Marriage of Dougherty CA5 ( 2015 )

Filed 12/30/15 Marriage of Dougherty CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re the Marriage of KAREN CHERI and PAUL
J. DOUGHERTY.
PAUL J. DOUGHERTY, F068651
Respondent, (Super. Ct. No. VFL231978)
v.
OPINION
KAREN CHERI DOUGHERTY,
Appellant.
APPEAL from an order of the Superior Court of Tulare County. Brett D. Hillman,
Judge.
Law Office of Allen Broslovsky and Allen Broslovsky for Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for
Respondent.
-ooOoo-
Appellant appeals from the order on her former husband’s motion for modification
of spousal support. The order denied that motion, but also denied appellant’s request for
an increase in spousal support and for payment of specified expenses, and authorized
respondent to deduct a portion of the spousal support payments as payment of appellant’s
outstanding equalization obligation. We conclude the trial court properly considered all
of the relevant statutory factors in determining whether to modify the support award.
Further, appellant has not established any abuse of discretion in setting the support
amount, declining to assign the debts to respondent, or permitting respondent to make
deductions from spousal support for payment of the equalization obligation. Therefore,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2009, Paul J. Dougherty1 petitioned for dissolution of his marriage
to Karen Cheri Dougherty (Cheri). The parties had been married 25 years. In November
2009, the trial court entered a judgment of dissolution, status only. At the same time, the
trial court ordered Paul to maintain COBRA health insurance coverage for Cheri, or an
equivalent form of insurance if that was unavailable. In January 2010, the trial court
ordered Paul to pay Cheri $1,600 per month in spousal support. Subsequently, the trial
court ordered that, effective June 1, 2010, Cheri would be responsible for paying for her
own health insurance. In the October 17, 2011, judgment on reserved issues, the trial
court ordered Cheri to pay Paul an equalization payment of $6,931.68.
On July 3, 2013, Paul moved for modification of spousal support. He requested a
reduction in spousal support due to Cheri’s failure to use her best efforts to become self-
supporting. Additionally, he asked that the court award him $3,900 that was paid to him
as a result of a class action involving wrongful foreclosure on the parties’ house; he asked
that the funds be divided as community property, but that he be allowed to retain Cheri’s
share as an offset against the still-outstanding equalization payment. Further, Paul
requested he be allowed to deduct $500 per month from spousal support toward payment
of the equalization obligation.
1 For convenience and clarity, we will refer to these individuals by their first names
because they share a last name. No disrespect is intended.
2.
In Cheri’s response to Paul’s motion for modification, she opposed each of Paul’s
requests. She requested that the trial court increase her spousal support to $2,100 per
month, require Paul to pay an additional $359 per month for her medical and dental
insurance, award the entire $3,900 in dispute to her, and order Paul to pay her $969 for
outstanding registration fees on a vehicle she was awarded in the property division.
Cheri opposed allowing Paul to offset any amounts she owed him against the spousal
support; she requested Paul be ordered to pay her attorney fees.
On September 17, 2013, the trial court issued its order on the motion. It found no
change of circumstances that would warrant a modification of spousal support. It denied
Cheri’s request for reimbursement of the vehicle registration fees and her health
insurance premiums. The trial court found the disputed $3,900 to be a community asset
to be divided equally; it allowed Paul to retain Cheri’s share and apply it to her
outstanding equalization obligation. The trial court further permitted Paul to deduct $200
per month from the spousal support to apply to the equalization obligation until it was
paid in full. It ordered Paul to pay $1,300 to Cheri for her attorney fees, payable at $100
monthly. Cheri appeals from the order.2
DISCUSSION
I. Standard of Review
“The modification of a spousal support order is reviewed on appeal for abuse of
discretion. In exercising its discretion the trial court must follow established legal
2 Cheri’s second request to augment the record, filed July 6, 2015, is denied as to exhibits
A, B, and D. Cheri does not assert these documents were designated to be included in the record,
but were omitted by the clerk. (Cal. Rules of Court, rule 8.155(b)(1).) Nothing in the record,
including the docket, or in Cheri’s second request to augment, demonstrates these documents
were ever filed or lodged with the trial court. Accordingly, they are not proper documents with
which to augment the record. (Id., rule 8.155(a)(1)(A).) In light of the lack of opposition, the
second request to augment the record is granted as to exhibits C, E, and F. (Id., rule
8.155(a)(1)(A), (B).)
3.
principles and base its findings on substantial evidence. If the trial court conforms to
these requirements its order will be upheld whether or not the appellate court agrees with
it or would make the same order if it were a trial court.” (In re Marriage of Schmir
(2005) 134 Cal. App. 4th 43, 47, fn. omitted.)
II. Modification of Spousal Support Order
Spousal support is governed by statute. (In re Marriage of Cheriton (2001) 92
Cal. App. 4th 269, 302 (Cheriton).) When ordering or modifying spousal support, the trial
court must consider and weigh all of the factors set out in Family Code section 43203, to
the extent they are relevant to the particular case. (Cheriton, at p. 302; In re Marriage of
Shaughnessy (2006) 139 Cal. App. 4th 1225, 1235.)
“‘“Modification of spousal support ... requires a material change of circumstances
since the last order. [Citations.] Change of circumstances means a reduction or increase
in the supporting spouse’s ability to pay and/or an increase or decrease in the supported
spouse’s needs.”’” (In re Marriage of Bower (2002) 96 Cal. App. 4th 893, 899 (Bower).)
Cheri contends the trial court abused its discretion, both by failing to increase spousal
support in light of changes in her circumstances that increased her need for additional
support and by affirmatively reducing the amount of support she will receive.
A. Decrease in support
Cheri asserts the trial court improperly reduced her spousal support without
considering all the relevant factors set out in section 4320. The trial court, however, did
not reduce her spousal support. Rather, it found there were no changed circumstances
that warranted a reduction or increase in the award. Accordingly, the January 27, 2010,
order awarding Cheri $1,600 per month in permanent spousal support remained in effect.
3 All further statutory references are to the Family Code unless otherwise indicated.
4.
B. Failure to increase support
In response to Paul’s petition seeking a downward modification in spousal
support, Cheri filed a declaration requesting that her spousal support be increased to
$2,100 per month. She asserted her circumstances had changed for the worse since the
original support order, while Paul’s income had increased.
The January 27, 2010, order stated Paul was a correctional officer earning a gross
income of $66,863, which equated to $5,571.94 per month. He had remarried and was
then paying one-half the monthly rent and utilities for the couple’s residence. He
reported total monthly expenses of $2,875. Cheri was unemployed, attending college
part time. The parties’ two adult sons were living with her, but had no income and were
not contributing toward the household expenses. The order reflected Cheri contended she
was so disabled she was unable to work. Her doctor testified she suffered from
fibromyalgia, Addison’s disease, osteoporosis, and spinal compression fractures due to
osteoporosis. He opined she could engage in only part time employment, with no
standing, bending, lifting, or squatting. The trial court was “at a loss, frankly, to
understand why [the parties’ sons] should not be paying [Cheri] a reasonable rent, and, if
they will not, then why [Cheri] should not rent the bedrooms occupied by them to persons
who would.” The trial court found Cheri could work 20 to 25 hours per week at a non-
stressful job and could collect rent on the spare bedrooms in the family home. It awarded
Cheri $1,600 per month in spousal support.
In her declaration in response to Paul’s 2013 motion to modify spousal support,
Cheri stated her doctor declared her permanently and totally disabled as of February
2011. Thus, she could no longer work part time. Additionally, on August 1, 2013, she
was evicted from the family home due to foreclosure. She had not been making
mortgage payments during the four and one-half years the house was in foreclosure. Due
to the eviction, she stated, she would now have to begin paying rent. Additionally, she
would not be able to rent out rooms.
5.
Cheri also contended Paul’s income had increased significantly since the original
support order was entered. Although Paul reported base monthly pay of $6,310 in his
income and expense declaration, Cheri calculated from the year to date figures on his pay
stubs that he was earning approximately $8,400 per month, which presumably included
overtime pay. Paul’s 2013 income and expense declaration reported monthly expenses of
$9,393, compared with $2,875 in 2010; Cheri contended the substantial increase must
indicate he was including all household expenses, even though the declaration reflected
that his wife earned $6,000 per month and contributed to the household expenses.
Cheri contends the trial court abused its discretion in finding no material change in
circumstances warranting a change in spousal support. She contends the change to total,
permanent disability, the loss of the house and resulting inability to receive rent, the need
to pay rent, and Paul’s purported 30 percent increase in salary together constituted a
material change in circumstances that called for an increase in her support.
The trial court must recognize and apply each applicable factor in section 4320 in
setting spousal support. (Cheriton, supra, 92 Cal.App.4th at p. 304.) “The first of the
enumerated circumstances, the marital standard of living, is relevant as a reference point
against which the other statutory factors are to be weighed. [Citations.] The other
statutory factors include: contributions to the supporting spouse’s education, training, or
career; the supporting spouse’s ability to pay; the needs of each party, based on the
marital standard of living; the obligations and assets of each party; the duration of the
marriage; the opportunity for employment without undue interference with the children’s
interests; the age and health of the parties; tax consequences; the balance of hardships to
the parties; the goal that the supported party be self-supporting within a reasonable period
of time; and any other factors deemed just and equitable by the court.” (Cheriton, supra,
92 Cal.App.4th at pp. 303–304.)
The trial court has discretion to determine the appropriate weight to accord to each
factor. (Cheriton, supra, 92 Cal.App.4th at p. 304.) “In making its spousal support order,
6.
the trial court possesses broad discretion so as to fairly exercise the weighing process
contemplated by section 4320, with the goal of accomplishing substantial justice for the
parties in the case before it.… In awarding spousal support, the court must consider the
mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to
amount and duration of spousal support rests within its broad discretion and will not be
reversed on appeal absent an abuse of that discretion. [Citation.] ‘Because trial courts
have such broad discretion, appellate courts must act with cautious judicial restraint in
reviewing these orders.’” (In re Marriage of Kerr (1999) 77 Cal. App. 4th 87, 93, fn.
omitted.) “‘A trial court’s exercise of discretion will not be disturbed on appeal unless,
as a matter of law, an abuse of discretion is shown—i.e.,—where, considering all the
relevant circumstances, the court has “exceeded the bounds of reason” or it can “fairly be
said” that no judge would reasonably make the same order under the same
circumstances.’” (In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 479–480
(Smith).)
In orally ruling on the motion, the trial court discussed each statutory factor and
the relevant facts of this case. It noted the prior order’s finding that Cheri could work
part time and rent out rooms; it acknowledged the new evidence of disability and that
renting rooms was no longer an option. The trial court looked at Paul’s base salary of
$6,300 per month, and noted the base salary for a 40-hour work week was its usual
starting point in calculating spousal support. It found the difference between that salary
and the 2010 salary of $5,571 was “not a huge change in income.” Consistent with the
proscription in section 4323, subdivision (b), the trial court declined to consider the
income of Paul’s current wife in determining support. The trial court expressed concern
that Cheri’s income and expense declaration contained only estimates of her expenses;
without actual expenses, it found it difficult to determine her actual needs.
Cheri argues the trial court abused its discretion by not increasing spousal support.
She has not identified any statutory factor the trial court failed to consider in determining
7.
whether to modify support. In fact, her opening brief discusses the trial court’s
statements regarding each factor, demonstrating the trial court considered each factor in
reaching its decision. Essentially, Cheri simply disagrees with the weight given to
various facts and circumstances the trial court discussed in applying the statutory factors.
That disagreement does not permit this court to reverse the judgment of the trial court.
Cheri asserts she met the burden of showing a material change in circumstances
that warranted an increase in the support amount. The issue, however, is not whether the
trial court could have made a contrary decision based on Cheri’s showing; the issue is
whether the trial court abused its discretion by making the decision it did make.
Contrary to Cheri’s many representations about the change in Paul’s income, his
base salary had increased only about $700 since the time the original permanent spousal
support order was made.
Paul’s expenses had also increased, however. His income and expense declaration
reported expenses greater than his salary. It indicated his current wife paid some of those
expenses. The trial court apparently realized the declaration included Paul’s household
expenses, rather than his individual expenses. It noted that Cheri’s income and expense
declaration reflected twice as much expense as income, and commented that there was an
apparent disconnect between her income and expense declaration and reality. It did not
make a similar comment about Paul’s income and expenses. The trial court observed that
Paul had more assets than Cheri, but also that he had incurred substantial debt, including
a debt to the Internal Revenue Service (IRS). The monthly payment to the IRS was
$1,000. That payment alone exceeded the increase in Paul’s monthly base salary. While
the trial court should take into account the supporting former spouse’s overtime, how it
does so is within its discretion. “[A] supporting ex-spouse should not be penalized
because he or she works ‘excess hours’ or otherwise undertakes ‘an onerous work
schedule.’” (In re Marriage of Serna (2000) 85 Cal. App. 4th 482, 486.) Rather, the
parties’ standard of living during marriage and the supporting ex-spouse’s earning
8.
capacity generally should not be based upon an extraordinary work regimen, but instead
upon an objectively reasonable work regimen. (Ibid.) Thus, the trial court did not abuse
its discretion by focusing on Paul’s base salary.
The marital standard of living is not the absolute measure of reasonable need, but
merely a reference point against which all of the statutory factors may be weighed. (In re
Marriage of Nelson (2006) 139 Cal. App. 4th 1546, 1560.) Spousal support is not required
to meet all the needs of the supported spouse as measured by the marital standard of
living; in most instances, it is impossible for either party to continue in the same lifestyle
because of the expense of supporting two households instead of one. (Smith, supra, 225
Cal.App.3d at pp. 488–489.)
Whether the parties were living beyond their means during their marriage is also
an appropriate factor for the trial court to consider along with other factors. (In re
Marriage of Ackerman (2006) 146 Cal. App. 4th 191, 208 (Ackerman).) “A spouse
‘cannot reasonably demand support at the actual marital standard of living if that standard
had itself been unreasonably high under the circumstances.’” (In re Marriage of
Williamson (2014) 226 Cal. App. 4th 1303, 1316.) The original order setting permanent
spousal support stated that, during marriage, the parties had a middle class standard of
living while Cheri was working; when she ceased working, however, the parties incurred
substantial debt. Both parties filed for bankruptcy to discharge that debt while the
dissolution action was pending.
We note that equality of postdissolution income is not a factor to be considered
under section 4320. It is the supported spouse’s needs, not the supporting spouse’s
postdissolution separate property earnings or standard of living that must be considered.
(Ackerman, supra, 146 Cal.App.4th at p. 209.)
“‘In order to qualify for an increase in spousal support, the supported spouse must
demonstrate two things: first, that material circumstances have significantly changed
since the time of the last prior award and, second, that the reasonable present needs of the
9.
supported spouse are not being satisfied.’” (In re Marriage of Hoffmeister (1987) 191
Cal. App. 3d 351, 363.) The income and expense declaration Cheri submitted in support
of her request for increased spousal support contained only estimates of her monthly
expenses. The trial court was concerned that it did not have an accurate picture of her
needs because it did not have evidence of her actual expenses. Cheri’s responsive
declaration stated she had been evicted from the family home and had temporary housing,
but would soon have to begin paying rent. Although Cheri may have needed to estimate
her future rent because she had not yet rented a residence, she did not explain why all of
the expenses she included in her income and expense declaration were identified as
estimates. A trial court is not required to accept the supported spouse’s estimates or
projections of future expenses in making its determination of an appropriate level of
support. (Ackerman, supra, 146 Cal.App.4th at p. 208; Smith, supra, 225 Cal.App.3d at
p. 487.) The trial court did not abuse its discretion by considering the lack of solid
evidentiary support for Cheri’s claimed expenses in balancing the section 4320 factors.
The trial court has broad discretion in balancing the statutory factors. (In re
Marriage of Baker (1992) 3 Cal. App. 4th 491, 498.) “Considering the myriad of factual
circumstances which the trial court must consider in making its order, it is the rare case
… where a court is duty bound to exercise its discretion in only one way.” (Ibid.) We
cannot reweigh the evidence, rebalance the statutory factors, or substitute our judgment
for that of the trial court. (Ibid.) “Where the issue on appeal is whether the trial court
abused its discretion, the showing necessary for reversal is insufficient if it merely
emphasizes facts which afford an opportunity for a different opinion. [The appellant]
must show ‘that no judge would reasonably make the same order under the same
circumstances.’” (Ibid.) Cheri has not shown that the trial court’s determination
exceeded the bounds of reason or that no judge would reasonably make the same order
under the same circumstances. (Ibid; Smith, supra, 225 Cal.App.3d at p. 480.) Thus, she
has not demonstrated an abuse of the trial court’s discretion
10.
III. Offsetting $200 of Spousal Support Against Equalization Payment
In the 2011 judgment on reserved issues, the trial court divided property and debts
of the parties; it ordered that Cheri owed Paul an equalizing payment of $6,931.68. At
that time, the trial court declined to authorize Paul to offset any portion of the equalizing
payment against the spousal support payments.
In his 2013 request for modification of spousal support, Paul represented that none
of the equalizing payment had been paid yet. He asked that he be allowed to reduce his
monthly spousal support payments by $500 as payment of the debt until it was paid in
full. The trial court permitted him to deduct $200 from the spousal support payments
until the equalizing payment was paid in full. Cheri contends the trial court abused its
discretion by permitting Paul to make that offset, because it reduced the amount she
would receive per month.
Cheri cites no authority that allows her to let years pass without making any
payment to reduce the debt. Both parties cite Keck v. Keck (1933) 219 Cal. 316. In Keck,
the husband was ordered to pay alimony to his wife. When $2,587.50 had accrued but
had not been paid, the trial court ordered the husband to pay the wife $1,000 in full
settlement of his alimony debt. (Id. at p. 319.) The husband claimed this was proper
because the wife owed him a preexisting debt greater than the difference between the two
amounts. The court, however, stated the obligation to pay alimony is not an ordinary
debt. (Ibid.) Unless the alimony decree so provided, a husband could not offset his
obligation to pay monthly alimony against his wife’s debt to him. (Id. at pp. 319–320.)
An alimony decree could be modified as to future installments, but not as to already
accrued installments. (Id. at p. 320.) In dicta, the court added: “We are inclined to the
view that where a liberal support allowance suitable to the circumstances and financial
condition of the parties is made, the court should have the right in a proper case to
provide as a part of the decree that the husband may withhold a portion of the allowance
each month in payment of his wife’s indebtedness to him.” (Ibid.) The decree for
11.
alimony did not contain such a provision, however. The subsequent order discharging
part of the husband’s accrued alimony debt by offsetting it against the wife’s preexisting
debt constituted an impermissible modification of accrued installments. (Id. at p. 321.)
Accordingly, the order was reversed. (Id. at p. 322.)
The trial court’s order in the present case did not attempt to offset a preexisting
debt against accrued support payments. It authorized Paul to use a portion of future
support payments as an offset against the equalizing payment. Thus, the order was
consistent with Keck.
Cheri asserts the September 17, 2013, order is an impermissible collateral attack
on the October 17, 2011, final judgment awarding spousal support, in which the trial
court refused to allow an offset. The effect of the September 17, 2013, order, however,
was to supply terms of repayment omitted from the final judgment and necessary to give
effect to that judgment.
On dissolution of a marriage, the trial court is required to divide the community
property equally between the parties. (§ 2550.) The trial court may award a community
asset to one party “on such conditions as the court deems proper to effect a substantially
equal division of the community estate.” (§ 2601.) Where, because of the nature of the
assets, the community property cannot be readily divided equally in kind, the court may
order one party to make an equalizing payment to the other party. (In re Marriage of
Bergman (1985) 168 Cal. App. 3d 742, 746; In re Marriage of Tammen (1976) 63
Cal. App. 3d 927, 929–930.) Generally, unless the payment can be made in cash, when an
equalizing payment is used to divide the community property equally between the parties,
the debtor spouse executes a promissory note, approved by the court, which specifies an
appropriate interest rate and due date. (See, e.g., Bergman, at pp. 761–762; In re
Marriage of Slater (1979) 100 Cal. App. 3d 241, 248; In re Marriage of Horowitz (1984)
159 Cal. App. 3d 368, 371.) “Courts have discretion to use promissory notes for relatively
short periods at reasonable interest rates.” (Bergman, at p. 761.) The court need not
12.
require interest at the legal rate applicable to judgments. (In re Marriage of Escamilla
(1982) 127 Cal. App. 3d 963, 967.) If payment is deferred for an extended period, without
interest, the actual value of the note will be less than the face value, resulting in an
unequal division of the parties’ property. (Horowitz, at p. 372.)
Here, the trial court entered a judgment on reserved issues that required Cheri to
make an equalizing payment to Paul, but neglected to specify the terms of payment or to
require Cheri to execute a promissory note containing such terms. By its September 17,
2013, order, the trial court effectively set a repayment schedule. Cheri has an obligation
to make the equalizing payment to Paul in order to effectuate the equal division of
property to which both parties were entitled. The obligation cannot simply be postponed
indefinitely. Cheri has not shown that the trial court abused its discretion by permitting
Paul to deduct payments toward the equalization obligation from the spousal support
payments.
By permitting Paul to deduct a specified amount monthly as payment of the
equalization obligation, the trial court has effectively established a payment schedule for
the debt. The trial court, however, did not rule on the question whether, and at what rate,
interest would accrue on the unpaid balance. We will remand to the trial court for a
determination of that issue.
IV. Health Insurance
In her opposition to Paul’s request for modification of spousal support, Cheri
requested that the trial court order Paul to pay her an additional $359 monthly to cover
the cost of a health and dental insurance policy. She stated Paul was ordered to pay for
her health insurance in connection with the November 9, 2009, judgment terminating
status. She asserted he made only one payment thereafter, then terminated the insurance.
The trial court denied Cheri’s request.
Although the November 9, 2009, judgment was not made part of the record, the
reporter’s transcript of the hearing reflects that the trial court ordered Paul to maintain all
13.
of Cheri’s existing health and medical coverage, either by paying for Cheri’s COBRA
coverage or, if it was unavailable, by purchasing an equivalent form of insurance. The
trial court indicated the requirements of section 2337 were to be met, and Paul’s counsel
represented he had drafted a document that included all the requirements of that section.
Section 2337 authorizes the trial court to sever and grant an early trial of the issue of
dissolution of the status of marriage, and permits the trial court to impose specified
conditions on granting the severance. (§ 2337, subds. (a), (c).) One of the permissible
conditions is that the requesting party maintain all existing health and medical insurance
coverage, or comparable coverage, for the other party, until the judgment on all
remaining issues has been entered and become final. (§ 2337, subd. (c)(2).)
The same judge who made the November 9, 2009, order requiring Paul to
maintain Cheri’s health insurance entered an order on May 26, 2010, requiring that Paul
pay the cost of reinstating Cheri’s health insurance coverage, then deduct that cost from
his spousal support payments. The judge further ordered that Cheri be responsible for her
monthly insurance premiums effective June 1, 2010.
In support of her request for an order requiring Paul to pay for her health
insurance, Cheri argued in the trial court that Paul had been ordered to pay for it in
November 2009, he had made only one payment, and her health had declined because of
lack of insurance and the resulting lack of proper medical treatment. Her argument
ignored the subsequent order making Cheri responsible for her own health insurance,
effective June 1, 2010. In light of the later order, Cheri has not shown the denial of her
request was an abuse of discretion.
In her appeal, Cheri argues for the first time that the requirements of section 2337
should be enforced. Cheri contends Paul should be ordered to pay all of Cheri’s medical
expenses, or at least the cost of health insurance, for the period from the date of
bifurcation (November 9, 2009) to either the date of the judgment on reserved issues or
June 1, 2010.
14.
“Ordinarily, issues not raised in the trial court proceedings are waived.”
(Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal. App. 4th 559,
574.) Further, the time to raise the issue was in May 2010, when the trial court addressed
the issue of reinstatement of Cheri’s health insurance and payment of the premiums for it.
At the very least, the issue should have been raised before the final judgment on reserved
issues was entered in the dissolution action. That judgment is final, and the time for
reviewing it has passed. Consequently, we will not consider this belated argument.
V. Settlement Check of $3,900
In May 2013, Paul received by mail two checks, totaling $3,900, from
Independent Foreclosure Review. The checks were made out to both Paul and Cheri and
required signatures of both parties to negotiate them. Paul deposited them in his
checking account. Cheri claimed an interest in the funds, and the bank held the funds
pending resolution of the dispute. Paul’s request for modification of spousal support
sought the trial court’s determination that he be allowed to keep Cheri’s half of the funds
and credit it against the outstanding equalizing payment.
The letters that accompanied the checks were addressed to Paul and stated he was
eligible to receive payment as a result of an agreement between federal banking
regulators and Litton, a loan servicer, “in connection with an enforcement action related
to deficient mortgage servicing and foreclosure processes.” It further stated: “Regulators
determined your payment amount based on the stage of your foreclosure process and
other considerations related to your foreclosure.”
In her opposition to Paul’s motion, Cheri claimed entitlement to the entire $3,900.
She asserted Paul abandoned the house when they separated in January 2009 and he
stopped making the mortgage payments. The property entered foreclosure in May 2009,
and “the illegal foreclosure was recorded” on May 31, 2011. Cheri contended Paul
surrendered his interest in the property to the bank in his bankruptcy proceeding. She
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asserted she was evicted from the house on August 1, 2013, after fighting the foreclosure
for four and one-half years.
At the hearing of Paul’s motion, Cheri’s attorney represented that the $3,900
payment was not made because of an illegal foreclosure, but because Cheri’s request for
a loan modification, made after the final dissolution was entered, had been denied. Paul’s
attorney objected to the document Cheri’s attorney offered to prove that claim, and the
court sustained the objection. On appeal, Cheri has made no argument that the proffered
document was admissible and was improperly excluded from evidence.
A judgment or order of the trial court is presumed to be correct on appeal, and
error must be affirmatively shown. (Bower, supra, 96 Cal.App.4th at p. 898.) No
evidence was admitted in the trial court to show Cheri made a request for loan
modification, much less that the $3,900 payment was made as a result of the denial of
such a request. Cheri points to no evidence in the record and presents no legal argument
in support of her assertion that Paul abandoned the property on separation or by failing to
make mortgage payments. We note Cheri admits she also made no mortgage payments
during the four and one-half years the house was in foreclosure.
Cheri inaccurately represents that Paul gave his one-half interest in the house to
her and that the trial court “ruled” Paul was to quitclaim the house to her.4 She
apparently refers to the transcript of the January 21, 2010, hearing on spousal support,
which reflects that Paul’s attorney indicated Paul was willing to quitclaim the house to
Cheri. The attorneys recognized he could not do so at that time because of a bankruptcy
4 Cheri’s briefs contain a troubling number of statements of fact that are unsupported by
any reference to the record, that cite passages in the record that do not support the statements
made, or that mischaracterize the content of the record. “Each and every statement in a brief
regarding matters that are in the record on appeal … must be supported by a citation to the
record.” (Lona v. Citibank, N.A. (2011) 202 Cal. App. 4th 89, 96, fn. 2.) This is true throughout
the brief, not just in the statement of facts section. (Ibid.) Representations regarding the facts
contained in the record must also be accurate. (Myers v. Trendwest Resorts, Inc. (2009) 178
Cal. App. 4th 735, 745.)
16.
stay, and there is no evidence a quitclaim deed was ever executed.5 The formal order
entered after that hearing contained nothing regarding quitclaiming the house to Cheri.
Cheri failed to present any legal authority concerning the effect Paul’s bankruptcy
filing, in which he indicated he intended to surrender his interest in the house to the bank,
had on the parties’ respective interests in the house for purposes of the dissolution
proceeding. “When an appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the point as waived.”
(Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 852.)
The trial court found the $3,900 payment was a community asset to be divided
equally. Cheri has not demonstrated any error in that finding.
VI. DMV Fees
In her response to Paul’s request for modification of spousal support, Cheri
asserted there was an outstanding debt owing to the Department of Motor Vehicles
(DMV) for registration of a vehicle the parties owned during marriage. The fees
apparently were for the years 2009 and 2010, and the due dates for payment were August
31, 2009, and August 31, 2010. Cheri asserted the fees were inadvertently left out of the
judgment on reserved issues.
Paul declared Cheri had sole use and possession of the vehicle after their
separation in February 2009. Further, the trial court awarded the vehicle to her in the
judgment on reserved issues. Cheri argued she did not have sole possession of the
vehicle after separation, asserting it was not operational at that time. She produced no
evidence in support of either statement: that she did not have sole possession or that the
vehicle was not operational. The trial court denied her request for the DMV fees.
Other than debts for common necessaries of life, debts incurred by either spouse
after the date of separation but before entry of a judgment of dissolution are debts of the
5 In fact, in her reply brief Cheri concedes Paul never executed a quitclaim deed to her.
17.
spouse who incurred the debt. (§ 2623, subd. (b).) Likewise, debts incurred after the
judgment of dissolution of marriage has been entered and become final are the separate
debts of the party who incurred them. (See § 2624.) A debt that does not arise out of a
contract or a tort is incurred at the time the obligation arises. (§ 903.)
The parties separated in January or February of 2009. The judgment of dissolution
as to marital status only was entered on November 9, 2009. The registration fees came
due on August 31, 2009, and August 31, 2010, and were therefore incurred on or about
those dates. The fees were incurred after the date of separation and fell within the
provisions of sections 2623 and 2624; thus, they were debts of the spouse who incurred
them. Although Cheri denied the vehicle was operational,6 she presented no evidence to
contradict Paul’s evidence that the vehicle was in her exclusive possession and control
after separation, and therefore at the times the fees became due. Accordingly, the trial
court did not abuse its discretion by denying Cheri’s request to require Paul to pay all or
one-half of the registration fees.
6 The Vehicle Code contains provisions for deferring registration of a nonoperational
vehicle. (Veh. Code, § 4604.)
18.
DISPOSITION
The order on Paul’s motion for modification of spousal support is affirmed. We
remand, however, for the trial court to resolve the unaddressed issue regarding whether,
and at what rate, interest should accrue on the unpaid balance of the equalizing payment.
Paul is entitled to his costs on appeal.
______________________
HILL, P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
DETJEN, J.
19.