Opinion
G055398
10-07-2019
In re Marriage of MAGDALENA WULLERT-ZUCCA and FERNANDO ZUCCA. MAGDALENA WULLERT-ZUCCA, Respondent, v. FERNANDO ZUCCA, Appellant.
Magdalena Wullert-Zucca, in pro. per., for Respondent. Quinn & Dworakowski, Stephane Quinn and David Dworakowski for Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14D011212) OPINION Appeal from a judgment of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded. Magdalena Wullert-Zucca, in pro. per., for Respondent. Quinn & Dworakowski, Stephane Quinn and David Dworakowski for Appellant.
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Appellant Fernando Zucca (Fernando) appeals from a pendente lite order awarding child support, spousal support, and sanctions to respondent Magdalena Wullert Zucca (Magdalena) in a marital dissolution proceding. Fernando raises several challenges to the court's order. First, he contends the order is void as to spousal support because he stipulated to the commissioner hearing the issue of child support, not spousal support. Second, he asserts the court exceeded its jurisdiction by making the spousal and child support orders retroactive to August 1, 2015. Third, he argues the court erred by including, as part of his income, rental income from his subtenant. He further argues the court made mathematical errors in calculating his income. Fourth, he contends the court abused its discretion in determining his temporary spousal support obligation because the court failed to consider either Magdalena's ability to earn income or his ability to pay after his company lost its contract. Lastly, he asserts the court erred in awarding $5,000 in attorney fees and sanctions against him. We agree the court made mathematical errors in calculating Fernando's income and remand for the court to recalculate his child support payments under the state guideline based on the corrected calculation. In all other respects, we affirm.
We refer to the parties by their first names for ease of reading and clarity; no disrespect is intended.
Fernando also argues the court failed to consider "state guidelines," but nowhere does he identify a "state guideline" for temporary spousal support and he fails to develop a reasoned argument in support of his assertion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
After approximately 15 years of marriage, Magdalena filed a petition for dissolution of her marriage to Fernando in December 2014; at the time, they had two children, ages 7 and 10. Fernando filed a response and a request for dissolution but listed a different date of separation.
On July 10, 2015, Fernando filed an ex parte request for order (RFO) for, among other things, legal and physical custody of their two children. It was denied pending a hearing scheduled for August 4, 2015. Magdalena filed an ex parte RFO on July 24, 2015, which was also denied pending the August 4 hearing. In her RFO, she requested legal and physical custody of the children and that Fernando be ordered to pay child support and spousal support.
On August 4, 2015, Judge Naughton initiated a hearing on the two RFOs, indicating custody would be decided first and then the support issues. A few minutes into the hearing, Magdalena, appearing in propria persona, requested the court continue the matter so she could obtain counsel. The court granted her request, ordered Fernando to pay $5,000 toward her attorney fees, and gave her two weeks to obtain counsel. A temporary order of joint legal custody of the children was issued with primary physical custody to Magdalena.
Magdalena was represented by counsel at the next hearing on August 17, 2015, and the parties reached agreements as to child custody, visitation, and support. Based on the parties' stipulation, the court ordered Fernando to pay monthly child support of $1,193 and monthly spousal support of $633, effective August 1, 2015. The stipulation and order provided the total monthly support of $1,826 was an interim order "subject to recalculation and retroactivity upon evidence of each party's income." The order further stated, "The issue of retroactivity of support is reserved."
As child custody and visitation are not issues on appeal, we do not address them further.
The next hearing on the RFOs was before Judge Sarmiento on October 26, 2015. Neither party was ready to proceed on the family support issues because they were still conducting discovery. Fernando's counsel requested the court take the matter off calendar, but Magdalena's counsel explained there was a dispute as to the date of separation and a finding was needed on that issue as it affected other orders. Pursuant to a stipulation of the parties, the court set a briefing schedule for a bifurcated trial on the date of separation and all pending RFOs.
On January 22, 2016, Magdalena filed another RFO for attorney fees and costs and for the appointment of a forensic accountant.
A hearing on the pending RFOs was scheduled for March, continued to April, and then to June. When the parties appeared before Judge Sarmiento on June 29, 2016, Magdalena was represented by newly retained counsel, who requested the matter be continued. Fernando's counsel again requested the matter be taken off calendar. The court ordered all RFOs taken off calendar "subject to being restored in 90 days."
This language comes from the court's minute order as we have not been provided with the reporter's transcript of this hearing.
Within 90 days, Magdalena filed, in propria persona, a request for orders on child support, spousal support, attorney fees and costs, and the date of separation. A hearing on her request was held on January 23, 2017, before Judge Sarmiento. Her request for child support was transferred to a child support commissioner because the Department of Child Support Services (DCSS) was enforcing the earlier child support order. Judge Sarmiento indicated Magdalena's request for attorney fees would have to wait as he needed findings on income and child support before determining attorney fees. A hearing on the date of separation and spousal support was set for a later date.
The trial on Magdalena's request for child support finally began on April 13, 2017, before Commissioner Michaelson. After the presentation of some evidence, the court ordered both parties to produce additional documents to each other and DCSS, and the hearing was continued to May 2017. At the hearing in May, the court found Fernando had not complied with its April order to produce documents. Fernando was ordered to comply with the court's order, and the matter was continued to June 2017.
Prior to the June hearing, Magdalena's counsel, Vicki Roberts, submitted two requests for sanctions against Fernando under Family Code section 271 based on his violations of the court's orders to produce documents.
All further statutory references are to the Family Code unless otherwise stated.
Additional evidence to determine Fernando's child support obligation was presented on June 6, June 14, and July 5, 2017. Multiple hearings were necessary to establish Fernando's income because of the complexity of his finances. Fernando owned Z-Power Solutions, a subchapter S corporation, which he described as a database consulting company. His company had one client, Yamana Gold.
On July 18, 2017, Commissioner Michaelson filed an eight-page tentative decision with two attachments. The two attachments detailed the state guideline calculations of Fernando's child support obligations based on the court's findings as to the parties' income. The tentative decision indicated "[t]he first issue to be determined is the effective date of the jurisdiction of the court to modify the August 17, 2015 stipulation for child support and spousal support." The court found Magdalena's requests for orders filed on July 24, 2015 and January 22, 2016 were before Judge Sarmiento on June 29, 2016, when he ordered "'all Requests for Order on calendar taken off calendar subject to being restored in 90 days'" and that Magdalena filed a request for orders within 90 days, thereby complying with Judge Sarmiento's order and "substantially compl[ying] with local rule 705([D])." The court, therefore, concluded its jurisdiction was retroactively effective to July 24, 2015, the date on which Magdalena filed her request for orders regarding child support and spousal support.
The second issue addressed in the tentative was Fernando's "net income available . . . for child support and also for spousal support." The court explained its findings and calculations as to Fernando's income, and based on its calculations, the court determined Fernando had a monthly income of $18,604 between August 1, 2015 through March 31, 2017. Using a state guideline child support calculation program, the court calculated Fernando's child support obligations for this period to be $3,092 a month. From April 1, 2017 forward, the court calculated Fernando's child support obligations to be $1,180 a month based on an assumed minimum monthly income of $4,000. The calculation of Fernando's income and child support payments changed as of April 1, 2017, because the contract between Fernando's corporation and its client Yamana Gold had been terminated for the 2017 fiscal year.
In determining Fernando's child support obligations for both time periods, the court included in the calculation an amount for spousal support payments to Magdalena. In its tentative, the court indicated "a temporary order for spousal support is appropriate to be paid by [Fernando] to [Magdalena] in the amount of $2,000 per month effective July 1, 2016."
The court also found Fernando "caused increased costs to be incurred . . . by his continued failure to comply with the court orders previously issued," and indicated Fernando was to pay $5,000 in sanctions under section 271 to Magdalena's counsel.
DCSS was ordered to prepare a minute order "incorporating the provisions" of the court's intended decision. Fernando did not object to the court's tentative decision or request a statement of decision addressing any controverted issues. At Magdalena's request, the court subsequently ordered that its tentative decision become the statement of decision under California Rules of court, rule 3.1590. On August 4, 2017, DCSS filed an "Amended Minutes and/or Order" that incorporated the court's written decision and orders to pay child support, spousal support, and sanctions. Fernando appealed from the August 4 order.
DISCUSSION
I. MOTION TO DISMISS THE APPEAL
After Fernando filed his opening brief, Magdalena moved to dismiss the appeal. She seeks dismissal under the disentitlement doctrine on the ground Fernando is not in compliance with the child and spousal support orders that he is challenging in his appeal. We ordered her motion to be decided with the decision on appeal.
The disentitlement doctrine empowers a reviewing court to dismiss an appeal by a party who refuses to comply with trial court orders. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229.) The doctrine "'is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party "stands in an attitude of contempt to legal orders and processes of the courts of this state."'" (In re E.M. (2012) 204 Cal.App.4th 467, 476.) "No formal judgment of contempt is required; an appellate court 'may dismiss an appeal where there has been willful disobedience or obstructive tactics.'" (Stoltenberg, at p. 1230.)
In support of her motion to dismiss, Magdalena submitted an accounting from DCSS showing that over an 18-month period, between January 2017 and June 2018, Fernando made only one spousal support payment of $555.58. He has done a little better with his child support obligations, paying something most months, but only once has he satisfied his monthly child support obligation. Based on this and other exhibits, Magdalena argues the appeal should be dismissed because Fernando has "refused to comply" with the court's orders for child and spousal support. Fernando counters he is "unable" to comply because he has had difficulty finding work and his failure to pay his support obligations is "not a willful act." Whether Fernando's failure to pay his support obligations is due to inability or willful disobedience is a factual question that has not been resolved by the trial court.
Although a formal judgment of contempt is not a prerequisite for the dismissal of an appeal under the disentitlement doctrine, generally, when the doctrine has been applied without a formal contempt finding, the misconduct was not subject to a factual dispute. For example, in Stone v. Bach (1978) 80 Cal.App.3d 442, the court dismissed an appeal (id. at p. 449) based on the appellant's refusal to comply with a pretrial order to deposit money into a trustee account and refusal to participate in a postjudgment debtor examination (id. at pp. 443-444). There was no factual dispute regarding the amount to be deposited. The order simply required the appellant to "deposit partnership monies collected by him" into the trust account. (Id. at p. 443.) In Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, we applied the disentitlement doctrine to dismiss a trustee's appeal after she disobeyed a court order to file an accounting and quitclaimed certain property to her daughter that the court had ordered her to quitclaim to her stepgrandson. (Id. at p. 1386.)
In contrast, in this case, we are presented with a factual dispute as to whether Fernando's failure to pay is an act of willful disobedience or lack of finances. But we are not fact finders. That is the job of a trial court where testimony and exhibits can be subjected to examination and cross-examination and the credibility of witnesses can be judged. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 673 [the trial court is "vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences" when presiding over a motion to suppress evidence under Pen. Code, § 1538.5].) Findings as to whether Fernando has deliberately failed to comply with the court's family support orders must come from the trial court. Absent those findings, we cannot say dismissal is appropriate in this case under the disentitlement doctrine. We deny Magdalena's motion to dismiss and proceed to the issues Fernando has raised in his appeal.
II. COURT'S AUTHORITY REGARDING SPOUSAL SUPPORT
Fernando contends Commissioner Michaelson did not have authority to enter an order for spousal support. Fernando's failure to object below is fatal to his claim.
The facts relating to this issue are not in dispute. Because DCSS was enforcing the interim child support order, the trial concerning calculation of Fernando's child support obligation was transferred from Judge Sarmiento to Commissioner Michaelson, a child support commissioner. (§ 4251, subd. (a).)
When the parties first appeared before Commissioner Michaelson, he clarified with them that the only issue before him was child support. He explained that because it was a DCSS case, he would be presiding as a temporary judge unless either party objected, and if there was an objection, he would preside as a referee. None of the parties objected. After looking at the prior family support order, the commissioner again sought verification from the parties that spousal support was not before him. Magdalena's counsel explained DCSS would not take on enforcement of the spousal support order so it remained with Judge Sarmiento. The following exchange then occurred between the court and Fernando's counsel regarding the spousal support matter:
"The parties can stipulate for me to do both [child support and spousal support] since I do regular family law as well as child support. However, it now is postured that I only do the child support. If that's acceptable to everyone, let's do it that way. I'd hate to see you try a case twice on the same criteria, but that's up to you. And I feel uncomfortable unless all parties stipulate.
"[Fernando's Counsel]: Judge Sarmiento indicated that the economic findings that this court makes will—absent a material change in circumstances from the time the court makes it to the time we have our hearing, will be utilized to calculate a guideline spousal support order pending trial.
"So I don't know that there's a difference between this court making economic findings and putting it into the disso-master or Judge Sarmiento doing it in July.
"The Court: Well, the difficulty is this. Spousal support impacts because of tax considerations the net income available for support under Family Code 4058. This court uses by law the guideline from the CSE, the Child Support Enforcement of Department of Child Support Services. So the numbers are generally very close.
"But the question is, if I do not include—well let's just leave it as it is. And Judge Sarmiento will do what he wants to do. That makes sense."
The record of the trial, which was heard on five dates over several months, does not show any change in the understanding of the court or the parties that the court was only determining Fernando's child support obligation and not spousal support. Yet, when the court filed its tentative decision on July 18, 2017, it included a finding as to spousal support. The tentative decision stated "[t]he issues of child support . . . and spousal support" had been transferred to Commissioner Michaelson "for trial and decision" and subsequently explained, "[t]he second issue to be determined is the net income available to [Fernando] under Family Code Section 4058 for child support and also for spousal support." The court's tentative decision, after calculating Fernando's income, indicates "that a temporary order for spousal support is appropriate to be paid by [Fernando] to [Magdalena] in the amount of $2,000 per month effective July 1, 2016." At Magdalena's request, the court's tentative decision became its statement of decision. (Cal. Rules of Court, rule 3.1590(b),(d)). Consistent with the court's tentative and statement of decision, Fernando was ordered to pay $2,000 a month in spousal support. At no point did Fernando object to the court's proposed decision concerning spousal support or move for a new trial or reconsideration of the spousal support order.
Now on appeal, Fernando contends the spousal support order is void because he did not stipulate to Commissioner Michaelson hearing and ruling on this issue. Fernando cites little authority to support his argument; he relies only on section 4251, subdivision (a), and our decision in Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806. Because Fernando's contention concerns the application of a statute, we apply the de novo standard of review. (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1035.) We begin our analysis by looking at section 4251.
Section 4251 concerns child support cases, like this one, where DCSS is enforcing a child support obligation (§ 17400). Subdivision (a) of section 4251 explains that if enforcement services are being provided by the local child support agency, "[a]ll actions or proceedings" filed by either a party or the child support agency "to modify or enforce a support order" must be referred to a child support commissioner for hearing. Subdivision (b) of the statute provides in relevant part, "The commissioner shall act as a temporary judge unless an objection is made by the local child support agency or any other party." Subdivision (c) states: "If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. Any party may waive his or her right to the review hearing at any time."
As applied, section 4251 required Magdalena's request for modification of the interim child support order be heard by a child support commissioner because DCSS was providing enforcement services for her. (§ 4251, subd. (a).) As neither the parties nor DCSS objected, Commissioner Michaelson acted as a temporary judge in hearing the matter as to child support. (Id. subd. (b).) He also had the power as a commissioner to "[h]ear and report findings and conclusions" as to spousal support, subject to the supervision of the court. (Code Civ. Proc., § 259, subds. (e), (f).) Although Commissioner Michaelson had the power to make findings and recommendations as to spousal support, it was not requested of him.
DCSS was not enforcing Fernando's interim spousal support obligation. Thus, Magdalena's request to modify spousal support could have been, but did not have to be, referred to a child support commissioner.
In County of Orange v. Smith (2002) 96 Cal.App.4th 955 (Smith), we examined section 4251 and concluded it requires a party "object to a commissioner twice (before and after the commissioner rules in the case) to have the matter reviewed by a superior court judge." (Id. at p. 961.) Fernando's failure to satisfy this two-objection requirement is fatal to his appellate claim. Perhaps we could imply an initial objection by Fernando to Commissioner Michaelson hearing the spousal support issue because Fernando did not stipulate to the commissioner deciding this issue. But even if we imply an initial objection, the commissioner still had authority to "hear the matter and make findings of fact and a recommended order" (§ 4251, subd. (c)), and Fernando failed to object after the commissioner ruled.
When Fernando received the tentative decision and realized Commissioner Michaelson strayed beyond the parameters of ordering child support, Fernando had an obligation to object. Had Fernando objected to Commissioner Michaelson's findings and order regarding spousal support, he would have been entitled to a de novo hearing before a superior court judge. Section 4251, subdivision (c), provides that if either party objects to the commissioner's recommended order "or where a recommended order is in error," "the judge shall issue a temporary order and schedule a hearing de novo within 10 court days." (Ibid.) Absent an objection or a party informing the court that a recommended order was issued "in error," a judge has no duty to schedule a de novo hearing within 10 court days. Fernando neither objected nor otherwise informed the court that he believed the spousal support order was in error. He did not file a motion for new trial (Code Civ. Proc., § 657) or for reconsideration (Code Civ. Proc., § 1008) of the spousal support order or seek to vacate the order (Code Civ. Proc., § 663).
"It is axiomatic that arguments not raised in the trial court are forfeited on appeal." (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.) A bedrock principle of appellate practice is that a reviewing court "'will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.'" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Here, the absence of any objection by Fernando in the trial court necessarily results in the forfeiture of his argument on appeal. Accordingly, we affirm the spousal support order.
III. RETROACTIVITY OF THE PENDENTE LITE SUPPORT ORDERS
Generally, pendente lite support orders can be made retroactive to the date the request was filed, but not earlier. (§§ 3603, 3653, subd. (a), 4009; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 300.) Here, the issue is whether the support orders were retroactive to Magdalena's July 2015 RFO, which had been taken off calendar by the court, or her September 2016 RFO. Fernando contends the support orders could only be retroactive to September 2016 and that the court exceeded its jurisdiction by making them retroactive to 2015. We conclude the court correctly found that Magdalena's July 2015 request for support orders was restored when she filed another request for orders in September 2016, within 90 days of her first request being taken off calendar.
Background
On June 29, 2016, the parties appeared before Judge Sarmiento for a hearing on pending RFOs, which at the time included Magdalena's request for child support and spousal support filed on July 24, 2015, and her request for attorney fees and costs filed on January 22, 2016. The court also had before it the parties' briefs on the bifurcated issue of the date of separation. Fernando's counsel requested the matters be taken off calendar, while Magdalena's counsel requested a continuance because he was newly retained. The court ordered all requests for orders "taken off calendar subject to being restored in 90 days."
Within the 90-day timeframe, in September 2016, Magdalena filed a request for orders on the issues previously before the court: child support, spousal support, attorney fees and costs, and the date of separation (September 2016 RFO). A hearing on her request was scheduled for January 23, 2017. On that date, Judge Sarmiento transferred the trial on the request for child support. The court set a new briefing schedule on the date of separation issue after noting Magdalena had included it in her RFO, which was filed within 90 days of the court taking it off calendar.
During the trial before Commissioner Michaelson, a question arose as to the effective date for the court's determination of Fernando's child support obligation. The court reviewed the minute order for the proceedings in which Judge Sarmiento took the RFOs off calendar subject to restoration, and the court noted that Superior Court of Orange County, Local Rules, rule 705 (local rule 705) permitted a matter taken off calendar to be reset with the original effective date if filed within 90 days. Fernando's counsel argued there was "no request to restore"; while Magdalena's counsel asserted the RFO was filed within 90 days. The court reviewed Magdalena's September 2016 RFO and commented, "It doesn't say change or temporary. It just says request for order child support, spousal support, date of separation" "and attorney fees." After reading local rule 705, the court stated, "I don't see a written application with the court." When Magdalena's counsel argued the September 2016 RFO satisfied the local rule, the court responded the RFO was "not an application to restore. That's a request for order to modify going forward." Taking the matter under submission, the court indicated it was unsure whether the effective date for the child support order was when the original request for orders was filed in July 2015 or when Magdalena filed her September 2016 RFO.
In its tentative decision, the court found its jurisdiction was effective to the date of Magdalena's requests for orders in July 2015, explaining she "complied with the order of Judge Sarmiento and substantially complied with local rule 705[D]," by timely filing her September 2016 RFO within 90 days of Judge Sarmiento taking all pending RFOs off-calendar. Fernando did not object, and the court's findings were unchanged in its statement of decision, which was attached to its order for child and spousal support filed on August 4, 2017.
The Court's Finding is Supported by Substantial Evidence
Fernando contends "[w]hether Commissioner Michaelson had jurisdiction to retroactively modify the existing support orders beyond September 23, 2016 is purely a legal question subject to this court's independent review." We view the issue differently. We view the issue as whether there is substantial evidence to support the court's finding that Magdalena complied with Judge Sarmiento's order and substantially complied with local rule 705(D), thereby reviving her prior requests for orders. If the court's determination is supported by substantial evidence, and we find that it is, then it follows that the court's jurisdiction extended back to Magdalena's original requests for orders for child support and spousal support filed in July 2015.
Fernando asserts the court erred in finding that Magdalena's September 2016 RFO complied with Judge Sarmiento's order and "substantially complied with" local rule 705(D). He argues Magdalena's September 2016 RFO requests "the court determine new issues . . . namely, the parties' date of separation and a request for attorneys' fees and costs" that were not in her July 2015 RFO, and therefore, her September 2016 RFO "is materially different from" her July 2015 RFO. We disagree. Magdalena did not request orders on any new issues in her September 2016 RFO. Magdalena filed a request for orders on child and spousal support in July 2015 and filed a request for attorney fees and costs in January 2016. The parties had also briefed the date of separation issue before Judge Sarmiento took all pending RFOs off calendar. Thus, Magdalena's September 2016 RFO was not materially different; it included the previously pending issues and nothing more.
We also reject Fernando's assertion that Magdalena's September 2016 RFO was "materially different" because it "no longer requested original interim support orders, but rather sought to modify the August 17, 2015, stipulation for child support and spousal support." We conclude Magdalena's September 2016 RFO requesting modification of the August 2015 support orders was consistent with the parties' understanding. In August 2015, the court had entered interim orders for child and spousal support based on the stipulation of the parties. The court order and stipulation stated the parties' intent was that the interim orders would be "subject to recalculation and retroactivity upon evidence of each party's income." In her September 2016 RFO, Magdalena was trying to get the matter back on calendar for a hearing to be held to determine the parties' incomes so the interim support orders could be recalculated, consistent with the prior stipulation.
Fernando also argues Magdalena's September 2016 RFO "cannot be construed as a motion to restore because the RFO made no reference whatsoever to the July 24, 2015 filing" and failed to mention Judge Sarmiento's order that the matters taken off calendar could be restored in 90 days. But Fernando has not pointed us to any authority indicating that such statements are required. Nor did Fernando provide us with the reporter's transcript of the June 29, 2016 hearing during which Judge Sarmiento ordered Magdalena's requests for orders taken off calendar subject to being restored in 90 days. Without a transcript showing otherwise, we must infer Judge Sarmiento did not impose any specific requirements to restore a request for orders within 90 days. (See County of Orange v. Smith, supra, 132 Cal.App.4th at p. 1448 [on appeal all reasonable inferences must be indulged to uphold the trial court's finding].) We also note that when the parties appeared before him in January 2017, Judge Sarmiento treated Magdalena's September 2016 RFO as restoring her prior requests for orders. At that hearing, Judge Sarmiento stated that the date of separation issue was previously before the court but was taken off calendar subject to being restored within 90 days and that Magdalena had filed a request for an order on the issue within that timeframe. Thus, we conclude Commissioner Michaelson's finding that Magdalena complied with Judge Sarmiento's order is supported by substantial evidence.
Commissioner Michaelson's finding that Magdalena "substantially complied" with local rule 705 is also supported by substantial evidence. Local rule 705(D) states, in pertinent part: "A request for order which has been ordered off calendar may be restored to the court's calendar by written request and, if such application is made within ninety (90) days, the initial filing will be deemed the filing date for purposes of determining commencement of child and/or spousal support." While the rule requires a "written request" or "application" it does not specify the contents of either. Within 90 days of her RFOs being taken off calendar, Magdalena filed her September 2016 RFO which requested orders on the issues taken off calendar, substantially complying with local rule 705(D). Accordingly, we uphold the court's finding that the child support and spousal support orders were retroactive to August 2015.
IV. CALCULATION OF FERNANDO'S INCOME
Fernando argues the court made multiple errors in calculating his monthly income available for support as $18,604 between August 1, 2015 and March 31, 2017. He asserts, when correctly calculated, his monthly income available for support was $10,679.60, and he requests the matter be remanded for recalculation of the support order. We agree there are some mathematical errors in the court's calculation, but because we reject one of Fernando's assertions of error, our calculation of his monthly income is $11,679.60. We remand the matter for the court to redetermine Fernando's monthly child support obligations and any child support arrearages based on the state uniform guideline for child support.
In its statement of decision, the court explained how it calculated Fernando's monthly income for the period of August 1, 2015 through March 31, 2017, which was then used to calculate his child support obligations. The court categorized Fernando's income into three sections; the first two were amounts added back as income, and the third was income received. The court calculated the "Sub-total" for each section, added the three subtotals together to determine Fernando's total income over the 20-month period, and then divided this sum by 20 to arrive at Fernando's monthly income.
On appeal, Fernando argues the court erred in calculating each subtotal. Because Fernando did not alert the trial court to these calculation errors, his appellate contentions are subject to forfeiture. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 [explaining any alleged errors in the calculation of child support "must be brought to the trial court's attention at the trial level while the error can still be expeditiously corrected"]. Nevertheless, we exercise our discretion to review them. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [appellate court has discretion to excuse forfeiture].)
Subtotal No. 1 Should be $73,480
Fernando complains the court made two errors in calculating Subtotal No.1; both complaints relate to rental income from his subtenant. First, he contends the court erred by including his subtenant's rental payments in his income. Second, he argues Subtotal No.1 contains a mathematical error as the court failed to correct the subtotal after adjusting the number of months Fernando received rental payments from his subtenant. We conclude substantial evidence supports the court's finding that the sublease rental payments constitute income for Fernando and reject his first contention. However, we agree with his second complaint and recalculate Subtotal No. 1 accordingly.
Fernando contends, without citation to authority, that the court erred by characterizing as income the $2,000 in monthly rent he receives from his subtenant. We disagree. In County of Orange v. Smith (2005) 132 Cal.App.4th 1434, we concluded when calculating child support, rental payments from a subtenant count as income under section 4058, subdivision (a)(1), "so long as the housing arrangement with the roommate is properly characterized as a sublease and the roommate's payments are properly characterized as sublease rental payments . . . ." (Id. at p. 1448.) Reviewing the evidence in this case, we conclude substantial evidence supports the court's finding that the sublease rental payments meet this test. In May 2015, Fernando leased a house for $4,835 a month and paid a year's rent in advance. In June 2016, Fernando obtained a subtenant who signed a one-year sublease for $2,000 a month. In February 2017, during the subtenant's rental period, Fernando paid all of the rent for the house for the remainder of the year. The evidence indicates the subtenant was obligated to make his rental payments to Fernando rather than the owner of the property. Thus, we reject Fernando's appellate assertion he was "merely a pass through for [the subtenant]'s portion of the rent." Under section 4058, subdivision (a)(1), the subtenant's payments were properly characterized as income to Fernando.
We now turn to Fernando's contention that there was a mathematical error in Subtotal No. 1. The court's original calculation showed an add-back for rental income of $2,000 a month for 20 months, from August 1, 2015 through March 31, 2017, for a total of $40,000. Recognizing an error, the court made a handwritten correction to reflect that the sublease rental payments commenced on June 1, 2016, rather than August 1, 2015, and thus the rental income was $2,000 a month for 10 months, for a total of $20,000. Although the court corrected this line item, it did not recalculate the total for Subtotal No. 1. As the rental income was reduced by $20,000, the total should have been reduced from $93,480 to $73,480.
Subtotal No. 2 Should be $56,097.07
Subtotal No. 2 included 10 items added back as income to Fernando for a total of $96,097.07. Fernando challenges only the first item, contending the court erred in adding back as income a $40,000 transfer for May 13, 2015, because it occurred before August 1, 2015. We agree. Thus, the total for Subtotal No. 2 should be $56,097.07.
Subtotal No. 3 Should be $104,015
In the third section, the court calculated amounts Fernando received, including salary and net profits, from August 1, 2015 through March 31, 2017. The court also listed three items previously included in Subtotal No. 1: rental income from the renter, rental income from Z-Power, and Ms. Soto's charges. Including these line items in both Subtotal No.1 and Subtotal No. 3 results in them being double-counted as income. We agree with Fernando that these line items should not be included in Subtotal No. 3. Thus, the total for Subtotal No. 3 is $104,015.
We note, as did Fernando, that the court's calculation of rental income from the renter and Z-Power is different in Subtotal No. 1 than in Subtotal No. 3, because the number of months used in each calculation is different. The calculation in Subtotal No. 1 is consistent with the evidence.
Fernando's Child Support Obligation Must be Recalculated Using the State Guideline
By adding together the three subtotals, the court calculated Fernando's total income from August 1, 2015 to March 31, 2017 to be $372,072.07, and his monthly income as $18,604 over this 20-month period. Based on the corrections discussed above, Fernando's total income for the 20-month period should be $233,592.07 and his monthly income $11,679.60. We remand the matter to the trial court to recalculate Fernando's monthly child support obligations and any arrearages under the state uniform guideline (§ 4055) and to enter the appropriate orders. (In re Marriage of Whealon, supra, 53 Cal.App.4th at p. 145.)
V. PENDENTE LITE SPOUSAL SUPPORT ORDER
On appeal, Fernando also challenges the court's order that he pay Magdalena $2,000 a month in temporary spousal support effective July 1, 2016.
The reasoning behind the July 1, 2016, effective date is unclear from the record, but neither party has challenged the determination of this date.
Temporary spousal support is available in dissolution proceedings and "'"is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations."'" (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove).) Because temporary spousal support is intended to maintain the status quo before the divorce, it is usually higher than permanent support. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 522, 525.) "Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in 'any amount' [citation] subject only to the moving party's needs and the other party's ability to pay." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) Consequently, "in exercising its broad discretion, the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living." (Wittgrove, at p. 1327.)
Fernando complains "there is no indication in the written decision that the court considered the needs of the parties and [his] expenses and ability to pay" in issuing the temporary spousal support order. We disagree. In its tentative decision, the court made findings relating to Magdalena's needs and Fernando's ability to pay. Fernando failed to object to the court's tentative or statement of decision or request further findings. Thus, he has forfeited any claim that the court's written decision was deficient. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)
We also reject Fernando's argument that the court abused its discretion by not imputing minimum wage earnings to Magdalena. As Fernando acknowledges, "no statute or published appellate decision requires a trial court to impute minimum wage to a nonworking spouse when computing temporary spousal support." Fernando has not convinced us to impose such a requirement. Under section 3600, a court has broad discretion in determining the amount of temporary spousal support (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594), and we see no reason to impose such a condition on the court's exercise of its discretion. Fernando's contention that the court erred by failing to consider state guidelines in determining his spousal support obligation, similarly fails because a "court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount." (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Fernando also contends the court abused its discretion in determining his ability to pay. He does not attack the court's finding that he had the ability to pay $2,000 in monthly spousal support from July 1, 2016 to March 31, 2017, but he does challenge the maintenance of this amount after his company lost its contract and the court imputed a monthly income of $4,000. We conclude the court did not abuse its discretion. In addition to Fernando's imputed income, the court could also consider his assets in determining his ability to pay temporary spousal support. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159 ["Ability to pay encompasses" not only income but also "investments and other assets"].)
Fernando's income and expense declaration filed on January 20, 2017, showed over $60,000 in easily accessible assets (cash, checking, savings, etc.). But two months later, when he signed another income and expense declaration on March 29, 2017, he stated his accessible assets were now less than $3,000. When questioned as to what happened to these assets, Fernando explained that in February 2017 he withdrew around $50,000 from his accounts to pay the rent for his residence 11 months in advance because he did not want the court to see the money and "take it" from him. The court concluded this money, $53,185, should be charged back to Fernando, a finding he does not challenge on appeal. In determining Fernando's temporary spousal support obligation, the court could look at "the 'big picture'" and consider Fernando's imputed income, his accessible assets, and that Fernando listed no outstanding debts or attorney fees as expenses in his income and expense declaration. (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) We affirm the temporary spousal support order.
The court did not include this amount in calculating Fernando's income.
V. SANCTIONS
The court found Fernando "caused increased costs to be incurred in this matter by his continued failure to comply with the" court's discovery orders and ordered Fernando to pay $5,000 in sanctions to Magdalena's counsel, Vicki Roberts, under section 271. On appeal, Fernando advances two challenges to the court's sanctions order. First, he contends the court abused its discretion by imposing $5,000 in sanctions when Roberts only requested $4,000. Second, he asserts he complied with the court's May 8, 2017 disclosure order, and therefore, the court abused its discretion by sanctioning him $2,000 for violating this order. We reject both contentions.
"Section 271 authorizes an award of attorney fees and costs as a sanction for uncooperative conduct that frustrates settlement and increases litigation costs." (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 290.) A trial court has broad discretion in determining whether to impose sanctions under section 271 and in setting the amount. (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1100.) "Accordingly, we will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.) "'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.'" (Id. at p. 1226.) We conclude the court's finding that Fernando violated the May 8, 2017, disclosure order is supported by substantial evidence, and the court did not abuse its discretion by ordering Fernando to pay $5,000 in sanctions for his failures to comply with the court's orders to produce documents.
Fernando was initially ordered to produce certain documents to Magdalena and DCSS, including his 2016 W-2 from Z-Power by May 5, 2017. When Fernando failed to produce this document and several others by the time of the next hearing on May 8, 2017, the court found Fernando had failed to comply with its order to produce documents. A new order was issued for Fernando to produce the documents previously ordered and to produce additional documents, with all of the documents to be served by May 23, 2017. Fernando was ordered to produce the 2016 corporate tax return for Z-Power if it was prepared. But the court warned that if Fernando "does not have [a] document, then he better have a statement under oath as to why he doesn't have it."
Magdalena's counsel made an oral request for sanctions at the hearing on May 8, 2017, and then filed a written request for $2,000 in sanctions based on Fernando's violation of the court's April 13, 2017 order to produce documents. Fernando did not contest this request for sanctions, either on appeal or in the trial court.
In a second sanctions motion, Roberts requested an additional $2,000 in sanctions based on Fernando's failure to produce his 2016 federal tax returns, which were included in the court's May 8 order to produce. Roberts explained the compliance date had passed and Fernando had produced neither the tax returns nor a declaration as to why they were not provided. She indicated she had contacted Fernando's counsel about the missing items but they had not been produced yet. Her request for sanctions was submitted after the compliance date but before the next hearing on June 6; it was not stamped filed until June 9, after the hearing.
At the June 6 hearing, Fernando stated his tax returns had not been prepared yet. Roberts complained, nonetheless, that she had not received any verification—either a declaration from Fernando that the returns had not been prepared or proof of an extension. Fernando then provided Roberts and the court documentation showing he obtained an extension to file his taxes. When the court asked if any other ordered items remained outstanding, Roberts responded, "I don't believe so."
On appeal, Fernando asserts he did not violate the court's May 8 order to produce documents because he had no duty to produce his 2016 tax returns as they had not been prepared yet. Fernando overlooks the fact that he was ordered to provide either his tax returns or a declaration explaining why they were not produced to Roberts by May 23. This he failed to do. Roberts' second motion for sanctions was dated May 30, a week after Fernando was to have produced either his tax returns or a declaration explaining why his tax returns were not provided. While Roberts was eventually given proof that Fernando had obtained an extension to file his tax returns, this was not provided until June 6, well after the compliance deadline. In her closing argument when the trial ended, Roberts argued the court should grant both of her sanction requests. Fernando's counsel did not address the requests for sanctions in his argument. Based on the appellate record, we cannot say the court abused its discretion by sanctioning Fernando for failing to comply with its order to produce documents.
We also reject Fernando's contention that the court could award only $4,000 in attorney fees and costs because that was the amount Roberts requested in her motions. In making an award under section 271, a court is not limited to the amount requested or the costs to the other side resulting from the sanctionable conduct. (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155 [a "party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct"].) Although the sanction amount ordered was greater than the amount Roberts requested, the amount ordered is supported by the record. Fernando's failure to produce the ordered documents necessitated a continuance of the May 8 hearing and directly increased the costs of the litigation. In her first sanctions motion, Roberts indicated the costs resulting from Fernando's conduct as she explained the amount of time and she and her paralegal spent preparing for the truncated May 8 hearing and that at their hourly rates the cost was $10,800, but she was only being paid $2,000 by Magdalena for representing her at the hearing. She further explained that once Fernando provided the ordered documents, she would have to expend significant time revising her planned questioning of Fernando to prepare for the next hearing. Given Fernando's failures to comply with the court's orders to produce documents and its impact on the litigation costs, we cannot say the sanction amount of $5,000 was arbitrary, capricious, or unreasonable.
DISPOSITION
The spousal support order and the sanctions award are affirmed. For the reasons stated in part IV of this opinion, the child support order for the period August 1, 2015, through March 31, 2017, is reversed with directions to recalculate the amount of child support using the corrected calculation of Fernando's income reflected in this opinion. Each party is to bear its own costs on appeal.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.