Opinion
B225189
01-10-2012
In re Marriage of ARIEL VENEZIANO and AZITA ZENDEL ARIEL VENEZIANO, Respondent, v. AZITA ZENDEL, Appellant.
Azita Zendel, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BD468374
APPEAL from an order of the Superior Court of Los Angeles County. Rafael Ongkeko, Judge. Reversed in part, affirmed in part, and remanded with directions.
Azita Zendel, in pro. per., for Appellant.
No appearance for Respondent.
Appellant Zita Zendel and respondent Ariel Veneziano were married in September 2003 and are in the process of dissolving the marriage and dividing their property. Currently on appeal is the trial court's March 8, 2010 order which resolved appellant's March 2009 order to show cause (OSC) to modify spousal support. The March 2010 order, among other things, instructed respondent to pay various amounts of spousal support to appellant for certain periods in 2008 and 2009 and required respondent to pay appellant $10,000 for attorney fees likely to be incurred at trial, but only if respondent was also represented by counsel at trial. Appellant contends the amount of support awarded was insufficient, specifically, that the court erred in (1) failing to characterize as income to respondent $448,000 he received from a former employer after settlement of a lawsuit in January 2009; (2) failing to consider and allocate those funds when calculating and awarding monthly spousal support from March 2009 forward; (3) failing to increase spousal support retroactively to June 2008. Appellant further contends the court abused its discretion in conditionally awarding attorney fees.
We conclude (1) prior spousal support orders which covered periods before March 2009 had become final, rendering the trial court powerless to amend those orders and award a different level of support; (2) the undisputed evidence established that the $448,000 lump sum payment received by respondent was income, properly allocable to certain months in which he had been ordered to pay appellant 28 percent of his income (December 2008 and January 2009); (3) because the court reserved jurisdiction to modify spousal support from March 5, 2009 forward, that portion of the March 2010 order was not final or appealable; and (4) the trial court did not abuse its discretion in conditionally awarding attorney fees. Accordingly, we affirm in part, reverse in part and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Support Orders - June 13, 2008 and October 15, 2008
In June 2007, after less than four years of marriage, respondent filed his petition for dissolution. In December 2007, appellant requested spousal support for the first time. By order entered June 13, 2008, the court, having found that respondent's then current income was $22,917 per month, ordered respondent to pay appellant approximately one-third or $7,000 per month for pendente lite spousal support. The amount was made retroactive to December 15, 2007. The court also ordered respondent to pay $12,000 toward appellant's attorney fees and costs.
At that time, respondent was employed by ICON Productions, LLC (ICON). Respondent entered into an employment contract with ICON in August 2007, a few months after petitioning for dissolution. The contract had a one-year term commencing September 2007, and could be extended two additional years, up to September 2010. Respondent's compensation under the contract's terms was to be $275,000 per year for the first year and, if extended, $300,000 for the second year and $350,000 for the third year.
Although appellant was representing herself on the date the order was issued, she had apparently at one time been represented by counsel.
A few days after the order was entered, on June 27, 2008, respondent filed an order to show cause (OSC) to modify/reduce spousal support. At the hearing on September 3, the court found that there was no evidence respondent was earning any income and by order dated October 15, 2008 reduced respondent's pendente lite support obligation to zero. In the order, the court reserved jurisdiction to reconsider spousal support retroactive to the date respondent filed the OSC (June 27).
Appellant did not include respondent's moving papers in her appendix. The apparent basis for respondent's request was ICON's termination of its contract with respondent on June 19, 2008, leaving him with no income. Respondent's counsel represented to the court at the September 2008 hearing on the OSC that respondent "has no source of income at the present time."
At the September 2008 hearing, the court noted that respondent's contract with ICON had not concluded its initial term and that representatives of ICON who had been subpoenaed by appellant, but failed to appear -- might have testified that respondent was owed additional sums. Explaining the reason it retained jurisdiction over spousal support back to June 2008, the court stated: "I am finding witnesses have not appeared, and I need to continue this hearing so that I can have the hearing which would ultimately result in a decision. If I find [respondent's] testimony credible, [this would] reduc[e] his support to zero back to the date he filed [the OSC][;] [w]iping out the entire period. [¶] [Or] if I find that he had income during this period, I might not reduce his support at all."
B. December 15, 2008 Support Order
On September 4, 2008, a day after the hearing on respondent's OSC, an entertainment periodical reported that respondent had obtained a job working for Myriad Pictures, Inc. (Myriad) "for the next few months as a sales consultant." Appellant later confirmed that respondent was employed as an independent contractor by Myriad under a contract with an effective date of August 25, 2008.On October 21, 2008, appellant filed an OSC re modification of spousal support. Appellant contended, among other things, that respondent was likely to get severance pay from ICON, and expressed concern that he would wait until proceedings were final to accept payment in a deliberate attempt to minimize his income. Appellant also pointed out that respondent had failed to inform the court when he began working for Myriad and expressed concern that he had other unreported part time consulting assignments.
The term of the Myriad contract ended on November 28, 2008. The contract stated that respondent would earn from $2,500 to $3,500 per week, depending on his responsibilities. In a letter dated February 27, 2009, subsequently submitted to the court by appellant, Myriad stated that although the original term had expired, respondent continued to be employed by Myriad under the same terms and conditions. The record includes documents and other evidence indicating respondent was employed by Myriad from August 2008 through June 2009 and that his compensation varied from month to month.
Following a hearing in November, the court issued an order on December 15, 2008 which once again modified spousal support. In this order, the court instructed respondent to pay appellant $3,100 per month for September, October and November 2008, based on earnings of $11,200 to $11,300 per month from Myriad. The court also ordered respondent to pay appellant "28 [percent] of his gross income he receives from any employment, whether it be consulting, independent contract or other form of compensation" from December 1, 2008 through January 31, 2009. It ordered respondent to "account to [appellant] for any forms of compensation that he has received, and to make the calculation based upon the same." The court found that it lacked sufficient information to make a final retroactive support order for any other months, thus reserving the period from June 27 to August 31, 2008. At the hearing on the order, the court explained: "At the hearing on . . . September 3rd [2008], I found that circumstances were too uncertain to make a final order. They continue [to be] uncertain at this time." The court continued the matter to March 2, 2009.
The order stated December 31, 2008, but on the record the court made clear that the period was to start December 1.
The order also instructed appellant to attend a vocational examination and stated the court's further finding that "[appellant] is taking actions that have increased the cost of the litigation far in excess of any support that might be paid for a short-term marriage on any property that is remaining," but that "it is not part of [a] scheme at this point to use litigation costs as a lever[,] rather it is simply inept litigation from a person who is not a lawyer." The vocational examination took place and the examiner concluded appellant was capable of earning $35,000 to $40,000 per year, after she had completed a few hours of additional training. The examiner estimated obtaining employment would be prefaced by a 90- to 120-day job search.
C. June 1, 2009 Support Order
The March 2, 2009 hearing took place after a new judge had been assigned. In an order issued June 1, 2009, the court stated: "[Appellant's] request for spousal support modification is denied" and "temporary spousal support is terminated as of January 31, 2009." Appellant appealed that order on July 31, 2009. On November 17, 2010 the appeal was dismissed for failure to file an opening brief.
We have taken judicial notice of certain documents included in the record for that appeal, including the court's June 1, 2009 order.
D. March 8, 2010 Support Order and Motion for Reconsideration
On March 5, 2009, appellant filed a new OSC for modification of spousal support, seeking continuance of the support ordered in December 2008 ($3,100 per month or 28 percent of gross income). Appellant stated in her declaration that the previously assigned judge had not intended to cut off spousal support at the March 2009 hearing when the court scheduled the hearing in December 2008, but rather had intended to verify respondent's employment status and determine the amount he should pay after January 31, 2009.
In the OSC, appellant claimed the court had ordered spousal support for nine months. According to our calculation, the court's orders of June 2008 and December 2008 instructed respondent to pay spousal support for 12 months -- December 2007 to June 27, 2008 and September 2008 through January 2009.
Appellant's OSC, initially set for hearing in April 2009, was not heard and resolved until March 8, 2010. During the period the OSC was pending, appellant filed several motions seeking contempt orders and additional discovery relating to respondent's income. In addition, appellant filed several OSC's re modification of spousal support, presenting new information regarding respondent's income and her financial situation. Appellant also filed a motion asking the court to reconsider its June 2009 order, although her appeal of that order was still pending. In December 2009, appellant asked for a prospective award of attorney fees to permit her to hire trial counsel. Prior to issuing its March 8, 2010 order resolving appellant's OSC for modification of spousal support, the court held multiple hearings and issued multiple orders on discovery and other issues.
During much of this period, appellant was engaged in a discovery battle with ICON to secure evidence of respondent's compensation.
Initially, appellant believed respondent had been secretly working for ICON after June 2008. She contended that she was entitled to 28 percent of any amount he earned in the months that followed. In September 2009, appellant learned that respondent had sued ICON for wrongful termination, that he had entered into a settlement agreement in January 2009, and that by multiple checks dated February 2009, he had obtained a settlement of $700,000, of which he received $448,000, the rest having been paid for attorney fees and expenses. Appellant also obtained through discovery requests and a court order, a redacted copy of the settlement agreement. The portion of the agreement describing the nature of the claims asserted on behalf of respondent was blacked out. By the time of the hearing on her OSC re modification of spousal support, appellant took the position that the payment represented income to respondent and that spousal support should be retroactively raised to $7,000 or more per month, commencing in July 2008.
In its order of March 8, 2010, the court instructed respondent to pay the following amounts for spousal support: $2,600 for March 2009; $3,100 for April 2009; $3,100 for May 2009 and $1,800 for June 2009 (a total of $10,600). The court "reserve[d] jurisdiction over the issue of spousal support for March 5, 2009 forward," leaving open the possibility that these amounts would be changed in the future. The order stated that respondent owed appellant $2,100 for December 2008 based on his earnings from Myriad and had paid her that amount, and further stated that respondent owed appellant zero spousal support for January 2009. The court also instructed respondent to pay $10,000 toward appellant's prospective attorney fees for the upcoming trial "if [respondent] is represented at trial."
The lower amount for March was due to appellant's OSC having been filed March 5. The lower amount for June 2009 was based on the court's finding that respondent's employment with Myriad ended on the 18th of that month.
At the hearing, counsel for respondent argued that none of the proceeds of the ICON settlement should be considered income for purposes of determining spousal support. Appellant contended that the proceeds were income and that she required an unredacted copy of the settlement agreement to establish the nature of the payment. The court stated its ruling was made "without prejudice to the trial issue of the affect of the ICON settlement," and explained that its decision to retain jurisdiction over the final amount of temporary support from March 2009 to the present was made with this unsettled issue in mind. Counsel for ICON appeared and represented that ICON's payment to respondent had nothing to do with any films or other property he may have brought to ICON, referring the court to a declaration previously filed by a representative of ICON to that effect. The court instructed appellant and ICON's representative to meet and confer regarding a method of providing appellant the information she needed to establish the basis for ICON's payment to respondent without violating the confidences of the parties to the settlement agreement.
On March 24, 2010, appellant moved for reconsideration of the court's order. In support of the motion, appellant presented new evidence: a representation by ICON's counsel that the sum paid represented income and a stipulation prepared by ICON's attorneys and signed by respondent, which stated that he did not object to the characterization of the settlement payment as income to him. Appellant once again sought allocation of the payment over the period it represented, retroactive increases in spousal support back to July 2008, and prospective increases in spousal support from March 2010 forward. On June 18, 2010, the court issued an order denying appellant's motion for reconsideration. This appeal timely followed.
The court's order was entered March 8, 2010. Appellant apparently served and filed a notice of the order on April 8, 2010. Appellant's notice of appeal was filed June 18, 2010, several days after the usual 60-day deadline. (Cal. Rules of Court, rule 8.104(a)(2).) However, serving and filing a valid motion for reconsideration of an appealable order under Code of Civil Procedure section 1008, subdivision (a) extends the time to appeal to 30 days after the superior court clerk mails or a party serves an order denying the motion for reconsideration. (Cal. Rules of Court, rule 8.108(e).)
DISCUSSION
A. Limits on Trial Court's Ability to Retroactively Amend Prior Support Orders
Before we address the substance of the issues raised by appellant, we must stress the limits on the trial court's ability to accord appellant the relief she sought -- and the concomitant limitations on our jurisdiction in this appeal. "„A variety of interim, "temporary" orders (also referred to as "pendente lite" relief) may issue in domestic relations proceedings pending trial and ultimate judgment.'" (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637, quoting Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ch. 5, Scope Note, p. 5-1 (rev. # 1, 2010).) The temporary support award, a type of pendente lite order, "is usually obtained soon after the filing of the petition and before any final determination on the various issues in the dissolution. Its purpose is to maintain the living conditions and standards of the parties as closely as possible to the status quo, pending trial and the division of the assets and obligations of the parties." (In re Marriage of McNaughton (1983) 145 Cal.App.3d 845, 849.) A temporary support order is generally considered operative from the time of pronouncement and is therefore immediately appealable. (In re Marriage of Gruen, supra, at p. 637; In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.) An exception exists only if it is clear that the order is an interim or preliminary ruling; such orders are not final or appealable even if affecting severable and collateral matters arising in a dissolution proceeding. (In re Marriage of Levine (1994) 28 Cal.App.4th 585, 586-589; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 737.)
Here, the December 15, 2008 order of the originally assigned judge was final as to support for the months of September, October and November 2008. It was also final for the months of December 2008 and January 2009 -- although, as discussed below, its directive that respondent pay appellant 28 percent of his income for those months and account to appellant for any forms of compensation received left open the possibility of further litigation concerning the precise amount to be paid. Moreover, although the court's December 2008 order expressly left open the issue of spousal support for the period from June 27 to August 31, 2008, in the June 1, 2009 order that followed, the newly assigned judge ruled that no support would be awarded for that period and rejected appellant's request for support for February 2009. The issue of support awardable for those periods thus became final. Appellant appealed the June 1, 2009 order, but allowed that appeal to be dismissed. Accordingly, contrary to appellant's apparent belief, neither this court nor the court below could retroactively change the support orders for those periods and award appellant a new or different amount, even though appellant discovered evidence indicating respondent's income was higher than he represented. (See Greene v. Superior Court (1961) 55 Cal.2d 403, 405 ["An order granting or denying temporary alimony is not merely a procedural ruling made during the course of the action that the court may reconsider at any time before final judgment . . . ." (Citations omitted.)]; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595 ["[A] court may not retroactively modify a prior order for temporary spousal support."].)
Orders for temporary spousal support may be modified prospectively "at any time" during the pendency of a dissolution proceeding by motion or OSC, but not with respect 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, § 3603.) Shortly after the March 2009 hearing on her November 2008 OSC to modify spousal support, appellant filed a new OSC to modify spousal support. Accordingly, all periods that followed that date were properly addressed by the court. In addition, it was proper for the court to address characterization of the lump sum payment received by respondent from ICON as that determination was required to enforce the prior order (December 2008) requiring respondent to pay appellant 28 percent of his gross income for December 2008 and January 2009 and to thereafter account to appellant for all forms of compensation received. But the trial court's March 2010 order also purported to amend the December 2008 order, reducing the amount of support for January 2009 from 28 percent of gross income to zero, and limiting the amount awardable in December 2008 to 28 percent of income received from Myriad. This it was powerless to do as the order addressing those months had become final and could not be amended. All issues relating to the propriety of the court's interpretation of the December 2008 order are properly raised and addressed in this appeal.
Although the June 2009 order stated temporary support was "terminated" as of January 31, 2009 and the court did not expressly reserve jurisdiction to modify, case law makes clear that the jurisdiction to modify spousal support exists "as long as a retention of jurisdiction could reasonably be implied" from the order. (In re Marriage of Ousterman (1996) 46 Cal.App.4th 1090, 1095; see In re Marriage of Brown (1995) 35 Cal.App.4th 785, 789-790; In re Marriage of Keeva (1977) 66 Cal.App.3d 512, 515.) Before the court issued the order, appellant had filed the March 2009 OSC to modify spousal support. Accordingly, we interpret the June 2009 order as setting support for February 2009 at zero, but retaining jurisdiction to modify for later months, when the court resolved the March 2009 OSC.
As will be seen, we disagree with the court's conclusion that the lump sum did not represent income to respondent based on the undisputed facts and stipulation presented in appellant's motion for reconsideration.
With respect to the spousal support awarded for March 2009 forward, the court awarded certain amounts for March through June, but expressly reserved jurisdiction to modify those orders once it resolved the issues related to characterization of the proceeds of the ICON settlement. This portion of the order was clearly an interim or preliminary ruling on temporary spousal support and is, therefore, not final or appealable. (In re Marriage of Levine, supra, 28 Cal.App.4th at p. 586-589; In re Marriage of Van Sickle, supra, 68 Cal.App.3d at p. 737.)
At the time of the original hearing, the evidence on this point was unclear and the parties disputed the nature of the payment. However, after the court instructed ICON's representative to meet and confer with appellant, appellant presented new evidence in support of her motion for reconsideration, including a stipulation signed by respondent indicating there was no dispute among the parties that the payment represented the remaining amount due appellant for compensation under the original and extended terms of the contract and did not represent payment for property of any kind. In the face of this stipulation and the undisputed evidence, the court could have reconsidered and issued a final order for support for the period from March 2009 forward. However, we cannot say its decision to postpone the decision was error. We presume the court will duly consider the allocable proceeds of the ICON settlement before issuing its final order concerning temporary spousal support.
We now turn to the substantive issues raised with respect to support due for December 2008 and January 2009.
B. Spousal Support
Appellant contends the court erred in excluding the $448,000 received by respondent from ICON from consideration in calculating the precise amount of support due in December 2008 and January 2009 under the court's December 2008 order awarding her 28 percent of his "income." For the reasons set forth below, we agree.
Where the court instructs one spouse to pay to the other a percentage of his or her income, issues concerning the precise amount owed and proper treatment of a lump sum payment received by the first spouse can be resolved after receipt of the payment without violating the rule precluding retroactive modification of spousal support orders. (See In re Marriage of Samson (2011) 197 Cal.App.4th 23, 26 (Marriage of Samson) [husband's request that lump sum severance pay be allocated and paid out over multiple months not an improper request for retroactive modification of support order, although request was made months after his layoff]; In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 98 [motion to establish arrearages and to enforce a support order does not represent retroactive effort to modify such order]; In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075 [determining whether debtor satisfied or otherwise discharged obligation imposed by original order "does not violate the prohibition against retroactive modification of . . . support award[s]"].) Unless the prior order provided guidance on how the lump-sum compensation should be treated, the order is deemed ambiguous and "the reviewing court may examine the record for its scope and effect and may look at the circumstances of its making." (Marriage of Samson, supra, at p. 27.) "Unless there are conflicts in the extrinsic evidence, the interpretation of a . . . support order is reviewed de novo." (Ibid.) Generally, unless it is clear that the lump sum represents a single month's compensation, it should not be treated as such but should be allocated over the period it represents. (Id. at p. 28.)
In December 2008, the originally assigned judge ordered respondent to pay appellant "28 [percent] of his gross income he receives from any employment, whether it be consulting, independent contract or other form of compensation" for the period from December 1, 2008 through January 31, 2009, and to thereafter "account to [appellant] for any forms of compensation that he has received, and to make the calculation based upon the same." It is clear that one reason the court ordered respondent to pay a percentage rather than a fixed sum was that respondent was receiving variable income from his employment with Myriad. In addition, appellant expressed concern that respondent was receiving and failing to report income from ICON and the court, sharing this concern, retained jurisdiction to adjust spousal support for certain months. We interpret its decision to award 28 percent of income received for December 2008 and January 2009 as a further attempt to ensure that appellant would be fairly supported despite any future attempts by respondent to conceal income. It is now clear that when the court issued the December 2008 order, respondent was in the process of negotiating a settlement with ICON for its wrongful termination of his employment contract and that he had withheld this information from appellant and the court. As a result of the settlement, executed in January 2009, respondent was compensated by ICON for the 27 months that remained on his contract after ICON's wrongful termination in June 2008. Thus, respondent received compensation for December 2008 and January 2009 within the meaning of the court's December 2008 order and the amount to allocate for those months was easily calculable.
We note that when the court issued the December 2008 order, it was aware that respondent had permitted the court at the September 2008 hearing to reduce his support obligation to zero based on the representation that he was earning no income, although he had clearly already begun consulting work for Myriad under a contract signed in August.
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Rather than allocate payments due for those months, the court instead purported to amend the December 2008 order with respect to the support owed in January 2009, reducing it to zero. With respect to the support owed in December 2008, the court found that by paying appellant 28 percent of his December 2008 income from Myriad alone, respondent had complied with the order. The matter must be remanded for the trial court to accurately calculate the amount of support due for December 2008 and January 2009 by: (1) accounting for all income respondent received from Myriad in those months; and (2) allocating the appropriate portion of the lump sum payment from ICON to respondent for those months.
C. Attorney Fees
Appellant also challenges the portion of the court's March 8, 2010 order which conditionally awarded attorney fees. "During the pendency of a dissolution action, a court may order that one party pay some or all of the other party's legal fees and costs." (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866; see Fam. Code § 2030 et seq.) "Under section 2030, subdivision (a): 'During the pendency of a proceeding for dissolution of marriage . . . , the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, order any party . . . to pay the amount reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding.'" (In re Marriage of Keech, supra, at pp. 866-867, italics omitted.) "'A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] The discretion invoked is that of the trial court, not the reviewing court, and the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]'" (Id. at p. 866, quoting In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296.)
At the end of 2009, after representing herself for some time, appellant requested an award of attorney fees for the purpose of hiring counsel. The record of the March 8, 2010 hearing reflects that respondent was not employed at the time and owed a considerable sum in back taxes for the income he had earned as a consultant. He stated he could no longer afford an attorney and would no longer be represented by counsel. The court's conditional order reflected the reality that neither party appeared capable of retaining counsel, but left open the possibility that should respondent's financial situation improve to the extent that he could afford counsel, he would be required to pay fees on behalf of appellant as well. Under the circumstances, we do not find the court's ruling on fees an abuse of discretion.
DISPOSITION
The order is reversed in part, affirmed in part, and remanded for recalculation of the amount due appellant for spousal support in December 2008 and January 2009. On remand, the court is instructed as follows: (1) for December 2008, to allocate the appropriate portion of the lump sum payment respondent received from ICON and award appellant 28 percent of that amount; (2) for January 2009, to determine the amount of income respondent received from Myriad for January 2009, allocate the appropriate portion of the lump sum payment respondent received from ICON, and award appellant 28 percent of the total. Appellant is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.