Marriage of Huang and Pabianova CA2/2

Filed 10/27/22 Marriage of Huang and Pabianova CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of FANG B317887
HUANG and MARIE (Los Angeles County Super.
PABIANOVA. Ct. No. BD615033)
MARIE PABIANOVA,
Respondent,
v.
FANG HUANG,
Appellant.
APPEAL from the order of the Superior Court of Los
Angeles County, Anne K. Richardson, Judge. Affirmed.
Law Office of Noelle M. Halaby, Noelle M. Halaby, and
Maria D. Houser for Appellant.
No appearance for Respondent.
*****
A former wife sought to obtain an order calculating the
amount by which her former husband had underpaid her in child
support for stock sales he made back in 2018 and 2019 that the
couple agreed would count as income subject to the support
obligation. The former wife also sought to hold him in contempt
for not paying a discovery sanction. The former husband sought
to postpone the calculation of arrears until after the contempt
hearing on the ground that the calculation might incriminate him
in the upcoming contempt hearing. The family court rejected the
claim of privilege, and also refused to continue the calculation
hearing simply because the former husband had failed to prepare
for the possibility his claim of privilege might be overruled. We
conclude there was no error, and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Marriage and dissolution
Fang Huang (husband) and Marie Pabianova (wife)
married in January 2010. They separated in October 2014, and
the judgment of dissolution ending their marriage was entered in
January 2018. They have two children—Cole (born in 2010) and
Angelica (born in 2012).
In their stipulated judgment of dissolution, wife and
husband agreed to joint legal and physical custody of the
children. They also agreed that husband would pay child support
to wife of (1) $886 per month, plus (2) 10.5 percent of any income
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he receives over his base salary of $14,219 per month, which
includes (a) “bonus income,” (b) income earned from the sale of
stock obtained through his “[e]mployee [s]tock [p]urchase [p]lan”
and (c) income earned from sales of his incentive stock option
shares.
B. Failure to pay child support on additional
income earned in 2018 and 2019
In June 2018, husband sold $25,357.12 of the stock he had
obtained through his employee stock purchase plan. Although
the terms of the stipulated judgment obligated husband to pay
10.5 percent of that amount—which came to $3,461.25 with
unpaid interest—as child support, husband never did.
In July 2019, husband sold $62,847.92 of the stock shares
he obtained as part of the incentive stock option program.
Although the terms of the stipulated judgment obligated husband
to pay 10.5 percent of that amount—which came to $7,828.44
with unpaid interest—as child support, husband never did.
In May 2019, the family court ordered husband to pay
$1,742.35 as additional child support due to additional income,
but father unilaterally withheld an amount coming to $503.94
with interest.
C. Failure to pay discovery sanction
On June 18, 2021, the family court ordered husband to pay
discovery sanctions in the amount of $10,000 by July 19, 2021.
July 19 came and went, and husband never paid the sanctions.
II. Procedural Background
A. Wife’s request for order related to husband’s
nonpayment of additional income
On July 12, 2021, wife filed a request for a court order that
would (1) calculate that husband owed $11,793.63 in arrearages
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in child support based on his failure to pay support on the three
items of supplemental income described above, (2) require
husband to pay attorney fees of $9,782.50 related to wife’s
arrearages request, and (3) require husband to undergo a
vocational evaluation, as he became unemployed soon after the
dissolution judgment was entered.
The request was set for hearing in late September and then
continued until October 27, 2021.
B. Wife’s request that husband be held in contempt
for nonpayment of the discovery sanction
On August 20, 2021, wife filed a request to hold husband in
contempt because he did not pay the $10,000 discovery sanction
by the court’s deadline. As part of her request, wife included
documentation showing that husband’s bank accounts had
balances well in excess of $10,000. The court set a date of
December 3, 2021, for the contempt hearing.
C. Husband’s opposition
In a responsive document filed on October 14, 2021—nearly
three months after wife’s July 12, 2021 request—husband argued
that (1) the hearing on wife’s entire request should be postponed
until after the December 2021 contempt hearing because
husband may incriminate himself, and (2) the hearing be
continued in any event to allow husband “to respond
substantively.”
D. The family court’s ruling
At the hearing, the family court ruled that the issues of
when husband can pay the arrearages, whether he can pay an
attorney fees award, and whether husband should sit for the
vocational evaluation were best left until after the contempt
hearing, to avoid any possibility that husband’s answers about
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his ability to pay or earn money now might be implicated in the
upcoming contempt hearing. But the court expressed its view
that the calculation of arrears involving nonpayments from 2018
and 2019 was a “fairly cut and dry issue” of arithmetic
calculation. When asked why the calculation of arrearages from
several years in the past would impact the upcoming contempt
hearing, husband responded only that any “finding” or
“testimony” “could very well affect him in the contempt matter,”
and that whether the prior arrearage payments were “made” or
“credited” is “all related.” Finding these articulations of possible
incrimination lacking in the required specificity, the family court
ruled that husband’s nonpayment of supplemental income in
2018 and 2019 “does not involve any issue about which [he]
would be able to [in]voke the Fifth Amendment.” The court then
calculated arrearages of $11,793.63 plus interest and continued
the remaining matters until after the contempt hearing.
E. Appeal
Husband filed this timely appeal.1
1 In a divorce proceeding, the judgment of dissolution is the
appealable final judgment (Code Civ. Proc., § 904.1, subd. (a)(1);
In re Marriage of Turfe (2018) 23 Cal.App.5th 1118, 1120, fn. 1),
which means that any subsequent order could be deemed an
appealable, postjudgment order (Code Civ. Proc., § 904.1, subd.
(a)(2)). However, appealability is not so broad—a postjudgment
order that lacks finality in that it contemplates further
proceedings is not appealable. (In re Marriage of Olson (2015)
238 Cal.App.4th 1458, 1462.) Because the family court here
ordered that husband owes a specified sum, that order is
appealable even though some issues were continued to the next
hearing. (Cf. In re Marriage of Gruen (2011) 191 Cal.App.4th
627, 637 [temporary support order directly appealable]; City and
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DISCUSSION
Husband argues that the family court erred in adjudicating
the amount of child support arrears he owed from 2018 and 2019
because (1) that adjudication ran afoul of his privilege against
self-incrimination and even if it did not, (2) the court should have
continued the hearing to give husband additional time to address
the substantive merits of the arrearages issue. We review the
first issue de novo because it involves a question of constitutional
law (In re Taylor (2015) 60 Cal.4th 1019, 1035 (Taylor)), and we
review the denial of a continuance for an abuse of discretion but
any related due process violation de novo (Reales Investment,
LLC v. Johnson (2020) 55 Cal.App.5th 463, 468; Taylor, at p.
1035). As discussed below, neither argument has merit.
I. Privilege Against Self-incrimination
Both the federal and California Constitutions guarantee
that “[n]o person . . . shall be compelled in any criminal case to be
a witness against himself.” (U.S. Const., 5th Amend.; Cal.
Const., art. I, § 15; Evid. Code, § 940.) Because a contempt
proceeding carries with it the possibility of criminal penalties (In
re Witherspoon (1984) 162 Cal.App.3d 1000, 1001-1002), the
privilege potentially applies where, as here, husband’s potential
testimony in response to the request for an arrearages calculation
may be used in the subsequent contempt proceeding. (In re
Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1150, 1160
(Sachs).) Whether the privilege actually applies turns on
whether husband, as the person asserting the privilege, is able to
County of San Francisco v. Stanley (1994) 24 Cal.App.4th 1724,
1727 [postjudgment order modifying child support directly
appealable].)
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show that “‘responsive answer[s] to the question[s posed] or an
explanation of why [a question] cannot be answered might be
dangerous because”’ they ““‘would furnish a link in the chain of
evidence needed to prosecute” the witness for a criminal offense.’”
(Id. at pp. 1150-1151, quoting Hoffman v. United States (1951)
341 U.S. 479, 486-487 and People v. Cudjo (1993) 6 Cal.4th 585,
617.) A trial court may overrule an assertion of the privilege only
where the ‘“proposed testimony “cannot possibly have a tendency
to incriminate the person claiming the privilege.’”” (Sachs, at p.
1151.)
The family court did not err in concluding that any
testimony husband might offer regarding the calculation of his
child support arrearages could not possibly have any tendency to
incriminate him. The pending contempt proceedings are what
subjects husband to possible criminal penalties, and the sole
issue in those proceedings is whether husband willfully refused to
pay the discovery sanction imposed against him in June 2021 and
due to be paid in July 2021. But the issues before the family
court at hearing on the calculation of arrearages was (1) whether
father sold certain stocks in 2018 and 2019, and (2) whether
father paid 10.5 percent of the profit from those sales (as well as
the amount he unilaterally withheld from the May 2019
supplemental income) as part of his child support payments.
Critically, nothing husband might testify to regarding those two
questions has any bearing on his ability to pay the discovery
sanction imposed more than two years later.
In resisting this conclusion, husband argues that his
response to the calculation of child support arrearages might
incriminate him because that response might call upon him to
address “the characterization of [his] income, and what [he]
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received, what stocks he has, and which stocks he cashed out[,]
which would affect his defense on his ability to pay on the
contempt matter.” We reject this argument. The stipulated
judgment of dissolution already dictates the characterization of
his supplemental income (that is, the sale of these specific stocks
and interests qualify as supplemental income on which husband
owes child support); the transactional records already establish
that he sold those stocks and interests; and the other financial
records already establish that he did not pay child support
corresponding to those sales. This leaves husband arguing, as he
did more unabashedly to the family court, that once a person’s
ability to pay a debt is at issue, that person’s entire financial
history is covered by the privilege because a person’s financial
condition back to the beginning of time is “all related.” We are
aware of no precedent requiring us to construe the privilege
against self-incrimination in such an expansive fashion, and we
decline to do so in the absence of a more specific demonstration of
potential incrimination. No such showing was made here. As it
was husband’s burden to make that showing, his claim of
privilege was properly rejected.
II. Due Process
A trial court generally has discretion whether to continue a
hearing, and a denial of a continuance violates due process only
when it is so arbitrary that it effectively denies a party the
opportunity to be heard. (People v. Mungia (2008) 44 Cal.4th
1101, 1118.)
The family court did not abuse its discretion in denying
husband’s request to continue the calculation of child support
arrearages. As explained above, the court correctly concluded
that the privilege against self-incrimination did not provide a
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reason to continue the hearing on the calculation of those
arrearages, and the court continued all other portions of the
hearing. Husband argues that, upon overruling his claim of
privilege, the court should have continued the hearing on the
arrearages calculation to give husband the chance to file a
substantive response. We disagree. Husband’s decision not to be
prepared in the event the trial court overruled his claim of
privilege does not obligate a court to grant a continuance.
Husband took more than three months to file his response to
wife’s request for arrearages and then showed up at the
hearing—two weeks later—still having done nothing to respond
on the merits. This substantial lack of diligence does not
somehow entitle husband to a further continuance. (Bahl v.
Bank of America (2001) 89 Cal.App.4th 389, 398 [lack of diligence
is a basis to deny a continuance]; cf. Hamilton v. Orange County
Sheriff’s Department (2017) 8 Cal.App.5th 759, 766 [party’s
“relatively minor lack of diligence” is not a ground to deny a
continuance].) The denial of that continuance thus does not
constitute an abuse of discretion or an arbitrary denial
amounting to a violation of due process.
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DISCUSSION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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