Opinion
A148151
11-29-2018
In re the Marriage of SABEER BHATIA and TANIA BHATIA. SABEER BHATIA, Respondent and Cross-appellant, v. TANIA BHATIA, Appellant and Cross-respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on November 29, 2018, be modified as follows:
On page 16, the second to last full paragraph, the following footnote is added at the end of the sentence starting "The court has authority to" and ending with "after a full evidentiary hearing":
"Contrary to Wife's claim, the court was not required to consider the Family Code section 3653, subdivision (d) factors because it did not order a repayment amount or establish its terms. The court expressly contemplated another hearing at which it would consider those factors, and ordered the parties to submit Dissomaster support guidelines, an accounting of their 'respective reimbursement claims,' and 'documentation corroborating any claims.' " There is no change in the judgment. The petition for rehearing is denied. (Humes, P.J., Kelly, J., and Banke, J. participated in the decision.) Dated: __________
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
/s/_________P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. FDI-13-778668)
Sabeer Bhatia (Husband) and Tania Bhatia (Wife) separated after about four years of marriage. At the outset of this dissolution proceeding, they stipulated Husband would pay Wife temporary combined spousal and child support of $102,090 per month. After a bifurcated trial on the support issues almost two years later, the family court found Husband had overpaid and ordered that he be reimbursed or credited for the excess temporary spousal support, but not for the excess child support. Wife appeals, contending the reimbursement/credit order, and certain factual findings and evidentiary rulings made by the family court, were in error. Husband cross-appeals, asserting the court erred in not ordering reimbursement or credit for the temporary child support overpayment. We affirm.
BACKGROUND
Husband and Wife were married in June 2008 in Las Vegas. Previously, they participated in a traditional Hindu wedding ceremony in Malaysia in March, but did not have a marriage license from either Malaysia or from India, where both were born. They have one child, born in 2012.
Husband had substantial separate property, largely a result of the sale of his interest in Hotmail to Microsoft. He owned two homes in the United States, one in San Francisco and one in Los Altos. The parties maintained an affluent lifestyle during the marriage, which the parties do not dispute was financed entirely by Husband's separate property. Wife was not employed during the marriage.
Husband petitioned for dissolution on January 24, 2013. Wife testified Husband moved out of the San Francisco home a week later, on January 29, 2013. Husband asserted the date of separation was three months earlier, on October 18, 2012.
After the separation, Wife continued to live in the San Francisco home for nearly two more years, until February 2015. Husband continued to pay for expenses related to the home, as well as other expenses, except the fuel for Wife's continued use of a Mercedes Benz. Wife agrees Husband paid "the related carry costs" on the San Francisco home until she moved out in February 2015.
In the meantime, Wife, in July 2013, filed a request for temporary child support based on the child support guidelines, for temporary spousal support "per dissomaster," for $50,000 in attorney fees, and for $20,000 in accountant fees. The total amount of temporary support sought was $102,090 per month, $21,685 in child support and $80,405 in spousal support. Wife submitted a reply declaration in connection with her request in which she stated: "The issue of credits and reimbursements should be reserved until the time of trial."
Husband, in turn, stipulated to the amount sought by Wife, and stated he had not filed a "support calculation" because he had no objection to Wife's calculations.
At the August hearing on Wife's temporary support requests, Husband's attorney told the court: "What we want to go forward on in the hearing is the question of an exceptionally high earner exception to the child support guidelines and a question of what is actually needed to maintain the parties' standard of living during the pendency of this case."
The following colloquy then took place: "[Husband's attorney]: . . . I am correct in understanding, your Honor, by the terms of our agreement, that this is an interim order pending the hearing on . . . [The Court]: It is a temporary support order, so I don't know what difference it makes. [Husband's attorney]: Okay. Well, what difference it makes is if it is an interim order, you can modify it. If, at the hearing, you determine that lesser amount or greater amount is appropriate, it doesn't lock you in to have to change— [The Court]: Whatever you want to call it, if we are going to have a hearing, then I am going to consider the evidence at the hearing. [Husband's attorney]: Okay. Great." The court then stated: "That will be the order. It will be retroactive to July 10. So that means you are going to owe one month in arrears."
Husband's attorney then stated: "[W]e don't have any objection to support in this case relating back to the earliest date when jurisdiction was acquired" in January, but Husband wanted a credit for what he had already paid Wife voluntarily. Counsel explained: "What I am asking is that you stay the retroactive payment until that is determined because from what I have learned from [Wife's attorney] is that [Wife] has no way of repaying any money." The court responded: "No. . . . [I]t is too complicated. So I am going to make an interim order, and the interim order will start on July 15. Then we are going to make more permanent orders later on. [¶] . . . [¶] You need to decide whether you want to have a hearing on it or not. If you want to have an evidentiary hearing, then you are going to get interim orders."
Wife's attorney then objected to the court's ruling on the ground Husband had agreed the interim order would be retroactive to January 29, and the order should so reflect that. The court responded: "No, [Husband's attorney] just said he wanted it stayed, so you wouldn't get any of that money." Husband's attorney then said: "We still have no objection to that. It is just that . . . prior to July [the court] will make that determination later." The court agreed: "Yes. That's right." "So I don't know what the ultimate determination is going to be on temporary support. . . ."
In October, the family court entered a written order regarding the August hearing which stated the amount of monthly "temporary family support" was $102,090, ordered the retroactive family support for July to be paid by September 1, and ordered Husband to provide an updated income and expense declaration. The order did not mention modification or awarding credits for overpayment.
A few weeks later, Husband filed a request for an order setting aside the written order on the ground factual errors regarding his income had been made in the Dissomaster support calculations submitted by Wife's attorney. He submitted the declaration of his certified professional accountant, who explained Husband's qualified dividend income had been counted twice, that his net operating loss and net investment interest expenses was wrongly categorized as non-taxable income, and that certain itemized deductions had been mischaracterized, "causing the Dissomaster to incorrectly conclude [Husband] paid no income tax, when in fact he paid almost $300k . . . as 'alternative minimum tax' in 2011." Thus, the accountant calculated the support Husband actually owed under the support guidelines as $10,719 in child support and $44,916 in spousal support, for a total of $55,635 per month.
In December, at the hearing on Husband's request, the court indicated it "didn't appreciate the distinction" between interim and temporary support orders when it made its earlier written order. The court accordingly clarified, "It was my intention that we come up with some kind of payment that would allow everybody to move ahead and hopefully expeditiously get to the end of the case with the assumption that this is a short-term marriage, and so at the end of the day we would be able to liquidate what the support payments should be, at least for spousal support, right? [¶] And then we would be able to go back and correct for any overpayments or underpayments. That was my intention, and you might want to respond to that."
Husband's attorney stated, "That was our expectation as well. [¶] . . . [W]e were very clear to say what [Husband] intended to do was offer an advance pending a support hearing, and it would be retroactively modifiable, and [Husband's other attorney] said those words on the record. [¶] I believe this Court responded that that is what it intended too, but in the end, the finding and order after hearing that was signed did not include that language." The Court agreed: "Okay. Well, that should be resolved because that is what I intended. [¶] Now, I don't know if that really addresses retroactivity or not. What it deals with is we are going to be able to figure out how long this support should last. We are going to be able to figure out how much it is and should have been, and we can make corrections at that point after we have gone through all of the factors, and that would seem in a case like this one to be appropriate to me."
Wife's attorney agreed when Husband's attorney stated, "a temporary support order is by statute not retroactively modifiable." Wife's attorney then stated she had "a question because that is not our understanding of what happened at the hearing, where there was discussion about whether temporary support should be continued to an evidentiary hearing. [¶] And the Court actually decided, which I think is what you are talking about now, that you would move on to a permanent hearing and determine at a status conference whether all of the financial issues should be heard together or whether permanent support should be heard separately, and the idea was then to move on that track."
The Court responded: "Right. And I don't see why if I blew it on the temporary support, I wouldn't fix that after having heard all the evidence. [¶] . . . [¶] . . . [I]f somebody later decides that spousal support should be a different amount, why can't we give credits or if there was an underpayment, require arrearages based on the award that was initially made?" Husband's attorney explained: "If this Court specifically makes the statement that it intends the order to be retroactively modifiable to the effective date, it is allowed to do so, but if it doesn't say that, which it did not say that in the order, then the statute applies." The Court stated: "I am telling you that was my intention. That was my intention to get you to a trial where we can sort all of these things out, and nobody was going to be without cash in the process of getting there, but at the end of the day when we had better information, everything would be equalized where it should have been. [¶] So that was my intention, and if you are asking that the order be modified to reflect that particular intention, then I will grant your request. . . ." The court then denied Husband's motion to modify the support ordered, but stated "I am acknowledging that the Court made an error in . . . failing to reserve jurisdiction to award credits for overpayment or to address any underpayment in the final analysis."
Following the hearing, the court issued a written order entered on January 30, 2014 denying Husband's motion to set aside the temporary support order, finding Husband "has not met his burden to justify the request to set aside the temporary family support order of 10/3/2013." The order further provided, however, that, "The Court reserves jurisdiction to award credits for overpayments and to address any underpayment in the temporary support previously ordered."
Two months later, Husband filed a motion to modify the support order, to "[e]stablish credits for overpayment" of support, and to order Wife to move out of Husband's separate property residence. He sought reduction of spousal support to $36,010 per month, reduction of child support to $8,248 per month, and a credit in the amount of $462,656 for his calculated overpayment of support from July 2013. The court denied the motion, stating, the "[s]upport order of 8-13-13 shall remain in full effect." After discussing whether Husband could "go to housing court and have [Wife] evicted," the court denied the "motion for property control without prejudice" to refiling in that court or "some other court."
In June 2014, Wife filed a motion for fees and costs, seeking $125,000 for attorney fees and costs and $400,000 for a forensic accountant. In the accompanying declaration, Wife stated she was paying approximately 50 percent of the family support payments she was receiving in taxes. The court ordered Husband to advance Wife "up to" $200,000 payable directly to the accounting firm, and denied the request for attorney fees without prejudice. The court also ordered that the temporary family support being paid by Husband to Wife in the amount of $102,090 per month "is now designated as $21,685 per month as child support and $80,405 per month [as] spousal support," retroactive to August 13, 2013. The court explained: "my anticipation was that this case would conclude within a reasonable timeframe, and since this is a marriage of about . . . four to five years in duration, that if it concluded within a year or a couple of years, that even if there was some overpayment of the temporary spousal support, that that could be accounted for in figuring out how long support was going to last. That was my intention. [¶] Now, we've had a lot of briefing over whether I can retroactively change something. If you get this thing to trial and get it concluded, that won't be necessary because you'll just make adjustments on how long the support is going to last based on whether support's been overpaid to date."
In November 2014, Husband filed another motion to modify the temporary support order, seeking to end spousal support and to modify the amount of child support based on his increased time with his daughter. In his declaration, he stated: "the expiration of the statutorily contemplated spousal support term of 'half the length of the marriage' is now imminent," and he had already paid to Wife "$2,436,452 of which $1,673,450 is in excess of guideline support. In her opposition, Wife asserted the court "does not have jurisdiction to either retroactively modify support or to make [Wife] reimburse accrued support due to 'overpayment.' "
The court denied the motion to modify but explained on the record at the January 6, 2015 hearing: "I don't think that I explicitly stated that the Court was reserving jurisdiction over the temporary spousal support at the July 3rd, 2014 hearing, but that was my intention. So if I failed to make that clear, I make it clear now. The Court reserves jurisdiction to modify spousal support paid subsequently to this date. Okay." Wife's attorney asked, "[s]ubsequent to which date, Your Honor?" and the court replied, "Well, subsequent to this date. [¶] You're going to have to argue over whether that is effective between July 3rd, 2014, and now. I just said it was my intention to do that. But if I didn't say the magic words, I don't know what the legal import of that will be. [¶] My intention, throughout all of this, is that the trier of fact on your case will not have his or her hands tied in determining what's fair. . . . [The court] should be free to make determinations about what the appropriate amount of support should be. And I think that should include whether there has been more support paid to date than was legally justified."
Trial commenced shortly thereafter, but on bifurcated issues, the court having granted a continuance to conduct discovery regarding an alleged community property asset. As to the reopened discovery with respect to the property division issues, the court ordered those issues "set on the case management calendar." Only the issues related to the child and spousal support claims would proceed to trial.
Following the conclusion of trial on the support issues in April 2015, the court issued a 31-page statement of decision explaining its findings and rulings. It devoted three and a half pages to recapping the procedural history pertaining to the proper characterization of the support order, finding "that Judge Begert clearly stated that the orders were interim; that he was issuing the orders pending an evidentiary hearing; and that the orders were retroactively modifiable interim support orders permitted by Freitas. Judge Begert specifically stated during the course of the hearing that such was his intent, that they could be modified and that he was specifically expecting the Court to do so." "In addition," said the court, "Wife was present during the initial discussion with Judge Begert regarding the stipulation between the parties where Husband agreed to $102,090 family support conditioned on the agreement that the support was 'interim' with the full expectation that his request for hearing pursuant to Family Law Code section 217 would be concluded within a reasonable period of time thereafter. Wife had the opportunity to object to Husband's statement of his understanding of the stipulation, but instead stood in silence. Moreover, what appears to have happened in this case is that Wife, having secured the $102,090 of monthly support, delayed matters and sought continuances until Husband paid her over $2 million to then claim this was, in her view, non-modifiable support."
In re Marriage of Freitas (2012) 209 Cal.App.4th 1059 (Freitas).
The court ordered "Wife's spousal support entitlement shall have expired effective midnight April 30, 2015." It further concluded "the family court retained jurisdiction to modify the orders retroactively to January 24, 2013," the date Husband filed his petition for dissolution. It found Wife had "stipulated that Husband's claims for credits and reimbursements on account of his voluntary advances and ordered interim support payments must be taken into consideration in the Court's determination of support issues and that Husband is entitled to a credit or reimbursement for them." However, while the court found Husband had overpaid temporary child and spousal support, it made no finding at that time as to the amount of overpayment. Instead, it ordered that "[d]etermination of the terms of payment reimbursements and the application of credits against support is reserved until determination of the property division and fees apportionment issues in this case at a date to be later set." The court also ordered the parties to "prepare and submit to the Court no later than September 11, 2015 Dissomaster Guideline support calculations consistent with the rulings in this Statement of Decision, together with an accounting of their respective outstanding reimbursement claims pursuant to this Statement of Decision, as well as documentation corroborating any claims which [are] not already confirmed by this Statement of Decision." (Italics omitted.) The court additionally ordered that Husband's "obligation to pay child support . . . under the new calculations will commence on October 1, 2015," but "exercise[d] its discretion" to deny Husband's request for reimbursement of any overpaid child support, concluding "[t]here will be no reimbursement for any child support payments made prior to that date."
DISCUSSION
Retention of Jurisdiction to Award Credits for Overpayment of Temporary Spousal Support
Wife maintains the family court erred in finding "it had reserved jurisdiction to modify child and spousal support back to the date the petition [for dissolution] was filed." She claims the court only reserved jurisdiction to award credits for any overpayment of temporary support as of, "at the earliest," January 6, 2015, and could not order retroactive modification of the support. As we have recited, in its statement of decision following trial on the bifurcated support issues, the court reviewed the procedural history of the support order at considerable length and expressly found the court had intended to issue an interim order for temporary support, which it and the parties understood would be subject to modification following a full, evidentiary hearing.
Wife relies on Family Code section 3651, which provides in part: "a support order may be modified or terminated at any time as the court determines to be necessary. [¶] . . . [¶] [With certain inapplicable exceptions] . . . a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." (Fam. Code, § 3651, subds. (a) & (c)(1).) Family Code section 3653, likewise provides: "An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date. . . ." (Fam. Code, § 3653, subd. (a).)
Similarly, Family Code section 3603, regarding child support orders, provides "An order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate."
Wife also relies on In re Marriage of Gruen for the proposition that temporary support orders may not be modified retroactively. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627 (Gruen).) In Gruen, the husband filed for dissolution of marriage and applied for an OSC concerning child and spousal support, among other matters. (Id. at p. 632.) On August 1, 2008, the trial court entered an order directing the husband to pay temporary support in the amount of $40,000 per month and appointed an expert to assist in determining the husband's income available for support. (Id. at pp. 632-633.) Later that month, the husband asked the court to take his OSC off calendar. (Id. at p. 633.) Several months later, in February 2009, the husband moved for " '[r]etroactive reimbursement,' " seeking a reduction in his support obligation retroactive to August 1. (Id. at pp. 633-634.) The family court granted the husband's request. (Id. at pp. 635-636.) The Court of Appeal reversed, noting the August 1 order was "final" and "immediately operative and directly appealable." (Id. at p. 639.) Since no appeal was taken, the wife was "entitled to rely on the amount of temporary support ordered without the threat of having to repay or credit [the husband] with any portion of accrued support." (Ibid.) That the order was made " 'without prejudice,' " did not change the appellate court's view, as "that is merely the general rule for temporary support orders." (Id. at p. 640.) The court added: "In any event, regardless of the court's intent or how it labeled the August 1 order, retroactive modification is forbidden." (Id. at p. 640.)
Husband, in turn, relies on Freitas, supra, 209 Cal.App.4th 1059, decided by the same court that decided Gruen and in which the court distinguished its earlier opinion. In Freitas, the family court entered a temporary spousal support award in favor of the husband at an October 2010 hearing. (Freitas, at p. 1061.) The court also ruled it would reserve jurisdiction over whether to amend the temporary support and that the husband could submit additional evidence pertaining to the wife's income for the relevant period. (Id. at pp. 1061-1062.) Months later, the trial court held that, under Gruen, it lacked jurisdiction to reassess the wife's income for the period of September and October 2010. (Freitas, at p. 1065.) The Court of Appeal reversed, concluding the family court had erred in ruling it was precluded from amending its temporary support award because it had expressly reserved jurisdiction to amend the award as to September and October 2010. (Id. at pp. 1073-1075.) Thus, unlike in Gruen, "the parties' clear expectation was that the original support awards were not final as to these months. [Citation.] The trial court's original child and spousal support awards . . . were not fully dispositive of the rights of the parties with respect to the amount of support to be awarded for September and October 2010, and therefore did not constitute final support orders as to those months." (Freitas, at pp. 1074-1075, italics omitted.)
The court also distinguished Gruen because, in that case, the husband had taken his original OSC off calendar and there was no pending motion to modify the support order. (Freitas, supra, 209 Cal.App.4th at p. 1075.)
"Distilled simply, Gruen and Freitas together establish the rule that a trial court lacks jurisdiction to retroactively modify a temporary support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed [citation], unless the trial court expressly reserves jurisdiction to amend the support order such that the parties' clear expectation is the original support award is not final." (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 210 (Spector), italics added.)
Spector considered whether a family court has inherent authority to modify its orders to correct errors in the family law context. (Spector, supra, 24 Cal.App.5th at pp. 210-211.) In that case, the court issued an order for temporary spousal support and certain professional fees, with the first support payment due March 1. (Id. at p. 204.) Shortly after the order was issued, the husband noticed a mathematical error in the temporary spousal support calculations. (Ibid.) He suggested the court " 'relabel [its] ruling to instead be a Tentative Ruling and let us each argue before making it final.' " (Id. at p. 205.) The wife objected. The family court ruled, " '[p]ursuant to the holding in Le Francois v. Goel [(2005)] 35 Cal.4th 1094, I have the authority and ability to reconsider a ruling I made sua sponte which is exactly what I'm going to do.' " (Spector, at p. 205.) After both parties submitted briefs, the court issued a " 'reconsidered' " ruling and order, which found no math error, but "modifi[ed] downward" the temporary spousal support amount and imposed "an effective date retroactive to March 1." (Id. at p. 206-207.)
Wife filed a letter "to inform the Court of authority relevant to this pending appeal, published after briefing was completed," and identified In re Marriage of Spector. Neither party sought to file supplemental briefing.
In LeFrancois, the Supreme Court addressed whether the family court had authority to consider a second motion for summary judgment on the same grounds, despite statutes that "seemingly prohibit a party from making such a new motion." (LeFrancois, supra, 35 Cal.4th at p. 1096.) The court concluded the court had the authority to reconsider a prior ruling, "whether the 'judge has an unprovoked flash of understanding in the middle of the night' [citation] or acts in response to a party's suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief." (Id. at p. 1108.) " ' "Miscarriage of justice results where a court is unable to correct its own perceived legal errors. . . ." ' " (Id. at p. 1105.)
On appeal in Spector, the wife maintained LeFrancois was inapplicable because it did not involve " 'the modification of a final order awarding temporary spousal support,' " and therefore Gruen and Freitas were controlling. (Spector, supra, 24 Cal.App.5th at p. 213.) The Spector court disagreed, holding "If the Family Code statutes were read to preclude a court from reconsidering a temporary support order sua sponte to correct its own error, the interpretation would clearly raise separation of powers concerns, as discussed in LeFrancois. Further, if the statutes were read to allow a court to sua sponte reconsider a prior erroneous temporary support order, but to preclude the court from retroactively modifying the order, the statutes would strip the court of its ability to effect the use of its inherent authority." (Id. at p. 213-214.) The court further concluded the family court's inherent authority to reconsider its orders is not limited to interim orders, but "may extend to final orders." (Id. at p. 215.)
In the instant case, the family law court exercised its own inherent authority, as explicated in LeFrancois and Spector, to correct what it perceived to be its own mistake in not specifying in its October 2013 written order what it had intended and believed it had ruled at the August hearing—that its temporary support order was not final, that the amount of support owed could be modified after an evidentiary hearing, and that credits for any overpayments or underpayments would, if necessary, be ordered at that time. At the December 2013 hearing, for example, Husband's attorney's stated: "[W]hat [Husband] intended to do was offer an advance pending a support hearing, and it would be retroactively modifiable, and . . . [¶] I believe this Court responded that that is what it intended too, but in the end, the finding and order after hearing that was signed did not include that language." The court agreed, stating: "[T]hat should be resolved because that is what I intended. [¶] Now, I don't know if that really addresses retroactivity or not. What it deals with is we are going to be able to figure out how long this support should last. We are going to be able to figure out how much it is and should have been, and we can make corrections at that point after we have gone through all of the factors, and that would seem in a case like this one to be appropriate to me." Accordingly, following the hearing, the family court entered an order stating: "The Court reserves jurisdiction to award credits for overpayments and to address any underpayment in the temporary support previously ordered."
We note neither party sought appellate review by appeal or writ of the family court's January 2014 order clarifying that the court was "reserve[ing] jurisdiction to award credits for overpayments and to address any underpayment in the temporary support previously ordered."
Wife concedes "[i]t is true that the written [order] issued after hearing on [Husband's] motion to set aside provides that the court 'reserves jurisdiction to award credits for overpayment and to address any underpayment in the temporary support previously ordered.' " She claims, however, that "this does not permit retroactive modification." (Italics omitted.) Instead, she asserts the "plain meaning of the words used" is that "it ensures that if [Husband] paid [Wife] funds, they would be credited towards the support that was ordered, and if [Husband] underpaid support, this could later be addressed."
Wife's interpretation cannot be squared with either the family court's statements at the pertinent hearings or the language of its December order. The court expressly reserved jurisdiction "to award credits for overpayment." In order to award credits for overpayment, it would have to recalculate the amount of support and determine whether Husband had overpaid. The court also did not limit how those credits for overpayment could be made. As the court found after the bifurcated trial on the support issues, "Judge Begert clearly stated that the orders were interim; that he was issuing the orders pending an evidentiary hearing; and that the orders were retroactively modifiable interim support orders permitted by Freitas." It would make no sense, grammatically or legally, for overpayments made by Husband to be credited only "towards the support that was ordered," but not reimbursed or awarded as credits against other amounts found to be owed to Wife.
Wife nevertheless maintains "Judge Begert later clarified his intention was never to reserve jurisdiction for temporary support to be recalculated," citing to certain portions of the July 3, 2014 and January 6, 2015 transcripts. The cited portions, however, do not support Wife's claims.
At the conclusion of the July 3, 2014 hearing, at the transcript pages cited by Wife, the following colloquy occurred: "[Husband's counsel]: Your honor, may I ask you to clarify now your modification of the child and spousal [support] order? Is that—my understanding is that is with a reservation to redetermine or to determine the actual spousal support and child support at trial? [¶] The Court: It was my—my anticipation was that this case would conclude within a reasonable timeframe, and since this is a marriage of about . . . four to five years in duration, that if it concluded within a year or a couple of years, that even if there was some overpayment of the temporary spousal support, that that could be accounted for in figuring out how long support was going to last. That was my intention. [¶] Now, we've had a lot of briefing over whether I can retroactively change something. If you get this thing to trial and get it concluded, that won't be necessary because you'll just make adjustments on how long the support is going to last based on whether support's been overpaid to date. Does that help? [¶] [Husband's Counsel]: Well, it sort of does. I think you're saying—what I'm asking, what I understand is the $80,405 a month spousal support, which you can modify because it was an interim order and was subject to modification—[¶] The Court: It's not before me []. [¶] [Husband's Counsel]: What I'm asking you is when you made this change for the purposes of the forthcoming trial, if the Court is to find at that trial that the actual appropriate spousal support figure is, say, $45,000 a month, then does that—the difference between the 80,405 and the $45,000 become credited back to [Husband] as you contemplated for future support payment or whatever? [¶] The Court: We'll have to figure that out if it happens." At the January 6, 2015 hearing, the Court stated: "I don't think that I explicitly stated that the Court was reserving jurisdiction over the temporary spousal support at the July 3rd, 2014 hearing, but that was my intention. So if I failed to make that clear, I make it clear now. The Court reserves jurisdiction to modify spousal support paid subsequently to this date."
Accordingly, it is plain the family court did intend to reserve jurisdiction to recalculate, and if necessary make adjustments for any excess paid for, temporary support. Moreover, as the court found and set forth in its statement of decision, that was what the parties contemplated. Husband repeatedly made clear from the outset that he was agreeing to pay the requested amount of temporary support as an interim matter, pending his right to a full evidentiary hearing. Wife, at the August 2013 hearing, did not dispute Husband's stated understanding of the temporary support ordered and she expressly stipulated that "The issue of credits and reimbursements should be reserved until the time of trial." Thus, there is ample support for the family court's observation that "what appears to have happened in this case is that Wife, having secured the $102,090 of monthly support, delayed matters and sought continuances until Husband had paid her over $2 million to then claim this was, in her view, non-modifiable support."
In sum, on this record, the family court did not err in proceeding with the bifurcated trial on the support issues and in ordering reimbursement or credit for overpaid temporary spousal support. The court had authority to, on its own, correct its mistake in its initial order in omitting language as to the interim nature of its temporary support order and expressly retaining jurisdiction to make adjustments, if appropriate, after a full evidentiary hearing.
Date of Marriage and Separation
Wife claims the family court also erred in finding that "the parties were married on June 4, 2008 and separated on October 18, 2012." She asserts the facts surrounding the dates of marriage and separation are undisputed, and therefore the issues are legal ones we must review de novo. Contrary to Wife's assertion, the facts were disputed, and we review the family court's factual determinations for substantial evidence. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.)
Date of Marriage
Wife testified the date of marriage was March 9, 2008, when the parties had a traditional Hindu wedding ceremony in Malaysia. They did not obtain a marriage license from either Malaysia or India, and they never registered their offshore marriage with the Indian government. They subsequently married in Las Vegas on June 4, 2008.
Although Wife testified that she believed the Malaysian marriage ceremony resulted in a legal marriage under Indian law, Wife cites no legal authority for her claim that the date of a religious ceremony in Malaysia is the legal date of their marriage.
Thereafter, Wife signed two legal documents under penalty of perjury which stated the date of their marriage was June 4, 2008—her response to Husband's request for dissolution and a declaration in support of a domestic violence restraining order. Wife testified the marriage dates on those documents were a "mistake" and she so informed her attorneys. When asked if she sought to file an amended response, Wife testified she "didn't even know that was possible."
While Wife cannot, and does not, dispute that she stated under penalty of perjury in two court-filed documents that June 4, 2008 was the date of marriage, she maintains her averments were the result of negligence on the part of her attorney, which should " 'not be imputed to a client' " under Family Code section 2124. That section provides: "The negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorney's negligence and unreasonably failed to protect himself or herself." (Fam. Code, § 2124.) While Wife plainly knew, or should have known, whether her attorney was in error as to the stated date of the marriage and thus, by its terms, Family Code section 2124 is inapplicable, Wife nevertheless maintains, "The spirit of this rule should apply here."
The family court rejected Wife's claim that she should not be charged with her averments under penalty of perjury, finding "it incredible that not once, but twice, the date of marriage would be misstated, under penalty of perjury, by the person who should know best when she was married." (Italics omitted.) Thus, the court made a factual finding as to the date of marriage, and that finding is supported by substantial evidence, including that supplied by Husband.
Date of Separation
As to the date of separation, Husband testified it was October 18, 2012. He testified he and Wife had discussed divorce "many times" before, and on that date, he asked Wife if "she had any bank accounts in India in her name and why she was so adamant to be on all of my bank accounts here in the United States as a joint account holder. We had an argument, and . . . [Wife] blocked my way . . . out of the closet and [the] next thing she accused me of trying to strangle her." Husband testified Wife "moved out with our daughter, you know, right away. And when she did that . . . she didn't disclose to me her whereabouts and within three days of that, I decided, I told her please, I want you to stay over here, I will move to Los Altos, and I moved to [the home in] Los Altos." He stated the couple "did go to India together" "because we had already booked a trip to India prior to the incident on the 18th of October, I thought maybe that was a place where we could resolve this issue because both our parents would be present in India. And since they play such an important role in the marriage, I thought our families could talk it out with each other. . . . But nothing got resolved over there." Husband testified when they returned, he "asked a colleague of [his] to come to the airport. I helped move [Wife's] luggage because she, obviously, was with [our daughter]. . . . I helped them move to San Francisco, and then I asked my friend to drive me to Los Altos, at which point she said you're not going to Los Altos. If you're going, I'm coming with you. And obviously, I was stuck, and my friend did not know what to do. At that point I said all right, doesn't matter. You go back. I will stay over." Husband further testified that although he stayed at their San Francisco apartment "for probably a week or a week and a half" after they returned from India until he filed for divorce in January, "In my mind, I had mentally checked out on the 18th of October. . . ."
Wife testified Husband "stop[ped] residing with [her] in the home on Broadway [in San Francisco]" on January 29, 2013.
Wife contends that, even assuming Family Code section 70, effective January 1, 2017, applies retroactively, its requirements were not met. Family Code section 70 provides: "(a) 'Date of separation' means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: [¶] (1) The spouse has expressed to the other spouse his or her intent to end the marriage. [¶] (2) The conduct of the spouse is consistent with his or her intent to end the marriage. [¶] (b) In determining the date of separation, the court shall take into consideration all relevant evidence. [¶] (c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152." (Fam. Code, § 70, subds. (a)-(c).)
In In re Marriage of Davis, the California Supreme Court had held " 'living separate and apart' refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship." (In re Marriage of Davis, supra, 61 Cal.4th at p. 864, abrogated by statute; see In re Marriage of Norviel, supra, 102 Cal.App.4th at p. 1162 ["[L]iving apart physically is an indispensable threshold requirement to separation."].)
Wife claims the only evidence of an October 18, 2012 separation date was Husband's testimony that he " 'mentally checked out' " of the relationship on that date. To the contrary, the evidence showed Wife moved out of the family's San Francisco home on October 18, and Husband then encouraged her to return to that dwelling and said he would live in his second home in Los Altos. Although the two travelled to India on a pre-planned trip to visit family, they did not stay together during the entire trip, and "nothing got resolved." Husband testified he stayed at the San Francisco home for a mere week and a half before filing for dissolution, and Wife did not testify otherwise.
Accordingly, substantial evidence supports the trial court's finding as to the date of separation.
Exclusion of Hearsay Evidence
Wife additionally claims the family court erred in excluding evidence of the hearsay contents of a database regarding Husband's finances created by Husband's forensic accountant, about which Wife's expert sought to testify.
Wife first maintains the trial court "misapplied case law" in relying on People v. Coleman (1985) 38 Cal.3d 69 (Coleman), noting the case was disapproved in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Although Sanchez disapproved Coleman, it provides no assistance to Wife here.
In Sanchez, the defendant was charged with, among other things, active participation in a criminal street gang, and the information additionally alleged an enhancement for committing a felony for the benefit of a gang. (Sanchez, supra, 63 Cal.4th at pp. 671, 698.) A gang expert testified about his experience and training; the practice of issuing "STEP notices" to gather information from, and impart warnings to, the associates of known gang members; preparation of field identification cards recording police contacts with individuals; gang culture in general, and the Delhi gang (of which Sanchez allegedly was a member) in particular; the way gangs operate; and the Delhi gang's territory, membership, modus operandi, and primary activities. (Id. at pp. 670-673.) A jury convicted the defendant as charged and found the gang enhancement true. (Id. at p. 673.)
The Supreme Court reversed as to the gang findings, holding that "the case-specific statements related by the prosecution expert concerning defendant's gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford [v. Washington (2004) 541 U.S. 36]." (Sanchez, supra, 63 Cal.4th at pp. 670-671.)
With respect to the state hearsay rule, Sanchez drew a distinction between "an expert's testimony regarding his general knowledge in his field of expertise," and "case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) The former is not barred by the hearsay rule, even if it is "technically hearsay," while the latter is barred. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge." (Ibid.)
Sanchez explained the law under Coleman: "It has long been the rule that an expert may not ' "under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence." ' " (Sanchez, supra, 63 Cal.4th at p. 679, citing Coleman, supra, 38 Cal.3d at p. 92.) "Courts created a two-pronged approach to balancing 'an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion. . . .' " " '[M]ost often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.' " (Sanchez, at p. 679, citing Coleman, at pp. 91-93.) "Thus, under this paradigm, there was no longer a need to carefully distinguish between an expert's testimony regarding background information and case-specific facts. The inquiry instead turned on whether the jury could properly follow the court's limiting instruction in light of the nature and amount of the out-of-court statements admitted." (Sanchez, at p. 679.) Sanchez disapproved Coleman, concluding "this paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Sanchez, at p. 679, italics omitted.)
Wife, apparently recognizing the evidence she complains was improperly excluded consisted entirely of "case specific facts" excludable under Sanchez, asserts in her reply brief that we "should defer [our] review of the evidentiary issues" because "the Legislature has introduced a Senate Bill that, if passed, will impact these issues." Wife notes Senate Bill No. 1276 (2017-2018 Reg. Sess.) as introduced on February 16, 2018, would "expressly abrogate the holding in [Sanchez] so that in civil proceedings 'evidence of a statement used to support the opinion of an expert is not inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. . . .' " (Italics omitted.)
We decline Wife's suggestion that we "delay resolution to await further action by the Legislature." Wife cites no authority for such a delay. And, we note the trial court excluded the evidence, in any case, based on the pre-Sanchez "paradigm" under Coleman, which Senate Bill No. 1276 (2017-2018 Reg. Sess.), if passed, would apparently restore as it relates to family law cases.
The amended version of Senate Bill No. 1276 (2017-2018 Reg. Sess.) states in part: "This bill would abrogate the holding in [People v. Sanchez] as it applies to proceedings under the Family Code by providing, in these proceedings, that evidence of a statement used to support the opinion of an expert is not inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable, and would require the court to consider certain factors in making its determination." (Legis. Counsel's Dig. Sen. Bill No. 1276 (2017-2018 Reg. Sess.) Summary Dig., p. 98.) As of the date of this opinion, the date set for first hearing of the bill was canceled at the request of the author. (Ibid.)
The trial court did not abuse its discretion in excluding the challenged evidence.
Domestic Violence Evidence
Wife further claims the family court erred in not "assessing the impact that the trial court's prior finding of abuse by [Husband] against [Wife] has" on the issue of "permanent spousal support." She asserts the court erred in "re-hear[ing] the evidence about the domestic violence between the parties" and in finding "that abuse can only impact spousal support if a victim is 'maimed for life' or permanently disfigured."
To begin with, the family court made no such finding. Instead, in response to Wife's attorney's closing argument in which counsel maintained Husband's "litigation strategy . . . has been a continuation of the abuse," the court asked "Tell me, again, how does this affect [Wife's] ability, she has not worked since—[¶] [Wife's attorney:] I'm getting to that, your Honor. [¶] [The Court:] Let's get to it, because it's much about a lot of focus on the domestic violence piece. This is not a case where someone has been physically maimed for life, such that they cannot go out and find a job. [¶] She has an MBA. She has done nothing to go out and find a job. It's a short-term marriage. And that's what the Court's looking at in terms of factors, so I want you to address those, and I've made it clear from the beginning, how, why should the Court extend support beyond half the length of the marriage."
Furthermore, the family court did assess the impact of the court's prior findings in connection with a temporary restraining order (TRO) Wife had sought and the court had issued in April 2014. That order required Husband, for six-months, to stay three yards away from Wife in the San Francisco home, and 10 yards away from her in other situations. The order made an exception for "[b]rief and peaceful contact" with Wife and their child "as required for court-ordered visitation."
Family Code section 4320 provides in part: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] . . . [¶] (i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party." (Fam. Code, §4320, subd. (i).)
At the bifurcated trial, Wife testified that more than a year before the court issued the TRO, Husband had, on October 17, 2012, strangled her. She testified other people saw marks and bruises on her neck, but she never looked. She went to a medical center that day because she was "having difficulty breathing and [her] throat was hurting." The medical records from that visit indicate Wife complained of a sore throat and difficulty swallowing. Wife did not tell the doctor or nurse she had been strangled. She wore a scarf, and testified "I did not tell the doctor because I was scared of what [Husband] would do to me if I told him that [Husband] strangled me. So I did not tell the doctor. All I told him was that my throat was hurting." The doctor said her throat was swollen and red, and said "maybe you have—I don't know what it's called laryngitis." He "asked if I wanted to do a swab test, and he said if it's negative, then you don't need to take penicillin." She was prescribed penicillin and painkillers.
Wife testified the restraining order was important to her because Husband abused her during the marriage and after the separation. She testified, "He would come home. He would bang on the door. His mother would send me abusive messages. He called me—the abuse just didn't stop." In response to a question about whether she had made progress in her emotional well-being since the separation, Wife testified "I was a wreck in 2013. . . . [¶] I think towards the end of 2014, I began to feel a little bit more empowered. I began to feel now I'm strong. Now I can carry on. Trying to forget how traumatized I was, trying to forget what I went through."
In its statement of decision, the family court stated: "Judge Begert did determine that Wife had carried her burden to sustain entry of a domestic violence order, but he did not expressly find that Husband strangled Wife. This Court must interpret the degree of impact of domestic violence on the support issue based on Judge Begert's order and other evidence before it at trial. For several reasons, the Court is not persuaded that domestic violence should [play] any role in the support issue now before the Court. First, the Court is impressed by the fact that the stay-away order . . . only required Husband to stay ten feet away from Wife in the family home and was for six months' duration. This Court concluded that if Judge Begert had found that Husband had strangled Wife as she described in her testimony, he would not have permitted Husband to return to the family home. . . . [¶] Second, there is not a scintilla of evidence in Wife's contemporaneous emergency hospital record that supports her testimony or that of her employee regarding the observable signs of physical injuries she claims were apparent or that Husband battered her in any way. . . . [T]his Court finds Wife's testimony in that regard not to be credible. [¶] Wife also argued that Husband continued to abuse her throughout the course of this case by his litigation tactics. This Court finds that Husband did not use litigation as a form of domestic violence. This Court also finds that at this time Wife has failed to prove that she suffers any residual impact from any domestic violence perpetrated by Husband at any time which would impair her ability to be self-supporting." (Italics omitted.)
In short, Wife's claim that the family court failed to "assess the impact" of domestic violence is unsupported by the record.
Wife also asserts the trial judge erred in "finding, based on her decision not to believe [Wife's] testimony about the strangulation, that [Wife] was not otherwise credible." To the contrary, the court found Wife's testimony lacked credibility for numerous reasons, including her misrepresentations regarding her education, work experience, and personal assets. For example, Wife declared under penalty of perjury in her April 2013 income and expense declaration that she had an MBA, and listed on her LinkedIn page that she had an MBA and was the CEO of Goodcare Pharma. At trial, she testified she was not the CEO and was only an "honorary director" of the company, that she had taken a "diploma course," not an MBA program, and had never completed it. In explanation of the disparity, she claimed she "was not hurting anyone" by publicly misrepresenting her credentials.
Denial of Reimbursement for Overpayment of Child Support
Husband, in his cross-appeal, asserts the family court erred in denying him reimbursement of overpayments of child support. He maintains the court failed to "comply with the statutory mandate for child support orders deviating from the Statewide Uniform Guideline," and thus abused its discretion given its finding that "there is no evidence controverting the account of Husband's credits and reimbursements due."
Wife agrees the court erred in not considering the factors set forth in Family Code section 3653 in determining whether to order reimbursement of overpaid temporary child support, but contends the error was "harmless" because she "had no income and no clear means to reimburse any support overpayment."
Family Code section 3653 provides in part: "If an order decreasing or terminating a support order is entered retroactively pursuant to this section, the support obligor may be entitled to, and the support obligee may be ordered to repay, according to the terms specified in the order, any amounts previously paid by the support obligor pursuant to the prior order that are in excess of the amounts due pursuant to the retroactive order. The court may order that the repayment by the support obligee shall be made over any period of time and in any manner, including, but not limited to, by an offset against future support payments or wage assignment, as the court deems just and reasonable. In determining whether to order a repayment, and in establishing the terms of repayment, the court shall consider all of the following factors: [¶] (1) The amount to be repaid. [¶] (2) The duration of the support order prior to modification or termination. [¶] (3) The financial impact on the support obligee of any particular method of repayment such as an offset against future support payments or wage assignment. [¶] (4) Any other facts or circumstances that the court deems relevant." (Fam. Code, § 3653, subd. (d)(1)-(4).)
The court, in its 31-page statement of decision, clearly considered these factors, which includes "[a]ny [] facts or circumstances the court deems relevant." (Fam. Code, § 3653, subd. (d)(4).) Although the court found Husband had overpaid temporary child support, it declined to order Wife to reimburse the overage because it would harm the child. The court found "Sadly, [child] is the one who is caught in the middle of this bitter divorce and while Husband did in fact overpay child support based on the Guideline calculations, if the court grants his reimbursement claims, it will be [the child] who will suffer, not the parents. Husband's obligation to pay child support for [the child] under the new calculations will commence on October 1, 2015. There will be no reimbursement for any child support payments made prior to that date."
The comments by the court in In re Marriage of Leonard are apposite: "[A]lthough not specifically articulated by the court, there was evidence of some disparity in the parties' respective standards of living, such that denial of retroactivity would subserve the objective that the supported children 'should share in the standard of living of both parents.' " (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 562-563, fn. omitted (Leonard).) The court went on to explain, "were the court to have made the modification order retroactive, it is apparent that the . . . children would have suffered significantly as a result of their mother's inability to meet her expenses. Indeed, as the trial court recognized, had [husband's] request for retroactivity been granted—because of the resulting overpayment in support paid . . . [wife] would have received no child support payments for over five months. Instead, [husband] would have been entitled to a credit against future support payments. . . . Under these circumstances, there was ample evidence upon which the trial court concluded that the needs of the minor children justified denying [husband's] request for retroactivity. (Ibid., italics omitted.)
In this case, Wife testified she was unemployed and her spousal support had been terminated. She asserted, in her amended income and expense declaration, that she had only $2,300 in savings and received loans from her family. Although the court pointed out Wife had filed income tax returns in India (without disclosing such to Husband) and found Wife's testimony concerning her personal assets "not to be credible," the evidence does establish that Wife's circumstances would be altered without support from Husband. Accordingly, there was some basis in the record for the court to invoke the "strong public policy that favors adequate child support . . . [¶] . . . ' "[and] seeks to place the interests of children as the state's top priority." ' " (Leonard, supra, 119 Cal.App.4th at pp. 555-556 ["[A] trial court's decision whether to make an order for child support retroactive is reviewed under an abuse of discretion standard."]; Fam. Code, § 4053, subd. (e).) We therefore conclude the court did not abuse its discretion in ultimately concluding the equities did not inure to Husband on this issue.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Kelly, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.