Rattan v. Prasad CA1/3 ( 2015 )

Filed 9/30/15 Rattan v. Prasad CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
KOMAL RATTAN,
Petitioner and Respondent,
A139757, A140470
v.
ABHIJIT PRASAD, (Alameda County
Super. Ct. No. VF07356209 )
Respondent and Appellant.
Abhijit Prasad appeals from an order modifying child support and awarding
attorney’s fees. He contends the calculation of his income was not supported by
substantial evidence and that the court erred when it ordered him to share certain
additional specified expenses and declined to impute income to the children’s mother,
Komal Rattan. Prasad also challenges orders requiring him to look and apply for
employment, establish a child support security account, and pay $10,000 for Rattan’s
attorney’s fees. We affirm.
BACKGROUND
Rattan and Prasad, the parents of two children, divorced in June 2010 pursuant to a
judgment that terminated their marital status and reserved the family court’s jurisdiction
over all other issues. The court ordered Prasad to pay monthly child support of $1,669
effective July 2010, based on his annual income of $80,000, and reserved jurisdiction to
modify the award. On October 18, 2011, Prasad moved to modify the child support
order.
1
After a number of delays, the motion was heard on April 4 and August 21, 2012,
and January 2 and April 10, 2013.1 Both parties were represented by counsel. Both
testified, and both provided the court with written closing arguments, and subsequently,
objections to the court’s tentative decision. The court’s detailed statement of decision
and order included the following findings.
The children lived full time with their mother, Rattan. Prasad had not had
visitation since October 2011. Rattan had received Social Security disability benefits of
$2,300 per month since October, 2011. She remained totally disabled as of July 2013.
We will quote at length the court’s findings on Prasad’s income and employment.
“[Prasad] is the owner of Maremarks, a solely owned corporation, which has not been
joined as a party. [Prasad] described Maremarks as basically a management employment
service, locating employees for high tech positions—mainly, if not exclusively, with
Cisco. Many of the positions are filled by immigrant workers and Maremarks handles
the immigration issues. The employees, because of their expertise, receive high salaries,
$40-80 per hour of which Maremarks gets about $5 per hour. Maremarks covers the
employees’ health benefits plus ‘hiring expenses’ which may include referral fees and
INS processing fees. After those are paid, the profit margin is about $2-3 per hour.
Maremarks needs three to four placements in order to break even. [Prasad] testified that
just prior to laying himself off, there were 10 placements, seven of which resigned,
leaving him and two others. When he was laid off from his assignment, he laid himself
off from the corporation on September 30, 2011, as there were insufficient funds to
maintain the business with only two placements. The other two employees are still
working but respondent stated that once a placement has been made, he can’t change the
personnel. One employee is working as a business development manager and the other
as a Cisco account manager. [Prasad] testified that he has never worked as a business
manager (though he manages Maremarks) but has performed the services of an account
1
Remaining issues as to spousal support were heard in a different department and
are not at issue in this appeal.
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manager. [His] background and training is in specialized IT technical and management
services and he has [an] MBA in technology management from either 2001 or 2002.
“Since September 30, 2011, [Prasad] has been collecting unemployment benefits
in the amount of $1,950 per month. He testified that the business continued to pay his
health insurance for 6 months based on the company policy and paid $800 per month
towards his in-home office until April, 2012. He has continued to run the business but,
since there is insufficient income, he receives no salary and, according to [Prasad], EDD
approved his benefits knowing he was running Maremarks for no salary. He stated that
revenues received include the salaries of the remaining two placements and cannot be
considered corporate income. His K-1 for 2011 shows a loss of $1,089 and for 2012, a
loss of $6,364. Basically, he described that he works full time either trying to find
placements for himself or for other potential employees. Though [Prasad] continued to
process applications for himself and others, no one has been placed through Maremarks
since October, 2011. . . . On April 10, 2013, he testified that he had no earned income.
He listed $16 per month in dividend income on his Income and Expense Declaration.
“The bank records show that between October, 2011 and January, 2013,
Maremarks paid home office expenses for [Prasad] in the amount of $5,437.50, not
considering the $800 per month [he] testified for the time he was living in Tracy. He also
received health insurance for eight months totaling $6,576.88, utility reimbursements of
$511.66, car expenses (registration, insurance and an oil change) of $1,579.28 and legal
fees paid to [his divorce attorney] in the amount of $4,145.77. The court also considered
his moving expenses and office cleaning. All these expenses occurred while [Prasad]
was working for free and collecting unemployment benefits and . . . listed the company
accounts payable debt as his debt on his Income and Expenses Declaration filed April 3,
2013. These may be business expenses as far as the IRS is concerned, but he is the sole
owner of the corporation and these are basically personal expenses. These additional
company benefits totaled $24,041.10 over a 16 month period for an average of $1,502.56
per month of non-taxable income. The court did not consider the expenses paid to/for
Raymond Young, CPA., the reimbursement for the Terokyhn Project since there is no
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evidence of when [Prasad] worked for the project, document transcription fees, attorney
Joseph Kafka, reimbursements for incidents on 2/7 and 2/10/12, Young Law Offices and
Oasin, as the court could not tell from the face of the checks, and there was no testimony
to determine, whether these were true business expenses or of personal benefit to
[Prasad].” The court found there was insufficient evidence to impute income to Prasad.
Neither Prasad nor Rattan appeared to have income available to pay their own
attorney fees, much less contribute to the other party’s fees. In 2009 and 2010, however,
Prasad had withdrawn approximately $835,000 from a credit union account. After
reviewing his Income and Expense Declarations from 2009 through 2013, the court found
Prasad had not sufficiently accounted for $600,000 of that amount, “some used for non-
family law legal fees and much sent to the Bank of India. This leaves a significant
amount of funds unaccounted for from the Patelco Credit Union account withdrawals.”
Prasad claimed there were community property funds available to pay the parties’ legal
fees, but the court found no evidence of such funds.
Records from the Alameda County Department of Child Support Services showed
that Prasad was significantly behind in child support, and that even if he prevailed on his
motion his payments still fell short of the support that would have been due based only on
his unemployment income. The court reduced retroactive child support to $850 per
month for October 18, 2011, through January 31, 2012, and $814 per month for February
1 through May 31, 2012, and ordered Prasad to pay $1,200 in monthly support
commencing June 1, 2012. Prasad was required to reimburse Rattan for health insurance
premiums she incurred since June 9, 2010, and as of July 1, 2013, to pay an additional
$226 per month in child support to cover the children’s health insurance. The parties
were ordered to equally share the cost of the children’s piano and swimming lessons from
October 18, 2011.
The court set a further hearing pursuant to the terms of the judgment of dissolution
to consider Prasad’s obligation to pay for certain uninsured medical expenses. It ordered
Prasad to establish a child support security account in the amount of $8,000 if he was not
current on all child support obligations by September 17, 2013, and to apply for at least
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20 jobs per week and provide monthly logs of his job search. Prasad was also ordered to
pay Rattan $10,000 for attorneys’ fees.
This appeal timely followed.
DISCUSSION
I. Child Support
“A decision modifying a child support order will be affirmed unless the trial court
abused its discretion, and it will be reversed only if prejudicial error is found upon
examination of the record. [Citation.] ‘Although precise definition is difficult, it is
generally accepted that the appropriate test of abuse of discretion is whether or not the
trial court exceeded the bounds of reason, all of the circumstances before it being
considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced
from the facts, a reviewing court lacks power to substitute its deductions for those of the
trial court.’ [Citation.] The burden is on the complaining party to establish abuse of
discretion. [Citation.] The showing on appeal is insufficient if it presents a state of facts
which simply affords an opportunity for a difference of opinion. [Citation.] [¶]
‘We observe, however, that the trial court has “a duty to exercise an informed and
considered discretion with respect to the [parent’s child] support obligation. . . .”
[Citation.] Furthermore, “in reviewing child support orders we must also recognize that
determination of a child support obligation is a highly regulated area of the law, and the
only discretion a trial court possesses is the discretion provided by statute or rule. . . .”
[Citation.] In short, the trial court’s discretion is not so broad that it “may ignore or
contravene the purposes of the law regarding . . . child support. . . .” [Citations.]’ ” (In re
Marriage of Heiner (2006) 136 Cal.App.4th 1514, 1519–1520.)
To the extent Prasad challenges the court’s factual determinations, our review is
limited to determining whether they are supported by substantial evidence. (In re
Marriage of Heiner, supra, 136 Cal.App.4th at pp. 1519–1520.) “[W]e examine the
evidence in the light most favorable to the prevailing party and give that party the benefit
of every reasonable inference. [Citation.] We accept all evidence favorable to the
prevailing party as true and discard contrary evidence. [Citation.]’ [Citation.] ‘We do
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not reweigh the evidence or reconsider credibility determinations. [Citations.]’ ” (In re
Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.)
The court’s calculation of Prasad’s income was based on $1,950 in monthly
unemployment compensation and $19,895.23 in payments from Maremarks between
October 2011 and January 2013. The Maremarks payments averaged $1,502.56 per
month, for miscellaneous home office and car expenses, utilities, and health insurance
premiums. Prasad claims the Maremarks payments were not income but reimbursements
for business expenses, and that the court “made no effort to sort out valid business
expenses that were required to operate the business from those that were not essential and
reduced Prasad’s living expenses.” The court reasonably rejected this characterization,
carefully distinguishing between costs it determined, based on the evidence, were
“basically personal expenses” and other payments from Maremarks (such as for an
accountant’s fees and attorneys’ fees other than for Prasad’s divorce proceedings) that
were not shown to be personal rather than business expenses. 2 Prasad’s insistence that
all of those payments were reimbursement for the cost of operating Maremarks from his
home is premised on his testimony, but the court quite plainly did not believe him and we
may not second-guess its credibility determination.
Prasad also argues the court failed to consider his actual income at the time of the
support hearing, but instead based its award of child support (including add-ons) on
unemployment benefits he claims he stopped receiving after mid-March, 2013. But no
evidence that his unemployment was terminated was introduced during the multi-day
hearing. He did make this assertion in objections to the court’s tentative decision, but the
court was neither required to consider purported evidence submitted without testimony or
authentication after the hearing had concluded or, if it did, to find it credible. Indeed,
Prasad’s position on appeal would require us to reject the trial court’s assessment of his
credibility. That is not our function. “[W]e have no power to judge of the effect or value
of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to
2
As noted in the statement of decision, Maremarks also paid $4,145.77 to Prasad’s
divorce attorney. Prasad does not contend that this, too, was a business expense.
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resolve conflicts in the evidence or in the reasonable inferences that may be drawn
therefrom.” (9 Witkin, Cal. Procedure (5th ed. 2008) 424-425, §365, quoting Overton v.
Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)
Prasad makes similar missteps on appeal in asserting that the court “used many
other numbers in Dissomaster which were different than the actual evidence that was
before it which was indeed summarized in its order.” Specifically, as we understand it, he
contends the court misstated his health insurance costs in computing Dissomaster
support, although he concedes the judgment itself reflects the correct figures.3 Prasad did
not raise this alleged deficiency when he objected to the court’s tentative decision. If “a
statement of decision does not resolve a controverted issue, or if the statement is
ambiguous and the record shows that the omission or ambiguity was brought to the
attention of the trial court . . . , it shall not be inferred on appeal . . . that the trial court
decided in favor of the prevailing party as to those facts or on that issue.” (Code Civ.
Proc., § 634.) Prasad failed to raise the alleged error in response to the tentative decision,
so he forfeited “the right to claim on appeal that the [decision] was deficient” based on
“omissions or ambiguities” that could have been brought to the trial court’s attention. (In
re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134.)
Prasad also seems to assert the court ordered him to pay for certain of his
children’s extracurricular activities—swimming and piano lessons—without adequate
notice or evidence. But Rattan claimed those add-on expenses in an income and expense
declaration filed on August 8, 2012. Prasad had every opportunity to challenge those
expenses during the subsequent evidentiary hearings on his motion.
3
Prasad misrepresents the record on Rattan's health insurance. He claims she had
health insurance for part of the relevant period through a job at Oracle, so it was error for
the court to record her health insurance costs as zero. In fact, the testimony he cites for
this alleged error was Rattan's testimony that she currently maintained and paid for health
insurance for their children. Her testimony about her own health insurance, which Prasad
does not cite, was that she is insured through Medicare and has substantial out of pocket
costs for medications.
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II. Imputed Income
Prasad fares no better in asserting the trial court abused its discretion when it
declined to impute income to Rattan. The court reasonably credited evidence that Rattan
was diagnosed with ulcerative colitis in 2003, went on state disability in 2009 due to the
illness and related side effects that prevented her from working, and that the Department
of Social Services had recently found that her disability was continuing. “With rhythmic
regularity it is necessary for us to say that where the findings are attacked for
insufficiency of the evidence, our power begins and ends with a determination as to
whether there is any substantial evidence to support them.” (Overton v. Vita-Food Corp.,
supra, 94 Cal.App.2d at p. 370, italics omitted.) Prasad’s repetition of the opposing
testimony and arguments presented unsuccessfully at trial suggests he does not appreciate
this limitation on our review.
III. Work Search Order and Child Support Security Deposit
The court ordered Prasad to apply for at least 20 jobs per week and to provide
Rattan’s attorney and the department of child support services with a monthly log of
those applications. Prasad asserts this too was an abuse of discretion. Again, we
disagree.
Pursuant to Family Code section 4505, subdivision (a), a court may require an
unemployed parent who is in default on a child support order to submit documentation
showing that he or she has actually looked for work. A seek-work order is reviewed for
abuse of discretion and is subject to reversal on appeal where there is no reasonable basis
for the court’s action. (Barron v. Superior Court (2009) 173 Cal.App.4th 293, 298–299.)
Prasad has a bachelor’s of engineering degree in computer science, an MBA in
technology management, and work experience as an IT business analyst with a
specialization in enterprise resource planning. He was earning $80,000 as an IT analyst
through Maremarks until he laid himself off in October 2011 and went on unemployment.
He has not held a paying job since then, although while collecting unemployment, he
continued to work without compensation as Maremarks’s president. His testimony about
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his efforts to find new employment can perhaps best be characterized as vague.4 On this
record, it was reasonable to require Prasad to diligently seek employment and provide
documentation of his efforts. Although Prasad tells us it is “inconceivable” that he would
be able to locate 20 suitable job openings per week to apply to, there is no evidence
currently in this record to compel that conclusion.
Prasad’s contention that the court abused its discretion when it ordered him to
establish an $8,000 child support security account unless he was current on child support
by October 31, 2013, is also unpersuasive. Section 4012 of the Family Code permits a
court to order a parent required to make child support payments to give reasonable
security for the payment upon a showing of good cause. Subdivision (a) of Family Code
section 4560 specifically provides that every child support order “may also require the
payment by the child support obligor of up to one year’s child support” and subdivision
(b) of that section states that “[u]nless expressly waived by the child support obligee, the
court may order the establishment of a child support trust account pursuant to this chapter
in every proceeding in which a child support obligation is imposed by order of the court.”
By March 7, 2013, despite enforcement efforts by the Department of Child Support
Services, Prasad was thousands of dollars behind on child support and his payments were
inadequate to cover his current support obligations, let alone the arrears. That record
manifestly provided good cause to require a support security account under Family Code
section 4560.
IV. Attorney’s Fees
The court found that the fees requested by both parties appeared to be reasonable,
but that “neither party appears to have income available to pay their own attorney fees,
much less contribute to those of the other party.” Using figures from Prasad’s income
and expense declarations, the court found that his expenses since 2009 exceeded his
income and debt by approximately $30,000 plus some $200,000 in legal fees paid to his
4
Prasad’s Income and Expense Declaration, filed August 2012, indicated he was
working for Maremarks 40 hours per week, but he testified that this was time spent
looking for a job.
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attorney. But as stated above, Prasad had withdrawn approximately $835,000 from the
Patelco Credit Union in 2009 and 2010, and “[t]here was insufficient explanation at the
hearings as to how the remaining funds were spent, some used for non-family law legal
fees and much sent to the Bank of India. This leaves a significant amount of funds
unaccounted for from the Patelco Credit Union account withdrawals.” (Italics Added.)
Although Prasad alleged there were funds available to pay fees from jointly owned
property, the court found that no evidence was presented during the hearings to support
that claim. Based on the unaccounted-for withdrawals, it ordered him to pay $10,000 for
Rattan’s attorney’s fees and costs.
“[T]he proper legal standard for determining an attorneys’ fees award requires the
trial court to determine how to apportion the cost of the proceedings equitably between
the parties under their relative circumstances. [Citation.] In making this 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 & Fyke (2012) 203 Cal. App. 4th 964, 975.) Prasad complains that
the court awarded these fees “for some inexplicable reason, and without any evidence” in
reliance on “a reference to some old separate account of Prasad” and “conjectured that
some money must have been left over in that account to pay for attorney’s fees” despite
testimony that there was none. He adds that the account had been closed in July 2010, so
it was “non-existent” and therefore “should not have been used by the Court to pay
attorney’s fees.” His argument mischaracterizes the court’s careful comparison of
Prasad’s claimed income and expenses and the money missing from the Patelco account.
His argument that the court could not consider his withdrawals because the Patelco
account had since been closed is no less absurd, as the court identified the withdrawn
funds, not the account from which Prasad withdrew them, as available for attorney’s fees.
The fee award was within its broad discretion.
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In summary, the orders Prasad challenges here are within the court’s discretion
and supported by sufficient evidence. There is no basis to disturb its determinations. The
various requests for sanctions made by both parties during the appeal process are denied.
DISPOSITION
The orders are affirmed.
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_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Jenkins, J.
Rattan v. Prasad, A139757, A140470
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