Marriage of Tossey
Filed 8/16/12 Marriage of Tossey CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 LAURENCE A. and PORNPAM TOSSEY.
LAURENCE A. TOSSEY,
Respondent,
v.
PORNPAM TOSSEY,
Appellant.
G044484
(Super. Ct.
No. 07D007061)
O P I N I O
N
Appeal from a judgment of the Superior
Court of
County, James L. Waltz, Judge.
Reversed.
Law
Offices of William J. Kopeny and William J. Kopeny for Appellant.
Law
Offices of Catherine Lawler and Catherine A. Lawler for Respondent.
* * *
Pornpam
Tossey (Pam)
title="">[1] appeals
from the trial court’s judgment on reserved issues following dissolution of her
marriage to Laurence A. Tossey. She
challenges the court’s decision to continue imputing income to her when she
failed to demonstrate she searched for a customer support job or other
employment. The court, however, refused
to allow her to present any evidence concerning her job search or job
availability, and instead announced at the outset of the trial on reserved
issues that the evidence was “close[d]” even before the trial began. Pam also challenges both the trial court’s
decision not to require Laurence to pay a portion of her attorney fees and the
court’s decision to impose Watts
couple’s jointly-owned home while they were separated. As we explain, the due process violation
requires reversal of the judgment.
I
FACTUAL
AND PROCEDURAL BACKGROUND
Pam
and Laurence were married in September 1988 and separated almost 19 years later
in July 2007. They had adopted a
newborn son in 1998 and when he was three, Pam, who had been a successful
software engineer for more than a decade, stayed home as a full-time parent. Laurence remained employed as a software
engineer at Broadcom, Inc. Throughout
the divorce proceedings, the couple could not agree on custody and visitation
issues for their son, nor on financial support.
Pertinent
here, the spousal support issue came to a head at trial in April 2009,
where Laurence sought to impute income to Pam because she was not working
despite trial court admonitions to seek employment. (Fam. Code, § 4330, subd. (b)
[“court may advise the recipient of support that he or she should make
reasonable efforts to assist in providing for his or her support needs”]; all
further undesignated statutory references are to the Family Code.) Pam admitted she recognized in July 2007
when she and Laurence separated that she would have to return to work. The court concluded Laurence demonstrated at
trial that Pam had both the ability and opportunities to earn income and chart
a path towards becoming self-supporting, but had failed to do so in almost two
years postseparation. (See § 4320,
subd. (l) [goal of spousal support is that party shall become
self-supporting].)
In
its tentative statement of decision in July 2009, the trial court
suggested Laurence had demonstrated Pam’s ability to work. Michael Bonneau, a vocational examiner,
“aptly summarized [Pam’s] education and work experience as a senior software
engineer. While Mr. Bonneau agreed
[Pam] needed to refresh her skills and training, he testified that in his
opinion, and based on her age, education, and past employment, [Pam] has an
ability to work.” Specifically, Bonneau
“match[ed] [Pam’s] skill set and work experience with employment
opportunities,” including a half-dozen currently-available customer service
positions at technology and other companies listed in Bonneau’s April 1,
2009, supplemental report. The trial
court concluded Pam “has both ability and opportunity to earn income” and that
doing so was in her son’s best interests.
The court noted that while it was “more than confident [Pam] can earn
substantially higher income, at this time . . . the court will follow
Mr. Bonneau’s suggestion that a more modest income of 2,500 dollars [per
month]” represented her current earning capacity based on available customer
support positions, instead of more than twice that for software engineer
positions. The trial court warned,
however, that Pam “is on notice that at the [ensuing] review
. . . , the court is poised to reconsider and modify support
based on her earning capacity estimated to be 6,000 dollars [per month]. At the forthcoming review hearing, the court
reserves jurisdiction to modify support up or down and to do so
prospectively.” The court, however, did
not enter its judgment from the April 2009 trial until December 2009.
The
trial court’s December 2009 ruling finally determined some issues
litigated in the April 2009 trial, including child custody and some
particulars of property and retirement asset division. This “judgment” also set
a child support figure, but the court expressly reserved for further
consideration the issue of permanent spousal support. The court observed that “with the sale of the
family residence outstanding, and [Pam’s] search for full time employment
on-going, establishing permanent spousal support is too speculative.”
In
the meantime, for purposes of calculating child support and temporary spousal
support, the court reaffirmed its earlier statement of decision to impute “a
more modest income of $2,500.00 per month” to Pam for customer service work,
“on the basis of her stale skills, notwithstanding [she] has done little if
anything to refresh her skills.” The
court cautioned, however, that Pam “is on notice that at the review following
the close of escrow [on the couple’s marital home], the court will assess her
earning capacity if not fully employed.”
The court recognized that the “duty to make reasonable and good faith
efforts to becoming self-supporting . . . is often a ‘process’ and
requires a ‘transition’ versus some big epiphany or overnight event. That said, the court has noted [Pam] has not
made solid strides to re-focus and transition to the work place. [S]he has done little to nothing toward
re-freshening her skills and looking for work.
Instead, she has been protecting her role as the supported spouse and
primary nurturing parent . . . a role she must now share.” (First ellipsis added, second in
original.) Consequently, the court
reiterated: “In about four months, the
court may impute additional income more commensurate with her skills, education
and training. [Pam] is urged to make a
diligent and good faith effort to become employed.” But as the court expressly noted, it “put on
‘pause’ the establishment of permanent spousal support . . . for
now.” (Original ellipsis.)
Pending
the subsequent trial on reserved issues and factoring in Pam’s imputed income
of $2,500 a month, the court in December 2009 ordered Laurence to pay Pam
$3,000 a month in “temporary spousal support.”
The issues reserved for trial included permanent spousal support,
potential Watts
charges for Pam’s postseparation use of the marital home, and attorney
fees.
The
court set the trial on reserved issues for March 29, 2010, but delayed
starting the trial to allow the parties to confer, and during this unreported
caucus the parties resolved several matters, including unspecified
“reimbursement issues,” which the court noted in a
reflects that the court determined it would “hear this case today” but, after
an unreported discussion with the parties, the court set the parameters for the
hearing: (1) the “[i]ssue before
the court is the imputation of income to [Pam] for support,” (2) the
court apparently determined at the outset “it will compute [
impute] an income to [Pam],” but (3), in doing so, the court would “not
hear from [Pam’s] vocational expert, David Laine, and excuse[d] the witness,”
and (4) the court would “not hear any argument on the Watts charge issue,” nor apparently any evidence on that issue
either. The parties on appeal do not
explain the basis for this procedural
arrangement, nor the procedural decisions the court reached during the “trial.”
The
court opened the trial on reserved issues with the following announcement: “I’ve considered — I do consider the evidence
at close [sic: closed].
The trial record is finished, so we are not going to reopen the trial to
take any further evidence, that is my ruling.”
The trial court apparently viewed the trial as having concluded in
April 2009.
The
trial court thus heard only argument and no evidence at the March 2010
trial on reserved issues. Laurence’s
attorney argued, “I don’t think Ms. Tossey wants to work. This court gave her a self-sufficiency
warning in 2008. [¶] This court gave her another self-sufficiency
warning in 2009, and Ms. Tossey sits here today claiming she cannot find a
job.” After Laurence’s attorney also
argued Laurence was entitled, as an alternative to potential
to a credit for asserted overpayment of support and to be reimbursed for
property expenses he paid while Pam resided in the marital home, Pam’s attorney
asserted Watts did not apply because
“[t]here was no kick-out order” giving Pam exclusive right to the family
home. In any event, Pam specifically
pointed to a contested factual dispute over Laurence “now seeking to charge his
son and his wife, former wife, a fair-rental value for a house
Pam’s
counsel expressed “surprise[]” that “[w]e weren’t allowed to put on any
additional evidence.” Specifically, “I
was rather surprised at that, because my understanding from your statement of
decision [i.e., the December 2009 judgment] was that there would be a
hearing on these issues.” Concerning Pam’s
employment efforts in particular, counsel questioned, “[H]ow can the court go
back to the trial almost a year ago and just assume that no efforts have been
made, and especially in this [economic] climate . . . .”
Counsel
acknowledged, “Ms. Tossey is still unemployed” but, “if she could find a
job, she would,” however, the court “did not let me put on any additional
testimony as to what has been happening over the past year
. . . .” Counsel stated,
“I will represent to the court, just because she sits here today and is
unemployed, doesn’t mean that she hasn’t been looking. Doesn’t mean she hasn’t been trying.” “Again, I wasn’t allowed to put any of that
evidence on,” including Pam’s testimony regarding her employment efforts. Pam’s attorney addressed her counterpart’s
argument: “You know, [Laurence’s]
counsel says [Pam] does not want to work.
Well, that is sheer speculation on her part and it’s inappropriate
. . . , I think.”
The
court, however, responded, “Well, Ma’am, I’ll just say [this]. I heard the evidence at [the April 2009]
trial and I formed certain judgments and it was my considered judgment, given
her credibility, that she did not make a legitimate effort to find work.” The court declined to adjust Pam’s $2,500
monthly imputed income figure either up or down. Based on the court’s evaluation of “the
applicable Fam[ily] C[ode] § 4320 factors,” the court set Laurence’s
permanent spousal support obligation at $1,700 a month. The court explained it had evaluated those
factors in setting the temporary support amount in December 2009 and
“reserved calculating a permanent
spousal support order until after the residence was sold and after the court
allowed the passage of more time for
[Pam] to secure fulltime employment.”
(Original italics.) The court
then “re-assessed all the [section] 4320 factors” following the March 2010
trial on reserved issues, at which the court observed Pam “is still not
employed and . . . again claims her earning capacity is zero.” The court reiterated its finding from
December 2009 that Pam “has earning capacity of at least 2,500 dollars
[per month].” (Original emphasis.)
The
court also concluded Watts
charges were appropriate and that, since the parties’ incomes were equal after
factoring in Laurence’s support payments and Pam’s imputed income, there was no
reason for Laurence to pay any portion of Pam’s legal bills. Consequently, the trial court denied each
party’s request to charge the other with some portion of their respective
attorney fees. The trial court finally
entered judgment in September 2010, and Pam now appeals.
II
DISCUSSION
Pam
argues the trial court violated due process when it refused to hear her
evidence. We agree. In In
re Marriage of Carlsson (2008) 163 Cal.App.4th 281 (
allow husband’s attorney to finish his evidentiary presentation and abruptly
ended the trial by walking off the bench.
Here, in barring Pam’s evidentiary presentation altogether, the effect
was the same: “summary termination of
the trial infring[ing] on [the] fundamental right to a full and fair
hearing.” (Id. at p. 291.)
In
Carlsson, the wife on appeal defended
the judgment on grounds “there is no such thing as ‘structural error’ in a
civil case.” (Carlsson, supra,
163 Cal.App.4th at p. 292.)
But the court explained that the “structural error” label was not
dispositive; rather, “‘Denying a party the right to testify or to offer
evidence is reversible per se.’
[Citations.] As the state Supreme
Court has recently stated: ‘“We are fully cognizant of the press of business
presented to the judge who presides over the [Family Law] Department of the
Superior Court . . . , and highly commend his efforts to
expedite the handling of matters which come before him. However, such efforts should never be
directed in such manner as to prevent a full and fair opportunity to the
parties to present all competent,
relevant, and material evidence bearing upon any issue properly presented
for determination. [¶] Matters of domestic relations are of the
utmost importance to the parties involved and also to the people of the State
of California. . . . To this end a trial judge should not
determine any issue that is presented for his consideration until he has heard
all competent, material, and relevant evidence the parties desire to
introduce.”’ [Citation.]” (Id.
at p. 291, original italics.)
The
Carlsson court explained that though
the recent Supreme Court case in Elkins
v. Superior Court (2007) 41 Cal.4th 1337 “involved a different issue than
that posed here — whether a local rule that required parties to present their
case in contested dissolution trials by means of written declarations was
inconsistent with certain statutory provisions [citation] — the court’s
pronouncements have a direct bearing on this case.” (Carlsson,
supra, 163 Cal.App.4th at
p. 292.) Specifically, “[t]he high
court noted that ‘[a]lthough some informality and flexibility have been
accepted in marital dissolution proceedings, such proceedings are governed by
the same statutory rules of evidence and procedure that apply in other
‘Ordinarily, parties have the right to testify in their own behalf
[citation], and a party’s opportunity to call witnesses to testify and to
proffer admissible evidence is central to having his or her day in court.’ [Citation.]
Emphasizing a party’s ‘fundamental right to present evidence at trial in
a civil case’ [citation], the Elkins
court went on to declare, ‘“One of the elements of a fair trial is the
evidence on a material issue.
Subject to such obvious qualifications as the court’s power to restrict
. . . , and to exclude unduly prejudicial matter [citation],
denial of this fundamental right is almost always considered reversible error”’
[citations].” (Ibid., original italics.)
Here,
Laurence defends the trial court’s judgment because “[i]t is very clear that
Judge Waltz did not believe Ms. Tossey’s presentation regarding her job
search.” The problem, however, is that
the court did not allow her to present any
evidence at the trial reserved on this very issue. As the Carlsson
court explained, “‘“The trial of a case should not only be fair in fact, but it
should also appear to be fair.”
[Citations.] A prime corollary of
the foregoing rule is that “A trial judge should not prejudge the issues but
should keep an open mind until all the evidence is presented to him.”’ [Citation.]”
(Carlsson,
pp. 290-291.) Having earlier heard
Pam’s testimony in this proceeding certainly afforded the trial court with an
informed perspective on which to evaluate any new testimony she might have
provided at the trial on reserved issues.
But the trial court could not weigh
the credibility of testimony it did not hear.
Laurence
suggests Pam’s offer of proof concerning her job search was insufficient. To our dismay, neither party provides a
record citation to Pam’s offer of proof.
Laurence unhelpfully cites only a minute order reciting that the trial
court “hear[d] opening statements and offers of proof from counsel[] on
reserved issues.” While we located
nothing in the transcript of the trial on reserved issues to suggest Pam’s
attorney made an oral offer of proof specifying Pam’s employment efforts, it
would have been futile to do so. (Evid.
Code, § 354, subd. (b) [party need not make a “futile” offer of
proof]; see, e.g., Tomaier v. Tomaier
(1944) 23 Cal.2d 754, 760 [“When the trial court states that it will not
receive evidence, a specific offer of proof is not necessary and would be idle
under the circumstances”].) The trial
court already had rejected Pam’s written offer of proof in her pretrial brief,
dismissed without any explanation her vocational expert, and declared at the
outset of the trial on reserved issues that the evidence was closed. No further offer of proof was required.
Laurence’s
attorney insists, “The complaint that Wife was not afforded a hearing is in the
writer’s opinion . . . nothing more than a stalking horse because,
had the court entertained testimony as opposed to offers of proof/argument
[and] documenting evidence, the result would have been the same inasmuch as the
evidence proposed by [Pam’s] attorney . . . showed
First, this argument “is akin to asking that a football team be declared
the winner where the referee stopped the game in the fourth quarter, on the
ground that the team had a sizeable lead and a comeback by the opponent was
unlikely. [Husband] was entitled to a
full and fair trial. Because the court
did not afford him one, the integrity of the process was fatally
compromised.” (Carlsson, supra,
163 Cal.App.4th at p. 294.)
The same is true here.
Second,
Pam’s written pretrial offer of proof was sufficient. She stated in her pretrial brief that she
would “attempt to show this court that in spite of her desire and efforts to
find employment in her chosen field, or in another field commensurate with her
former skills and education, she has not been able to do so. She has, however, continued to take classes
to[ward] that end, while working through
[a] temporary placement agency.”
(Italics added.) She also stated
she had “[c]ontinued to search for jobs on Monster.com, Dice.com, and
CyberCoders.com.” Indeed, her placement
agency efforts actually yielded a customer support position, albeit temporary,
providing “customer services for the Cirque d[u] Soleil production of ‘Kooza’
in Irvine,” for which she had
worked through mid-February. While
reasonable trier of fact might find Pam could not be excused from
if she could not “find employment in her chosen field” or a “commensurate” one,
Pam’s offer of proof suggested she had indeed looked for such work. Presumably Pam’s vocational expert had
something to say on the availability of relevant jobs and it was not a
sufficient basis to exclude him simply because Pam had not actually obtained a customer service or other suitable job — given
the trial court totally barred her evidence on the availability of such
jobs.
In
sum, due process required affording Pam the opportunity to present testimony regarding
her job search and on all contested issues at the trial on reserved issues,
including Watts
charges. Because the trial court erred
in barring Pam’s evidence, the judgment must be reversed, including the trial
court’s decision not to apportion attorney fees. That decision rested on the court’s
conclusion the parties’ actual or imputed income and resources were equal, but
erroneous exclusion of Pam’s evidence in calculating her imputed income and
Laurence’s permanent spousal support obligation.
III
DISPOSITION
The
judgment is reversed. Pam is entitled to
her costs on appeal.
ARONSON,
J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.
name="_ftn1" title=""> [1] She refers to herself as Pam in her
briefing, and we similarly refer to the parties by their first names for
clarity and ease of reference, given they have the same last name, and intend
no disrespect in doing so. (See
24 Cal.App.4th 1702, 1704, fn. 1.)
name="_ftn2" title=""> [2] As we note below, the trial court did
not enter a final, appealable judgment until September 2010. While protracted proceedings are sometimes
unavoidable and neither party objected below or complains of the delay here, a
glacial pace to family law litigation can create a host of problems. (Cf. In
re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 809 [10 different
judges conducted proceedings over 15-year course of case]; Biden v. Rosen (1993) 19 Cal.App.4th 27, 38 [similar;
piecemeal litigation obfuscates issues].)
