followed the § 4063 procedures and the prehearing advisement to prepare, meet and confer." We note that no award of fees under section 271 is presented to us on appeal; therefore, we are in no position to evaluate whether there will be any double- counting of fees attributable to Gregory's litigation tactics in any such award.

 
[89]     *fn10 Gregory attributes his lack of representation to his financial circumstances. But his financial circumstances are themselves a product of choice given his earning capacity. Thus, his current earnings give a distorted view of his financial ability. (Sullivan, supra, 37 Cal.3d at p. 769.)

 
[90]     *fn11 Further, we note that Gregory does not challenge the specific amount of the award, only the fact of the award. Still, we further note that Joan's counsel informed the court that her hourly rate was $225 and that the amount of $2,500 approximated only the total fees Joan incurred over the day- and- one- half of hearings and not any prehearing preparation.

 

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