Marriage of Turner
Filed 11/26/07 Marriage of Turner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ROBERT and JENNIFER LORRAINE TURNER. | |
ROBERT EDWARD TURNER, Respondent, v. JENNIFER LORRAINE TURNER, Appellant. | G037393 (Super. Ct. No. 00D011039) O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art VI., 21.) Affirmed.
Law Offices of Evan L. Ginsburg and Evan L. Ginsburg for Appellant.
Schwamb & Stabile, Thomas P. Stabile; Snell & Wilmer, Richard A. Derevan for Respondent.
This is Jennifer Lorraine Turners second appeal regarding her purported interest in her ex-husbands stock options. In the first appeal, we rejected Jennifers claims she was not adequately compensated for her share of the Broadcom stock options Robert Edward Turner had obtained through his employment.[1](In re Marriage of Turner (Aug. 3, 2004, G032937) [nonpub. opn.].) We affirmed the trial courts order requiring Robert to transfer 4,474 shares to her account. The trial court determined the number of shares by using a calculation that took into account $68,857 for Roberts tax liability. In our prior opinion, we noted there remained an issue as to whether Robert actually incurred any tax liability in purchasing the shares, and we recognized this issue would soon be decided by the trial court. Our record showed the court had appointed a forensic accountant who would be asked to review the tax documents and determine if Jennifer was owed any additional money. (Ibid.)
Unfortunately, Jennifer read our prior opinion as holding Robert must pay her $68,857. She filed an Order to Show Cause (OSC) seeking to vacate the appointment of the forensic accountant. After this request was denied, she filed a second OSC asking the court to reject the accountants report. The court denied this request, but nevertheless asked the accountant several additional specific questions relevant to Jennifers claims. The accountants final report concluded Jennifer had received the shares to which she was entitled, reaffirmed Robert owed her $2,198 for over withheld taxes, and confirmed Robert did not receive any windfall due to the stock transactions. Unhappy with these results, Jennifer again filed an OSC, asking the court to award her more shares plus the $2,198. The court was not persuaded and issued an order stating Robert is ordered to pay [Jennifer] the sum of $2,198 . . . in satisfaction of all property division terms as previously ordered by the court.
Jennifers sole contention on appeal is the trial court erred in failing to adhere to our prior decision under the doctrine of law of the case. We find her contention lacks merit, and we affirm the postjudgment order.
I
Facts
Because the issues raised in the appeal concern the interpretation of our prior opinion, a discussion of the facts and procedural history of the case is unnecessary. We therefore incorporate by reference the detailed summary of the facts contained in our prior unpublished opinion. (In re Marriage of Turner, supra, G032937.) For convenience, we will restate verbatim the concluding paragraphs of our prior opinion that Jennifer believes entitles her to $68,857:
We therefore turn to the remaining issue of whether the shares adequately compensated Jennifer. Under the terms of the court order, Robert essentially purchased Jennifers options instead of Broadcom, and the court used the terms and figures offered in Broadcoms exchange program ($6.198 for each option, $18.75 per stock share). Jennifers options under the exchange program were valued at $153,573.04. Rather than using this figure to calculate the number of shares owned, the court first subtracted $68,877 for the taxes Robert would have paid if he had participated in the program. Jennifer asserts Robert did not incur this tax debt and he owes her $68,857 cash or an additional 4,517.095 in Broadcom shares.
Not so fast. The trial court has specifically retained jurisdiction over the issue of whether Robert incurred any tax liability in purchasing the 4,474 shares for Jennifer. The court appointed a forensic accountant to assist the court in resolving this issue. Roberts tax liability, if any, is an issue that has yet to be decided and obviously not subject to review.
By the terms of the judgment, any tax liability incurred by Robert is to be transferred to Jennifer. If the debt is less than $68,857, Robert must subtract the tax bill from $68,857 and deposit the remaining sum in Jennifers account.[2] If it is determined that there is no tax liability, Robert must deposit $68,857 to Jennifers account. Otherwise, Robert will be unjustly enriched if he is allowed to profit from the courts forced sale of Jennifers options. Robert never paid the fictional $68,857 tax payment to Broadcom. There is no reason to further reward him for purchasing Jennifers options. (In re Marriage of Turner, supra, G032937.)
II
Discussion
The doctrine of law of the case deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. [Citation.] (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 895, p. 928.) The law of the case doctrine promotes finality and judicial economy by preventing the relitigation of issues decided previously in civil and criminal cases. (People v. Stanley (1995) 10 Cal.4th 764, 786.) [It] extends to questions that were implicitly determined because they were essential to the prior decision. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.) The doctrine of law of the case does not apply here.
Our discussion of Roberts tax liability must be read in context. We began with the statement recognizing the issue raised a factual question to be determined by the trial court: The opinion clearly states: The trial court has specifically retained jurisdiction over the tax liability issue, and it had appointed a forensic accountant to assist the court in resolving this issue. In the event this was not clear enough, we added, Roberts tax liability if any, is an issue that has yet to be decided and obviously not subject to review. (In re Marriage of Turner, supra, G032937.)
The judgment provided any tax incurred by Robert was to be transferred to Jennifer. We recognize the trial court used a fictional sum of $68,857 as Roberts tax liability when making its calculations. We also used the fictional sum of $68,857 to make the point that neither party should receive a windfall from the forced sale of Jennifers options. However, nowhere in our opinion did we expressly make the factual determination Robert owed this particular sum to Jennifer, and it cannot be said the issue was implicitly decided by our ruling affirming the courts order. To the contrary, we clearly stated the trial court had yet to decide the issue, and the issue was obviously not subject to review.
The only law of the case which perhaps could be implied from our concluding remarks is a restatement of the obvious -- Robert should not profit from the sale of Jennifers options. The record shows the trial court agreed and applied this legal reasoning. Nearly one year after receiving our opinion, the court signed an order stating the appointed forensic accountant is assigned under Evidence Code 730, to determine what [Jennifer] would have received under the Broadcom Stock Exchange Program, as if she had been able to participate in said program as a Broadcom employee, and to determine what the tax liability . . . and other costs were to [Robert] to facilitate [Jennifers] participation in such a program. [The forensic accountant] is also assigned to determine whether there was any unjust enrichment to [Robert] by his taking action to secure stocks, exchange and purchase, according to the exchange program, and the sum thereof, if any.
The forensic accountant did his job and concluded Robert owed Jennifer $2,198 comprised of a Federal tax due of $956 and a California tax due of $1,242. He later calls these sums over withheld taxes with regard to this transactions as filed on [Roberts] 2003 Individual Income Tax return[.] The accountant also determined, [Robert] did not receive, nor create any windfall due to these transactions.
Jennifer focuses entirely on one sentence located on page five of the January 2006 report in which the accountant concludes it appeared Robert did not pay $68,957 in taxes and there was no tax credit to be transferred. But when the sentence is read in context, it becomes clear the accountant is discussing a document submitted by Jennifers lawyers claiming Robert deducted an amount commensurate with taxes of $68,857. The accountant found nothing in the submitted documents to support this claim. And, we find it disingenuous for Jennifer to argue that based on this sentence, taken out of context, Robert incurred no tax liability at all. This argument is simply not supported by anything in the record, including the accountants report, which indicates he did incur tax liability.
III
Disposition
The postjudgment order is affirmed. Respondent (Robert) shall recover his costs on appeal.
OLEARY, J.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
[1] For convenience and clarity, we adhere to the custom in family law cases of referring to the parties by their first names. (Rubenstein v. Rubenstein (2000)
81 Cal.App.4th 1131, 1136, fn. 1.)
[2] Unless the price of Broadcom stock has dropped, the remedy of buying further shares at the price offered under the exchange program is no longer a realistic remedy.
