Opinion
D081625
12-19-2023
In re the Marriage of OLE SNYDER and ANNISA MAYER. v. ANNISA MAYER, Appellant. OLE SNYDER, Respondent,
Antonyan Miranda, Anthony J. Boucek and Timothy Miranda, for Appellant. Law Office of Patrick L. McCrary and Patrick L. McCrary, for Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County, No. 20FL003912C, Judy S. Bae, Judge. Affirmed in part, reversed in part and remanded with instructions, and dismissed in part.
Antonyan Miranda, Anthony J. Boucek and Timothy Miranda, for Appellant.
Law Office of Patrick L. McCrary and Patrick L. McCrary, for Respondent.
BUCHANAN, J.
This appeal arises from consolidated domestic violence restraining order and dissolution actions between Ole Snyder and Annisa Mayer. On November 13, 2020, the court ordered Snyder to pay Mayer $7,697 in monthly interim child support and $7,453 in monthly interim spousal support. The court used Snyder's monthly salary of $37,430 and Mayer's lack of income to reach these figures.
After unsuccessfully attempting to set aside the support orders, Snyder filed four motions to modify them between February 2021 and March 2022. The first was denied, the second was taken off calendar, the third was denied without prejudice, and the fourth was successful. In its ruling on the fourth motion, the court reduced monthly child support to $4,300 and monthly spousal support to $2,371, effective April 1, 2022. The reduction was based on Snyder's change of employment, which lowered his monthly salary from $37,430 to $18,000, and the court's decision to impute monthly income of $2,800 to Mayer based on her expenses, education, skills, and ability to work.
Mayer appeals the order reducing support on three grounds. She claims (1) there was no change of circumstances between Snyder's third and fourth motions to modify support, (2) the court improperly excluded evidence, and (3) the reduction of child support based on her imputed income was not in the children's best interests. We reject the first two grounds and therefore affirm the court's reduction of spousal support. However, we agree with Mayer as to the third ground and therefore reverse the court's reduction of child support.
At the hearing on Snyder's fourth motion to modify support, the court also denied Mayer's requests for attorney fees pursuant to Family Codesection 271, finding Snyder did not have sufficient income to pay. Mayer separately appeals that order, claiming the court abused its discretion. We dismiss this appeal because the order is not appealable.
All further statutory references are to the Family Code unless otherwise specified.
In his respondent's brief, Snyder argued that some of the issues on appeal may be moot as a result of a multi-day trial in April 2023 and an anticipated ruling covering the same support issues involved here. But the ruling is not part of the record before us, and neither party has attempted to augment the record to include it. Accordingly, Snyder has failed to meet his burden of demonstrating that any part of the appeal is moot. (See Becerra v. McClatchy Co. (2021) 69 Cal.App.5th 913, 927, fn. 4 ["Generally, the burden is on the party claiming mootness to establish that an appeal is moot."].) We express no opinion whether any of the court's orders at issue here have already been superseded by a subsequent order.
DISCUSSION
A. Appeal from Order Reducing Spousal and Child Support
1. Doctrine of Implied Findings
The order reducing spousal and child support does not contain findings on changed circumstances or the best interests of the children. Mayer challenges the lack of findings and asserts they cannot be implied because the court denied her request for a statement of decision.
" 'Under the doctrine of "implied findings," when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence.'" (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248 (McHugh).)
"At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision." (Fam. Code, § 3654.) Section 3654 does not address the procedure for making the request, so we turn to the Code of Civil Procedure. (Fam. Code, § 210.) Section 632 of the Code of Civil Procedure states that when the matter is heard within one calendar day, the request for a statement of decision must be made before the matter is submitted for decision. (Code Civ. Proc., § 632; see also, In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1009-1010 [finding request for statement of decision under Family Code section 3654 timely when made before closing argument].) Pursuant to California Rules of Court, rule 2.900(a), a "cause is deemed submitted" in the earlier of two circumstances: when "[t]he . . . court orders the matter submitted," or on "[t]he date the final paper is required to be filed or the date argument is heard, whichever is later." Submission generally occurs" 'when the court, trying the issues without a jury, has heard the evidence and the arguments of counsel and has taken the case under advisement.'" (Shapira v. Lifetech Resources, LLC (2018) 22 Cal.App.5th 429, 437, italics omitted (Shapira).)
The analysis is the same under the California Rules of Court. The Civil Rules, which mirror Code of Civil Procedure section 632, apply because there is no Family Rule governing statements of decision. (Cal. Rules of Court, rules 3.10, 3.1590(n).) Further, the San Diego Superior Court Local Rules for family law require that requests for a statement of decision be made pursuant to the California Rules of Court. (Super. Court San Diego County, Local Rules, rule 5.12.1(E).)
Snyder's fourth motion to modify support was heard within one day, so any request for a statement of decision had to be made before the matter was submitted for decision. The court announced its intended procedure at the beginning of the hearing, which was to provide a tentative ruling, allow argument, and then make a final ruling. Near the end of the hearing, after the parties had presented evidence and argued in response to the tentative ruling, the court twice announced it was going to make its ruling, and neither party requested an opportunity for further argument. The court then proceeded to issue its ruling and directed the parties to prepare formal orders. Only after the court had issued its final oral ruling did Mayer request a statement of decision.
Although the court did not expressly order the matter submitted, it did so in substance by informing the parties of its intended procedure, giving them an opportunity to present their full arguments and evidence, and then announcing it was going to make its final oral ruling before doing so. Because Mayer's request for a statement of decision came after that point, it was untimely. Her request was not made "prior to the submission of the matter for decision" (Code Civ. Proc., § 632) because the court had already" 'heard the evidence and the arguments of counsel'" and" 'taken the case under advisement.'" (Shapira, supra, 22 Cal.App.5th at p. 437.) As a result, Mayer waived a statement of decision, and we may imply findings regarding changed circumstances or the children's best interests if supported by substantial evidence.
Although the court denied the request for a statement of decision on a separate ground, we affirm a challenged order if it is correct on any theory. (Iloh v. Regents of University of California (2023) 87 Cal.App.5th 513, 529.)
2. Changed Circumstances
In support of his third motion to modify support, Snyder declared he was forced to resign from Scripps Coastal Medical Group (Scripps) on January 11, 2022, and he would begin working at Tri-City Primary Care Medical Group (Tri-City) on April 1, 2022, where he would receive a lower salary. After the third motion was denied without prejudice, the court relied on that same change of employment in granting Snyder's fourth motion. Mayer argues Snyder's change of employment was not an adequate change of circumstances because the court rejected it when ruling on the third motion.
"As a general rule, courts will not modify child or spousal support unless there has been a material change of circumstances following the previous determination." (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357.)"' "[T]he reason for the change of circumstances rule is to preclude relitigation of the same facts" and to bring finality to determinations concerning financial support.'" (Ibid.) However," 'The term "without prejudice," in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.'" (In re Marriage of Cohen (2023) 89 Cal.App.5th 574, 581.)
Snyder's change of employment was a material change in circumstances from the existing support order, as he was still employed at Scripps when that order was entered, and he received a lower salary in his new position at Tri-City. Although this change was initially raised in Snyder's third motion to modify support, that motion was denied without prejudice before Snyder actually began his new employment at Tri-City, so the issue was not decided on the merits and the court was not barred from considering it when ruling on the fourth motion. As such, no error has been shown.
3. Challenged Evidentiary Ruling
At the hearing on Snyder's fourth motion to modify support, Mayer sought to admit three emails between Snyder and his supervisor at Scripps. The trial court sustained Snyder's objection to these emails, finding that they contained hearsay and were irrelevant. Mayer argues the trial court abused its discretion in excluding these emails.
The court struck this evidentiary ruling from the formal order prepared by Mayer's counsel after the hearing. We presume the court did not intend to change that ruling, and instead struck it as unnecessary for inclusion in the final order.
We need not decide whether the trial court committed any error in excluding these emails. "The trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a 'miscarriage of justice'-that is, that a different result would have been probable if the error had not occurred." (Zuniga v. Alexandria Care Center, LLC (2021) 67 Cal.App.5th 871, 888.) As explained below, even if we assume the court erred by finding the emails inadmissible, Mayer has not shown that reversal is warranted because the error is not likely to have changed the outcome.
The first email is from Snyder's supervisor on November 9, 2021, and indicates that Scripps put Snyder on paid administrative leave pending an investigation of a severe sexual harassment complaint against him. The second email is from Snyder on November 29, 2021, in which Snyder confirms a previous discussion with his supervisor and resigns effective January 9, 2022. The third email is a response from Snyder's supervisor dated December 2, 2021, in which he confirms receipt of Snyder's resignation, and that Snyder will continue to be paid by Scripps until March 11, 2022.
Mayer claims the emails show that Snyder left Scripps before he filed his third motion to modify support, so that change of employment was not a sufficient change of circumstances for his fourth motion to modify support. This argument fails because the third motion was denied without prejudice as discussed above.
Mayer also argues that the emails would have impeached Snyder's claim in a December 6, 2021 declaration that he was forced to work overtime because they show that he was on paid administrative leave when he executed that declaration. However, the original order for spousal and child support was entered on November 13, 2020, which was a year before Snyder was put on administrative leave. Snyder therefore could have worked overtime during that year, and his December 6, 2021 declaration is not necessarily inaccurate.
Mayer further contends that Snyder was not unemployed as of January 11, 2022, as stated in a declaration filed in support of his fourth motion to modify support because the emails show Scripps continued to pay him until March 11, 2022. But the emails were not the only evidence showing that Snyder continued to be paid by Scripps. In support of her opposition to Snyder's fourth motion, Mayer submitted a declaration from Snyder in which he stated that he "received a 60-day severance package through March 12, 2022," from Scripps. Snyder's income and expense declaration filed in support of his fourth motion also stated that he received severance pay from his previous employer and included paystubs from Scripps issued between January 7, 2022, and March 11, 2022. Further, the court modified Snyder's support payments effective April 1, 2022, which is the date Snyder began working at Tri-City. The record therefore shows that the court was aware Snyder continued to be paid by Scripps through March 11, 2022, despite the exclusion of the emails.
Finally, Mayer argues the emails show that Snyder voluntarily resigned; therefore, the court could have imputed income to him based on his level of compensation at Scripps. (See, e.g., In re Marriage of Eggers (2005) 131 Cal.App.4th 695, 700 ["when a supporting parent quits a job, the trial court has discretion to conclude the parent's conduct reflected a divestiture of resources required for child support obligations . . . and may impute income to the parent based on his or her prior earnings."].) But the emails do not show that Snyder voluntarily resigned, as Mayer suggests. Instead, they provide an independent ground for finding that Snyder's departure from Scripps was not voluntary, as they indicate he resigned in the face of a sexual harassment complaint. It is therefore unlikely that the court would have imputed income to Snyder based on his prior earnings at Scripps if the emails were admitted.
Based on the foregoing, Mayer has not shown that a different result would have been more probable if the emails were admitted. She has thus failed to demonstrate reversible error on this ground.
4. Children's Best Interests
The court reduced Snyder's child support obligation by imputing income to Mayer, who was the custodial parent. Mayer argues this was improper because the court did not find imputation was in the children's best interests and there is insufficient evidence to support an implied finding. As noted above, we may presume this finding if there is substantial evidence to support it. (McHugh, supra, 231 Cal.App.4th at p. 1248.)
"The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children." (§ 4058, subd. (b)(1).) "The statute uses the phrase 'consistent with the best interests of the children.' Obviously, to reduce the amount of money a custodial parent receives will never be 'consistent with' the best interests of the children, all else being equal. Accordingly, imputation to a custodial parent requires some offsetting benefit to the children, which can often be found in the benefit of the noncustodial parent being able to spend more time with the children." (In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 22, fn. 10.)
Snyder addressed the children's best interests in his second and third motions to modify support. In declarations dated August 6, 2021, and December 6, 2021, he claimed that: (1) he was defending himself against Mayer's domestic violence allegations, which impeded his ability to have parenting time with the children; (2) due to his lack of parenting time, his child and spousal support obligations were extremely high, forcing him to work overtime; and (3) imputing income to Mayer would allow him to reduce his work hours and spend more time with the children, which was in their best interests.
On March 10, 2022, the court entered a domestic violence restraining order against Snyder, preventing him from contacting his children except for supervised one-hour visits each week. That order remained in effect until April 15, 2023.
Snyder filed his fourth motion to modify support on March 30, 2022, and a supplemental declaration on September 14, 2022. Neither of these filings contain any argument or evidence regarding the best interests of the children. Snyder also did not address how imputing income to Mayer would be in the children's best interests at the September 21, 2022 hearing on his fourth motion, nor does he address it in his appellate brief.
This record demonstrates that when Snyder's fourth motion was filed, Mayer had proved her domestic violence allegations and it was the resulting restraining order, not Snyder's work schedule, that prevented Snyder from spending time with his children. Snyder's previously asserted reasons for imputation being in the children's best interests were therefore no longer viable. Snyder does not assert any other reasons, nor does the record disclose any. Thus, there is no substantial evidence to support an implied finding that imputing income to Mayer was in the children's best interests, and the order reducing child support must be reversed.
We decline to reinstate the original interim child support order, however, because the trial court's reduction was not based solely on its decision to impute income to Mayer, but also on Snyder's reduced salary. Accordingly, we will remand the matter to the trial court to recalculate interim child support without imputing income to Mayer.
B. Appeal from Order Denying Attorney Fees
Mayer contends that the order denying her request for attorney fees under section 271 is appealable under the collateral order doctrine." 'To qualify as appealable under the collateral order doctrine, the interlocutory order must (1) be a final determination (2) of a collateral matter (3) and direct the payment of money or performance of an act.'" (Sanchez v. Westlake Services, LLC (2022) 73 Cal.App.5th 1100, 1107.)
Because the order denied attorney fees, it did not direct the payment of money or the performance of any act, and it does not satisfy the collateral order doctrine's third requirement. (Dr. V Productions, Inc. v. Rey (2021) 68 Cal.App.5th 793, 797 (Dr. V Productions, Inc.).)
We note there is a split of authority on this issue, in which the minority view allows a direct appeal of an order not requiring payment of money or performance of an act as long as the order is truly collateral. (See Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 899-902; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶ 2:79, p. 2-58.) We disagree with that view, as it departs from binding California Supreme Court precedent. (Longobardo v. Avco Corp. (2023) 93 Cal.App.5th 429, 434.)
Mayer also relies on In re Marriage of Tharp (2010) 188 Cal.App.4th 1295 (Tharp), which reviewed a denial of section 271 fees. (Tharp, at pp. 1316-1318.) However, Tharp did not discuss appealability of that order, instead limiting its discussion of appealability to an order on pendente lite attorney fees. (Id. at p. 1310-1311.) Tharp therefore does not establish that denial of section 271 fees is appealable, as that was neither considered nor discussed in the opinion. (Sonoma Ag Art v. Department of Food &Agriculture (2004) 125 Cal.App.4th 122, 127.)
Additionally, although a denial of pendente lite fees is appealable (Tharp, supra, 188 Cal.App.4th at p. 1311) and thus may be characterized as an exception to the collateral order doctrine's third requirement, we decline to expand such an exception to Family Code section 271 fees. Pendente lite fees are needs-based and ordered to ensure each party has access to legal representation in family law proceedings. (Id. at pp. 1312-1314.) On the other hand, "[a]n award of attorney's fees and costs pursuant to [Family Code section 271] is in the nature of a sanction." (Fam. Code, § 271, subd. (a).) These two types of fees are distinct, justifying different treatment. Family Code section 271 fees are more appropriately treated like other sanctions, which are not appealable when denied. (See Dr. V Productions, Inc., supra, 68 Cal.App.5th at pp. 796-798 [order denying sanctions under Civil Code section 3426.4 was not an appealable collateral order]; Kahn v. Price (2021) 69 Cal.App.5th 223, 227, fn. 3 [denial of a motion for sanctions is not appealable]; Code Civ. Proc., § 904.1, subd. (a)(12) [limiting right to appeal to orders granting sanctions over $5,000].)
For these reasons, the denial of attorney fees under section 271 is not appealable, and the appeal of that order is dismissed.
DISPOSITION
The appeal of the order denying attorney fees under section 271 is dismissed. The order reducing interim spousal support is affirmed. The order reducing interim child support is reversed and remanded. On remand, the court is directed to (1) vacate the order for interim child support in the Findings and Order After Hearing dated October 26, 2022; (2) recalculate interim child support for the period covered by the vacated order based on Snyder's reduced salary, but without imputing income to Mayer; and (3) determine any arrearages owed by Snyder based on the new interim child support amount. The parties shall bear their own costs on appeal.
WE CONCUR: McCONNELL, P.J., IRION, J.