Marriage of Andrew

Filed 9/24/09 Marriage of Andrew CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Lorna Alksne, Judge. Affirmed.

Charles Andrew appeals an order that awards Maia Andrew attorney fees, and an order that modifies his monthly spousal support obligation.[1] Charles contends the family court's admission of a declaration by Maia's financial expert was improper, because the declaration was based on a draft report by the court-appointed special master that the court excluded. He also contends the court erred by not requiring a complete income and expense declaration from Maia before ruling on support and attorney fees, and by not considering all relevant factors in awarding fees. Maia has moved to dismiss the appeal on the ground Charles cannot seek relief here as a matter of equity since he has not satisfied his obligations under the court's orders. We deny the motion to dismiss and affirm the court's orders on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in May 1984 and separated in May 2005, after which Charles petitioned for dissolution.[2] In an interim order the court awarded Maia exclusive use of the family residence, and for spousal support it ordered Charles to pay the home's mortgage, property taxes and utilities, which totaled approximately $4,500 per month. It also ordered him to pay $7,500 toward her attorney fees and costs. The court appointed forensic accountant Brian Brinig as a special master to determine Charles's business income and the value of his businesses. During the marriage, Charles had formed two companies, Tradeexpo, LLC, and Tradeexpo North America (hereafter Tradeexpo companies).

In a December 20, 2005 order, the court ordered Charles to pay Maia an additional $1,000 per month in support contingent on the sale of their 34-foot boat. The court also ordered him to continue to pay expenses on the family residence.

Charles later purchased Maia's interest in the family residence for $302,000. On September 1, 2006, after moving out of the home, Maia petitioned for a modification of spousal support on the ground Charles was no longer paying expenses associated with the home on her behalf, and thus the only spousal support order in effect was for $1,000 per month. Charles objected on numerous grounds, including that Brinig's analysis was not yet available.

The matter was continued numerous times, primarily because of issues concerning the production of information for Brinig's review. Further, on May 22, 2007, the court ordered the joinder of Borislav Andreev, who is Charles's father and a resident of Bulgaria, and Andreev's businesses, which Maia claimed were connected with Charles's businesses. The court expanded Brinig's appointment "to include a determination of the true income of the parties in light of the joinder."

Although Brinig's final report had not been completed, on September 28, 2007, the court finally heard Maia's September 1, 2006 modification motion. The court noted that "[i]n light of significant change of circumstances occurring when the house sold, coupled with the slow progress of the special master, the court elects to proceed on the current state of the evidence to consider a pendente lite modification."

Charles argued his businesses were not making money, and his money came from "either shareholder draws or loans from his father." Maia estimated Charles's gross monthly income was $60,000 based on an "[h]istorical analysis of our personal expenses the years we lived together." His income and expense declaration claimed $1,695 in gross monthly income from his businesses and $9,833 in monthly expenses. Her income and expense declaration claimed $1,687 in gross monthly income as a self-employed music teacher, $2,625 in rental income, and $12,402 in monthly expenses.

In October 2006 Brinig had given an initial opinion. Relying on financial statements prepared by Charles's accountant, Brinig calculated his monthly adjusted net income from the Tradeexpo businesses at $12,045 in 2004; $8,665 in 2005; and negative $5,372 for the first nine months of 2006.

Maia's expert, CPA Dennis Pearson, filed a declaration that stated it appeared from his investigation that Charles's Tradeexpo companies, "through the utilization of three other businesses, i.e., Borand International USA, Drobe Wool Company and Spreewell, Inc. [referred to as Affiliates] set up by Mr. Andrew, but allegedly owned by [his] elderly father have comprised a methodology to understate [the Tradeexpo companies'] income and overstate Affiliates income, and funnel money back to Mr. Andrew through the guise of a loan." Pearson estimated Charles's true average monthly income between January 2003 and September 2006 was $28,700 per month. Pearson criticized the bookkeeping performed by Charles's accountant as "without a doubt poorly prepared."

The court awarded Maia $30,000 in attorney fees and costs and took the spousal support matter under consideration. On November 7, 2007, the court issued an order on the attorney fees, which requires Charles to make payments directly to Maia's counsel.

The court issued a final statement of decision on February 29, 2008. The court increased spousal support to $3,500 per month retroactive to September 2006, with arrears payable at $1,000 per month. The court found, contrary to Charles's protestations, that he "has complete control over his businesses and the businesses owned by his father," and Charles's "claim that he makes little to no money is disingenuous at best." The court noted that in discovery Charles submitted a general ledger from one of the Tradeexpo businesses for January 1 through July 30, 2007, which detailed nearly $80,000 in personal expenses the business paid for him, designated as shareholder dividends, including expenses for groceries, movie tickets, household items, haircuts, cash, and purchases at Macy's, Mervyn's and Nordstrom. The court explained that "[s]imple math [shows] this is the equivalent of receiving the benefit of approximately $11,400 per month in personal expenses."

Further, the ledger showed the business paid other personal expenses for Charles, for medical, dental and vision care, which equated to another $900 per month. The court also found that "[e]xpenses for restaurants, spas, flowers, theatre, gasoline, garden centers, and loan payments to Indymac, GMAC, and on car loans may be business expenses or they may be personal expenses or some combination of the two." The court found Charles "receives [at least] $13,300 per month in compensation and benefits from his efforts operating this one business," and that amount did not include more than $300 for gasoline and $600 for meals and entertainment.

Moreover, the court noted Charles's various income and expense declarations were inconsistent with evidence produced during discovery. His most recent declaration, dated September 27, 2007, stated he worked 60 hours a week as an importer but was paid only $1,695 gross per month; a June 12, 2007 declaration stated he had no income, and a March 8, 2007 declaration stated he earned $6,500 per month.

The ruling also states: "Even more telling are [Charles's] stated actual expenses. [He] indicates his mortgage payment on his residence alone is $6,400 per month, and he pays nearly $10,000 per month in total expenses. The court also cannot ignore that many of these expenses are in addition to the ones paid by Tradeexpo as discussed above. Also worthy of mention is that [Charles] does not claim to have any debt except a 'loan' from his father that the Court has determined is not a credible statement based on the evidence." The court found that in addition to his other expenses, Charles had paid his attorney nearly $70,000 in the previous 12 months and had no debt for fees.[3] The court found that at a minimum, Charles through his company and direct payments spent at least $22,000 per month for personal expenses, and thus he had that amount available for the payment of support.

DISCUSSION

I

Motion to Dismiss

In March 2009 Maia filed a motion to dismiss the appeals on the ground Charles has failed to comply with the orders from which he appeals. Her March 2009 declaration states he had paid only a fraction of the spousal support and arrearages the court ordered on February 29, 2009, and her attorney's declaration of the same date states he had not paid any of the attorney fees ordered on November 7, 2007. In opposition to the motion, Charles does not dispute the declarations. We notified the parties we would consider the motion in conjunction with the appeal.

Maia invokes the so-called "disentitlement doctrine." (Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008)  5:37.2, p. 5-17.) "Under the disentitlement doctrine a reviewing court applying equitable principles may exercise its inherent power to dismiss an appeal by a party who has refused to comply with trial court orders. [Citation.] 'The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party "stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]" [Citation.] A formal judgment of contempt, however, is not a prerequisite to exercising our power to dismiss; rather, we may dismiss an appeal where there has been willful disobedience or obstructive tactics.' " (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 596; MacPherson v. MacPherson (1939) 13 Cal.2d 271 (MacPherson).)

The disentitlement doctrine has been applied in a variety of circumstances, including "where a parent had taken and kept children out of the state in violation of a divorce decree [citations]; where a husband had failed to pay alimony as ordered in an interlocutory judgment of divorce [citing to Kottemann v. Kottemann (1957) 150 Cal.App.2d 483 (Kottemann)]; where a party in a civil action was a fugitive from justice and in contempt of the superior court for failure to appear on criminal charges after being released on bail [citation]; and where defendants willfully failed to comply with trial court orders regarding a receivership. [Citation.] Moreover, the inherent power to dismiss an appeal has been exercised in several cases where a party failed or refused to appear for a judgment debtor examination." (TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379-380.)

In Kottemann, supra, 150 Cal.App.2d 483, the appellant did not merely fail to comply with the interlocutory judgment for spousal support. Rather, he undertook repeated acts to thwart his former wife's attempts to enforce the judgment. He hid assets on which she sought to execute, and secreted himself away to avoid service of an order to show cause re contempt and to avoid the completion of his deposition. He had not been located and his appellate attorneys denied knowledge of his whereabouts. In dismissing the appeal, the court explained "[s]uch flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal." (Id. at p. 487.) The court added, "[t]hat [appellant] is in hiding or in a foreign jurisdiction cannot be doubted. That he intends to frustrate plaintiff's efforts to obtain the fruits of her judgment and the attorney fee awarded is equally clear. That he entertains an intention to defraud her cannot be gainsaid." (Id. at p. 488.)

Maia relies on MacPherson, supra, 13 Cal.2d 271, and Rude v. Rude (1957) 153 Cal.App.2d 243 (Rude). In both cases, however, the appellants left the court's jurisdiction to evade enforcement efforts by their former spouses. In MacPherson, the appellant absconded to Mexico with his two children. The court concluded that "[i]n secluding the children in a foreign country and alienating them, appellant violated not only his agreement with plaintiff and the provisions of the interlocutory and final decrees of divorce, but he has also willfully and purposefully evaded legal processes and contumaciously defied and nullified every attempt to enforce the judgments and orders of the California courts, including the very order from which he seeks relief in this appeal. Such flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal." (MacPherson, supra, at p. 277.)

In Rude,the husband was living in Switzerland to avoid the jurisdiction of California courts, and two minor children were living there with him. He had transferred bank accounts to Switzerland, and assigned or transferred his interests in the estates of his parents to others. (Rude, supra,153 Cal.App.2d at pp. 243, 248.) The court here awarded custody to the mother and ordered him to return the children to California, and to pay child support and attorney fees. The husband did not comply with any of the orders, but he appealed them. The court then ordered him to pay additional attorney fees for the mother's defense of the appeal, and he also ignored that order. (Id. at p. 244.) The trial court found the father had the ability to satisfy the orders, and held him in contempt.

In dismissing the appeal, the court explained: "The husband's attitude seems to be that if the case is decided in his favor it will be quite all right, but if it is not so decided he will be out of reach of the court, so that no matter what is done or what decision is made, he will continue to do just as he had done in the past, namely, pay no attention whatsoever to any order of any court in California insofar as complying with any such order is concerned. To sanction that course of conduct on the part of such a litigant would necessarily bring the court into contempt." (Rude, supra,153 Cal.App.2d at p. 248.)

Here, in contrast, Maia's motion is based exclusively on Charles's failure to comply with the court's orders on review in this appeal. There is no evidence he has evaded the court's jurisdiction or otherwise thwarted collection efforts brought under applicable statutory provisions. Indeed, in 2008 Maia brought a contempt proceeding, Charles was served and appeared, he purged some of her claims on payment of spousal support, and she dismissed her remaining claims.[4]

Maia cites no authority for the proposition the disentitlement doctrine is applicable solely on the ground the appellant is in default on the judgment or order. " ' "[T]he language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts." ' [Citations.] 'A litigant cannot find shelter under a rule announced in a decision that is inapplicable to a different factual situation in his own case, nor may a decision of a court be rested on quotations from previous opinions that are not pertinent by reason of dissimilarity of facts in the cited cases and in those in the case under consideration.' " (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157.)

Further, the dismissal of an appeal often turns on a finding by the trial court that the appellant has willfully defied court orders. For instance, Maia cites Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, in which the trial court had issued an order that required the appellants to deposit income into a receiver's bank account, and to provide information concerning their various accounts. (Id. at p. 1676.) The trial court had issued successive orders to compel appellants' compliance with the order, imposed sanctions on the appellants, and made "judicial findings that the appellants have persisted in willfully disobeying the trial court's orders." (Id. at p. 1683; see also Stone v. Bach (1978) 80 Cal.App.3d 442, 443-444, 448 [court dismissed appeal when record showed trial court had found appellant knowingly violated court order numerous times].)

Here, the record contains no trial court finding of willfulness. Further, the declarations of Maia and her attorney do not permit us to make such a finding. (See Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592 [court dismissed appeal when appellant violated order to appear for debtor's examination and "in effect confessed his contemptuous attitude toward the orders of the court" in his papers opposing motion to dismiss].) We are unaware of whether Charles has the current ability to pay. (See Rude, supra, 153 Cal.App.2d at p. 248.)

We do not, of course, condone Charles's conduct. We believe, however, that the dismissal of an appeal based exclusively on noncompliance with court orders under review would be an abuse of our discretion, and may set a dangerous precedent. Accordingly, we deny Maia's motion.

II

Pearson's Declaration

A

Charles contends the court improperly admitted and relied on the declaration of Maia's expert, Pearson, because the court excluded a draft report by Brinig, the court-appointed special master, which was a basis of Pearson's opinions.

We may not set aside an order based on the improper admission of evidence absent a showing the error resulted in a miscarriage of justice. (Cal. Const., art. VI,  13; Code Civ. Proc.,  475; Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 406.) " '[T]he trial court's determination to grant or deny a modification of a support order will ordinarily be upheld on appeal unless an abuse of discretion is demonstrated.' [Citation.] Reversal will be ordered only if prejudicial error is found after examining the record of the proceedings below." (County of Tulare v. Campbell (1996) 50 Cal.App.4th 847, 850.)

Charles's assertion the court relied on the Pearson declaration is not supported by any reference to the appellate record. This court is entitled to the assistance of counsel, and when a party provides a brief without record references we may treat the point as waived or meritless. (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) In any event, the court's February 29, 2008 statement of decision does not even mention the Pearson declaration. Rather, the court stated it relied on financial documents Charles produced in discovery, on his inconsistent income and expense declarations, and on evidence of payments he made to his own attorney.

Moreover, Charles ignores Evidence Code section 801, subdivision (b), which provides that an expert may rely on evidence that is inadmissible if it "is of a type that reasonably may be relied on by an expert in forming an opinion." (Evid. Code,  801, subd. (b).) "A trial court exercises discretion when ruling on the admissibility of expert testimony under Evidence Code section 801, subdivision (b)." (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) Charles cites no authority to support the notion the court abused its discretion by finding Pearson could reasonably rely on Brinig's draft report, and he raises no particular argument on the matter. We find no abuse of discretion.

B

Charles also contends the court's refusal to allow him to cross-examine Pearson violated his due process rights. He does not, however, cite the record to show any compliance with the Superior Court of San Diego County, Local Rule, rule 5.5.8H, which requires that a party wishing to present oral testimony in an order to show cause or law and motion proceeding must provide written notice at least five days before the hearing. Further, he does not cite the record to show that at the hearing he requested cross-examination of Pearson.

Additionally, "[s]ection 2009 of the Code of Civil procedure accords trial courts discretion to determine an order to show cause upon declarations alone, and to exclude or admit oral testimony." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1150, fn. 4; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483-485.) In denying Maia's request to cross-examine Charles, the court referred to the Reifler case. When a party does not object to the court's exercise of discretion to exclude oral testimony, he or she has waived this contention of error. (In re Marriage of Drake, supra, at p. 1150, fn. 4.) Again, Charles does not cite us to any objection he made to the court's procedure. Accordingly, his position lacks merit.[5]

III

Maia's Income and Expense Declaration

Additionally, Charles complains that the court awarded spousal support and attorney fees without requiring Maia to submit a fully completed income and expense declaration. He cites California Rules of Court, rule 5.128(a)[6], which requires a current income and expense declaration from "any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant." The rule defines "current" as "being completed within the past three months providing no facts have changed." (Ibid.) The income and expense declaration "must be sufficiently completed to allow determination of the issue." (Ibid.) Further, when a party seeks attorney fees the section on the income and expense declaration "pertaining to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section pertaining to the amount of attorney's fees incurred, currently owed, and the source of money used to pay such fees." (Rule 5.128(b).)

"The ostensible purpose of these rules is to allow the court to make its support decisions based on complete, accurate and current financial information regarding the parties' earned income, unearned income, assets and standard of living." (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) "The burden of showing a material change of circumstances necessitates comparing financial information on which the original support order was based with the most recent financial information relevant to a new order." (Id. at pp. 575-576.)

Charles asserts the court erred by modifying spousal support without information on Maia's income and expense declaration on her assets, including the $302,000 equalizing payment she received. Her most current income and expense declaration listed as assets only $100 in cash. She did not complete the sections on whether she had stocks, bonds or other liquid assets, or the value of real and personal property. The form stated she had paid her attorney $67,500 in fees, and the sources of payment were contributions from Charles under court orders, her equalization payment, loans and "proceeds from boat." Further, she owed her attorney an additional $34,500.

We see no error causing any prejudice to Charles or otherwise requiring reversal, as the court had a sufficient " 'evidentiary yardstick' " with which to determine the appropriateness of a pendente lite modification of spousal support and award of attorney fees. (See In re Marriage of Tydlaska, supra,114 Cal.App.4th at p. 576.) In May 2007 Maia had filed a declaration that stated she had used the $302,000 equalizing payment to make a down payment on a home and purchase a grand piano, and "[a]s of now, all of the equalization money is gone and I am needing to borrow money to pay the mortgage and I am unable to pay my attorneys." At the hearing, the court asked about the equalizing payment, and Maia advised that she used $150,000 of it on the down payment for her home and the remainder "was completely depleted." She explained that she "has renters in the house now in an attempt to make her mortgage payments." In its statement of decision, the court found credible Maia's assertion "she has depleted her remaining share of the marital residence proceeds to pay her mortgage along with her living expenses and her attorney's fees."

IV

Remaining Attorney Fees Issue

Charles's brief includes a final section titled, "The Court Erred When It Did Not Consider All [o]f [t]he Relevant Factors in Awarding Maia Attorney Fees." He cites Family Code section 2030, under which the court may award attorney fees to the party with greater need, and cites a few opinions pertaining to attorney fees. He then cursorily states "there is no indication the Court performed this type of analysis." He develops no particular argument, makes no attempt to explain how his cited cases are relevant to the facts here, and gives no citation to the record. We do not consider his argument because, again, we are not required to do his work on appeal.

V

Motion for Sanctions

Maia seeks attorney fees from Charles as sanctions for a frivolous appeal. (Code Civ. Proc.,  907.) In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650, the court "set forth two alternative tests for determining a frivolous appeal. The first test is subjective: Was the appeal prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment? [Citation.] . . . [] The second strand of Flaherty is objective: Was the appeal so indisputably without merit that any reasonable attorney would agree it was totally devoid of merit?" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.) "The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (In re Marriage of Flaherty, supra, at p. 649.)

Charles's appeal lacks all merit and it appears he has a history of causing delay. However, although it is a close call, we decline to assess sanctions. Sanctions should be imposed sparingly "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal." (In re Marriage of Flaherty, supra,at p. 650.)

DISPOSITION

The orders are affirmed. Maia is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

McDONALD, J.

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[1] As is customary in family law matters, we use the parties' first names to avoid confusion. (In re Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.)

[2] When proceedings commenced the parties' oldest son was a minor. No issues pertaining to him are at issue on appeal.

[3] Charles's most recent expense and income declaration stated he had paid his attorney $114,786 to date, and he had no debt for attorney fees. He claimed he paid the fees from "shareholder distributions from his companies" and loans from his father.

[4] Maia's motion shows that in 2008 she brought a contempt action against him for his nonpayment of $9,000 in spousal support under the court's December 20, 2005 order, and at the hearing the parties stipulated he would purge the contempt on those claims on payment of that amount. The proceeding also pertained to his nonpayment of one spousal support payment due under the court's February 29, 2008 order, but the court dismissed it because it was not pleaded with particularity. The proceeding also pertained to the nonpayment of attorney fees under the court's November 7, 2007 order, but Charles argued fees are an ordinary debt not subject to contempt. The court continued the matter for Charles's formal motion to dismiss those claims, but Maia later dismissed the contempt proceeding without prejudice.

[5] Charles criticizes the court for hearing Maia's motion for modification before Brinig completed his final report. The record shows, however, that the delay was attributable to Charles's recalcitrance in providing records to Brinig. The court told Charles's attorney at the hearing, "We can't get those reports unless your client gives the documents," and "the reason why the court has to proceed today [is] because your client has been disingenuous with the facts, and he continues to stall in this case."

[6] All rule references are to the California Rules of Court.