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Marriage of Lejerskar CA4/3

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Marriage of Lejerskar CA4/3
By
03/14/18

Filed 3/1/18 Marriage of Lejerskar CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re Marriage of EVA and DAN LEJERSKAR.

EVA LEJERSKAR,

Respondent,

v.

DAN LEJERSKAR,

Appellant.


G053989

(Super. Ct. No. 14D009770)

O P I N I O N


Appeal from a postjudgment order of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.
Burch Coulston & Shepard, Courtney L. Shepard and Kevin F. Harrison, for Appellant.
No appearance for Respondent.

Dan Lejerskar appeals from an order compelling him to pay $63,000 in attorney fees to the attorney who represented his former wife, Eva Lejerskar, in this marital dissolution proceeding. Dan’s primary argument is that because the court had earlier determined the parties had a “valid and enforceable” settlement agreement which included an arbitration clause, the court lacked jurisdiction to award any further relief, including attorney fees, in the case. He is incorrect.
The existence of an enforceable arbitration agreement only means that the parties to that agreement have the option to seek its enforcement, should either choose to do so. However, an arbitration agreement is not self-executing and in the absence of an order enforcing it — and staying further proceedings in the trial court — the agreement has no effect on the court’s jurisdiction to hear and determine issues that fall within its scope.
Dan also contends the court abused its discretion in ordering him to pay Eva’s attorney fees because it failed to conduct an adequate assessment of his financial condition before issuing the order. Again, we disagree. The court’s minute order reflects it considered both parties’ financial circumstances, and to the extent the court’s information about Dan’s finances was out of date, the error was Dan’s, not the court’s.
The order is affirmed.

FACTS

Eva filed a petition for dissolution of marriage in October 2014. In November 2014, she filed a request for an order enforcing a June 2014 settlement agreement and compelling Dan to pay her spousal support in the amount of $30,000 per month, as allegedly provided in that agreement. Eva also requested an award of attorney fees, claiming she was unemployed and consequently without resources.
In his response to the petition, Dan sought an order confirming a July 2013 dissolution of the parties’ marriage in Stockholm, Sweden, as well as a determination of marital property rights in accordance with a prenuptial agreement dated December 1998, and translated from Swedish. Dan also sought an award of attorney fees payable by Eva.
In January 2015, the parties stipulated to a court order covering a range of issues. Among other things, they agreed Dan would pay temporary spousal support of $14,136 per month to Eva, and he would also pay the February 2015 property tax bill on Eva’s residence from community funds. The parties also agreed Dan would “advance” $20,000 toward Eva’s attorney fees, payable directly to her attorney, and would advance up to $10,000 for Eva’s retention of a forensic accountant.
The parties further stipulated to a continuance of the hearing on Eva’s request for orders and agreed the trial court “shall reserve jurisdiction over the issues set forth herein” and “reserve all other issues to the time of trial.” (Italics added.)
In March 2015, Eva filed a second request for an order allowing her to withdraw $40,000 from a specified community account, “as a pre-distribution of community assets.” In support of that request, Eva filed a declaration stating the additional funds were needed, in part, because the initial $20,000 advanced to her for attorney fees was already exhausted, and citing the expense generated by Dan’s voluminous discovery requests.
In his response to Eva’s initial request for order, Dan objected to her request for $30,000 in monthly spousal support (as apparently called for in the 2014 settlement agreement), but would consent to an order either continuing the current temporary spousal support of $14,136 per month, or awarding guideline support. Dan did acknowledge the existence of a “June 3, 2014 settlement agreement” between himself and Eva, but stated that “issues regarding [it were] still pending” and he had “been attempting to reach a settlement agreement with [Eva] with regard to the remaining issues.”
Dan also stated he did “not fundamentally disagree” with Eva’s request to withdraw $40,000 in funds from community assets, but claimed the specific account she designated for the withdrawal was held in the name of a trust, and was under the control of a trustee located in the British territory of Gibralter. Consequently, Dan asserted any order made with respect to that account would have no legal effect.
Eva again continued the hearing on her request for orders to August 2015. She also filed a request for a new order, allowing her to withdraw $200,000 from the same account she had previously identified. In her supporting declaration, she disclosed that in response to her earlier request for $40,000 from the account, Dan had informed her he did not want to “invade the [a]ccount” and offered instead to obtain the $40,000 from other sources. She stated that “$40,000 ha[d] been utilized” but she still needed additional funds to pay her forensic accountant.
In June 2015, the parties again stipulated to a court order, this time providing that both parties, along with their respective attorneys and forensic accountants, should have access to documents regarding “the Lejerskar Trust held with The Sovereign Group,” and that all were authorized to speak directly with the trustee. Dan also responded to Eva’s latest request for order with a declaration claiming Eva had already received her half of the marital assets under the 2014 settlement agreement she referenced in her petition. He further confirmed that he had paid her the initial $40,000 she had requested, in addition to the initial $20,000 provided for in the original stipulated order, for a total of $60,000 toward her attorney fees and expenses. And finally, he asserted that the funds in the trust account “cannot be accessed except for the purposes of survival and absolute necessity as determined by the trustee of the Stockholm Trust.” For those reasons, he opposed Eva’s request for a distribution of $200,000 from that trust.
Eva filed a responsive declaration, disputing most of what Dan said. And in August 2015, when the parties appeared at the hearing on her requests for orders, they again stipulated to an order, this time increasing Eva’s temporary spousal support to $22,000 per month. Eva’s requests for orders were again continued.
In September 2015, the parties also stipulated to an order allowing distribution of $200,000 from the trust account to both Eva and Dan, “to the extent permitted under the terms and conditions of the Stockholm Trust.” Approximately two weeks later, Dan filed a request for orders (1) designating the case as complex; (2) appointing a referee to “oversee the allocation of fees and costs,” and (3) requiring sale of the family residence. In support of that request, Dan declared, among other things, that the trustee of the Stockholm Trust had rejected the requested distributions from the trust. He also declared that the family home was actually his separate property in accordance with the 1998 Swedish Marital Agreement he had asked the court to enforce in his response to Eva’s petition, and explained Eva’s only claim to ownership of the home was the 2014 settlement agreement that Dan was requesting the court not enforce.
Both Eva’s and Dan’s requests for orders came before the court for hearing in November 2015. But instead of proceeding with that hearing, the court held a series of chambers conferences with the parties. The court heard from both sides as to the enforceability of the 2014 settlement agreement, and stated that it would grant Eva’s request for an order enforcing the settlement agreement if both sides “agree that the agreement is enforceable.”
However, Dan’s counsel pointed out that in response to Eva’s request for enforcement, he had requested an order modifying the amount of spousal support provided for in the settlement agreement, which would have to be considered in conjunction with Eva’s request. Moreover, he also pointed out that the 2014 settlement agreement Eva sought to inforce included an arbitration provision which specified that any disputes arising under its provisions would have to be resolved by arbitration in London. Dan’s counsel asserted that arbitration provision created a jurisdictional problem, arguing that if the parties stipulated to the agreement’s validity and enforceability, “that would remove jurisdiction from this court altogether on all issues, including support, including division of property.” Eva’s counsel disagreed, pointing out that both parties had chosen to submit issues to the jurisdiction of the California court.
The court explicitly declined to make any ruling on the jurisdictional point, stating it would confine its ruling to whether the agreement was “valid and enforceable.” And ultimately, the court accepted the parties’ stipulation that the settlement agreement is “a valid agreement which implies that it was knowingly, intelligently, and voluntarily entered into by both sides.” The court then concluded “[t]he finding that it’s a valid agreement renders the agreement enforceable.”
Based upon the court’s finding, Eva agreed to withdraw her request for order because “to the extent one of the things we’re asking for is for you to say it’s a valid and enforceable agreement, we will withdraw the request for spousal support and attorney’s fees in this court.” However, when Dan’s counsel asserted that the withdrawal of Eva’s request for order regarding those issues also invalidated the parties’earlier stipulations regarding the same issues, the court replied, “I disagree with you, counsel.”
In January 2016, Eva filed a request that the court enter judgment in accordance with the terms of the 2014 settlement agreement, as well as an order to show cause seeking to have Dan held in contempt for his failure to pay spousal support as ordered by the court. In the face of Dan’s claim that he was in financial distress and thus unable to pay the court ordered spousal support, Eva propounded discovery requests. Dan objected to all discovery, claiming both that the parties’ settlement agreement required all disputes to be resolved in arbitration, and that he was invoking his Fifth Amendment right not to incriminate himself. Eva filed motions to compel Dan’s compliance with the discovery.
In February 2016, Dan initiated an arbitration proceeding in the ICC International Court of Arbitration. However, that proceeding was held in abeyance. In April 2016, Dan requested the matter be taken out of abeyance, and disclosed that the claims he sought to arbitrate against Eva included both “overpayment of spousal support under the Divorce Settlement Agreement and modification of future spousal support under the Divorce Settlement Agreement.”
On April 15, 2016, the court held a hearing on Eva’s request to enter judgment and on her contempt citation. The court granted the motion to enter judgment and continued the contempt matter to allow Dan to retain counsel to represent him. The court also acknowledged that Dan had filed a request for an order to modify the spousal support order, and ordered that request be continued to the same date as the contempt citation.
On May 5, 2016, Eva filed a request for an order declaring Dan had waived his right to compel arbitration in accordance with the settlement agreement, and also sought an award of attorney fees and sanctions. And on May 19, 2016, Dan filed his own request for an order staying the proceedings and compelling the parties to arbitrate their dispute. Thereafter, Dan filed several additional documents asserting the court lacked jurisdiction to resolve any pending disputes between the parties, and requesting that it advance the hearing date on his motion to compel arbitration.
On July 1, 2016, the court held a hearing on Eva’s motions to compel responses to discovery, and on her request for an order declaring Dan had waived his right to compel arbitration. At the hearing, the court announced that the judgment previously ordered had not been entered, and entered it that date.
The judgment specified the marriage was terminated effective July 25, 2013, in accordance with the “Swedish Divorce Decree” and that spousal support and property distribution were in accordance with the 2014 settlement agreement, which was attached. The judgment included a provision stating the court “shall further reserve jurisdiction with respect to the implementation of the terms of this Stipulated Judgment.”
The trial court then dismissed Eva’s contempt citation, at her request, to obviate Dan’s concern about potentially incriminating himself in responding to her discovery. The court then granted Eva’s motions to compel those responses, but delayed a ruling on her sanctions request.
However, the court determined it was “imperative” to make an award of attorney fees to Eva, based on the most recent income and expense information. The court noted Eva had been unemployed since 1993, while Dan’s “income is $25,000 per month, based on a 40 hour work week.” The court made a finding that the fee award was appropriate “in order for [Eva] to continue in this litigation.”
Thus, the court also ordered that Dan pay $63,000 toward Eva’s attorney fees, directly to her counsel, in accordance with Family Code sections 2030 and 2032. In making that order, the court noted Eva had been unemployed since 1993, while Dan’s “income is $25,000 per month, based on a 40 hour work week.”
The court ordered Dan to pay the attorney fees in three installments, beginning on July 15, and ending on September 2, 2016. The court specified that the “[f]ailure to make those payments shall incur interest at the legal rate.”
The court also ordered that Dan’s motion to compel arbitration be consolidated with Eva’s motion to declare a waiver of that right, and set them for hearing on August 12, 2016.
At the August 12 hearing, Eva presented the court with a new contempt citation, alleging Dan had failed to pay the attorney fees ordered in July. After Dan’s counsel accepted service of that citation, the court ruled on the arbitration motions, denying Eva’s claim of waiver and granting Dan’s motion to compel. The court then stayed all further proceedings in the case, with the exception of the newly filed contempt citation.

DISCUSSION

Trial Court’s Jurisdiction to Make Fee Award
Dan’s primary contention on appeal is that the trial court lacked jurisdiction to award any relief in the case after November 2015, when it ruled the parties’ 2014 settlement agreement was “enforceable.” The contention reflects a fundamental misunderstanding of the effect of an arbitration agreement, and we consequently reject it.
Stated simply, the mere existence of an enforceable arbitration agreement has no impact on the trial court’s authority to adjudicate a dispute. Instead, as pointed out in Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32: ‘[T]here is nothing to prevent one of the parties to a contractual arbitration provision from resorting initially to an action at law.’” (Id. at p. 44.) That is because “A right to compel arbitration is not . . . self-executing. If a party wishes to compel arbitration, he must take active and decided steps to secure that right, and is required to go to the court where the [other party’s] action [at law] lies.” (Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 143, disapproved on a different point in Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 189.)
Thus, “[t]he party seeking resolution via contractual arbitration must also file a motion in the action at law to stay it [citations]; it will not be stayed automatically. [Citation.] This assertion of a contractual arbitration agreement constitutes a ‘plea in abatement’ of the action at law. (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795), and “[o]nce a court grants the petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award [citations].” (Ibid.)
“In sum, an arbitration provision does not oust the court of jurisdiction to hear the matter but merely means if one party chooses to arbitrate, a petition may be filed to stay the proceedings, order arbitration and then confirm the award.” (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 45.)
In this case, Dan did not file his motion to compel arbitration of the parties’ dispute until May 2016, six months after the trial court ruled the 2014 settlement agreement was “enforceable.” And the court did not grant Dan’s motion, and stay the trial court proceedings, until August 12, 2016 — which was six weeks after its order requiring Dan to pay $63,000 in Eva’s attorney fees. Until that point, there was no dispute that the trial court had jurisdiction to make such fee orders; indeed, the parties had stipulated to it.
The cases Dan relies upon are actually consistent with this rule. In McRae v. Superior Court (1963) 221 Cal.App.2d 166, the appellate court concluded the trial court had erred when it ordered the defendant to submit to a deposition after the case had been ordered into arbitration. (Id. at p. 169.) As the court explained, “[I]t would be wholly incompatible with established policies of the law to permit the court thereafter to intervene in, and necessarily interfere with, the arbitration ordered.” (Id. at p. 171.)
And as Dan acknowledges in his brief, the appellate court in Bucur v. Ahmad (2016) 244 Cal.App.4th 175, stated, “[O]nce a dispute has been sent to arbitration, the courts may not act on that dispute absent an agreement to withdraw the controversy from arbitration.” (Id. at p. 188, italics added.)
In this case, by contrast, the court had not yet sent the dispute to arbitration when it made the award of attorney fees Dan challenges. And because the mere existence of an enforceable arbitration agreement did not preclude the trial court from exercising its jurisdiction over the issue, there was no error in doing so.

Sufficiency of Trial Court’s Analysis of Financial Circumstances
Dan also argues that even if the court had jurisdiction to make the fee award, it abused its discretion in doing so. As explained in In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, “[p]ursuant to Family Code sections 2030 and 2032, the trial court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action. It is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party’s relative need and the other party’s ability to pay, it is to take into account ‘“‘all evidence concerning the parties’ current incomes, assets, and abilities.’”’” (Id. at pp. 974-975, fn. omitted.)
Relying on Alan v. Superior Court (2009) 172 Cal.App.4th 238, Dan’s specific contention is that although the trial court record must “reflect an actual exercise of discretion and a consideration of the factors” (id. at p. 254), “the record in this action fails to demonstrate that the trial court engaged in any consideration of the appropriate factors required.” Dan also contends the court “refused to take into consideration any of the financial information [he] provided . . . that demonstrated his inability to pay the award fees from either earnings or assets.” We reject these contentions.
On appeal, we presume the trial court’s judgment is correct, and thus “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564,) Thus, we are obligated to assume the court did consider all available evidence in making its ruling, unless the record affirmatively demonstrates otherwise. There is no such affirmative demonstration here.
Our own review of the available evidence reveals the trial court’s order was eminently reasonable. Dan’s income and expense report, which he characterizes as reflecting that he “had exhausted his liquid assets” and “had no assets,” supports neither contention. The document reflects that Dan’s cash and other “deposit accounts” somehow add up to a negative balance of $96,393 (without explaining how that could be the case) and it discloses nothing about his ownership of “stocks, bonds, and other assets” — that line is blank. As for “[a]ll other property,” including real estate, the form simply states “TBD” — presumably reflecting a promise that the information regarding such assets will be disclosed at some point in the future. However, Dan’s refusal to disclose his assets is not evidence that he has none.
As for his monthly expenses, which Dan claims were revealed to have “greatly exceeded his earnings” of $25,000 per month, the form included the mortgage payment for Eva’s home — although there is no evidence Dan actually paid that mortgage — plus the full $22,000 in spousal support he had been ordered to pay Eva, but apparently had not been paying.
Given the dearth of information Dan disclosed in his income and expense report, we could not fault the trial court for relying primarily on the parties’ income (or lack thereof) in making a fee award. “In making this [attorney fee] determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.” (In re Marriage of Falcone and Fyke, supra, 203 Cal.App.4th at p. 975.)
Finally, Dan’s complaint that the court’s attorney fee award “relied upon a grossly outdated income and expense declaration [he] submitted . . . five months earlier” changes nothing. Family Code § 2100, subdivision (c), imposes on both parties “a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes . . . .” In light of that duty, we cannot fault the trial court for presuming Dan’s financial circumstances had not materially changed since the filing of his most recent income and expense declaration.
DISPOSITION

The postjudgment order is affirmed. As there was no appearance by respondent, no costs are awarded.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




Description Dan Lejerskar appeals from an order compelling him to pay $63,000 in attorney fees to the attorney who represented his former wife, Eva Lejerskar, in this marital dissolution proceeding. Dan’s primary argument is that because the court had earlier determined the parties had a “valid and enforceable” settlement agreement which included an arbitration clause, the court lacked jurisdiction to award any further relief, including attorney fees, in the case. He is incorrect.
The existence of an enforceable arbitration agreement only means that the parties to that agreement have the option to seek its enforcement, should either choose to do so. However, an arbitration agreement is not self-executing and in the absence of an order enforcing it — and staying further proceedings in the trial court — the agreement has no effect on the court’s jurisdiction to hear and determine issues that fall within its scope.
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