Marriage of O'Hill CA4/3 ( 2024 )

Filed 10/1/24 Marriage of O’Hill CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of ANDREA and
ROBERT O’HILL.
ANDREA RAE O’HILL,
G062146
Respondent,
(Super. Ct. No. 17D003156)
v.
OPINION
ROBERT O’HILL,
Appellant.
Appeal from a judgment of the Superior Court of Orange County,
James L. Waltz, Judge. Dismissed.
The Law Offices of Saylin & Swisher, Brian G. Saylin and
Lindsay L. Swisher for Appellant Robert O’Hill.
Phillips Whisnant Gazin Gorczyca & Curtin, Gary S. Gorczyca
and Megan I. Martinez for Respondent Andrea Rae O’Hill.
* * *
This is an appeal by Robert O’Hill (Robert) from an order in a
family law dissolution proceeding awarding Andrea Rae O’Hill (Andi)
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temporary attorney fees and expert costs. Midway through the trial on
support issues, the court encountered a lengthy delay due to Covid-19
illnesses befalling the parties, counsel, and staff. At that point, Robert was
approximately $900,000 in arrears on temporary support and Andi’s
attorneys were owed hundreds of thousands of dollars. The court found that a
pendente lite order of attorney fees was essential to ensure an even playing
field. However, the court deferred any finding on the reasonableness of the
fees owed to Andi’s attorneys to a later time, with the idea that any
retroactive modification to attorney fees could be accomplished at a later
date.
Robert contends the court erred. He emphasizes that at the time
the court made its order, due to the order of evidence at trial, it had only
heard Andi’s evidence of his (and her) finances. The court had not yet heard
Robert’s evidence. Robert also contends that in delaying the assessment of
reasonableness, the court relied on a stipulation that did not exist. Robert
claims it was error to order (even pendente lite) attorney fees without
assessing the reasonableness of those fees.
We grant Andi’s motion to dismiss the appeal as being from a
non-final order. While pendente lite support orders are generally appealable,
the rationale for allowing such piecemeal appeals is that a temporary support
order is a collateral order that is final as to the subject matter of the order.
However, that rationale does not hold here, where the court expressly
1
We refer to the parties by their first name to avoid confusion
and not out of disrespect.
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reserved findings on the reasonableness of the fees and expressly made the
fees subject to revision at a later date. We acknowledge Robert’s objection to
that procedure. But regardless of why the court did it, the fact is that the
order is not final. Because it is not final, it is not yet appealable. Robert will
be free to file a later appeal when a final order is issued. Accordingly, we
dismiss the appeal.
STATEMENT OF FACTS
Andi filed the present dissolution proceeding in April 2017. At
that time, the parties had three minor children (one of whom is now an
adult).
On February 18, 2018, Andi filed a request for order (“RFO”) for
child support, spousal support, and an award of attorney fees and forensic
accountant costs. The hearing on Andi’s RFO commenced on June 12, 2018,
and continued on portions of seven court days scattered over thirteen months.
The hearing featured extensive evidence of the parties’ finances and
testimony from both sides’ forensic accountants.
On July 11, 2019, the trial court issued a detailed ruling on
submitted matter. The court made the following factual findings: “[Robert],
age 73 years, is a high earner business man/investor; in 1984, [Robert]
founded O’Hill Capital and serves as its General Partner; [Robert]
(individually) has a 30% percent ownership interest. [Robert] and O’Hill
Capital own fractional interests in a vast number of investments, including
golf courses, strip malls, and many other improved and unimproved
properties. O’Hill Capital’s investments are numerous and diverse, and O’Hill
Capital has many business partners. See trial exhibit 505, 506,519, and 520.
Given the complexities of this unique case, Andi retained CPA Drew Hunt
and [Robert] retained CPA Glen Mehner. Meanwhile, during the marital
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years (disputed; 10+/- years) Andi did not work and stayed focused on
domestic duties and ‘primary parent’ to the party’s three children, . . . age
14, . . . , and . . . age 7. The marital standard of living (“MSOL”) was very
high; during the entire marriage, the parties resided within the exclusive
enclave known as Emerald Bay, located in North Laguna Beach, a guard
gated beach side community. The former family residence was at 95 Emerald
Bay, a stunning, three story single family residence, 4,436 square feet, 4,
bedroom, 5 baths, and a 180+ view of Emerald Bay cove, the home’s value
was estimated at 8+ million. Today, [Robert] lives at 95 Emerald Bay, alone,
the home owned by an entity [Robert] controls, and the home free of debt.
Meanwhile, Andi lives down the same street at 150 Emerald Bay, a one story
rented home (2,156 square feet); 3-bedroom, 3 baths. Without quantifying the
MSOL by monthly spending, the MSOL included frequent air travel by
private/charter jet, a residential chef, private schools, high end vacations,
domestic help, expensive cars, and expensive extracurricular actives, such as
equestrian activities (two horses, stabled; average monthly expense = $5,000)
and private golf lessons.”
Throughout the hearing, Robert took the position that he no
longer had the ability to borrow from his various entities in order to support
that lifestyle. However, the court disbelieved Robert, concluding that Robert
still had access to his past pattern and practice of “borrowing amongst the
mosaic of entities . . . .” The court’s conclusion was based on specific
examples. For instance, Robert’s forensic accountant testified that in 2017 his
income was approximately $43,000 per month, yet his lifestyle involved
spending around $72,000 per month. Also, during the same time, Robert
purchased a yacht with a $200,000 down payment. The court awarded to
Andi $40,000 per month in “family support” (pursuant to the parties’
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stipulation, this was combined spousal and child support). The court also
ordered that Robert pay Andi $130,000 in past attorney fees and $10,000 per
month for prospective attorney fees.
On July 26, 2019, Robert filed a motion for reconsideration,
asserting the court had made certain mistakes, including that the court
mistakenly used a “monthly” calculation rather than a “yearly” calculation in
the Dissomaster report, with the result that the $40,000 support order should
be reduced to approximately $27,000 per month. The court denied the motion,
concluding that any upward adjustment from the Dissomaster report was
justified based on Robert’s ability to pay and the MSOL.
On November 26, 2019, Andi filed an ex parte application to
determine the support arrearage then owing by Robert and to obtain a
charging order against Robert’s interest in O Hill Capital.
At a February 3, 2020, hearing on Andi’s RFO, the trial court
found Robert owed Andi $136,000 in past due and unpaid family support,
plus interest. The arrearage was undisputed. The court granted the charging
order.
On August 14, 2020, Robert filed a Request for Order to modify
the July 11, 2019 family support order. Robert alleged that his income had
been reduced. The hearing on his request was originally calendared for
September 29, 2020, continued multiple times, and ultimately vacated on the
trial court’s own motion and consolidated with the trial on bifurcated issues.
The consolidated hearing was scheduled for October 2021. However, in
October 2021 the entire litigation was stayed as a result of a motion filed by
Robert to disqualify the trial judge.
On March 14, 2022, the court set a trial setting conference for
April 7, 2022, in which, among other things, the parties were invited to
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present arguments on “the court’s own motion” to establish an attorney fee
shifting order. The proposed fee shifting order had been telegraphed in an
earlier minute order and provided that any moneys Robert paid to his
attorney would be split 50/50 with Andi’s attorney. It would also have
directed $50,000 in payments on specified dates to Andi’s attorney for past
fees. The hearing on that motion was continued to May 2022, and trial on
bifurcated issues was scheduled for July 2022.
On May 24, 2022, the parties entered into a Stipulation and
Order wherein Robert was ordered to pay Andi $160,000 toward any amount
owed on the existing July 11, 2019 fee order on or before May 28, 2022 as well
as $10,000 on June 1, 2022 and July 1, 2022.
Trial on bifurcated issues commenced on July 12, 2022. The court
first heard from Andy’s forensic accountant, Drew Hunt. Over the ensuing 13
days of trial, various witnesses were called by Andi to testify, with Hunt
taking up the lion’s share of the time.
After the hearing on August 24, 2022, the hearing was “paused
due to Covid-19 illnesses befalling parties, attorneys and court staff and CPA
scheduling conflicts.” The attorneys estimated that they would need an
additional 13 days of trial time to finish the trial. The court scheduled
resumed trial hearings for January 30, 2023.
In the meantime, on November 7, 2022, the court ruled on what it
described as Andi’s pendente lite motion for supplemental attorney fees and
costs, which is the subject of this appeal. Beginning in December 2022, the
court vacated its prior award of $10,000 per month. Instead, it ordered
Robert to pay $530,630 for past attorney fees and $240,996 for outstanding
forensic accounting fees by January 24, 2023. It further ordered Robert to pay
$150,000 for future fees by February 17, 2023.
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The court included an extensive set of findings and analysis to
support the ruling. The court found that there was a gross disparity between
the parties in access to funds to maintain counsel and experts. Andi was
wholly dependent on Robert. Robert’s income, “while disputed and not yet
determined,” was substantial. His separate property net worth, “while
disputed and not yet determined,” is very substantial. The court quoted
Hunt’s report from trial that Robert’s net worth was approximately $32
million. The court further noted that all of Robert’s fees were paid by O’Hill
Capital, of which Robert was the managing partner. The court found that,
“[b]ased on the totality of circumstances so far known to the court,” Robert
had the ability to pay Andi’s attorney fees. The court cited trial exhibits and
Hunt’s testimony for that finding, though it noted that the evidence was
“disputed” and that Robert’s CPA “has not yet testified.” It went on, “From
the evidence so far presented, and while disputed by [Robert], the court (so
far) has drawn a reasonable inference [Robert] has access to funding vis-à-vis
[O’Hill Capital] . . . .”
Critically, the court stated that any objection as to the
reasonableness of Andi’s fees would be decided at a later time: “[Robert]
forcefully contends Andi has unwisely incurred . . . huge amounts of attorney
fees and costs pursuing meritless claims . . . .” “Maybe and maybe not. To be
determined, as agreed, during a bifurcated trial withing these bifurcated
proceedings.” “Long ago, the attorneys agreed to litigate any [Family Code
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2
section] 2032 issue after trial on support issues now on-going.” The court
found that any further delay in awarding Andi pendente lite attorney fees
would infuse the proceedings with “gross unfairness that if allowed, renders
the ongoing trial presumptively . . . not a fair proceeding . . . .” The court
observed that the parties’ disparity in resources was exacerbated by the fact
that Robert was approximately $900,000 in arrears on family support
payments.
In discussing these findings, the court observed: “[Robert]
reminds the court Andi’s [motion] must under law . . . not be considered in a
vacuum but instead, considered in the context of BOTH [sections] 2030 and
2032, a ‘packaged’ set of statutes requiring scrutiny of both ‘need’ and
scrutiny as and for the necessity and reasonableness of historic fees. [Robert]
is correct on the law, but not correct in the instant application of law to the
on-going process. [¶] First, long ago the parties agreed any challenge as and
for attorney fees and costs will follow trial now solely focused on support; the
fee dispute staged for later debate and consideration following the support
trial.” (Italics added.) “[Robert’s] strong objections have been heard, however
any [section] 2032 analysis is not now ‘at-issue’ but instead, and by
agreement, reserved for another time.” The court went on, “adjudication of
any defense to fees under [section] 2032 is nuanced, detailed and the debate
over fees reserved (at this time) by agreement, the process will play out
following a (reliable) ruling on retroactive and prospective support.” At the
2
Family Code section 2032, subdivision (a), provides, “The court
may make an award of attorney’s fees and costs under Section 2030 or 2031
where the making of the award, and the amount of the award, are just and
reasonable under the relative circumstances of the respective parties.”
(Italics added.)
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end of the court’s order, in a section entitled “RESERVATION,” the court
stated, “1. The court reserves over assessing the reasonableness and
necessity of Andi’s attorney fees and costs paid by [Robert] and reallocation
between the parties.” (Italics added.) “The reasonableness and necessity of
attorney fees and costs ([§ 2032]) paid by [Robert] and paid to Andi’s
counsel . . . remains a trial issue, to be resolved at a future date.”
The court then concluded by stating that if Robert failed to pay
the fees on the schedule it ordered, the court would consider ordering a
mistrial or denying Robert’s motion seeking modification of temporary family
support.
On December 22, 2022, Robert filed a notice of appeal from the
pendente lite attorney fee order of November 7, 2022.
After the notice of appeal was filed, the trial on spousal and child
support, which had been paused, was completed, and the court issued a final
statement of decision. On our own motion, we take judicial notice of the final
statement of decision.3 In that statement of decision, the court made strong
findings against Robert, concluding that he has engaged in a consistent
scheme to hide his income and assets from tax authorities and the court. “The
court formed the opinion that [Robert] minimizes or shelters income to reduce
taxes owing and now, in this setting, shelters income in an effort to minimize
or avoid his support obligation.” “In this case, and over many years, [Robert]
engaged in business practices designed to shelter income available for
support by characterizing personal expenses as business expenses.” The court
concluded Robert has substantial wealth: “[Robert] has indirect ownership
3
Our judicial notice is limited to the fact that the court has made
certain findings. We express no opinion on the validity of those findings.
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interests in assets conservatively valued at $93 million, yet he professes to
own nothing.” The court found Robert had personal assets and wealth
amounting to approximately $32 million. The court specifically found that
Andi’s CPA Hunt was credible and that Robert’s CPA was not credible
because Robert’s CPA relied on unreliable ledgers doctored by Robert.
The court set a hearing for June 20, 2024, to determine attorney
fee arrearages.
DISCUSSION
One of the fundamental tenets of appellate practice is the one
final judgment rule. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.)
That rule holds that an appeal may not be taken from interlocutory rulings,
but instead any error during litigation must be raised in an appeal from the
final judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688,
697.) “‘The theory [behind the rule] is that piecemeal disposition and multiple
appeals in a single action would be oppressive and costly, and that a review of
intermediate rulings should await the final disposition of the case.’” (Ibid.)
Courts have carved out an exception to this rule for collateral
rulings that are final as to the subject matter of the ruling. (In re Marriage of
Skelley (1976) 18 Cal.3d 365, 368 (Skelley).) Under this exception, it has
routinely been held that pendente lite orders of support are immediately
appealable. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637.) The
rationale is that the order is final as to the temporary support and will have
no effect on the remainder of the proceedings. (Skelley, at pp. 368-369.)
However, that rationale does not hold here. The court expressly
reserved additional relevant findings for a future date and reserved the
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4
authority to reallocate attorney fees in light of subsequent findings. By
contrast, in In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311, the
court found a pendente lite order of attorney fees was final, stating, “Here,
the family court clearly indicated its intent to render an order that was
dispositive of the issue of future attorney fees; nowhere in the order was there
any reservation of jurisdiction to revisit the issue. As such, the order is
appealable under Code of Civil Procedure section 904.1.” (Italics added.) We
face precisely the opposite situation here: the court expressly reserved
jurisdiction to revisit its pendente lite attorney fee order. Because this was
not a final order, it is subject to the one final judgment rule and is not
appealable. “An appeal from a judgment or order that is not appealable must
be dismissed.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th
360, 384.)
Robert has requested that, if we find the order to be
nonappealable, we instead exercise our discretion to treat his appeal as a writ
petition. “We have discretion to treat a purported appeal as a petition for writ
of mandate.” (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515.)
However, “that power should be exercised only in unusual circumstances”
that are “ ‘ “compelling enough to indicate the propriety of a petition for
writ . . . in the first instance . . . .” ’ ” (H.D. Arnaiz, Ltd. v. County of San
Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) “Because writ review is an
extraordinary remedy, courts generally do not grant writ relief absent
extraordinary circumstances. [Citation.] Pertinent factors include whether (1)
‘the party seeking the writ lacks an adequate means, such as direct appeal, to
obtain relief,’ (2) ‘the petitioner will suffer harm or prejudice which cannot be
4
We express no opinion on the propriety of this procedure.
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corrected on appeal,’ or (3) ‘the petition presents an issue of first impression
that is of general interest to the bench and bar.’” (Department of Corrections
& Rehabilitation v. Superior Court (2023) 94 Cal.App.5th 1025, 1037.)
We decline to exercise that discretion here because there is no
irreparable harm in waiting for a final order, and because any order we issue
could effectively become moot.
As to irreparable harm, the payment deadlines could have been
challenged by writ initially. When the court set a specific schedule and
threatened to declare a mistrial if Robert failed to meet the schedule, that
may have been a sufficiently extraordinary circumstance to justify writ relief.
However, by now, the deadlines have long since passed. At this point, the
money is either paid or not and the only relief we could provide would be to
reverse the monetary award. Absent some unusual circumstance, we
generally do not address money damages through extraordinary writ relief.
An appeal is sufficient.
As to mootness, suppose we were to, as Robert urges, issue a
reversal requiring the court to vacate its award because it did not consider
Robert’s evidence of financial circumstances. We know that by now the court
has considered all the evidence, and by the time our disposition reaches the
court, it may have already reaffirmed its original order based on all of the
evidence, or it may have changed it entirely. In either case, our disposition
would be an exercise in futility. We would be directing the court to do
something it has already done, or to modify an order it already modified. This
problem exists precisely because the court’s pendente lite fee award was not
final. Rather than potentially waste this court’s resources, we will dismiss
this appeal and consider any challenge to the pendente lite attorney fees in a
future appeal (if any) from a final order.
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DISPOSITION
The appeal is dismissed. Andrea shall recover her costs incurred
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on appeal.
SANCHEZ, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
GOODING, J.
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Robert filed a motion to augment the record to include certain
reporter’s transcripts that were unavailable when he designated the record
on appeal. We deny that motion as the transcripts are not relevant to our
determination that the appeal was from a nonappealable order.
Andi filed a request for judicial notice of a Ruling on Submitted
Matter that sets forth Robert’s support obligations. She also requested
judicial notice of a minute order setting the trial on all remaining issues for
April 21, 2024. These documents are consistent with the Final Statement of
Decision that we took judicial notice of on our own motion, and thus we grant
her request for judicial notice.
At the time that we sent out our notice of intent to take judicial
notice of the Final Statement of Decision, Andi filed a request that we
alternatively take judicial notice of an updated Final Statement of Decision
filed on June 7, 2024, which is identical to the document we took judicial
notice of, but it includes certain exhibits to support the court’s findings. We
deny the alternative request for judicial notice, as we are not taking judicial
notice of the truth or validity of any proposition in the Final Statement of
Decision, and thus we have no need of the exhibits.
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