Rizzardi v. Superior Court CA3 ( 2022 )

Filed 6/28/22 Rizzardi v. Superior Court CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
RUSSELL RIZZARDI, C094713
Petitioner, (Super. Ct. No. 97FL03120)
v.
THE SUPERIOR COURT OF SACRAMENTO
COUNTY,
Respondent;
SANDRA RIZZARDI,
Real Party in Interest.
Petitioner Russell Warren Rizzardi (Russell), through a Petition for a Writ of
Review, asks this court to annul and set aside a May 17, 2021, Statement of Decision and
Order of Contempt (Contempt Order) and an August 4, 2021, order sentencing him to
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145 days in county jail (sentence). According to the Contempt Order, Russell is in
contempt of a July 1998 stipulated judgment that requires him to pay his ex-wife, Real
Party in Interest Sandra Lucille Rizzardi (Sandra) $1,700 per month in spousal support.
Russell’s argument that he is entitled to relief has two prongs. First, he argues
that, under the facts of this case, Sandra was obligated to prove he had the ability to pay
support beyond a reasonable doubt. Next, he argues that the trial court’s finding
regarding the extent to which he had the ability to pay was too vague and equivocal, and,
therefore, it cannot be sustained. We deny Russell’s request for relief.
FACTS AND HISTORY OF THE PROCEEDINGS
History Prior to 2019 Orders to Show Cause
Russell and Sandra were married in October 1976, and divorced in December
1997. On July 7, 1998, the Superior Court for County of Sacramento (trial court) entered
a stipulated judgment on reserved issues that ordered Russell to pay Sandra $1,700 per
month in spousal support until the death of either party, marriage of Sandra, or further
order of the court, whichever occurred first. Russell and Sandra did not have any
children together.
In April 2001, Russell married again. The marriage produced two children, one
was born in 2002 and the other in 2004. Russell and his second wife separated, and
entered into a judgment of legal separation in October 2010 in the Superior Court for the
County of Contra Costa. According to the terms of that judgment, Russell would pay his
estranged wife $5,200 per month in child support. The judgment also required Russell to
pay $15,000 per year to fund an educational account for each child —for a total of
$30,000—on the condition of his receiving a bonus, with Russell’s obligation to make a
payment for the educational fund of one of the children ending in 2021 and the other
ending in 2023.
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On April 30, 2015, the trial court found Russell in contempt for failing to make
spousal support payments to Sandra between May 2013 and September 2013, for a total
unpaid amount of $8,500. Russell was given until September 1, 2015, to comply with the
order, which he did not do. He was sentenced to 10 days in jail and served five.
On March 10, 2016, the trial court again found Russell in contempt for failing to
make 12 spousal support payments, totaling $20,400. Russell was given until June 15,
2016, to comply, which, again, he did not do. He was held in contempt and was
sentenced to (and served) 60 days in jail.
The trial court issued an order to show cause regarding contempt for failure to
make support payments on December 8, 2017, but the order to show cause was dismissed
prior to trial in June 2018, because Russell made some form of support payment.
In April 2018, Russell paid Sandra a total of $40,800, $20,400 of which covered
support owing from January thru December 2017.
Based on the record before us, it appears the other April 2018 payment of $20,400
may have been to settle the March 10, 2016, contempt order, but we cannot be certain. In
November 2018, pursuant to a court order, Russell began making monthly payments to
Sandra in the amount of $500 per month to pay down arrears on prior unpaid spousal
support payments.
Contempt Trial and Post-Trial Briefs
On September 20, 2019, and August 27, 2020, the trial court issued orders to show
cause as to why Russell should not be found in contempt for willfully violating the
spousal support order. The two orders to show cause were consolidated into one action,
and trial was held on February 18, 2021, and April 16, 2021. The trial covered Russell’s
nonpayment in his continuing support obligation from January 2018 through June 2020, a
30-month time period.
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Sandra testified that from January 2018 through June 2020, Russell paid nothing
of the $1,700 monthly amount due on his continuing support obligation to Sandra, and
Russell did not dispute this fact. She only received the April 2018 payments totaling
$40,800 that paid off some of his arrears for payments due before 2018, including
$20,400 worth that stemmed from nonpayment in 2017; and the $500 monthly arrears
payment, which began in November 2018.
Russell did not testify on his own behalf and exercised his right to not be called in
the case in chief of the other party.
The parties stipulated that Russell’s gross earnings were $183,895 in 2018;
$183,947 in 2019; and over $130,742.44 in January through June 2020. Based on the
paystubs Russell submitted, the gross earnings for the first half of 2020 included his
annual bonus. At the time of trial, to the extent possible, Russell’s child support
payments were collected directly from his paycheck. The parties stipulated to the
admission of a table capturing Russell’s take-home pay and payments to Sandra from
January 2018 through June 2020. The table recorded Russell’s take-home pay after child
support deductions. According to the table, if the $40,800 in payments on arrears Russell
made to Sandra came out of his take-home pay for 2018, his take-home pay was reduced
to -$470.52 per month in 2018, and it was $3,116.48 per month in 2019, and $3,150.76 in
2020.
Russell’s counsel argued that, with an average take home pay of approximately
$3,000, per month after the payment of his child support obligation, if Russell were to
make his monthly $1,700 payment to Sandra, the amount of funds he would have left to
live on would place him below the poverty guidelines.
Sandra’s counsel argued that Russell’s child support payment was in excess of
guideline amounts; that Russell had argued he is not able to pay spousal support in every
proceeding dealing with his obligation to pay Sandra for many years; and that when he
attempted to terminate his spousal support obligation in 2012 using the same argument,
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the trial court found Russell still had the ability to make the support payment, and that if
he was having difficulty making the payments he could go to the Contra Costa Superior
Court and seek a modification of that order that would enable him to both make a
reasonable child support payment in that matter and the spousal support order he had
agreed to pay Sandra.
After some discussion among the parties, the trial court observed that, because the
spousal support would be treated like a pre-tax deduction, the $1,700 per month actually
would have an impact on Russell’s net take-home pay of about $900 to $1,000, which
Sandra’s counsel argued was not too little for Russell to live off.
In post-trial briefing Russell argued that, though normally in a contempt hearing it
would be the defaulting spouse’s obligation to prove an inability to pay, given the length
of time that had passed since the entry of the spousal support order, it was Sandra’s
burden to prove he had the ability to make the spousal support payments under Mery v.
Superior Court (1937) 9 Cal.2d 379, 380-381 (Mery) and In re Ivey (2000)
85 Cal.App.4th 793, 798-799 (Ivey). He argued that the evidence before the trial court
demonstrated that, at most, Russell had an ability to make a partial—rather than whole—
payment on his continuing monthly obligation of $1,700 between January 2018 and June
2020.
Sandra argued that Russell’s reliance on Mery and Ivey was misguided given the
more recent history in the case, including the fact that in October 2018, the trial court
ordered Russell to make a $500 per month payment on his then-existing spousal support
arrears, implying that the trial court had concluded that Russel could pay $500 a month in
addition to the $1,700 he was already obligated to pay.
Contempt Order
The trial court issued its contempt order on May 17, 2021. In its analysis, the trial
court noted that Russell had failed to provide any authority to support “the proposition
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that the amount withheld under the child support withholding order is in itself evidence
that he lacks the ability to pay, or sets a ceiling regarding how much total support
[Russell] is required to pay amongst all obligors.”
The trial court acknowledged that the most recent available case law on the burden
of proof issue provides “that the passage of considerable time between the original
spousal support order and the charge of contempt shifts the burden to prove ability to pay
to” the person trying to collect unpaid support, and a 10-year gap is considered
substantial enough to warrant the shift. But the trial court also noted that, particularly in
light of various changes in statutory laws reflecting shifting policies since Mery was
decided in 1937, the reasoning in Mery may be out-of-date; and, to the extent Ivey may
have acknowledged the Mery rule, it did so in an instance where it ultimately decided the
passage of time was short enough that Mery would not apply.
The trial court also observed that, in this case, “the facts surrounding [Russell’s]
net income after taxes and child support [were] not contested. The issue was the
consequence of those facts in a trial asserting [Russell’s] contempt of court.”
The trial court then found that Sandra “has established beyond a reasonable doubt
that, while [Russell] could not have paid the entire $1,700 monthly support with only
$3,000/month of income, he had the ability to pay something over and above the
arrearage payment of $500. [Russell]’s evidence did not establish by a preponderance of
the evidence that he was incapable of paying any additional amount against the $1,700
per month continuing obligation.
“The fact that [Russell] chose to pay $500 on the support obligation, and not a
dollar more or a dollar less, appears to be an arbitrary decision not associated with
reasoned financial calculations. Since [Russell] did not pay any money against the
$1,700 per month when he could have paid something towards it each month, the court
finds [Russell] in contempt of court for each of the counts charged against him.
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“Evidence, both oral and documentary, having been received and considered, the
matter having been argued and submitted and good cause appearing therefor,
“The Court HEREBY FINDS that Russell Rizzardi, Petitioner herein, is guilty of
contempt of court on each of the 29 counts for failure to obey the stipulated judgment of
this court made on July 7, 1998, directing [Russell] to pay spousal support in the amount
of $1,700 per month to Respondent in that he knew of the foregoing order, had (and still
has) the ability to comply with the foregoing order, and willfully disobeyed the foregoing
order.”
The trial court then set the matter for sentencing.
Sentencing Hearings and Order
The trial court held a hearing to pronounce judgment and a sentence on June 1,
2021. Russell’s counsel requested that sentencing be delayed to another day. Citing
Lyon v. Superior Court (1968) 68 Cal.2d 446, he argued that while it was acceptable for
the trial court to make a finding of contempt based on partial ability to pay, there is a
“requirement of specificity” when the trial court pronounces the extent to which a
contemnor has the ability to pay. Counsel requested that the trial court make specific
findings regarding the extent to which Russell had the ability to comply, “so that
Mr. Rizzardi could have a chance to purge the contempt.”
The trial court responded that its problem with honoring the request was that
Russell had given it “no information” with which to make a calculation other than “ ‘I
can’t afford to pay anything.’ And as a result of that, how is the Court to make a
determination of whether he can afford to pay $1, $100, or $1,000.” After some
discussion between the court and the parties, it was agreed that they would continue the
hearing and Russell would submit both an income and expense declaration and guideline
child support calculations. Russell was given two weeks, until June 15, 2021, to submit
his papers, and another hearing was set for August 3, 2021.
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At the August 3, 2021, hearing, when the trial court asked if counsel had anything
further to say, Russell’s counsel again asked if, in line with Lyon, the trial court would
make a finding of whether the extent of Russell’s ability to pay the support was full or
partial, and “if it’s partial, what the amount of his ability to pay is so we can make some
arrangements further down the road.” The trial court stated that had Russell indicated he
would be making any payments, it would have been open to place him on probation, but
“I did not get anything from you indicating the desire to be put on probation in order to
be able to make payments.” The court added, “this court has already made the
determination that he’s able to pay and could have paid in full, and that at this point, there
would be no more need to continue the sentencing.”
The trial court then asked if there was anything specific Russell’s counsel wished
to bring up regarding his ability to pay, which might serve as a payment in substitute for
straight time. His counsel proposed, based on Russell’s stated expenses and child support
obligations, that his client should be able to pay $800 per month. After looking at the
guideline child support calculations Russell provided, the trial court determined that if
Russell were paying guideline child support amounts, his net monthly income would be
between approximately $7,000 and $8,000 after the child support payments were made.
The trial court was not inclined to accept payment of $800 per month on that basis.
When Sandra’s counsel proposed allowing Russell to serve probation on the condition
that he continue his $500 monthly arrears payment, meet his continuing obligation to pay
$1,700 a month in spousal support, and pay off the arrears for January 2018 through June
2020 at a rate of $4,108 per month for a total monthly payment of $6,308, Russell’s
counsel said that would not be doable.
The trial court sentenced Russell 5 days in jail for each of 29 counts, for a total of
145 days.
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Petition for Review, Stay, and Order to Show Cause
Russell sought to annul the contempt order and his sentence with a petition for
writ review in the appellate division of the Sacramento Superior Court. The superior
court determined it had no jurisdiction over the petition, and directed it to the attention of
this court. We treated the Petition for Writ Review as a petition for writ of mandate,
issued a stay of Russell’s jail sentence, and issued an order to show cause as to why the
relief Russell requested should not be granted.
DISCUSSION
I
The Record and Citations to It
In his reply brief, citing California Rules of Court, rule 8.204(a)(1)(C), Russell
asks us to “entirely disregard[]” factual assertions made by Sandra in her answer to his
petition on the basis that she fails to support those assertions with specific citations to the
record. “ ‘ “It 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.” ’ (Duarte v.
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856, [].) Because ‘[t]here is no
duty on this court to search the record for evidence’ (Belli v. Curtis Pub. Co. (1972)
25 Cal.App.3d 384, 394, fn. 5, []), an appellate court may disregard any factual
contention not supported by a proper citation to the record (Board of Administration v.
Wilson (1997) 52 Cal.App.4th 1109, 1154, []; Kim v. Sumitomo Bank (1993)
17 Cal.App.4th 974, 979, []).” (Grant-Burton v. Covenant Care, Inc. (2002)
99 Cal.App.4th 1361, 1379.) We will not exercise our discretion to disregard all facts
that Sandra has not supported with specific citations to the record here.
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II
The Trial Court Properly Found Russell in Contempt
Russell argues it was Sandra’s responsibility to prove he had an ability to continue
paying the spousal support order, that the trial court failed to reach a finding regarding his
specific ability to pay the order, and that, as a result we must discharge the contempt
order. We disagree.
A. The Trial Court Found Russell Could Pay All of the Support Order
We start by addressing the second half of Russell’s argument, namely his position
that the trial court failed to make a definite finding regarding his ability to pay. As
Russell aptly notes, case law suggests that when the trial court finds a contemnor has an
ability to pay an order, it is not sufficient that the contempt order say the contemner can
pay something; rather, the contempt order must indicate specifically how much the
contemner can pay. (See Lyon v. Superior Court of Los Angeles County, supra,
68 Cal.2d at p. 450 [“the requirement that the finding of ability to pay must be definite
and certain”]; Powers v. Superior Court of Shasta County (1967) 253 Cal.App.2d 617,
620 [voiding a contempt order in which the trial court found “that petitioner had the
ability to comply ‘in a much more substantial way than he actually did’ ”]; In re
Michelena (1957) 150 Cal.App.2d 377, 378 [“the phrase ‘to a greater extent[]’ . . . is a
relative phrase, and not subject to interpretation with any exactitude” and will not support
a finding of contempt].)
However, we disagree with Russell’s position that the trial court failed to make a
definite finding. The trial court found that, based on the evidence before it, Russell had
the ability to pay his entire monthly support obligation to which he had stipulated on
July 7, 1998.
After the trial court issued the contempt order, after Russell submitted an income
and expense declaration and guideline child support calculations, and after Russell’s
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counsel asked the trial to make a more specific finding regarding Russell’s ability to pay,
the trial court said on the record, “this court has already made the determination that he’s
able to pay and could have paid in full, and that at this point, there would be no more
need to continue the sentencing.” (Italics added.) Hence, the trial court found that
Russell had the ability to pay his spousal support obligation in full both when he was not
paying it over the years and at the time of sentencing.
B. Sufficient Evidence Supports the Trial Courts Finding
When courts of appeal review an adjudication of contempt, “ ‘the sole question
before us is one of jurisdiction of the trial court to render the judgment under review, and
in such a case the review of the evidence is limited to determining whether there was any
substantial evidence to sustain the jurisdiction of the trial court.’ [Citations.] . . . ‘[T]he
responsibility of the reviewing court is merely to ascertain whether there was sufficient
evidence before the trial court to sustain the judgment and order. The power to weigh the
evidence rests with the trial court.’ [Citations.]” (In re Buckley (1973) 10 Cal. 3d 237,
247.)
Here, Russell argues that, as part of her case, Sandra had the obligation to prove he
had the ability to pay the support order. Yet, because he takes the position that the trial
court did not find he could have paid a specific amount, Russell never reviews the
evidence submitted, nor does he argue that evidence was insufficient to support the courts
actual finding, which is that he had the ability to pay the support order “in full.” It is
significant that Russell, by entering into the stipulation for support in 1998, necessarily
agreed that he had the ability to pay Sandra $1,700 a month in support, a definite figure.
It is also significant that he did not in the many years that followed file a formal motion
to modify that support order.
Instead, Russell appears to use his burden of proof argument to suggest if the trial
court was unable to identify an exact number he should have been paying, that is because
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Sandra failed to meet her burden of proof. Given the history of Sandra’s efforts to
enforce the spousal support order and Russell’s history of ignoring it, we briefly discuss
the issue of the burden of proof as to Russell’s ability to pay.
Generally, “[t]he elements of proof necessary to support punishment for
contempt” due to failure to make payments on a support order “are: (1) a valid court
order, (2) the alleged contemnor’s knowledge of the order, and (3) noncompliance.
(Moss v. Superior Court (1998) 17 Cal.4th 396, 428 [] [(Moss)]; Code Civ. Proc., § 1209,
subd. (a)(5).)” (In re Marcus (2006) 138 Cal.App.4th 1009, 1014; see also In re
Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1152-1153 (Sachs).)
Notably, “in Moss[, supra,] 17 Cal.4th 396 [] [], our Supreme Court held that the
‘[a]bility to comply with a support order is not an element of the contempt which must be
proven beyond a reasonable doubt by the petitioner. Inability to comply is an affirmative
defense which must be proven by a preponderance of the evidence by the alleged
contemner.’ (Id. at p. 425.) ‘[A]bility to pay has traditionally been considered an
affirmative defense in contempt proceedings.’ (Id. at p. 426.)” (Sachs, supra,
95 Cal.App.4th at p. 1152; see also Ivey, supra, 85 Cal.App.4th at pp. 798-799.) Thus,
generally, in the context of considering contempt of support orders, once an aggrieved
party demonstrated the existence of a valid court order, the contemner’s knowledge, and
noncompliance “ ‘beyond a reasonable doubt the violation is established. He or she need
go no farther. To prevail on the affirmative defense of inability to comply with the
support order, the contemner must prove such inability by a preponderance of the
evidence.’ ([Moss, supra, 17 Cal.4th] at p. 428.)” (Sachs, supra, 95 Cal.App.4th at
pp. 1152-1153.)
In Mery, supra, 9 Cal.2d 379, 380, our Supreme Court observed that affidavits
charging contempt of support orders, at that time, generally did not need to allege the
contemner had the ability to comply with an order because “ ‘[w]here the ability of the
contemner to comply with the order has already been determined by the court, it has been
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held that it is only necessary that the affidavit allege the making of the order and the
refusal to comply with it.’ ” However, the Mery court would not allow a contempt
proceeding to issue on the basis that a 10-year-old support order demonstrated an ability
to pay, “ ‘because an adjudication of the defendant’s ability to pay in 1926 is no sound
proof of that fact under the conditions existing in 1936.’ ” (Id. at p. 380.) In Ivey, supra,
85 Cal.App.4th at pages 799 and 802, our Second District Court of Appeal cited Mery as
authority for the rule that “[a]bility to pay becomes an element of the contempt only
when the alleged contempt occurs many years after the underlying order,” but found that
the rule did not apply in that case.
Citing changes to the family law code since Mery was decided, the trial court
questioned whether the burden-shifting it applies to the issue of a support obligor’s
ability to pay has become out-of-date. Though we decline to suggest that Mery should be
overturned on this point, we find that, here, on this record, Sandra did not bear the burden
of proof regarding Russell’s ability to pay.
Referencing Moss’s discussion of contempt proceedings regarding child support
orders, and applying it to child and spousal support orders, Sachs lists three reasons why,
in most general contempt proceedings involving the alleged nonpayment on support
orders, a contempt petitioner does not have the burden to prove the alleged contemner
had the ability to pay and, instead, an alleged contemner may raise an affirmative defense
of—and take on the burden to prove—an inability to pay. (Id. at pp. 1153-1154.) “First,
‘[t]he ability of the parent to pay the amount of support ordered has [already] been
determined by the court that made the order.’ ([Moss, supra, 17 Cal.4th] at p. 428.) [¶]
Second, like the rule of convenience applicable to many defenses, ‘ “[t]he contemner is
the person in the best position to know whether inability to pay is even a consideration in
the proceeding and also has the best access to evidence on the issue, particularly in cases
of self-employment. Considerations of policy and convenience have led courts to
sanction placement of the burden of establishing a defense on defendants under similar
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circumstances . . . .” ’ (Moss, supra, 17 Cal. 4th at p. 427.) ‘Common sense dictates that
the contemner raise inability to pay.’ (In re Feiock (1989) 215 Cal.App.3d 141, 146 [],
overruled on another point in Moss, supra, 17 Cal.4th at p. 428.)” (Sachs, supra,
95 Cal.App.4th at p. 1153.) “Finally, we note that a spouse who is experiencing financial
difficulty in making support payments can avoid the possibility of contempt by filing an
application to reduce support and demonstrating a material change in circumstances.
(See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2001) PP
17:25 to 17:64.5, 17:135 to 17:232, 17:360 to 17:410, pp. 17-8 to 17-17, 17-32.3 to 17-
56.1, 17-82 to 17-90.2.)” (Sachs, supra, 95 Cal.App.4th at p. 1154.)
The Mery court shifts the burden due to a weakening of the first factor identified
by Sachs: given the passage of time, using the existing order to establish the obligor has
the ability to pay the award becomes a much less reliable proposition. Russell would
have us look to the date of the original spousal support order—1998—and say Sandra
must now forever bear the burden to prove his precise ability to pay support, despite the
facts that (a) he still has better information regarding his financial condition; (b) the more
efficient path to come up with a more up-to-date calculation regarding Russell’s ability to
pay remains with him to bringing a motion to modify the support order in which the
parties would file income and expense declarations and presumably not claim that to do
so violated their rights against self-incrimination; and (c) the trial court’s most recent
determinations regarding his ability to pay Sandra were not, in fact, in 1998; they were in
2015, 2016, and possibly 2018 and again, during this pending proceeding, in 2021. In
short, the policies favoring leaving the burden to prove inability to pay on Russell remain
valid. The risk of unfairness the Mery decision sought to avoid in shifting the burden
does not exist here.
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DISPOSITION
Russell’s request for writ relief annulling the trial court’s order and sentence is
denied. Real party in interest shall recover costs on appeal. (Cal. Rules of Court, rule
8.493.) The stay this court issued on September 16, 2021, is vacated.
HULL, J.
We concur:
ROBIE, Acting P.J.
EARL, J.
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