Marriage of Astacio

Filed 10/2/07 Marriage of Astacio CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Robert P. Applegate, Judge. Dismissed in part and affirmed in part.

John M. Gantus & Associates, John M. Gantus, Aleen L. Khanjian, Nyree S. Kolanjian and Jacqueline Bilemdjian for Petitioner and Appellant.

Kolodny & Anteau, James L. Keane, Ani M. Garikian and Ronald W. Anteau for Respondent.

introduction

Appellant Dorcas Astacio, former wife of respondent Pedro Astacio, appeals from an order determining the amount of arrearages she owes to Pedro as a result of a prior order by which the court decreased Pedros child support obligation, retroactively to the date of Pedros filing of his request for modification.^[1]Dorcas also purports to challenge on this appeal several rulings included within the prior order modifying child support, but because we find that the notice of appeal was untimely as to that order, we dismiss that portion of the appeal. As to the order setting the amount of arrearages as a result of the retroactive decrease in child support and establishing the terms of the repayment, we find no error. We therefore affirm that order in full.

factual and procedural background

The Prior Proceedings

A final judgment of dissolution of the marriage of Pedro and Dorcas was entered in Florida in March 1997. Pursuant to the judgment, Pedro was ordered to pay to Dorcas $2,000 per month in base child support for the parties child, Monica, born in September 1994. In May 2002, Dorcas filed an order to show cause to modify the child support order. At the time, Pedro was receiving an annual salary of $5.5 million as a professional baseball player. In April 2004, the court entered an order increasing Pedros monthly child support obligation to $13,000. Pedro appealed, and this court affirmed the order in a nonpublished opinion. (In re Marriage of Astacio (Apr. 5, 2005, B175647).

The Current Proceedings

1. Pedros Order to Show Cause Regarding Modification of Child Support

On March 1, 2004, Pedro filed an order to show cause regarding modification of child support because he no longer had a contract to play for a Major League Baseball team, and therefore his income had significantly decreased. Hearing on the order to show cause was continued numerous times, and the matter was finally heard on January 25, 2005. During the hearing the parties and court discussed what provisions could be made in the event Pedro signed another Major League contract, and in general to account for the anticipated fluctuations in his income in the future. The court suggested use of an Ostler & Smith order, by which the court would order Pedro to pay a percentage [of future income] capped at the level of the existing order.[2]The parties reacted positively to the notion, but the court made clear that it was not deciding the issue at that time. Counsel for Dorcas argued the income from the Dominican Republic was not taxed, and that distinction should be taken into account in calculating guideline support. The parties also addressed at length the amount of income that should be imputed from Pedros various assets. Dorcass counsel took the position that the evidence demonstrated that the childs need for support was in excess of the guideline amount.

On April 13, 2005, the trial court issued a statement of decision regarding Pedros order to show cause. The court found Pedros gross monthly income for purposes of calculating guideline child support to be $48,809, down from $500,000 per month and, as such, there had been a substantial change in circumstances, supporting modification. Pedros January 6, 2005 income and expense declaration showed 2004 earnings of $248,311 ($20,693 per month) and dividend and interest income of $300,768 ($25,064 per month).[3] Pedros deposition testimony indicated he owned in the Dominican Republic three residential properties, a vacant lot, and a yacht, and also a home in Colorado. He resided in one of the Dominican properties and the Colorado home. He itemized monthly deductions totaling $7,392, consisting of a mortgage payment and property taxes on the Colorado home. The court found that his two Dominican residences, along with the yacht, were excluded from calculating guideline support because they were not income-producing or investment properties. The court imputed monthly rental income of $3,000 to the two residential properties in which he did not reside. The vacant lot was not an income property, and its investment value was found to be negligible for purposes of imputing guideline child support income. Based on all of the foregoing, and the fact Pedro spent no custodial time with the child, the court calculated the monthly guideline child support amount to be $6,224. The court considered section 4057 and found that the evidence did not rebut the presumption that the guideline calculation was the correct amount of child support to be ordered. The court found that Pedro does not have an extraordinarily high income. The lifestyle analysis presented in the declarations of [Dorcass] experts does not compel a novel interpretation of any of the other factors in Section 4057, especially since [Pedros] deposition does not depict an opulent lifestyle. Accordingly, Pedro was ordered to pay Dorcas monthly child support of $6,224, retroactive to March 2004, the date of filing of Pedros order to show cause. The court ordered Pedros counsel to prepare an order for submission to Dorcass counsel for approval as to form and content.

On June 30, 2005, the order prepared by Pedros counsel was approved and filed by the trial court. The order had been approved as to form and content by Dorcass counsel on June 14, 2005. Its contents were as set forth in the courts statement of decision filed April 13, 2005.

2. Dorcass Order to Show Cause Regarding Modification of Child Support

Prior to the order being filed regarding Pedros order to show cause, Dorcas filed her own order to show cause for modification of child support, and for attorney fees and costs, on April 25, 2005. Dorcas asserted based on information and belief that Pedro had executed a new contract with the Texas Rangers, effective April 15, 2005, under which he would receive a base salary of $800,000 per year, plus bonuses. She sought $14,000 monthly child support and $15,500 in fees and costs. She also sought an order of Ostler & Smith payments by which she would receive a percentage of any bonuses Pedro earned under the new contract.

Also on April 25, 2005, Dorcas filed a notice of motion seeking reconsideration of the statement of decision of April 13, 2005 or, in the alternative, motion for new trial. The request for reconsideration was brought pursuant to Code of Civil Procedure section 1008, subdivision (a), and was based on Pedros signing a new contract.

On June 29, 2005, Pedro filed a new income and expense declaration, imputing monthly income of $3,000 to Dorcas, and stating that he became unemployed as of June 13, 2005. He reported an average monthly salary of $42,288, monthly dividends and interest of $8,393, stocks and bonds worth $6 million, and real property valued at $1.3 million. He reported total monthly expenses of $16,362.

On August 4, 2005, Pedro filed a declaration prepared by his agent, Stephen Schneider. Schneider stated that Pedro had been released by the Texas Rangers in mid-June 2005 and the Rangers contract was terminated. He signed a new contract with the San Diego Padres in July 2005, with a base salary of $316,000 annually and no bonuses. He had earned bonuses under the Rangers contract during the first half of 2005 of $175,000. He was still entitled to the unpaid balance of his $800,000 salary with the Rangers, but the salary paid by the Padres would offset and reduce the Rangerss liability as to the unpaid portion of their contract.

3. Pedros Motion for Offset

On June 17, 2005, Pedro filed a motion for orders for offset and sanctions. Pedro noted that on May 11, 2005, the court had awarded Dorcas $90,000 in attorney fees and expert fees. Although the final order (of June 30, 2005) had yet to be filed, the court had ordered in its statement of decision of April 13, 2005 that the reduction in child support from $13,000 to $6,224 monthly was retroactive to the date of Pedros filing of the order to show cause for modification in March 2004. Thus, Dorcas was required to reimburse Pedro for the overpayment of child support in the sum of $94,864 plus interest. Pedro requested an order that the recent award to Dorcas of attorney fees and costs of $90,000 was to be offset against the $94,864 overpayment of child support.

On June 29, 2005, Dorcas filed a responsive declaration to Pedros request for offset, arguing against any offset and requesting that the court exercise its discretion and order no reimbursement of any overpayment of support, or that reimbursement be made in a nominal amount per month, and offset from future support.

4. Dorcass Objections to the Proposed Statement of Decision

On June 27, 2005, Dorcas filed objections to the proposed statement of decision of April 13, 2005 and the proposed judgment served on June 16, 2005 (and filed on June 30, 2005). She argued that in determining the guideline child support amount, the court failed to take into account that Pedro had non-taxable income from the Dominican Republic, which was not reported in his 2003 federal income tax return, and which should have been treated as non-taxable income in calculating support. She asserted that her objections, if not timely with regard to the statement of decision, were timely filed after service of the judgment, citing former California Rules of Court, rule 232(d).[4]

On August 24, 2005, Pedro filed a memorandum of points and authorities in which he argued that Dorcass objections, filed 75 days after service of the statement of decision, were untimely.

The Combined Hearing on Dorcass Motion for Reconsideration, Dorcass Order to Show Cause for Modification of Child Support, and Pedros Motion for Offset

On July 13, 2005, a hearing was held on Dorcass motion for reconsideration of the statement of decision, Dorcass order to show cause for modification of child support and attorney fees and costs, and Pedros motion for offset of support. With regard to Dorcass motion for reconsideration and her order to show cause regarding modification, the parties and court discussed at length the preparation of an Ostler & Smith order. Ultimately, the parties anticipated they could reach an agreement on that issue, and the court continued the matter until August 17, 2005 to hold a telephonic hearing on the matter. In addition, counsel for Dorcas argued that the fact Pedros income in the Dominican Republic was not taxed should have been taken into account in calculating guideline child support. Counsel had not raised that issue in the motion for reconsideration or order to show cause for modification, but rather in Dorcass objections to the April 13, 2005 statement of decision. Counsel for Pedro argued that the objections were not timely filed. The court had not yet seen the objections, and stated it did not know if it could still consider them.

Finally, the parties discussed Pedros motion to offset the $90,000 in attorney fees against the $94,864 overpayment of child support. Counsel for Dorcas argued that the court should exercise its discretion to reduce the amount of overpayment Dorcas was required to pay, or even eliminate it altogether. The court took that matter under submission.

A further brief hearing was held on August 4, 2005. Dorcass counsel requested that the order to show cause regarding modification be continued pending finalization of the terms of the Ostler & Smith order, which would essentially render superfluous Dorcass order to show cause for modification. Dorcass counsel noted that two other issues remained pending for the telephonic hearing on August 17, 2005: the overpayment of support, and the objections to the proposed statement of decision and judgment.

The court issued a minute order dated August 4, 2005, by which it ordered Dorcas to repay to Pedro $47,432 in overpaid child support, pursuant to Family Code section 3653. The court ordered that, effective September 1, 2005, Pedros child support payments would be offset by $1,000 in order to effect the repayment. The court noted that Dorcass income and expense declaration indicated monthly expenses of $2,500 for personal care, hobbies, personal training and a storage unit; in that regard, the court found that Dorcas is either overspending or exaggerating her expenses, or both. The court stated that it would hear further argument as to Pedros non-taxable income during the telephonic hearing on August 17, 2005. The court denied Pedros motion for offset, ordering that Pedro immediately pay Dorcass counsel the previously awarded $90,000 in attorney fees.

The court held a further telephonic hearing with the parties on August 17, 2005. This hearing was not reported.

On August 24, 2005, Pedro filed objections to the minute order of August 4, 2005, contending the court abused its discretion in reducing by half Dorcass overpayment obligation. Pedro argued that by reducing by half the amount Dorcas was obligated to repay, the court had in effect ordered Pedro to pay child support in excess of the amount specified in the guidelines, without making any of the findings necessary to support such an order, citing section 4056. Pedro also filed points and authorities addressing the untimeliness of Dorcass objections to the statement of decision of April 13, 2005.

On November 17, 2005, the court held a final telephonic hearing regarding Pedros objections to the courts minute order of August 4, 2005 forgiving $47,432 of the child support overpayment, and the timeliness of Dorcass objections to the courts April 13, 2005 statement of decision.

On November 18, 2005, the court issued its rulings on submitted matters. Therein, the court found that Dorcass objections to the statement of decision were untimely, and therefore it would not reach the non-taxable income issue. The court also sustained Pedros objections to the courts reduction by half of Pedros overpayment of child support. The court noted that, in granting numerous continuances, it had made a commitment to the parties that its modification of the previous child support order would be retroactive to the date of filing of Pedros request for modification, March 2, 2004, with the clear implication that overpayments would be remitted to Pedro. The court found that it could not change the date of retroactivity, and that reducing the amount of Dorcass reimbursement obligation would result in a substantial increase in guideline child support, without the court having made the necessary statutory findings. The court indicated that the entire amount of the overpayment, $94,864, was to be offset against the pending Ostler & Smith payment that was then due to Dorcas. Pedros counsel was directed to prepare an order.

Dorcas filed opposition to the order prepared by Pedro, objecting that the overpaid child support was only to be offset from the future Ostler & Smith payments. Pedro disagreed. Finally, on February 3, 2006, the court approved and filed an order after hearing of July 13, 2005, and further telephonic hearings of August 17, 2005 and November 17, 2005. : Therein, the court (1) denied Dorcass motion for modification of child support and attorney fees and costs; (2) ordered Pedro to pay, as additional child support, 6.7 percent of any income over and above $248,311 per year after deduction of business expenses, effective April 15, 2005 (the Ostler & Smith payment), due within ten days of receipt of any bonus by Pedro and/or calculated on April 15 of each year; (3) ordered Dorcas to repay to Pedro the sum of $94,864 in child support overpaid between March 2, 2004 and April 15, 2005, the offset to be taken first against any Ostler & Smith payment, then at the rate of $1,000 per month against the base monthly child support payment of $4,694 (plus add-ons of $1,530, for total child support of $6,224 monthly) commencing September 1, 2005; (4) denied Pedros request for sanctions; and (5) declined to reach the non-taxable income issue because Dorcass objections to the April 13, 2005 statement of decision were untimely.

On April 4, 2006, Dorcas filed a notice of appeal from the order entered on February 3, 2006.

discussion

I. Timeliness of the Notice of Appeal

Pedro correctly contends on appeal that Dorcas purports to challenge several final rulings that were set forth in the courts order of June 30, 2005, and therefore the notice of appeal filed on April 4, 2006 was not timely as to those rulings. Those rulings include the reduction in Pedros monthly child support obligation to $6,224, as well as certain premises included in that ruling: the amount of income to be imputed to Pedros non-income producing assets, whether Pedros income from the Dominican Republic should have been treated as non-taxable, whether Pedro should be considered an extraordinarily high earner, whether the court should engage in a lifestyle analysis to determine whether the child was being supported at a level commensurate with Pedros lifestyle, and generally whether any statutory basis existed for departing from the presumptively accurate guideline child support figure. We conclude that all of these issues were decided in the courts order modifying child support of June 30, 2005, which was an appealable order. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554; citing  3554; Code Civ. Proc.,  904.1, subd. (a)(10); County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250.) We therefore dismiss the appeal as untimely to the extent that it purports to challenge any of these rulings. The fact that Dorcas filed her own order to show cause for modification of child support (to increase child support to $14,000 monthly) in April 2005, and also filed untimely objections (on June 27, 2005)[5]to the April 13, 2005 statement of decision which preceded the order of June 30, 2005, had no effect on the finality of the rulings contained within the order of June 30, 2005. Likewise, Dorcass April 2005 motion for reconsideration did not extend the time for filing a notice of appeal from the order of June 30, 2005, such that the notice of appeal filed on April 4, 2006, could be considered timely. (See Cal. Rules of Court, rule 8.108(d), formerly rule 3.) The courts reiteration of Pedros monthly child support obligation in its subsequent order of February 3, 2006, from which the present appeal is taken, did not render appealable that ruling or its underlying bases.

II. Arrearages from the Retroactive Decrease in Child Support

The order of June 30, 2005, specified that Pedro was to pay as child support the monthly sum of $6,224, retroactive to March 2, 2004. However, when Pedro requested that the court offset the $90,000 in attorney fees he owed to Dorcas against the $94,864 Dorcas owed Pedro as a result of the retroactive reduction in child support, the court subsequently ordered the amount of her repayment reduced by half, to $47,432. Pedro objected, and eventually the court sustained his objection, finding that reducing the amount of Dorcass reimbursement obligation would in effect constitute an increase in guideline child support, without the court having made the necessary statutory findings to do so. The order of February 3, 2006, from which this appeal is taken, is the resulting order prepared by Pedros counsel at the direction of the trial court. The notice of appeal filed on April 4, 2006, was therefore timely as to the amount owed by Dorcas as a result of the retroactive reduction of child support.

Dorcas argues that the trial court abused its discretion by ordering her to repay an excessive amount of overpaid child support, arguing that she had demonstrated and that it was unrefuted that the childs need for support was in excess of $15,000 monthly. We disagree.

[A] determination regarding a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found from examining the record below. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139; see also In re Marriage of McCann (1996) 41 Cal.App.4th 978.) In addition, a trial courts decision whether to make an order for child support retroactive is reviewed under an abuse of discretion standard. (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1169.) (In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 555.)

Section 3653, subdivision (d), pursuant to which the court ordered the retroactive reduction in child support and the terms of the repayment, provides as follows: (d) If an order decreasing or terminating a support order is entered retroactively pursuant to this section, the support obligor may be entitled to, and the support obligee may be ordered to repay, according to the terms specified in the order, any amounts previously paid by the support obligor pursuant to the prior order that are in excess of the amounts due pursuant to the retroactive order. The court may order that the repayment by the support obligee shall be made over any period of time and in any manner, including, but not limited to, by an offset against future support payments or wage assignment, as the court deems just and reasonable. In determining whether to order a repayment, and in establishing the terms of repayment, the court shall consider all of the following factors: [] (1) The amount to be repaid. [] (2) The duration of the support order prior to modification or termination. [] (3) The financial impact on the support obligee of any particular method of repayment such as an offset against future support payments or wage assignment. [] (4) Any other facts or circumstances that the court deems relevant.

Dorcas contends that the trial court failed to consider the amount of property each party owns, the obligations that are to be met, and the parties ability to earn and their level of actual earnings. She continues: By ordering an amount of Child Support offset in excess of $94,000.00, the Court in effect reduced the amount far below the Guideline Child Support that these parties minor child is entitled to. We conclude, however, that the court did consider the relevant factors, including the childs needs, in determining the amount of arrearage to be paid and the terms of repayment. The court recognized that $94,864 is a substantial sum of money, but noted that the Ostler & Smith payment would offset that amount and would reduce the repayment period.[6] Clearly the court considered the effect the repayment would have on the childs need for support and sought to minimize the impact while still reimbursing Pedro for the overpayment of child support. Dorcas does not dispute that the lengthy delay in deciding Pedros request for modification of child support (from March 2004 to Jan. 2005), and the resulting accumulation of arrearages, was occasioned by her own requests for continuances. The court granted the continuances with the understanding that any decrease in child support would be retroactive to the date of Pedros filing of the request for modification.

In addition, it must be noted that the court made the finding that Dorcas is either overspending or exaggerating her expenses, or both, for example by reporting on her income and expense declaration monthly expenses of $2,500 for personal care, hobbies, personal training and a storage unit. Thus, it is patently untrue that the child had undisputed expenses of $15,000 per month. The court determined that the evidence before it supported the conclusion that the childs needs could be met with the guideline child support amount of $6,224 per month, and we are not persuaded that the record demonstrates otherwise. Both Dorcas and the child had enjoyed the benefit of receiving an extra $6,776 for eleven months following Pedros filing of his request for modification. The court did not abuse its discretion by ordering Dorcas to reimburse Pedro for the overpayment at the rate of $1,000 per month, particularly in light of the anticipated reduction in the arrearage when the substantial Ostler & Smith payment was offset against it.

disposition

To the extent Dorcas challenges rulings that were finally determined by the order of June 30, 2005, as described herein, the appeal is dismissed as untimely. The order of February 3, 2006, is affirmed in full. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] We use the parties first names in our opinion for clarity. We mean no disrespect.

[2] In In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, the court held that the trial court did not abuse its discretion by ordering that a father would pay as additional child support a fixed percentage of any future bonuses he received. Such orders involving the use of percentages to determine support have been recognized as beneficial and appropriate as they remove the need for further litigation with its attendant costs and emotional upheaval. (See, e.g., In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 95.)

[3] Dorcas earned $219 per month, and had monthly special educational expenses for Monica of $1,545, which the court allocated pursuant to Family Code section 4061, subdivision (b)(2).

All undesignated section references are to the Family Code.

[4] Former rule 232(d), (renumbered  3.1590, and amended effective Jan. 1, 2007), provided: Any party affected by the judgment may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment.

[5] It was in this document that Dorcas raised the issue that the child support figure was based on the assumption that all of Pedros income was taxable, even though his income from the Dominican Republic was not taxed. The court never addressed that issue on its merits, and correctly so, because Dorcas failed to raise it in a timely manner. The order of February 3, 2006, from which the appeal is taken, includes a ruling that Dorcass objections to the proposed statement of decision were untimely. However, Dorcas does not present argument or legal authority on the merits of the timeliness issue in her briefs on appeal. She simply states as fact that her objections were timely; they clearly were not.

[6] The court ordered that the $94,864 offset shall first be taken against any Ostler & Smith payments due to Dorcas, and if no such payment is due in any given month, then the offset shall be taken at the rate of $1,000 per month against the base monthly child support payment. Pursuant to the Ostler & Smith order entered by the trial court, Pedro was ordered to pay, as additional child support, 6.7 percent of any income over and above $248,311 per year after deduction of his business expenses. The record demonstrates that Pedro would earn a base salary of $800,000 in the year 2005. In June 2005, Pedros counsel estimated that Pedro would likely owe Dorcas an Ostler & Smith payment of about $30,000 for 2005.