In re Marriage of Shiralian

Filed 12/15/08 In re Marriage of Shiralian CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Kimberly Nystrom-Geist, Judge.

Tritt & Tritt, James F. Tritt; Michael D. Culy for Appellant.

Law Offices of Katherine E. Donovan and Katherine E. Donovan for Respondent.

-ooOoo-

We are presented with an all too common situation in family law. A lucrative family business that supports a rather lavish lifestyle suddenly fails miserably when the parties separate and dissolve the marriage. The matter further is complicated when the spouse in control of the business, here the husband, (1) pays personal expenses of both parties out of the business, (2) funds a new life with a new partner through the business, and (3) obstructs access to accurate and current financial information. The resulting litigation is toxic. The parties are three years into the dissolution action and still they are arguing over temporary spousal support.

Appellant Bahram Shawn Shiralian (hereafter Shawn) contends the trial court abused its discretion when it fixed temporary spousal support for Julie Shiralian at $36,536 per month based upon Shawns^[1]statements in a loan application that he earned $100,000 per month. We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Shawn and Julie were married in 1987 and separated in 2005; their marriage lasted 18 years. At the time of separation they had two minor children -- their daughter, Shontel, age 17, and their son, Arian, age 15.

According to Julies income and expense statement filed November 3, 2005, the Shiralians owned several businesses, including Kleins Truck Stop, three Shell gas stations, a Union 76 gas station and convenience store, an International House of Pancakes restaurant, a petroleum company, and a truck and auto service and repair shops. Julie stated the income from the businesses averaged approximately $1 million per month. These businesses were owned and operated through three entities: Millennium Acquisitions, LLC, Shiralian Enterprises, Inc., and Timeless Investments, Inc. (hereafter Timeless).

On November 22, 2005, Julie filed a motion for temporary spousal and child support. The motion also sought appointment of a receiver for the businesses and access to all bank accounts and records of the jointly owned businesses. Julie and Shawn stipulated that all of Julies credit card bills and related expenses, the mortgages, vehicle payments, and life, health, and dental insurance would be paid on Julies behalf through Timeless and that the principal bookkeeper of Timeless would be responsible for issuing checks to pay these obligations. It also was stipulated that the issue of support was continued to January 11, 2006.

The January 11, 2006, hearing was continued to April 26, 2006. On April 3, 2006, Julie filed a declaration expressing concern with Shawns management of the community assets postseparation. Shawn continued to pay all of his personal debts in full through the businesses, but was paying only the minimum amount due on Julies accounts. Shawns vacation trips to London, Seattle, and Alaska were paid by the businesses. Shawn also used the community business assets to pay numerous expenses of his girlfriend, totaling at least $46,720. On April 26, 2006, the matter was continued to June 13, 2006, for hearing.

On May 12, 2006, Julie attempted to have a contempt citation issued against Shawn for failure to have the Timeless bookkeeper issue checks in accordance with the stipulation. The trial court refused to issue the contempt citation because the bookkeeper, not Shawn, was directed to issue the checks in the stipulation and order.

At the June 13, 2006, hearing, the parties agreed to continue the matter to July 25, 2006. On June 30, 2006, Julie filed a new income and expense declaration. In this declaration, she stated that the combined value of the parties real property was $5 million; her monthly expenses had decreased to $12,250; she was working 35 hours per week and earning $11 per hour; and she estimated Shawns monthly income at $40,000. Julie also filed a declaration stating that Shawn was spending over $20,000 per month on himself, paid for by the businesses, and that Shawn was not complying with the stipulation and order for ongoing payment of her expenses. Julie requested a support order and suggested she and Shawn each be allowed a $15,000 per month draw from the businesses, with Shawn to receive an additional $9,000 per month as a reasonable salary for his services.

Shawn filed a responsive declaration on July 12, 2006, in which he stated that he was not in agreement with the relief requested by Julie. Shawn stated that Julie was being paid $4,000 from community businesses. Shawn maintained that he took a minimum draw of $3,000 each month, rising fuel costs were the cause of decreased business revenues, and that the business account constantly was overdrawn. The exhibit attached to Shawns declaration reflects that he made deposits to the business account in excess of $5 million during the month of May 2006.

On July 25, 2006, the hearing was continued to August 1, 2006. Shawn filed his first income and expense declaration on July 27, 2006, claiming that he was paid $3,541 gross per month. Shawn attached profit and loss statements for Shiralian Enterprises, Timeless, and Millennium Acquisitions.

On July 27, 2006, Shawn filed a declaration from Stephen F. Walter, certified public accountant, stating that Julie was being paid a draw of $4,333 per month from the businesses and, in addition, the businesses paid expenses of approximately $10,000 per month on her behalf. Walters declaration also stated that the combined businesses operated at a loss in 2005 and were operating at a loss in 2006; thus, there were no profits to be shared.

The August 1, 2006, hearing was continued to October 11, 2006. On October 11, 2006, the trial court denied without prejudice Julies request for spousal support and ordered the real property be appraised.

Julie filed a motion for reconsideration on October 20, 2006, and noted that records available to her indicated that Shawn was spending $25,000 per month on his personal needs. Shawn had changed the passwords to the online business banking accounts, however, and Julie was no longer able to view the records. Shawn also had taken out a $210,000 loan against community property, without Julies approval or consent, in violation of a court order. Shawn was making payments on a credit card in cashas much as $6,522 a monthby going to the bank and paying the bill in cash.

The motion for reconsideration was calendared for December 18, 2006. Shawn filed an objection to the motion for reconsideration, in which he raised procedural issues. Julie filed another income and expense declaration, stating that the marital standard of living would cost $26,249 per month. She was unable to maintain that standard of living on her present income.

Julie filed another motion for modification of spousal support, an award of attorney fees, and other relief on January 5, 2007, with a hearing scheduled for February 20, 2007. Julie requested support of $21,500 per month and noted that there were arrearages of $34,751.20. Julie stated that the community property businesses grossed over $64 million in 2005. Julie also informed the trial court that as a result of Shawns failure to comply with the November 2005 court order, services at Julies residence, including the garbage service, had been cut off completely and other bills were in arrears. Julies attorney, Stephen A. Kalemkarian, filed a declaration setting forth his efforts to resolve the outstanding issues without resorting to court intervention.

On January 16, 2007, the parties stipulated to dropping the motion for reconsideration and the motion for modification, both filed by Julie on October 20, 2006, presumably because a new motion for modification had been filed by Julie and her new attorney.

Julie filed a memorandum of points and authorities in support of her motions on January 24, 2007.

Julies motions were recalendared for February 20, 2007, and Shawn filed a response to Julies motions on February 7, 2007, including an income and expense declaration. Shawn claimed he received a salary of $3,541 per month and other income of $1,333 per month. No income from Timeless or Millennium Acquisitions was listed. Shawn listed unknown as the amount for all savings, money market, and other deposit accounts. He failed to list any value whatsoever for other property, real or personal. Shawn stated his monthly expenses were $8,140, yet his monthly mortgage was listed as $7,500 and monthly utilities of $2,000. No figure was listed under expenses for clothes, auto, insurance, or other expenses.

In Shawns responsive pleadings, he asked that the trial court reserve jurisdiction over the issue of spousal support pending the sale of the residence and an accurate determination of the income of the businesses and the needs of the parties. Shawn asked that the residences of both parties be ordered sold immediately in an effort to reduce expenses. Shawn claimed that the last financial statements were prepared in 2005 and that the businesses were less profitable in 2006 because of an economic downturn. He stated that he was attempting to sell one or two of the community businesses.

On February 14, 2007, Julie filed an objection to Shawns response on the basis that it was filed two days late. Notwithstanding her objection, Julie filed a reply. Julie reiterated that Shawns failure to comply with the earlier order of the trial court had left her with significant outstanding bills. She also pointed out that if Shawn was attempting to sell the businesses, he must have current financial information for the businesses, which he had not shared with Julie or the trial court. Julie also pointed out that Shawns negotiations for sale of the businesses without Julies agreement or consent would constitute a violation of the trial courts restraining order.

Julie also noted that Shawn failed to provide a W-2 form to support his salary claim. A payroll printout showed $5,417 per month in salary to Shawn, not $3,541. Further, Julie noted that in order for Shawn to calculate the 2006 sales tax that was due for the business operations, he had to have financial statements for 2006, or the financial statements easily could be prepared because sales information had to have been input into the computers.

On March 5, 2007, the trial court ordered Shawn to provide updated financial information, including a copy of the loan application for the home he purchased after the parties separated. The trial court further ordered that Julie be given access to business bank accounts and records. The hearing was continued to March 21, 2007.

Shawn filed an updated income and expense declaration on March 20, 2007. Shawn, however, failed to produce documents pursuant to a subpoena duces tecum that Julie served upon him. The document production was due March 5; Julie gave Shawn an extension, but nothing had been produced as of March 20.

Julie did, however, obtain loan documents signed by Shawn for the purpose of purchasing his residence after separation. In those loan documents, Shawn stated that his monthly income was $100,000; his net worth exclusive of the businesses was $576,314; and no value was given for the three community businesses. The loan applications required Shawn to sign, affirming that the financial information given was true and correct.

In its order, the trial court stated that it was relying upon Shawns own statements in the loan application to calculate spousal support. The trial court set temporary spousal support at $36,536 per month, payable by Shawn to Julie. The trial court further stated that in issuing the temporary support order, it failed to consider certain late-filed information presented by Shawn, but did consider the late-filed documentation presented by Julie, which consisted of Shawns loan application.

Shawn filed a motion for reconsideration on April 2, 2007, which the trial court denied, stating that there was no new information presented by Shawn.

DISCUSSION

Shawn contends the trial court abused its discretion when it awarded $36,536 per month in temporary spousal support to Julie. He further claims the trial court abused its discretion and denied him a fair hearing when it considered Julies late-filed papers submitting the loan application documents, but declined to consider late-filed papers submitted by Shawn. Finally, Shawn argues the trial court abused its discretion when it denied his motion for reconsideration.

I. Standard of Review

The purpose of a temporary spousal support order is to maintain the status quo, and an order based solely on respective incomes is appropriate. (In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932 (Winter).) No factual findings are required for an order of temporary support. (Fam. Code,  4320.)

The standard of review is the deferential abuse of discretion test, and we are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.] (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; see also Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.)

[A]n award of temporary spousal support is within the sole discretion of the trial court and will not be reversed unless it amounts to an abuse of discretion. (In re Marriage of Stich (1985) 169 Cal.App.3d 64, 71.) Temporary spousal support may be ordered in any amount that is necessary for support and maintenance. [Citations.] Whereas permanent spousal support provide[s] financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property, temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations. [Citations.] (Winter, supra, 7 Cal.App.4th at p. 1932.)

II. Analysis

A.     Reliance by the trial court on the loan application

Shawn contends the trial court abused its discretion when it awarded temporary spousal support based upon statements he made in a loan application. We disagree.

Prior to the award of temporary spousal support, Shawn had established a pattern of being uncooperative and failing to obey court orders. He ignored the trial courts November 2005 order requiring payment of Julies expenses to be made by Timeless. Shawns actions left Julie with significant outstanding debt and in a situation where necessary services, such as garbage, had been stopped for nonpayment. When served with a subpoena duces tecum, Shawn failed to produce documents, even when given an extension of time. When he filed updated financial information, the information was incomplete or not credible. Also, contrary to a court order, Shawn prevented Julie from accessing financial information for the community businesses. When he did file pleadings in opposition to Julies request, he filed them late.

Virtually all of the financial information for the businesses was under Shawns control and Julie had no access to it because Shawn, contrary to a court order, had changed passwords and precluded Julie from accessing business information. Also, even though all the business information was under Shawns complete control, he failed to produce timely or credible information on the businesses, or he claimed that no current information was available.

The trial court made its decision after months of delay, obstructive activities, and incomplete or misleading financial information. It certainly is not an abuse of discretion that it gave more weight to a detailed loan application completed by Shawn after the parties separated, and verified by him as true and correct, than it gave to incomplete and not wholly credible financial information prepared by him for filing with the trial court. As one court stated when relying upon a loan application in setting child support, a party cannot have it both ways. (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 110 [child support].) If a loan application is good enough to secure financing for a house that Shawn wanted to buy, it is good enough to use as a basis for establishing temporary support. (Ibid.)

B.     Pleadings considered by the trial court

Shawn claims that it was an abuse of discretion and he was denied a fair hearing because the trial court refused to consider the declaration of an accountant submitted by Shawn the day before the hearing. We disagree. We previously noted Shawn had complete control over and access to all financial information pertaining to the community businesses. Had he wanted to submit evidence regarding the financial condition of the businesses in the form of a declaration from an accountant, he should have done so in a timely manner, which would have allowed Julie an adequate opportunity to respond. To file the declaration the day before the hearing when Shawn had complete and unfettered access and control over the businesses and the financial records was inexcusable.

Shawn also challenges the trial courts consideration of Julies reply pleading submitting the loan application documents. He contends that the trial court should not have considered this document and the attached loan application because they were not timely filed.

We first note that Shawn failed to object in the trial court and has forfeited any challenge to their admissibility. [Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.] (People v. Waidla (2000) 22 Cal.4th 690, 717.) Therefore, any claim that the evidence in question was admitted and considered improperly has been forfeited. (People v. Hinton (2006) 37 Cal.4th 839, 893, fn. 19 [failure to object at trial to evidence under Evidence Code section 352 waives claim].)

Regardless, Shawn fails to mention in his argument that he was under a court order to produce the loan application documents, failed to comply with that order, and failed to comply with a subpoena designed to secure the documents. That Julie was able to secure the documents through other means and provide them to the trial court is not a basis for ignoring that evidence when it was submitted. Shawn, as the one who completed the loan application, could not have been taken by surprise by the information contained therein.

C. Motion for reconsideration

Shawn maintains the trial court abused its discretion when it denied his motion to reconsider the amount of temporary spousal support. Again, we disagree.

Code of Civil Procedure section 1008 provides that a motion for reconsideration must be based on new and different facts that were unavailable at the time of the initial hearing. Shawn based his motion for reconsideration on the certified public accountants (CPA) declaration that the trial court had failed to consider because it was not timely filed.

Code of Civil Procedure section 1008 requires a party seeking reconsideration to provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. (Blue Mountain Development Co. v. Carville (1982) 132 Cal. App.3d 1005, 1013.) Shawn failed to make the required showing; hence, there was no error.

As the trial court noted, Shawn did not present any new or different facts or information. The trial court noted again that the issue of temporary spousal support had been pending for months prior to issuance of the order and Shawn could have submitted a timely declaration from a CPA prior to the hearing, but did not. All of the information was in Shawns possession and control for months prior to the initial hearing; Shawn failed to produce it. The trial court found the declaration did not constitute new evidence unavailable at the time of the original hearing. As such, the trial court declined to reconsider its order.

The trial court did not abuse its discretion in denying Shawns motion for reconsideration.

DISPOSITION

The award of $36,536 per month in temporary spousal support to Julie is affirmed. Costs on appeal are awarded to Julie. Costs shall be determined by the trial court.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

KANE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1]We refer to the parties by their first names for clarity and ease of reference, and intend no disrespect.