Marriage of Slotkin CA2/4 ( 2016 )

Filed 8/17/16 Marriage of Slotkin CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of GAIL SLOTKIN and B262045
MARK SLOTKIN.
(Los Angeles County
GAIL SLOTKIN, Super. Ct. No. BD531307)
Respondent,
v.
MARK SLOTKIN,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Stephen M. Moloney, Judge. Dismissed.
Brian J. Kramer; Price, Postel & Parma and Drew Maley, for Appellant.
Langlois Family Law and Joseph Langlois; Benedon & Serlin, Gerald M. Serlin
and Judith E. Posner, for Respondent.
______________________________
In this marital dissolution case, Mark Slotkin appeals from an order reserving for
trial his request for modification of interim spousal support. Since the appeal is from a
nonappealable order, we dismiss it.
FACTUAL AND PROCEDURAL SUMMARY
Appellant married respondent Gail Slotkin in 1993. Their prenuptial agreement
contains a general spousal support waiver, followed by several exceptions. One of those
exceptions entitles respondent to spousal support in the amount of $37,500 a year, plus
$750 a month for each of their two children, which the parties agree amounts to a total of
$4,625 a month.
Respondent filed for dissolution in 2010. On May 11, 2011, Judge Stephen M.
Moloney ordered appellant to contribute a certain amount towards respondent’s attorney
and accounting fees, as well as to pay $100,000 in unallocated interim child and spousal
support. On January 5, 2012, the judge awarded respondent $40,000 and $20,000 a
month in temporary spousal and child support respectively, with a start date on
December 15, 2011. In February 2012, after a prolonged hearing, Judge Moloney issued
a permanent domestic violence restraining order against appellant and ordered him to
complete a batterer intervention program.
A bifurcated trial on the validity of the prenuptial agreement was held before
Judge Maren E. Nelson between February and April 2013. Judge Nelson denied
respondent’s motion in limine to bar appellant from proceeding to trial under the
disentitlement doctrine. The judge concluded that respondent had failed to offer
admissible evidence of appellant’s noncompliance with court orders, and that his alleged
noncompliance was unrelated to the validity of the prenuptial agreement. As reflected in
the statement of decision, respondent contended that the agreement was unconscionable
because it had been induced by fraud and signed under duress, that it was unconscionable
and unenforceable because of appellant’s domestic violence, and that it was void as
against public policy because it imposed limits on child support and attorney fees.
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Respondent sought to rescind the agreement based on her mistake and appellant’s breach
of its terms. Judge Nelson rejected respondent’s contentions.
As relevant here, Judge Nelson stated that appellant’s “domestic violence and
failure to comply with this court’s interim orders for support and attorneys’ fees are not
condoned. Nonetheless, the [prenuptial agreement] is enforceable under the law in effect
at the time of its execution.” Judge Nelson found that appellant, or his business entities,
had made payments for respondent’s benefit in amounts exceeding, or at least equal to,
the amount of spousal support provided for in the prenuptial agreement, but the judge
made no findings as to the total amounts paid by appellant or credits due under any
interim orders.
Appellant then filed a request for modification of the interim child and spousal
support orders entered on January 5, 2012, which was scheduled to be heard in August
2013. As to spousal support, appellant asked the court to void its interim order because it
was inconsistent with the limitation on spousal support in the prenuptial agreement,
which Judge Nelson had found to be enforceable. Appellant asked the court to adopt
Judge Nelson’s ruling that he had met his spousal support obligations under the
prenuptial agreement.
In a minute order on July 24, 2013, Judge Moloney deferred to trial issues of child
support and the amount of spousal support paid by appellant (including any credits and
offsets). The hearing on appellant’s request for modification of the interim support
orders was continued several times and was set to be heard in January 2014. In the
meantime, at a hearing in November 2013, Judge Moloney ruled sua sponte that no
further spousal support was owed beyond that set forth in the prenuptial agreement. That
ruling was vacated in July 2014, upon respondent’s objection that the issue of spousal
support had not been before the court at the November 2013 hearing.
Following briefing on appellant’s request for modification, the issue was argued at
a hearing in November 2014. Respondent requested that decision on the modification of
interim child and spousal support be deferred to trial or to an evidentiary hearing. She
argued that the court’s interim support orders were final as to amounts already accrued
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before appellant’s request for modification, and that the court had reserved jurisdiction
solely to order retroactive child and spousal support for the period between respondent’s
original request, in October 2010, and the effective date of the interim support orders, in
December 2011. She also argued that appellant should be disentitled from seeking relief
regarding support because he was in violation of court orders; that appellant’s domestic
violence invalidated the spousal support provision in the prenuptial agreement as a matter
of public policy, regardless of Judge Nelson’s decision; and that the spousal support
provision in the agreement was modifiable.
For his part, appellant argued that no further trial or evidentiary hearing was
required because Judge Nelson already had ruled on enforceability of the prenuptial
agreement, and her decision was binding. Appellant was of the view that the interim
spousal support order had been issued in error, that the court had reserved jurisdiction to
retroactively modify it, and that it could reconsider that order under Code of Civil
Procedure section 1008.
In his January 22, 2015 order, Judge Moloney referred several issues to trial,
which was to take place before another judge. Among those issues were appellant’s
request for downward modification of child and spousal support; arrears owed for such
support; and respondent’s request for an upward modification of the spousal support
provision in the prenuptial agreement based on domestic violence, disentitlement, and the
absence of an express provision from the agreement that spousal support is
nonmodifiable. Judge Moloney observed that Judge Nelson’s statement of decision
indicated issues of domestic violence and disentitlement had been addressed at the
bifurcated trial, but he could not determine the extent to which they were addressed.
Regardless, he provided that issues previously litigated and ruled upon, such as
disentitlement and domestic violence, could be disposed of through a motion in limine.
Judge Moloney concluded he had reserved jurisdiction to rule both on the retroactivity
and modification of the interim support order of January 5, 2012, but that the May 11,
2011 order of unallocated support and fees was final and not subject to modification. The
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judge envisioned that, after trial, respondent would be entitled to either $4,625 a month in
spousal support under the prenuptial agreement, or to a larger amount.
This appeal is from Judge Moloney’s January 22, 2015 order.
DISCUSSION
An order granting, modifying, or denying temporary spousal support is
immediately appealable, as is an order denying a motion to terminate or modify
temporary spousal support. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368; In re
Marriage of Gruen (2011) 191 Cal.App.4th 627, 637–638; In re Marriage of Campbell
(2006) 136 Cal.App.4th 502, 506; In re Marriage of Murray (2002) 101 Cal.App.4th 581,
598.) Although interlocutory, such orders are appealable as final orders on collateral
matters because they are “‘dispositive of the rights of the parties in relation to the
collateral matter, and directing payment of money or performance of an act . . . .’”
(Marriage of Gruen, at pp. 637–638, quoting Marriage of Skelley, at p. 368.) To be
“final” and hence appealable, an order must not require any further judicial action on
matters it addresses. (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545.)
Judge Moloney’s January 22, 2015 order is an unappealable interlocutory order. It
neither granted nor denied appellant’s request for modification of interim spousal
support, but rather reserved decision on that matter for trial. Appellant argues the order is
appealable because it denied his request “that the issue of temporary spousal support be
dispositively resolved by the terms of the [prenuptial agreement].” That is incorrect. The
order expressly allows for the possibility that respondent may be precluded from
relitigating issues regarding the validity of the prenuptial agreement that were decided by
Judge Nelson, and that, after trial, respondent may be limited to only $4,625 a month in
temporary spousal support pursuant to the prenuptial agreement. Nothing in the order
suggests that Judge Moloney disregarded Judge Nelson’s decision.
Appellant’s argument that Judge Moloney’s order is on a collateral matter that
would evade review is unpersuasive, and his reliance on Muller v. Fresno Community
Hospital & Medical Center (2009) 172 Cal.App.4th 887 is misplaced. At issue in that
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case was an order granting a new trial but denying sanctions for misconduct related to a
previous trial. (Id. at p. 904.) The court concluded the sanctions issue was unrelated to
the issues to be decided during the new trial and might escape appellate review because it
would not be part of the final judgment, assuming a new trial took place on remand.
(Ibid.) Here, in contrast, the amount of spousal support to which respondent is entitled is
not severable from other matters reserved for trial, such as the amount of support paid or
the amount of credits and offsets, matters on which Judge Nelson made no findings. Nor
will the issue evade appellate review because Judge Nelson’s decision on the validity of
the prenuptial agreement, as well as any final determination on the amount of spousal
support, will be appealable from the final judgment. (In re Marriage of Lafkas (2007)
153 Cal.App.4th 1429, 1433; see Cal. Rules of Court, rule 5.392 [failure to seek or obtain
appellate review of decision on bifurcated issue does not preclude review upon appeal of
final judgment].) Appellant, in essence, argues that Judge Moloney erred in not deciding
the request for modification as a matter of law. But whether or not the order is erroneous
is irrelevant to the preliminary determination of its appealability.
Alternatively, appellant requests that we treat his appeal as a petition for a writ of
mandate. While we have authority to do so, “we should not exercise that power except
under unusual circumstances.” (Olson v. Cory (1983) 35 Cal.3d 390, 401.) In Olson v.
Cory, the court treated an appeal as a petition for extraordinary writ to avoid unnecessary
trial proceedings, where the briefs and record on appeal were adequate, the appealability
of the order was not clear, and all parties urged the court to reach the merits. (Id. at
pp. 400–401.) None of these conditions is present here.
Respondent has not joined in appellant’s request, and the nonappealabity of Judge
Moloney’s order is clear. To the extent appellant’s request for review presumes the
validity of the prenuptial agreement and the invalidity of Judge Moloney’s interim
support orders (matters not before us), it invites a piecemeal review and disposition in a
single action, which would be “oppressive and costly.” (Comerica Bank v. Howsam
(2012) 208 Cal.App.4th 790, 821–822.) Treating the appeal as a writ petition under the
circumstances would obliterate the distinction between appealable and nonappealable
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orders, and may “encourage parties to knowingly appeal from nonappealable orders.”
(Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1456.)
While “the delay and expense of trial is a valid consideration in deciding whether
to grant writ review [citation]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96
Cal.App.4th 1357, 1367), that consideration is not of paramount importance here since
the amount of interim support paid will need to be determined at trial in any event.
Appellant may avoid some of the expense of relitigating issues already decided by Judge
Nelson through a motion in limine, as recommended by Judge Moloney. Notably, the
judge declined to rule on appellant’s request for modification because he could not
determine from Judge Nelson’s statement of decision to what extent the issues of
domestic violence and disentitlement were litigated in the bifurcated trial. It is even less
clear whether the issue of modifiability of spousal support was before Judge Nelson. The
record on appeal contains neither the prenuptial agreement, nor the briefs and transcripts
from the bifurcated trial (with the exception of respondent’s motion in limine).
We decline to consider the appeal as a writ petition. Since we have no jurisdiction
to review an appeal from a nonappealable order, we must dismiss it. (Doe v. United
States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432.) Because we dismiss the
appeal for lack of jurisdiction, we do not reach respondent’s contention that appellant is
barred from seeking appellate relief under the disentitlement doctrine.
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DISPOSITION
The appeal is dismissed; the request for extraordinary relief is denied. Respondent
is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
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