S.F. v. M.J. CA1/3 ( 2022 )

Filed 6/20/22 S.F. v. M.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
S.F.,
Plaintiff and Respondent, A160335
A160735
v. A163530
M.J.,
(Contra Costa County
Defendant and Appellant. Super. Ct. No. D1705734)
In this matrimonial action, appellant M.J. (husband), appearing
in propria persona, appeals from several orders and a subsequently
entered judgment of dissolution that was sought by respondent S.F.
(wife).1
In case Nos. A160335 and A160735 (consolidated for briefing),
husband appeals from (1) a February 26, 2020 order that, among other
things, determined husband’s child support arrears, recalculated child
support subject to “retroactive modification,” awarded wife temporary
1 We refer to the parties by their initials to protect their privacy
and the privacy of their minor child. (Cal. Rules of Court, rule
8.90(b)(1),(11).)
1
spousal support subject to “retroactive modification,” and reserved
jurisdiction to resolve the sale of the marital residence; (2) a March 4,
2020 order that granted wife a two-year domestic violence restraining
order (DVRO) against husband, awarded wife sole legal and physical
custody of their child, and granted husband supervised visits; and (3)
an August 10, 2020 order that (a) denied husband’s motion to vacate
the February 26, 2020 order insofar as it ordered him to pay temporary
child support and temporary spousal support based on an imputed
yearly income, (b) awarded wife monetary sanctions in the form of
attorney fees incurred to defend against husband’s false allegation that
she had abused the child, and (c) denied husband’s request for an order
modifying custody and visitation orders.
In case No. A163530, husband appeals from: (1) a June 2, 2021
order that denied his motions to (a) stop the sale of the marital
residence, (b) vacate the court’s orders of February 26, 2020 and
November 9, 2020, and (c) delay the court’s signing of findings and
order after a hearing on April 8, 2021;2 (2) a July 12, 2021 order that
granted wife’s request for attorney fees and sanctions payable from
husband’s share of the proceeds from the sale of the marital residence
and reconfirmed that wife was to be paid $66,987.35 from the proceeds
of the marital residence sale;3 and (3) a judgment entered on September
29, 2021, which dissolved the marriage as of that date.
2 We deem the notice of appeal from “judgment after court trial”
entered on “5/28/2021” to be from the June 2, 2021 order entered after
the May 28, 2021 hearing. (Cal. Rules of Court, rule 8.100(a)(2) [“notice
of appeal must be liberally construed”].)
3 We deem the notice of appeal from judgment or order entered on
“7/9/21” to be from the July 12, 2021 order entered after the
2
Having considered husband’s arguments, we conclude he has
failed to demonstrate any basis for reversal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on July 10, 2012 and lived together.
They had a child born in 2013. In December 2017, the parties
separated. That same month, wife obtained a temporary DVRO
against husband and filed a petition for dissolution of the marriage.
On May 29, 2018, the trial court granted wife a one-year DVRO
and custody of the child. The court found husband had rebutted the
presumption in Family Code section 3044 and allowed him
unsupervised visits with the child.4 Thereafter, on October 25, 2018,
the parties reconciled and began living together in the marital
residence after entering into a “Spousal Property Agreement” (SPA).
As a result of the reconciliation, the trial court issued an order
terminating the May 29, 2018 DVRO and the related custody and
visitation orders.
Approximately one year later, on November 18, 2019, the trial
court issued a temporary DVRO in favor of wife, husband moved out of
the marital residence, and the parties again separated. After this
second separation, the trial court issued a series of orders including a
February 26, 2020 order regarding husband’s temporary child support
and spousal support obligations and a March 4, 2020 permanent two-
year DVRO in favor of wife.
July 9, 2021 hearing. (Cal. Rules of Court, rule 8.100(a)(2) [“notice of
appeal must be liberally construed”].)
4 Family Code section 3044 provides a rebuttable presumption that
it is not in the best interests of a child to be in the custody of a parent
who has been found to have committed domestic abuse.
3
Over the course of several months spanning November 2020
through September 2021, the court held a three-day trial on the issues
of child support, spousal support, and the disposition of the marital
residence. A judgment dissolving the marriage was entered on
September 29, 2021.
DISCUSSION
Our review of these consolidated appeals is significantly impaired
by husband’s submission of an incomplete record and opening briefs
that fail to comply with our California Rules of Court, which inform
parties as to the proper format in which they are to present their
arguments to this court. While we recognize that husband is
representing himself, our rules of procedure nonetheless apply. “A
party proceeding in propria persona ‘is to be treated like any other
party and is entitled to the same, but no greater consideration than
other litigants and attorneys.’ [Citation.]” (First American Title Co. v.
Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
Husband has perfected his appeal using the appendix method but
has filed reporter’s transcripts as to only some of the proceedings
referenced in his opening briefs. (Cal. Rules of Court, rules 8.124
[appendixes], 8.130 [reporter’s transcript], 8.137 [settled statement].)
Additionally, his opening briefs contain many factual assertions
unsupported by any record citations, “in dramatic noncompliance with
appellate procedures.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
1245–1246; see Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must
“[s]upport any reference to a matter in the record by a citation to the
volume and page number of the record where the matter appears;” “[i]f
any part of the record is submitted in an electronic format, citations to
4
that part must identify, with the same specificity required for the
printed record, the place in the record where the matter appears”].)
Lastly, while the opening briefs include point headings, husband’s
arguments include factual assertions without any record citations
and/or any legal authority or cogent analysis as to how or why the court
erred or how he was prejudiced by the court’s rulings.
Hence, when husband makes a legal argument under a point
heading but fails to support it with record citations and/or cogent
arguments and citations to legal authority, we will treat the point as
forfeited. (See, e.g., Tellez v. Rich Voss Trucking, Inc. (2015) 240
Cal.App.4th 1052, 1066 [“[w]hen an appellant asserts a point but fails
to support it with reasoned argument and citations to authority, we
treat the point as forfeited”]; Falcon v. Long Beach Genetics, Inc. (2014)
224 Cal.App.4th 1263, 1267 [“plaintiffs make numerous factual
assertions in their briefs without record citation” but “[w]e are entitled
to disregard such unsupported factual assertions”]; Duarte v. Chino
Community Hospital (1999) 72 Cal.App.4th 849, 856 [“ ‘[i]t is the duty
of a party to support the arguments in its briefs by appropriate
reference to the record, which includes providing exact page citations;’ ”
“[i]f a party fails to support an argument with the necessary citations to
the record, that . . . argument [may be] deemed to have been waived”];
Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [an appellate
court “ ‘is not required to discuss or consider points . . . which are not
supported by citation to authorities or the record’ ”].)
5
With these principles in mind, we now address husband’s
arguments.5
I. Parties’ Prenuptial Agreement
a. Relevant Facts
On July 10, 2012, the day of the marriage, the parties entered
into a “prenuptial agreement” concerning “(among other things)
matters of alimony, property settlement, spousal support, and promises
by one party to transfer money, property or an asset of any kind to the
other party in the future.” The prenuptial agreement was executed in
Missouri and, by its terms, was “intended . . . [to] be valid and
enforceable under the laws of the state of Missouri, and that the laws of
[Missouri] shall govern the agreement’s interpretation.”
After a hearing on February 13, 2018, the trial court filed an
order on February 28, 2018 ruling, in pertinent part, that the
prenuptial agreement was not valid.
b. Analysis
In challenging the court’s February 28, 2018 order invalidating
the prenuptial agreement, husband cites to Family Code section 1615
5 Wife’s failure to file any responsive briefs does not inure to
husband’s benefit. “[W]e do not treat the failure to file a respondent’s
brief as a ‘default’ (i.e., an admission of error) but examine the record,
[husband’s] brief[s], and any oral argument by [husband] to see if it
supports any claims of error made by . . . [him].” (In re Marriage of
Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Rooz v. Kimmel (1997)
55 Cal.App.4th 573, 594, fn. 12 [in the absence of a respondent’s brief,
“we follow the better practice of examining the record on the basis of
[husband’s] brief[s] and reversing only if prejudicial error is found”]; see
Cal. Rules of Court, rule 8.220(a)(2) [if a respondent does not file a
brief, the court “may decide the appeal on the record, the opening brief,
and any oral argument by the appellant”].)
6
and In re Marriage of Bonds (2000) 24 Cal.4th 1, and then argues the
court “just simply . . . said” the prenuptial agreement was not valid.
Husband has forfeited any challenge to the order as he has not
provided either a reporter’s transcript or a settled statement as to what
occurred at the February 13, 2018 hearing. (Randall v. Mousseau
(2016) 2 Cal.App.5th 929, 933; see Id. at p. 934, fn. 4 [appellant has
right to secure a settled statement despite decision not to hire a court
reporter].) In the absence of a record of what occurred at the hearing,
we presume the trial court considered all relevant facts and correctly
applied the law when making its order invalidating the prenuptial
agreement. (See Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 576
[“[i]n the absence of a proper record, which would include either a
reporter’s transcript or a settled statement (neither of which we have in
this case), we must presume the trial court acted properly”].) Because
husband has failed to meet his appellate burden of showing the court
committed reversible error, his claim fails.
II. November 7, 2019 Elisor Order
a. Relevant Facts
Before the commencement of the dissolution proceeding, on
August 1, 2016, wife signed an interspousal transfer grant deed by
which she granted husband the marital residence, “as his sole and
separate property.” Thereafter, during the dissolution proceeding, on
March 20, 2018, the trial court issued an order stating: “The parties
agree that the house shall be put on the market and sold. [Husband] is
to provide [wife] with funds allocated for her to move, with the amount
to be determined. The funds are subject to reallocation.”
7
Several months later, on October 25, 2018, the parties executed
the SPA, which provided in pertinent part as follows:
“WHEREAS the parties are married, and [acquired] real
property located at [address of the marital residence];
“WHEREAS it is the intent of the parties to reform title to
that property from being held in [husband’s] name alone to ‘[wife]
and [husband], a married couple as joint tenants’; [¶] . . . [¶]
THEY now agree as follows:
“1. Within 30 days of the execution of this agreement
[husband] shall sign an Interspousal Grant Deed transferring
title to the property . . . from himself, to the community as joint
tenants. It is the express intent of [husband] to acknowledge that
this property is a community property asset and that by signing
this agreement he is making an express declaration, in writing of
his intention to alter the character of this real property from
possible separate property to community property to be held in
joint tenancy with right of survivorship. The subject real
property will not be sold without the express written consent of
both parties. [¶] . . . [¶]
“5. The parties acknowledge and agree that they each
have had the opportunity to review this document with
independent counsel prior to affixing their signature hereto.
“6. The parties further acknowledge that the preparer of
this Agreement, [wife’s counsel], a member in good standing of
the Bar of the State of California is representing [wife] in the
preparation of this document, and [wife] has been expressly
advised of her right to seek legal assistance in its review.
[Husband] is representing himself. Each party has been
specifically informed that should he/she fail/refuse to seek legal
counsel to review this Agreement, absent a showing of intentional
fraud on the part of [wife] or his [sic] legal representative, she
[sic] may not challenge this Agreement on the basis of fraudulent
inducement.
8
“7. The parties further acknowledge and agree that they
are fully aware of and understand the contents, legal effect and
consequences of this Agreement, and that they enter into this
Agreement voluntarily, free from duress, fraud, undue influence,
coercion or misrepresentation of any kind. [¶] . . . [¶]
“9. In the event that either parent must file a legal
action to enforce this Agreement, the prevailing party shall be
awarded reasonable attorney fees and costs from the non-
compliant parent.
“10. This Agreement contains the entire understanding
and agreement of the parties, and there have been no promises,
representations, warranties, or undertakings by either party as
to the other, oral or written, of any character or nature, except as
set forth herein.”
On August 8, 2019, wife filed a request for orders. Among other
things, she sought an order appointing the clerk of the court to act as
elisor and sign an interspousal grant deed transferring title of the
marital residence from husband to the community as joint tenants
pursuant to the SPA (“Elisor Order”).6 Husband opposed wife’s request
for an Elisor Order, asserting that the parties’ interests in the marital
residence was an issue that “should be reserved for trial. . . . Whoever
is on the deed is not dispositive, the issue of whether the community
6 “The use of the term elisor may be technically inaccurate to
describe the persons appointed to execute deeds for recalcitrant
litigants who refuse to obey orders of the court. (See [Code Civ. Proc.,]
§ 262.8 denominating as an elisor one who executes process only under
certain circumstances having to do with the sheriff or coroner being a
party.) We recognize, however, that in common legal parlance the term
elisor is used to designate persons appointed to perform functions such
as the deed and document execution which is involved in this case.”
(Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635, fn. 2.)
9
holds an interest in the home is an issue that should be reserved for
trial.”
The request for an Elisor Order was considered by the trial court
at a hearing on November 7, 2019. Wife’s counsel argued the parties
had signed the SPA and, pursuant to that agreement, husband had
agreed to put wife’s name on the title to the marital residence
“purchased in 2016 during marriage using community property credit
and, essentially, paid for by the community that he had put in his name
alone. . . . He agreed that if he failed to do so he would be liable for
attorney’s fees. He’s failed, of course, to comply with any of those
promises that were made because we don’t believe he ever had any
intention of complying. His intention was to have her drop the
Domestic Violence Restraining Order, [but she did not vacate or
dismiss the dissolution action].” Wife’s counsel further asserted
husband had “failed to make mortgage payments. He refinanced the
mortgage in 2018. But we need to protect the asset. It is a community
asset. But mainly, . . . we’re asking the Court to appoint the clerk as
elisor to sign this document.”7
Husband’s counsel argued that “whether or not there is [a]
community interest in this house is an issue for trial.” When the court
noted that the SPA provided husband was to sign an interspousal
7 In his combined opening brief in case Nos. A160335 & A160735,
at pages 20–21 in footnotes numbered 3 through 9, husband challenges
the quoted statements made by wife’s counsel, but his factual
assertions are not supported by any citations to the record, and
according, we disregard them. (Falcon v. Long Beach Genetics, Inc.,
supra, 224 Cal.App.4th at p. 1267 [where a party has made numerous
factual assertions in their briefs without record citations, the appellate
court is entitled to disregard those unsupported factual assertions].)
10
transfer deed in favor of wife, counsel argued husband had an
“equitable defense.” The basis for this argument was that husband
signed the SPA under coercion and duress as he was “living in his car”
and not seeing his child, and wife said he could return to the home and
see their child if he signed the SPA. Husband’s counsel asserted the
court should not condone wife’s use of the outstanding DVRO “to
achieve some sort of community property leverage,” by communicating
to husband that he could “come back home and see [his child] if [he
signed] over the house.”
Following further argument, the trial court granted wife’s
request for an Elisor Order as the agreement “was signed by both
parties over a year ago,” and it made no mention that the consideration
for husband’s signature was that he would be allowed to return to the
marital residence.
b. Analysis
Husband makes several arguments in challenging the Elisor
Order, none of which requires reversal.
We see no merit to husband’s contention that the Elisor Order
should be reversed because the trial court failed to consider the August
2016 interspousal transfer deed by which the marital residence was
made husband’s “sole and separate property” (hereinafter “2016 deed”).
Husband cites no portion of the record indicating the court was asked
to consider the 2016 deed. He refers us only to a declaration filed on
February 2, 2018 and a declaration filed on August 4, 2020, documents
not shown to be before the court at the November 7, 2019 hearing.
Even assuming the court was made aware of the 2016 deed, husband
presents no cogent argument supported by legal authority as to how the
11
court’s knowledge of the 2016 deed would have impacted its ruling on
the request for an Elisor Order.
We also see no merit to husband’s argument that the SPA was
“invalid” for various reasons, including: (1) the SPA did not contain the
proper language transmuting the marital residence from husband’s
separate property to community property; (2) the SPA was given in
consideration for the removal of the DVRO that was granted based on a
false allegation; (3) husband paid the down payment on the marital
residence from funds in his separate bank account; (4) the SPA gave
unfair advantage to wife in the pending divorce proceeding; (5) wife’s
counsel “committed extortion” when she traded the DVRO for title to
the marital residence but kept the divorce proceeding alive for future
purposes; and (6) the SPA was not a fair trade because husband
previously had full ownership of the marital residence, almost 50/50
custody, and only six months left on the DVRO. At the November
7, 2019 hearing the trial court considered husband’s arguments, in the
form of an offer of proof by his counsel, and found them insufficient to
deny wife’s request for an Elisor Order.
Husband’s citation to statutory and case law governing spousal
transmutation of real property is not persuasive. The cited law merely
holds that whenever there is a transfer from one spouse to another a
rebuttable presumption of undue influence arises if the transaction
gives one spouse an unfair advantage over the other. (See In re
Marriage of Burkle (2006) 139 Cal.App.4th 712, 732.) No such unfair
advantage has been shown, especially given wife’s clear position at the
hearing that the status of the marital residence would be resolved at a
12
later trial and, in the interim, wife was only requesting that her name
be placed on the title.
Nor do we see any merit to husband’s contention that reversal of
the Elisor Order is required because he was prejudiced by the court’s
ruling. Husband makes only the purely speculative argument that
without the “unlawful” Elisor Order, “the parties would have settled
early in a fair agreement and the induced harm and injuries to the
child and . . . [husband] would have been prevented.”
III. March 4, 2020 DVRO and Related Child Custody and
Visitation Orders
Husband challenges the statutory basis and sufficiency of
evidence to support the trial court’s custody and visitation orders
issued on March 4, 2020 following the court’s grant of a permanent
DVRO in favor of wife and the child. We see no merit to these
arguments.
a. Applicable Law
In Family Code8 section 3020, “[t]he Legislature finds and
declares that it is the public policy of this state to ensure that the
health, safety, and welfare of children shall be the court’s primary
concern in determining the best interests of children when making any
orders regarding the physical and legal custody or visitation of
children. The Legislature further finds and declares that . . . the
perpetration of . . . domestic violence in a household where a child
resides is detrimental to the health, safety, and welfare of the child.”
(Id., subd. (a).) The Legislature has also found and declared that “it is
8 All undesignated statutory references are to the Family Code.
13
the public policy of this state to ensure that children have frequent and
continuing contact with both parents after the parents have separated
or dissolved their marriage, . . . and to encourage parents to share the
rights and responsibilities of child rearing in order to effect this policy
. . . .” (Id., subd. (b).) Nonetheless, “[w]hen the policies set forth in
subdivisions (a) and (b) of [section 3020] are in conflict, a court’s order
regarding physical and legal custody or visitation shall be made in a
manner that ensures the health, safety, and welfare of the child and
the safety of all family members.” (Id., subd. (c).)
Section 3027.1 provides, in pertinent part, that if a court
determines “an accusation of child abuse or neglect made during a child
custody proceeding is false and the person making the accusation knew
it to be false at the time the accusation was made, the court may
impose reasonable money sanctions, not to exceed all costs incurred by
the party accused as a direct result of defending the accusation, and
reasonable attorney’s fees incurred in recovering the sanctions, against
the person making the accusation. . . .” (Id., subd. (a).) “On motion by
any person requesting sanctions under this section, the court shall
issue its order to show cause why the requested sanctions should not be
imposed. The order to show cause shall be served on the person against
whom the sanctions are sought and a hearing thereon shall be
scheduled by the court to be conducted at least 15 days after the order
is served.” (Id., subd. (b).) “The remedy provided by this section is in
addition to any other remedy provided by law.” (Id., subd. (c).)
Section 3027.5 provides as follows: “(a) A parent shall not be
placed on supervised visitation, or be denied custody of or visitation
with the parent’s child, and custody or visitation rights shall not be
14
limited, solely because the parent did any of the following: [¶] (1)
Lawfully reported suspected sexual abuse of the child; [¶] (2) Otherwise
acted lawfully, based on a reasonable belief, to determine if the child
was the victim of sexual abuse; [¶] (3) Sought treatment for the child
from a licensed mental health professional for suspected sexual abuse.
[¶] (b) The court may order supervised visitation or limit a parent’s
custody or visitation if the court finds substantial evidence that the
parent, with the intent to interfere with the other parent’s lawful
contact with the child, made a report of child sexual abuse, during a
child custody proceeding or at any other time, that the reporting parent
knew was false at the time it was made. A limitation of custody or
visitation, including an order of supervised visitation, pursuant to this
subdivision, or a statute regarding the making of a false child abuse
report, shall be imposed only after the court has determined that the
limitation is necessary to protect the health, safety, and welfare of the
child, and the court has considered the state’s policy of ensuring that
children have frequent and continuing contact with both parents as
declared in subdivision (b) of Section 3020.”
Section 3044 provides, in pertinent part, that after “a finding by
the court that a party seeking custody of a child has perpetrated
domestic violence within the previous five years against the other party
seeking custody of the child . . ., there is a rebuttable presumption that
an award of sole or joint physical or legal custody of a child to a person
who has perpetrated domestic violence is detrimental to the best
interest of the child . . . . This presumption may only be rebutted by a
preponderance of the evidence.”
15
b. Relevant Facts 9
1. Husband’s Requests for Possession of the Marital
Residence and Child Custody and Visitation Orders
On July 30, 2019, while the parties were reconciled during the
pending dissolution proceeding, husband filed a request for “temporary
emergency orders” seeking sole possession of the marital residence, and
sole legal and primary physical custody of the child with wife to be
granted professionally supervised visits. The request was based on
husband’s allegation that wife had sexually abused the child as
evidenced by “a thumb drive of the video” recorded on cameras installed
in the living room of the marital residence.
The court denied husband’s request for immediate temporary
emergency orders and set the matter for a hearing on September 12,
2019, later continued to November 7, 2019.
2. Wife’s Request for Section 3027.1 Sanctions Against
Husband for Making False Allegation of Child Abuse
In response, on August 20, 2019, wife filed a request for section
3027.1 sanctions on the basis that husband “intentionally made a false
allegation of sexual molestation against me, in a document now part of
the public record. My attorney has requested he provide me a copy of
the alleged ‘video’ at least 5 times. His attorney has failed to provide
this video.”
9 Husband’s opening briefs do not present a cogent recitation of the
facts with record citations. Accordingly, we have endeavored to
ascertain the facts from the appendixes and reporter’s transcripts
submitted by husband.
16
The court ordered the request for sanctions to be considered at
the November 7, 2019 hearing.
3. November 7, 2019 Hearing
On November 7, 2019, the trial court convened a hearing to
resolve both husband’s requests for possession of the marital residence
and custody and visitation orders and wife’s request for section 3027.1
sanctions.
After hearing argument, the court invoked its authority under
section 3027.1 and set a hearing “within 15 days” for November 26 to
resolve the parties’ competing requests regarding whether husband had
made a false accusation of child abuse or neglect against wife, whether
to impose sanctions, and whether to make different custody orders as
permitted by section 3027.5. Husband’s counsel replied, “we would
welcome that . . . . I have the video that we’re talking about right here.
It’s not going to be false. It’s up for interpretation. It looks weird. I
have seen it myself. She’s on top of this child with her breasts all in his
face. . . . So you’re going to see that there is a good faith belief here.”
4. Wife’s Request for DVRO, Possession of Marital
Residence, and Child Custody
On November 18, 2019, wife filed a DVRO application seeking
protection for herself and the child based upon a number of incidents
that occurred September through November 2019. For example, on
October 3, 2019, husband “made a report to San Ramon Police. The
report stated he showed them a video of me and our son. [Husband]
had previously attempted, on July 30, 2019, to obtain an Emergency
Temporary Order by accusing me of sexually molesting our son. This is
a false and defamatory allegation and he knows it is false. The police
17
found nothing wrong. I DID NOT SEE THE VIDEO UNTIL
NOVEMBER 7, 2019 when [husband’s] attorney gave a copy to [my]
attorney at a hearing. I then realized he had hidden a camera in our
home. The thought that he was taping me without my consent and
controlling the video is extremely traumatizing for me. He has invaded
my privacy in a horrific way.” (Original capitals and bolding.) Further,
in November 2019, she discovered husband had “secretly installed a
recording/listening device in a fake ‘smoke detector’ ” “[i]n violation of
Penal Code [section] 647(j),” and Officer J. Nunn of the San Ramon
Police Department “came and amended his prior report dated 10/3/19 . .
. to include this violation.” Wife asserted she was “traumatized,
horrified and fearful that [husband] has shared personal, intimate
videos of me from the home with others. This discovery makes me
extremely fearful.”
5. November 18, 2019 Temporary DVRO
On November 18, 2019 the trial court issued an order granting
wife a temporary DVRO pending a hearing set for December 6, 2019.
The temporary DVRO required husband to move out of the marital
residence and granted wife sole legal and physical custody of their child
with no visitation granted to husband.
6. November 26, 2019 Hearing
On November 26, 2019, the trial court convened the scheduled
hearing that had been ordered on November 7.
The court began by stating it had reviewed “more than once” the
“flash drive which purportedly contain[ed] . . . some clips from a
surveillance camera in the home of the parties,” which had been
provided by husband’s counsel at the November 7 hearing. The court
18
stated that if the only evidence in support of husband’s request for
custody “is this little video from the household surveillance camera,
then there was no point in having a hearing because the Court does not
deem that anything on the video recording constitutes sexual abuse. If
there were some other evidence that was going to be presented, I will
hear it. But, if it’s based on this little flash drive with the video, I see
nothing in that video clip to suggest sexual or physical abuse [of] the
child. [¶] For the record, it is several minutes of [wife] playing on . . .
the floor with her son, rolling around on the carpet, the son appears to
be laughing, and I see absolutely no indication that there is abuse going
on.” Husband’s counsel confirmed he had no further evidence to
present.
After considering arguments, the court granted wife’s request for
sanctions in the sum of $5,000 in attorney fees to defend against
husband’s false allegation that she had sexually abused the child. The
sanctions were directed to be paid from husband’s equity share in the
marital residence at the time of the division of that property.
In its November 26, 2019 written order, the court ruled, in
pertinent part, as follows:
“The court states that it calendared a hearing . . . at
[husband’s] . . . [request] for hearing pursuant to Family Code
section[s] 3027.1, 3027.5 regarding false allegations of sexual and
physical abuse of the minor child . . . . The court further stated
that concurrent with this request, made by [husband] at the
hearing held 11.7.19, his then attorney . . . provided the court
with a [thumb drive] containing video clips of what [husband]
. . . alleged were incidents of sexual and/or physical abuse
perpetrated by [wife] . . . on the child. After having reviewed
several times the contents of the thumb drive, the court made the
follow[ing] express findings:
19
“The court found no evidence of any sexual or physical
abuse as alleged. The court noted the video showed several
minutes of [wife] playing on the floor with the minor child, who
the court notes was laughing and smiling during the time.
“Based on the above the court found no reasonable basis for
a belief that [wife] . . . had committed abuse of the child, sexual
or otherwise and ordered [husband] . . . to pay attorney fees as
sanctions . . . in the amount of $5,000. These sanctions shall
constitute a judgment as against [husband] . . . and may be paid
from his share of the equity in the [marital] home at the time of
division of that property.”
The court continued the matter to February 10, 2020 for a
hearing on wife’s request for a permanent DVRO. In the interim, the
court directed that all orders contained in the temporary DVRO would
remain in effect, except that husband was granted professionally
supervised visits (twice weekly, for three hours each), with husband to
pay 100 percent of the cost for supervision.
7. March 4, 2020 DVRO and Custody Order
On February 10, 2020 and March 4, 2020, the trial court held
hearings on wife’s request for a permanent DVRO and custody order.
Following the testimony of both parties, the court placed on the record
its detailed findings in support of the issuance of a two-year DVRO in
favor of wife, in pertinent part, as follows:
“Based on the record in front of me, the evidence presented
by the parties, and including the Court’s credibility
determinations of the parties – They’ve both testified extensively
in the Court’s presence, and I’ve had an opportunity to evaluate
demeanor, and overall . . . credibility.
“I find . . . by a preponderance of the evidence that [wife]
has met the standard for establishing domestic abuse. It is based
on . . . [husband’s] planting of the camera and use of that to make
false accusations against [wife] that she was sexually abusing
20
their son. [¶] This conduct occurred between approximately May
2019 and November 2019. This includes the planting of the
camera, and Judge Mockler’s eventual ruling on that sexual
abuse motion. [¶] This conduct constitutes abuse within the
meaning of the Domestic Violence [Prevention] Act. Under
[Altafulla v. Ervin (2015) 238 Cal.App.4th 571], [p]ages 578
through 580, the Court of Appeal found that conducting
surveillance and then distributing information from the
surveillance in a way that was calculated to cause and did cause
emotional distress warranted issuance of a domestic violence
restraining order after hearing.
“The same can be said here. I find that [husband] did
surveil [wife], and I do find [that] this was done secretly. I credit
her testimony that she was not informed by him that he was
planting the camera. He also made it clear that he was planting
the camera for the purpose of gaining some kind of advantage
over [wife].
“There was somewhat inconsistent testimony from
[husband] about the purpose for which he planted the camera.
He was saying that he did it as a deterrent to ensure that [the
child] would be protected, as he was clearly intending to use it to
prevent, to control her conduct, but at the same time, he also
testified, ‘I did not install the camera to use it against her,’ and
yet that is precisely what he did when he ultimately filed that
serious accusation of sexual abuse, which was found to have no
merit. [¶] He then tried to backtrack and say that in October of
2019 he told his attorney to dismiss the motion. He said that his
attorney filed it without his full blessing, and yet he appeared in
court in November of 2019 after the supposed October
communication with the attorney not to pursue it, and at that
juncture, it appears in November he was still apparently
pursuing the motion against [wife]. [¶] So I find his testimony on
why he planted the camera, and his purpose for . . . making the
false accusation to be inconsistent and not credible. I think what
was happening here was that he planted the camera precisely to
control [wife], and then used the results of the surveillance in a
manner that was calculated to cause and did cause [wife] great
emotional distress.”
21
“As [wife] testified at the last court date, when she saw the
camera footage, she was horrified, terrified. ‘It was a really bad
feeling. I don’t think anybody would understand completely my
situation and how I felt.’ I saw her demeanor. This was a very
harmful and damaging false accusation. That’s incident number
one.
“I also base my finding on the October 6th, 2019 incident
involving her carrying a tray with a watermelon and a large knife
in which [husband] tripped her. This was an unwanted touching,
and done in such a fashion that a reasonable person would have
known it would cause serious harm given the length of the blade
described credibly by [wife] as approximately eight inches.
“[Husband] disputes that this occurred, however, the Court
finds [wife] more credible. She acknowledged that she did not
know 100 percent if he tripped her intentionally, but then
provided reasons to support her belief that he did. [¶] Her reason
was that he was in the kitchen as she was leaving. They were
not walking next to each other. It’s not that he simply tripped
and stepped on her flip-flop. [¶] Moreover, . . ., he did not react in
a way a person who accidentally trips someone else would have
reacted. He didn’t apologize, inquire how she was. Instead . . .
he went to the sink and splashed water in her face with a smirk
in a demeaning fashion. [¶] Again, I credit [wife’s] account over
[husband’s], and this is based on the Court’s assessment of the
party’s demeanor while testifying in Court as well as [wife’s]
candid acknowledgement with respect to that issue and
throughout the proceedings as to what she knew and what she
didn’t know.”
The March 4, 2020 DVRO included an attached child custody and
visitation order. That order granted wife sole legal and physical
custody and granted husband professionally supervised visits (twice
weekly, for three hours each) and non-professionally supervised visits
(twice weekly, for up to three hours each). The non-professional
supervisor was to be mutually agreed upon by the parties; if the parties
22
could not agree, then wife would propose three persons and husband
could choose one of those three persons.
The court explained its reasons for continuing wife as sole legal
custodian of the child:
“The current custody order is sole legal to [wife], with
[husband] receiving two, three-hour professionally supervised
visits per week. I have reviewed the report[s] from the visit
supervisor, and they show a very positive relationship between
[husband] and his [child], and I want to be sure that [the child]
has the benefit of that continued loving bond. [¶] [Husband]
clearly loves his [child] very much, and I do not want to cut off or
hamstring that relationship or the continued growth and
development of that relationship, however, at this juncture, I do
not believe that the [section] 3044 presumption has been
rebutted, and sole legal [custody] will remain with [wife].”
The court explained its reasons for allowing both professional and
nonprofessional supervision of husband’s visits:
“I would like to increase the amount of visitation. . . . [¶]
On the one hand, I would like to maintain supervision because I
am concerned about [husband’s] conduct. I know he apologized at
the outset of [the March 4, 2020] hearing for storming out of the
court at the last proceeding, but his behavior in that proceeding
suggests to me, in conjunction with his conduct throughout the
history of this litigation, that he has not respected the authority
of this Court to issues orders, and to abide by those orders.
“At the last hearing [on February 26, 2020] the evidence
also indicated that he’s made cash deposits to pay his credit card,
which document various trips to China. I’m concerned there is
potential of flight risk. He’s made a false accusation against
[wife] of sexual abuse. I’m concerned he may do so in the child’s
presence and attempt to taint the son’s relationship with [wife],
so those would be the reasons why we should continue
supervision. [¶] . . . [¶]
“At the same time and on the other side of the ledger, it’s
very clear to me that [husband] and his son have a positive and
23
loving bond, and there’s an artificiality to the environment of the
supervised visit, and I’m concerned about interfering, again, with
the natural growth, and strengthening, and continuation of that
bond. [¶] I also am cognizant of the cost implications and don’t
want the financial issues to become a barrier to [husband] having
important and meaningful time with the child.”
8. August 10, 2020 Denial of Husband’s Request for
Order Modification
On August 10, 2020, the trial court convened a hearing to
consider husband’s March 9, 2020 request for an order (RFO) regarding
custody, visitation and “for property control.”
“[Husband] seeks to move back into the home and to take
care of the party’s minor son on a full time basis. After a lengthy
evidentiary hearing, the Court issued a 2-year DVRO on March 4,
2020. The Court will not require a domestic violence victim to
move out so that her abuser can have exclusive possession of the
home. [Husband] raises no issues in his RFO that would warrant
altering the custody and visitation orders currently in effect.
Although [husband] is not inappropriate with the minor,
supervised visits are still necessary as the Court finds [husband]
to be a flight risk. He has been evasive regarding his
whereabouts and the address that can be used for service in this
matter. Based on the entire record in this matter including the
prior testimony of the parties at the domestic violence trial
earlier this year, the Court is concerned that [husband] has
‘weaponized’ the minor son as part of his ongoing emotional
abuse and harassment of [wife] and presents a substantial risk of
fleeing with the child. The current custodial arrangement is
therefore in the best interests of the minor child. Visits shall
remain supervised.”
9. February 5, 2021 Denial of Request for Order
Modification
On February 5, 2021, the trial court convened a hearing to
consider husband’s request to modify legal and physical custody of the
24
child and the visitation schedule, which had been set by the March 4,
2020 orders.
After considering arguments, the court found husband had seen
the child only a few times since August 13, 2020 despite a visitation
order that allowed for significantly more visitation. Based on its
finding, the court denied the request to modify visits unless and until
husband participated in visits on a regular basis. The court also ruled
the existing order regarding legal custody would stand based on the
section 3044 presumption, and that the previously ordered DVRO, put
in place following an extensive hearing, should continue to be followed
by the parties.
c. Analysis
Husband presents an amalgamation of arguments that neither
individually nor collectively provide a basis for reversal of any of the
challenged orders.
Based upon the order in which the court held the hearings on the
parties’ various requests for relief, husband avers he did not receive
appropriate time or notice to rebut wife’s allegation that he made a
false claim that she sexually abused the child. We disagree. The
record shows the trial court first resolved husband’s request for custody
based on his claim that wife was sexually abusing the child, and then
proceeded to resolve wife’s requests for a DVRO and custody of the
child. Additionally, the record shows the court’s procedure was
expressly agreed to by husband’s counsel at the November 7, 2019
hearing, with no contention that section 3027.1 did not apply (the basis
now asserted on appeal). Nor did husband make any argument to the
trial court that section 3027.1 was unconstitutional because it
25
interfered with a parent’s duty to protect the child and results “in
silencing of concerns due to fear of being stripped of all rights to
parenthood.” Having failed to make these arguments in the trial court,
husband’s claims of error are forfeited. (See Fourth La Costa
Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 585
[constitutional issues not raised in the trial court are forfeited on
appeal].)
Husband also appears to contend that the November 26, 2019
order awarding sanctions to wife should be set aside because “there was
no evidence” and the court never made a specific finding, as required
under section 3027.1, that husband or husband’s counsel knew the
child abuse allegations were false when “made/filed” and husband knew
they were false “at the time of filing.” (Original italics and
underlining.) However, husband does not cite to any portion of the
record demonstrating that the court was ever asked to make specific
findings pursuant to section 3027.1. Instead, after the court ruled that
husband could not reasonably believe the video demonstrated abuse of
any kind, husband’s counsel informed the court that he had no further
evidence to offer and did not request that the court make any
additional findings. Having failed to request the specific findings he
contends he was entitled to under the statute, husband has forfeited
his claim of error on appeal. (See County of San Luis Obispo v. Abalone
Alliance (1986) 178 Cal.App.3d 848, 868 [where trial court considered
all criteria imposed by statute before concluding defendants were
entitled to relief, plaintiff’s failure to request a specific finding on a
criterion waived any objection to the lack of a finding].)
26
Similarly, we see no merit to husband’s contention that the trial
court misapplied section 3027.5, which prohibits a court from ordering
supervised visits, or denying custody to a parent, solely because the
parent did any of the following: (1) lawfully reported suspected sexual
abuse of the child; (2) otherwise acted lawfully, based on a reasonable
belief, to determine if the child was the victim of sexual abuse; or (3)
sought treatment for the child from a licensed mental health
professional for suspected sexual abuse. Husband’s contention fails
because it is premised on a false assertion. The trial court did not order
supervised visits and deny him custody based solely on his allegations
of wife’s sexual abuse of the child. Indeed, the record shows the court’s
order was based on other factors including that he had not rebutted the
presumption in section 3044 and he was a flight risk. Consequently,
husband’s claim of error fails.
In challenging the court’s factual finding that wife was entitled to
a DVRO, husband contends the court “wrongfully characterized” and
did not “give proper weight” to his testimony, and wrongfully gave
credence to wife’s “faulty credibility” and her description of “the
watermelon and knife story” that could not have occurred as described
based on “the laws of physics and human reflexes.” We decline to
address these contentions as husband has not tendered the issue,
“together with a fair summary of the evidence bearing on the
challenged finding, particularly including evidence that arguably
supports it.” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409–
410 (Huong Que).) “[W]hen an appellant urges the insufficiency of the
evidence to support the findings it is his duty to set forth a fair and
adequate statement of the evidence which is claimed to be insufficient.”
27
(Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14–15.) As a reviewing
court we are not required to “undertake an independent examination of
the record when appellant has shirked his responsibility in this
respect.” (Ibid.)
Likewise, we find unavailing husband’s contention that the
March 4 DVRO is not supported by Altafulla v. Ervin, supra, 238
Cal.App.4th 571 (Altafulla), which was cited by the trial court. The
Domestic Violence Prevention Act (DVPA; §§6200 et. seq.) defines
“ ‘[a]buse’ . . . as intentionally or recklessly causing or attempting to
cause bodily injury, . . . or engaging in any behavior that has been or
could be enjoined pursuant to section 6320. (§ 6203.) The behavior
outlined in section 6320 includes . . . disturbing the peace of the other
party . . . . (§ 6320.)” (Conness v. Satram (2004) 122 Cal.App.4th 197,
201–202.) Opinions have held that “ ‘the plain meaning of the phrase
“disturbing the peace” in section 6320’ ” may be properly understood as
conduct that destroys “ ‘the mental or emotional calm of the other
party.’ ” (Altafulla, supra, at p. 579, quoting In re Marriage of
Nadkarni (2009) 173 Cal.App.4th 1483, 1495 (Nadkarni).)
Hence, as a matter of law, the trial court could find that
husband’s conduct toward wife constituted abuse under the DVPA as it
involved his attempt to cause physical injury. In addition, his secret
video recording later used to make a false claim that wife was sexually
abusing the child caused and no doubt was calculated to cause wife
grave emotional distress. (See Altafulla, supra, 238 Cal.App.4th at
pp. 575–576, 579 [DVRO supported by evidence that the defendant
distributed emails to third parties complaining of plaintiff’s
unfaithfulness and attaching photographs of the plaintiff and a man
28
with whom she was having an affair; such distribution “did cause and
no doubt was calculated to cause, [the plaintiff] grave emotional
distress”]; Nadkarni, supra, 173 Cal.App.4th at p. 1498 [“the plain
meaning of the phrase ‘disturbing the peace’ in section 6320 may
include, as abuse within the meaning of the DVPA,” reading and
publicly disclosing confidential e-mails].)
Husband also makes various assertions in support of his
contention that the trial court erred in awarding sole custody of the
child to wife based on the rebuttable presumption in section 3044. We
decline to address his arguments as he cites no portion of the record in
which he presented these arguments in the trial court. Accordingly, we
deem this claim to be forfeited. (See People v. Saunders (1993) 5
Cal.4th 580, 590 [“ ‘ “[n]o procedural principle is more familiar to this
Court than that a constitutional right,” or a right of any other sort,
“may be forfeited in . . . civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine
it” ’ ”].)
IV. Child Support Arrearages
a. Relevant Facts
On February 28, 2018, following a hearing, the trial court issued
an order that, among other things, directed husband to pay child
support in the sum of $1,814 per month commencing February 15,
2018.
On January 17, 2020, wife filed a request for orders for: (1) child
support arrearages; (2) a child support security trust account; and (3)
bifurcation of the issue concerning the sale of the marital residence.
Wife asserted husband owed the total sum of $18,140 in child support,
29
accrued over 10 months. Wife also asserted husband had not paid
support in the past, was extremely secretive about his finances, kept
documents and cash in a briefcase to which she had no access, and
maintained a business in China and had bank accounts in China that
she could not access. Wife therefore asked the court to direct the
creation of a child support security account and that “$100,000” of
husband’s net share of the proceeds of the sale of marital residence be
placed in trust as security for future child support.
In seeking bifurcation of the issue of the sale of the marital
residence, wife asserted the parties’ estimated equity was $297,165
based on a valuation of $771,965 and outstanding mortgage of
$474,800. Wife further noted that child support arrearages would
reduce husband’s share of the equity to $120,000; wife sought $100,000
of husband’s equity to be held in trust as security for future child
support, with the balance to be held in trust pending further requests
for attorney fees or other orders. Wife also requested temporary
spousal support, which issue had not yet been addressed by the court.
On February 26, 2020, the trial court convened a hearing on
wife’s request for orders. At that time, the court was aware that
husband had filed a bankruptcy petition, which operated to stay the
sale of the marital residence. The bankruptcy petition did not impede
the court’s ability to make orders determining child support arrearages
or temporary spousal support. When informed that the bankruptcy
stay would be resolved by April 2, the court agreed not to consider
wife’s request to bifurcate the issue of the sale of the marital residence.
The court issued an order determining (1) husband owed child
support of $14,512 (February 28, 2018 to October 25, 2018) plus
30
interest of $2,902.40, and (2) husband owed unpaid child support of
$4,682 accruing interest at the rate of $1.26 per day until paid in full
for the period November 19, 2019 to February 26, 2020. Commencing
February 26, 2020, husband was ordered to pay $1,484 per month for
temporary child support and $1,320 for temporary spousal support.
The court also directed that the support amounts, including interest,
were “subject to retroactive modification.” In determining husband’s
support obligation, the court imputed income of $125,000 per year
based on its findings that husband had a Ph.D., was previously paid
$150,000 per year, was a highly skilled employee in a lucrative
industry, and was likely currently gainfully employed as evidenced by
his cash payments for his credit cards.
On August 10, 2020, the trial court convened a hearing on
husband’s request to set aside the February 26, 2020 order. The court
denied husband’s motion in a written order filed on August 10, 2020,
which stated, in pertinent part, as follows:
“First, [husband] contends that [wife’s] January 17, 2020
RFO [Request for Order] did not seek spousal support. Although
the cover sheet to the RFO (FL-300) did not check the box for
spousal support, [wife’s] 5-page declaration in support devoted
two pages to the issue, in a section captioned, in bold,
‘Petitioner’s Request for Spousal Support.’ Consistent with
[California Rules of Court, rule 5.92], Petitioner’s RFO ‘set forth
facts sufficient to notify the other party of the moving party’s
contentions in support of the relief requested.
“Second, [husband] contends that [wife’s] RFO did not seek
an income imputation. But [wife’s] declaration regarding spousal
support discussed at length [husband’s] earning capacity and the
income that should be attributed to him for purposes of a spousal
support order.
31
“Third, [husband] contends that [wife’s] RFO did not seek
child support and that the prior child support order in this
matter (FOAH [Findings and Order After Hearing] filed
February 28, 2018) had been terminated when the initial DVRO
in this matter was terminated on October 26, 2018. The October
26, 2018 order states: ‘Child custody, visitation (parenting time),
and child support orders in Restraining Order After Hearing
[form DV 130] . . . [a]re also terminated.’ But the initial child
support order was set forth in a FOAH filed February 28, 2018.
The May 29, 2018 DVRO did not order child support. The order
terminating that DVRO thus terminated the custody and
visitation orders set forth in the DVRO – but there were no child
support orders in the DVRO to terminate. Thus, the February
28, 2018 child support order had not been terminated and was in
effect at the time of the hearing on February 26, 2020. While
[husband] is correct that [wife’s] January 17, 2020 RFO did not
expressly seek a modification in child support, the Court finds
that [husband] suffered no prejudice from the Court’s February
26, 2020 order modifying child support. [Wife’s] RFO did seek
child support arrears, but not for the period after the issuance of
the February 28, 2018 child support order during which the
parties reconciled and were living together. The child support
order in effect at the time of the February 26, 2020 hearing was
the February 28, 2018 FOAH, ordering [husband] to pay $1,814 a
month in child support. Upon hearing [wife’s] RFO for spousal
support in February 2020, the Court adopted inputs for a new
dissomaster. These inputs resulted in a guideline child support
amount of $1,484, which is less than the prior operative order of
$1,814. Thus, [husband] would have been prejudiced had the
Court left the prior child support order in place (notwithstanding
the new inputs to the dissomaster). The Court’s order setting a
new child support amount in the February 26, 2020 FOAH
benefited [husband] by decreasing his monthly child support
obligations.
“Fourth, [husband’s] new counsel has recently [substituted]
into this matter and filed a reply brief on August 4, 2020.
Although this reply brief is untimely . . ., the Court will consider
it to avoid any meritless procedural objections to this ruling. The
reply brief raises various factual arguments about payments
[husband] has purportedly made and that should be credited
32
towards any support obligations. At the hearing, counsel for
[husband] also noted that [husband] was making mortgage
payments. [Husband] was aware in advance of the February
26, 2020 hearing of any payments he supposedly made. These
are not new facts and they form no basis for setting aside the
February 26, 2020 FOAH.[10]
“Fifth, [husband’s] counsel emphasized at the hearing that
[husband] was unrepresented at the February 26, 2020 hearing.
On the morning of the February 26, 2020 hearing, [husband]
requested a continuance. The Court denied the last minute,
morning-of request. [Husband] claims he was not aware of the
hearing but that is untrue. The Court had advised him
personally of the February 26, 2020 hearing on February
10, 2020, when the parties were before the Court on the domestic
violence matter. In addition, [wife’s] January 17, 2020 RFO
[request for order] had been personally served on [husband’s]
prior attorney (see Proof of Service, filed January 24, 2020), and
[husband] admitted that his prior attorney had provided him
with all the files before substituting out of the case. [Husband’s]
prior attorney substituted out of the matter, with [husband’s]
consent on February 7, 2020. [Husband] had almost three weeks
to find substitute counsel before the February 26, 2020 hearing.
[Wife] had an immediate need for support and a continuance
would have prejudiced her. At the same time, the Court did not
find good cause for [husband’s] eleventh-hour request for a
continuance of a hearing of which he was fully aware.
[Husband’s] lack of counsel at the February 26, 2020 hearing
does not warrant granting the relief requested[.] This is
particularly so because the main argument articulated by
[husband’s new] counsel in favor of setting aside the earlier
FOAH is that [husband] had actually made various payments.
These factual arguments, as noted above, were arguments that
10 At this point in the order, the trial court further stated: “Counsel
for [husband] argued at the hearing that support should not be
awarded for any period during which the parties reconciled. This is
legally irrelevant as the order for arrears excluded the period during
which the parties reconciled.”
33
[husband] was aware of and required no specialized legal training
to make.”
b. Analysis
Husband challenges the child support arrearages set forth in the
February 26, 2020 and August 10, 2020 orders. He complains the
court: (1) erroneously assumed child support was in effect from
November 2019 (when the parties separated for the second time) to
February 26, 2020, “but in fact the prior child support order was
equitably terminated at the time of reconciliation on 10/25/18;” (2)
failed to accept husband’s testimony and failed to give him additional
time to provide proof of a cashed check of “$3680” made payable to wife
as payment of child support; and (3) refused to allow him a continuance
at the February 26, 2020 hearing to present proof of a cashed check and
ignored the production of the cashed check at the August 10, 2020
hearing. Husband also avers wife lied regarding whether she received
any child support between February 2018 and October 2018. In sum,
according to husband, “[a]ssuming no other errors, the arrearage
amount drops from $19,195 to below $10,000. However, [husband] was
paying the mortgage, property tax and home insurance payments, a
total of $3,370 per month, when [wife] had the exclusive use of the
[marital residence] during the time between, Feb. 2018 and October
25th in 2018, the arrearage was calculated. . . . Such mortgage
payments should have been credited towards [husband’s] support
obligation. In re Marriage of Epstein (1979) 24 Cal.3d 76, 85.”
(Original italics).
Again, we decline to address husband’s arguments as he has not
tendered the issue, “together with a fair summary of the evidence
34
bearing on the challenged finding, particularly including evidence that
arguably supports it.” (Huong Que, supra, 150 Cal.App.4th at pp. 409–
410.) In support of his argument, husband cites to few and isolated
portions of the record: two pages of the February 26, 2020 hearing and
a declaration he filed on August 4, 2020. While we have a copy of the
reporter’s transcript of the February 26, 2020 hearing, we do not have
either a reporter’s transcript or settled statement of the August
10, 2020 hearing. Moreover, husband’s contention that his mortgage
payments should have been credited towards his support obligation,
pursuant to In re Marriage of Epstein, supra, 24 Cal.3d 76 (Epstein),11
is not persuasive. In Epstein, our Supreme Court held that under
certain circumstances a spouse’s payment of mortgage for the marital
residence may constitute a discharge in part of the duty to pay child
support. (Id. at p. 85.) However, husband presents no cogent
argument demonstrating the trial court committed prejudicial error by
rejecting his contention that his payment of mortgage payments should
have been found to be in discharge of his duty to pay child support.
In sum, because husband has not properly briefed the issue, his
claims of error regarding the awards of child support arrearages are
forfeited. (Landry v. Berryessa Union School Dist. (1995) 39
Cal.App.4th 691, 699 [appellate court ignores contention supported
only by citations to general law but no argument applying the law to
the circumstances of the case].)
V. Child Support Security Trust Account
a. Relevant Facts
11 Epstein was superseded by statute on other grounds as stated in
In re Marriage of Walrath (1998) 17 Cal.4th 907 at page 914.
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In her January 17, 2020 request for orders, wife sought to invoke
the court’s authority “to create a trust account for the purpose of
securing future child support,” pursuant to sections 4012 and 4600 et
seq.12 She asserted husband was then in arrears in the payment of
child support in excess of 60 days, had not made any partial payments,
and maintained bank accounts in China outside the reach of any
enforcement. She also asserted husband had “sufficient equity in the
[marital] residence” for the requested child support security trust
account and those funds could be used for future, unpaid support. Wife
further asserted that “section 4610, subject to sections 4613, 4614, and
4615, grant[ed] the Court the authority to make orders ‘requiring [a
payor parent] to deposit assets to secure future support payments with
the deposit holder designated by the Court.’ [¶] The conditions required
for the court to order the relief . . . are set forth in section 4613,” which
allows the court to issue such an order if “[t]he job history of the obligor-
parent shows that an assignment of a portion of salary or wages
pursuant to Chapter 8 (commencing with Section 5200), would be
difficult to enforce or would not be a practical means for securing the
payment of the support obligation, due to circumstances including, but
not limited to, multiple concurrent or consecutive employers” (id., subd.
(c)).” (Original italics.) Wife then asserted husband clearly fell within
12 Section 4012 states: “Upon a showing of good cause, the court
may order a parent required to make a payment of child support to give
reasonable security for the payment.” Section 4600 et. seq. provides
“an extraordinary remedy for cases of bad faith failure to pay child
support obligations,” allowing the court to require a parent to “deposit
assets to secure future support payments with the deposit holder
designated by the court.” (Id., §§ 4600, 4610.)
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subdivision (c) of section 4613 “as there are no practical means to
enforce a support order in China, where [he] is employed and where
[he] maintains a bank account.”
Following the February 26, 2020 hearing, the trial court issued
an order directing “the creation of a Child Support Security Trust
Account as requested by [wife] . . . to be secured by 100% of [husband’s]
. . . equity in the [marital] residence. . . .” Thereafter, following an
April 8, 2021 hearing, the trial court issued an order that: (1) granted
wife’s request to have the exclusive right to list and sell the marital
residence; (2) directed husband to cooperate fully with the sale
(including signing all necessary documents); and (3) if husband failed
or refused to sign all necessary documents, then the clerk of the court
was appointed to act as elisor and sign all documents to complete the
sale. The court found wife was entitled to $66,987.35, which sum
represented child support and spousal support arrears as of November
9, 2020. The court further directed that any remaining funds from the
sale of the marital residence were to be placed in a trust account to be
held pending further order of the court.
On April 15 and 19, 2021, husband made three motions including
a motion to vacate the February 26, 2020 order directing the creation of
the child support security trust account. On May 28, 2021, these
motions were considered at a hearing convened by the trial court. The
court took the matter under submission and, on June 2, 2021, issued an
order denying the motions after “review and consideration of the
moving papers and responses,” “extensive argument by counsel,” and
County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, as
requested by husband’s counsel.
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b. Analysis
Husband challenges the portion of the February 26, 2020 order
directing the creation of a child support security trust account to be
funded by 100 per cent of his equity in the proceeds of the sale of the
marital residence. In support of his argument, he contends the order
(1) improperly issued after the court was informed that husband had
filed a bankruptcy petition that stayed any actions to obtain the
debtor’s property or enforce a lien against the debtor’s property, and (2)
failed to comply with certain threshold findings and procedural
requirements enumerated in sections 4560, 4561, 4565, and 4613.
We decline to address husband’s contentions regarding the
creation of the child support security trust account as he has failed to
tender the issue, “together with a fair summary of the evidence bearing
on the challenged finding, particularly including evidence that
arguably supports it.” (Huong Que, supra, 150 Cal.App.4th at pp. 409–
410.) In support of his contentions, husband asks us to consider three
pages in the appendixes he filed in case No. A163530, as well as his
“Nov. 2, 2020, Request for Order” (no record citation), and his “Income
and Expense Statement of April 2018” (no record citation). He also
refers us to the hearing held on February 26, 2020, the court’s
February 26, 2020 order, and the June 2, 2021 order following the May
28, 2021 hearing. However, he cites to no portions of the reporter’s
transcripts of the February 26, 2020 hearing or the May 28, 2021
hearing. Because, as an appellate court, we are not “required to search
the record on [our] own seeking error” (Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768, we find husband has forfeited his
challenge to the court’s order directing the creation of a child support
38
security trust account. (Nwosu v. Uba, supra, 122 Cal.App.4th at
p. 1246 [appellant court will deem forfeited an argument that is not
supported with “necessary citations to the record”].)
VI. August 10, 2020 Order Awarding Sanctions Under Family
Code Section 271
a. Relevant Facts
On May 20, 2020, wife filed a motion seeking sanctions based, in
pertinent part, on husband’s filing of a request to set aside the
February 26, 2020 order without a legal or factual basis, and solely to
harass her. Sanctions were sought under both Code of Civil Procedure
section 128.7 and Family Code section 271.13
13 Section 271 provides:
“(a) Notwithstanding any other provision of this code, the court
may base an award of attorney’s fees and costs on the extent to which
the conduct of each party or attorney furthers or frustrates the policy of
the law to promote settlement or litigation and, where possible, to
reduce the cost of litigation by encouraging cooperation between the
parties and attorneys. An award of attorney’s fees and costs pursuant
to this section is in the nature of a sanction. In making an award
pursuant to this section, the court shall take into consideration all
evidence concerning the parties’ incomes, assets, and liabilities. The
court shall not impose a sanction pursuant to this section that imposes
an unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this section,
the party requesting an award of attorney’s fees and costs is not
required to demonstrate any financial need for the award.
“(b) An award of attorney’s fees and costs as a sanction pursuant
to this section shall be imposed only after notice to the party against
whom the sanction is proposed to be imposed and opportunity for that
party to be heard.
“(c) An award of attorney’s fees and costs as a sanction pursuant
to this section is payable only from the property or income of the party
against whom the sanction is imposed, except that the award may be
against the sanctioned party’s share of the community property.”
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The court granted wife’s request for sanctions “pursuant to
Family Code 271” in its August 10, 2020 order: “The Court agrees that
[husband’s] conduct throughout this litigation has been sanctionable,
including the meritless motion to set aside the February 26, 2020
FOAH [Findings and Order After Hearing]. [Husband’s] RFO [Request
for Order] seeks to relitigate issues after a contested a[nd] lengthy
hearing that he ultimately chose to walk out of. The Court agrees that
[husband’s] conduct has unnecessarily increased the cost of litigation in
this matter and wasted judicial resources. [Wife] currently has $21,500
in unpaid attorney’s fees. The Court is concerned . . ., however, that
[husband] does not have the present ability to pay in light of, among
other things, his pending bankruptcy action. The Court therefore
awards sanctions in the amount of $20,000 but stays the requirement
to pay this amount pending further information from the bankruptcy
case.”
In a footnote, the court referenced its authority to rule on the
request for sanctions “as it was made in connection with proceedings
related to ‘the establishment or modification of an order for domestic
support obligations’ and thus appears to fall under an express statutory
exemption from the automatic stay provisions of federal bankruptcy
law. (11 U.S.C. § 362(b).) Although the Court hereby grants the
sanctions request, it nevertheless will stay the requirement to pay
sanctions, pending resolution of the bankruptcy matter.” 14
14 After the issuance of the August 10, 2020 order, the Bankruptcy
Court entered an order on January 11, 2021 granting wife’s motion to
dismiss husband’s then pending Chapter 7 bankruptcy petition under
11 U.S.C. § 707(b)(3) as a bad faith filing.
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b. Analysis
Husband contends the $20,000 sanctions award was made in
violation of the procedural requirements for an award of sanctions
under Code of Civil Procedure section 128.7.
Concededly, wife requested sanctions under both Code of Civil
Procedure section 128.7 and Family Code section 271. However, the
trial court explicitly chose to award sanctions pursuant to Family Code
section 271, which request is not governed by the procedural
requirements for sanctions under Code of Civil Procedure section 128.7.
Because husband has made no argument that the trial court committed
reversible error or abused its discretion in awarding sanctions under
Family Code section 271, we do not further address his claim of error.
VII. Husband’s Contentions Regarding His Request for Epstein
Credits and Watts Reimbursement
Husband requests a remand for further proceedings based on his
contention that the trial court failed to consider his request for Epstein
credits and Watts reimbursement (hereafter Epstein/Watts request).
(See, Epstein, supra, 24 Cal.3d 76; In re Marriage of Watts (1985) 171
Cal.App.3d 366 (Watts).)15 We decline to review husband’s contention
15 Epstein, supra, 24 Cal.3d 76, held “ ‘that, as a general rule, a
spouse, who, after separation of the parties, uses earnings or other
separate funds to pay preexisting community obligations should be
reimbursed therefor out of the community property upon dissolution.’ ”
(Id. at p. 84.) Watts, supra 171 Cal.App.3d 366, held that “ ‘the trial
court erred in concluding that it had no authority to reimburse the
community for the value of [a party’s] exclusive use of the [marital]
residence . . . between the date of separation and the date [on which the
community itself no longer held an interest in the residence, which,
was the date on which the marital residence was sold].” (Id. at p. 374.)
Determinations of whether a spouse is entitled to Epstein credits and
41
as he has failed to provide us with an adequate record to consider the
issue.
Husband refers us to the portion of the record showing that on
two occasions the trial court deferred consideration of his
Epstein/Watts request. On November 9, 2020, the court deferred
consideration of the request to the trial on the disposition of the marital
residence. On April 8, 2021, the court deferred consideration of the
request to the trial on the distribution of the sale proceeds of the
marital residence. While husband asserts he raised the Epstein/Watts
request in his trial brief filed for the September 29, 2021 trial when the
court distributed the sale proceeds of the marital residence, he has not
submitted a reporter’s transcript or a settled statement of that
proceeding.16
In the absence of a record as to what occurred at the September
29, 2021 trial proceeding, we are in no position to evaluate any ruling
made by the trial court regarding husband’s Epstein/Watts request.
Watts reimbursement necessarily require the resolution of factual
issues entrusted to the trial court’s discretionary authority. (In re
Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272 [“Epstein does
not mandate full reimbursement in all cases, but allows the trial court
discretion to order reimbursement in an amount that is equitable”];
Watts, supra, at p. 374 [trial court’s award of Watts reimbursement
should be made “after taking into account all the circumstances under
which exclusive possession was ordered”].)
16 In this court, husband filed two notices designating the record on
appeal from the September 29, 2021 judgment. In both notices, he
marked boxes indicating he was choosing to proceed with a record of
the oral proceedings in the superior court by “attach[ing] a certified
transcript under [California Rules of Court] rule 8.130(b)(3)(C).”
However, the notices do not have attached a certified transcript of the
trial held on September 29, 2021.
42
Accordingly, his claim – that the trial court committed prejudicial error
by failing to consider his Epstein/Watts request – necessarily fails.
(See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1295 [appellants’
failure to furnish an adequate record of proceedings requires that their
claims be resolved against them]; Elena S. v. Kroutik, supra, 247
Cal.App.4th at p. 576 [“[i]n the absence of a proper record, which would
include either a reporter’s transcript or a settled statement (neither of
which we have in this case), we must presume the trial court acted
properly;” “[t]herefore, the judgment is correct and must be affirmed”].)
VIII. Husband’s Constitutional Arguments
Husband presents conclusory arguments contending the child
custody and support orders, along with the November 7, 2019 Elisor
Order, should be vacated “due to constitutional” violations of his rights
to equal protection and procedural due process under the Fifth and
Fourteenth Amendments of the United States Constitution. He does
not cite to any portion of the record showing that he challenged any of
the described orders on the constitutional grounds he now asserts on
appeal. Accordingly, we deem his constitutional arguments forfeited.
(See Jackpot Harvesting Co., Inc. v. Superior Court (2018) 26
Cal.App.5th 125, 154 [“[a]s a general rule, ‘constitutional issues not
raised in earlier civil proceedings are waived on appeal’ ”]; In re M.H.
(2016) 1 Cal.App.5th 699, 713 [by failing to raise the constitutional
challenge in the trial court, appellant forfeited the argument that a
statute violated the First Amendment]; Fourth La Costa Condominium
Owners Assn. v. Seith, supra, 159 Cal.App.4th at p. 585 [constitutional
issues not raised in the trial court are forfeited on appeal].)
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IX. Conclusion
We have made a concerted effort to address husband’s
arguments. Any issue not specifically mentioned is omitted due to his
failure to either present us with a proper record and/or make cogent
arguments supported by record citations and relevant legal authority.
DISPOSITION
The orders and judgment are affirmed. As no respondent’s briefs
were filed, no costs are awarded to either party. (Cal. Rules of Court,
rule 8.278(a)(5).)
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A160335/A160735/A163530
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