Marriage of Kurtz and Taxman
Filed 2/13/13 Marriage of
Kurtz and Taxman CA2/3
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opinion has not been certified for publication or ordered published for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
THREE
In re the Marriage of GARY
KURTZ
and STARR F. TAXMAN.
___________________________________
GARY KURTZ,
Appellant,
v.
STARR F. TAXMAN,
Respondent.
B234162
(Los Angeles
County
Super. Ct.
No. BD510825)
APPEAL from orders of the Superior
Court of
County, David S. Cunningham, III, Judge. Dismissed in part and affirmed in part.
Gary Kurtz, in pro. per., for Appellant.
Kermisch & Paletz, Lauren M.
Lookofsky and William Kermisch for Respondent.
_________________________
Defendant and appellant Gary Kurtz
(husband) appeals two orders pertaining to spousal and child support payable to
plaintiff and respondent Starr F. Taxman (wife).
The first order in issue is a temporary support order entered February 5, 2010, ordering support in
the amount of $9,935 per month. The
temporary support order was operative
from the time of pronouncement, and was directly appealable. Therefore, the notice of appeal filed July 1, 2011 is untimely as to said
order.
The second order in issue is a June
10, 2011 order denying husband’s request to reduce the original
support award. The trial court denied
the modification request on the ground husband failed to meet his
with signed tax returns and failure to document his monthly gross income, the
record supports the trial court’s denial of husband’s modification
request. Therefore, the June 10, 2011 order is affirmed.
FACTUAL AND
PROCEDURAL BACKGROUND
The parties were married in 1988 and
separated in 2009.
title="">[1] There are three minor children of the
marriage. On August 17, 2009, wife filed a petition for
dissolution of marriage.
On October 2, 2009,
wife filed an order to show cause (OSC) regarding custody, visitation, and
spousal and child support. The OSC came
on for hearing on January 5, 2010. Following said hearing, on February 5, 2010, the trial court
issued an interim support order, awarding $5,157 in child support for the three
minors, plus $4,778 per month in spousal support, for a total of $9,935 per
month. The February 5, 2010 order directed the parties to return to
court on March 23, 2010 for
a review hearing in connection with said order.
The financial
review hearing repeatedly was continued.
On September 1, 2010,
husband filed an OSC to modify spousal and child support. Ultimately, the financial review hearing,
which was combined with husband’s OSC to reduce support, came on for hearing on
June 9 and 10, 2011. At the conclusion
of the hearing on June 10, the trial court orally ruled: “The O.S.C. is denied for failure of proof.â€
On July 1, 2011, husband filed notice of
appeal, specifying the original support order made following the January 5, 2010 hearing, and the trial
court’s refusal on June 10, 2011
to modify the earlier support order.
CONTENTIONS
Husband contends: the trial court
abused its discretion in awarding support pendent lite in the amount of $9,945
per month based on its finding he has income available for support in the sum
of $25,016 per month; and the trial court abused its discretion in subsequently
refusing to reduce the original support order at the financial review hearing.
DISCUSSION
1. Husband’s failure to file a timely notice of appeal from the February 5,
2010 temporary support
order requires dismissal of that portion of the appeal.
a. Overview.
Husband contends that in making the initial temporary support order, the
trial court erred in adopting wife’s proposed Dissomaster report, which was
based on the inaccurate conclusion that husband had an income of $25,016 per
month. Husband asserts the trial court
abused its discretion in utilizing the $25,016 figure to make a support award
of $9,945 per month.
As indicated, on February 5, 2010,
one month after the January 5, 2010
hearing on the OSC, the trial court entered a written order, awarding $5,157 in
child support for the three minors, plus $4,778 per month in spousal support,
for a total of $9,935 per month.
Seventeen months later, on July 1, 2011, husband filed notice of
appeal. The notice of appeal
specified, inter alia, the order made following the January 5, 2010 hearing, that is to say, the February 5, 2010 order.
b. Appealability
of temporary support orders.
“Historically, [the Supreme C]ourt has looked to the substance of an
order pendente lite rather than to chronology or to form, and has held
(In re Marriage of Skelley
(1976) 18 Cal.3d 365, 368, italics added (Skelley).)
In re Marriage of Gruen (2011)
191 Cal.App.4th 627 (Gruen) recently
reiterated this rule, stating: “A
temporary support order is operative from the time of pronouncement, and it is
directly appealable. (
368.) ‘When a court renders an
interlocutory order collateral to the main issue, dispositive of the rights of
the parties in relation to the collateral matter, and directing payment of
money or performance of an act, direct appeal may be taken. [Citations.]
This constitutes a necessary exception to the one final judgment
rule. Such a determination is
substantially the same as a final judgment in an independent proceeding.’ [Citation.]
‘If an order is
appealable, . . . and no timely appeal is taken therefrom,
the issues determined by the order are res judicata.’ [Citations.]â€
(Gruen, supra, at pp.
c. The February 5,
2010 order is no longer
reviewable; the time for seeking appellate review has long since expired.
Husband contends the February 5,
2010 order is reviewable on the appeal from the June 10, 2011 order, “because the
January 2010, hearing did not conclude until the Court completed the promised
Financial Review Hearing in June 2011.â€
The argument is unpersuasive. As
the Supreme Court stated in Skelley,
supra, 18 Cal.3d at pages 368-369, the temporary support order was
operative from the time of pronouncement, and was directly appealable. Therefore, we reject husband’s theory that he
was entitled to await the June 2011 denial of his OSC to modify support, before
seeking appellate review of the temporary support order entered on February 5, 2010.
Pursuant to Skelley, the February 5, 2010 temporary support
order was operative from the time of pronouncement, and was directly
appealable. (Skelley, supra, 18 Cal.3d
at pp. 368-369.) Further, where no
notice of entry is served by the clerk or by a party, the outside limit for
filing notice of appeal is 180 days after entry of the order. (Cal. Rules of Court, rule 8.104(a).) Therefore, the July 1, 2011 notice of appeal is clearly untimely as to
the temporary support order entered on February
5, 2010.
Because the February 5, 2010
order was appealable but no timely appeal was taken therefrom, the issues
determined by said order are res judicata.
(Gruen, supra,
191 Cal.App.4th at p. 638.)
2. Record supports trial court’s June 2011 denial of husband’s request to
modify support.
The evidence at the June 2011 hearing included documents prepared by
husband’s accountant, Fredrick Levine, showing that husband’s law practice
collected total revenues of $397,808 in 2006 and total revenues of $340,541 in
2010. Based on the 2010 revenues, the
trial court stated: “I get $28,376 per
month as his gross. Now, that is from
his own evidence.†Notwithstanding these
revenues from the law practice, husband testified “My personal gross is about
$11,000 a month.â€
Husband contends that based on his evidentiary showing at the June 2011
hearing, particularly Levine’s testimony, the trial court erred in denying his
request to reduce the original support award.
Husband asserts the trial court should have made a finding that his
income available for support was $13,000 rather than $25,016, based on the
allegedly “undisputed†evidence at the hearing.
Husband, who is an attorney appearing in
opening brief which is devoid of a summary of what actually occurred at the
two-day evidentiary hearing in June 2011.
(Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s opening brief
must provide a summary of the significant facts limited to matters in the record].) With respect to the testimony presented at
the hearing, the opening brief simply states that Levine “testified that
[husband’s] revenues collected in excess of disbursements paid in 2010 was
$135,422,†amounting to $11,285 per month, and that husband testified “his
personal gross (income from the firm after expenses) was about $11,000 for
2010.â€
This court has reviewed the transcript of the June 2011 hearing in its
entirety. Contrary to husband’s
selective reference to Levine’s testimony, Levine’s testimony was of little
help to husband and the trial court so found.
The trial court stated: “I am
deeply troubled by the following testimony.
Mr. Levine said in 2009, the U.S. income tax return for the law offices
was inadequate. He couldn’t determine
whether the compensation was correct. He
couldn’t determine whether the salary and wages were correct. And he said it didn’t make sense. [¶] He
looked through the corporate tax return for 2010. He got a draft, said it was subject to
change, said it wasn’t final and it also was inadequate. [¶]
He said with respect to the K-1 [tax form] for 2009, he said he
only saw a draft. It mirrored what was
offered as exhibit 2. But that, too, was
inadequate.â€
In addition to husband’s failure to provide his signed tax returns,
husband failed to complete his income and expense declaration properly. (Cal. Rules of Court, former rule 5.128,
current rule 5.260; Judicial Council form FL-150.) In this regard, the trial court stated: “He is moving for a modification of child
support and . . . spousal support. In order to do that, he has the burden
of proof. [¶] At a minimum, he has to fill out this
document correctly. He hasn't done
it. He still hasn’t done it. I have been waiting for two days now to hear
the appropriate answer, and you have gone in and out. We have got evidence that establishes if the
court wants to make its calculation, that’s what I will do.â€
The trial court reiterated “we are
looking at all gross income . . . and that
includes what he has submitted from his law office. He
controls that law office. It is an
The trial court continued, “I will be more than happy to give you the
case law and the statutes . . . . [¶]
First off, the definition for income varies for child support than it
does for spousal support. The important
distinctions between child support and spousal support which must be kept in
mind in analyzing the statutes and case law considered income for support. Pursuant to Family Code section [40]53(e),
the children’s interests are the state’s top priority.[
Income as defined for purposes of child support means under Family Code
section 4058(a), 4058, annual gross income of parents.[
income. And it lays out from every
single source in the Code. So I am
looking for the gross number, not his opinion of net. Okay?
And that is also what the income and expense declaration requires.â€
At the conclusion of the hearing, the trial court denied husband’s
request to modify support, ruling that husband had failed to meet his burden of
proof.
Given husband’s
failure to provide the court with signed tax returns, and his failure to
document his monthly gross income, the record supports the trial court’s denial
of husband’s modification request. The
trial court was not required to credit husband’s self-serving testimony that
his “personal gross†was $11,000 per month.
3. No merit to husband’s contention the trial court erred in failing to
impute income to wife.
Husband contends the trial court abused its discretion in refusing to
impute income to wife, who has an MBA degree and substantial premarital work
experience.
title="">[7] The argument is meritless.
Wife’s testimony at the June 2011 hearing showed the following:
She was last employed over 20 years ago.
Between January and June of 2010, she had sent out over 250 resumes and
had registered on five or six websites for jobseekers. In addition, she had created a business plan
and had been speaking to potential investors.
In recent months she had been on 20 to 25 job interviews. She received one job offer, at a salary of
$10 per hour. She declined that position
because it would have required her to work until 6:00 p.m. or later and she
needs to pick up her children after school.
In sum, the record reflects that wife had diligently, but unsuccessfully,
sought gainful employment. Accordingly,
we perceive no abuse of discretion in the trial court’s refusal to impute
income to her.
4. No issue of retroactive reduction of husband’s support obligation.
Because the trial court properly denied husband’s OSC to reduce support,
it is unnecessary to address husband’s argument that a reduction of his support
obligation should relate back to September 1, 2010, the date he filed his OSC
to modify support.
DISPOSITION
The purported appeal from the February
5, 2010 order is dismissed. The June 10,
2011 order is affirmed. Wife shall
recover her costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We
concur:
CROSKEY, J.
ALDRICH,
J.
name="_ftn1" title="">[1]
By definition, this was a
marriage of long duration. (Fam. Code, §
4336.)
name="_ftn2" title="">[2] A
subsequent minute order, dated June 13, 2011, indicates the June 10, 2011
denial of the OSC was without prejudice.
The respondent’s brief indicates that on December 14, 2011, the trial
court reduced husband’s spousal support and child support obligation from
$9,935 to $4,458 per month.
