Opinion
A143413
04-20-2017
ANN DROBNER DARSKY, Plaintiff and Appellant, v. AARON DARSKY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. FDI10773737)
Ann Drobner Darsky (Drobner) and Aaron Darsky were married in 2005 and separated in 2010. They have two children, who were five and three years old when the couple separated. In December 2010, Drobner petitioned for dissolution of their marriage. Over three years of litigation in San Francisco County family court followed. On August 29, 2014, the court issued findings and an order regarding certain financial disputes between Drobner and Darsky, ruling mostly in Darsky's favor.
Drobner appeals from these findings and order, contending the family court had previously and finally resolved certain issues in an August 1, 2011 order, and was barred by the doctrine of res judicata from modifying this previous order except prospectively and even then only by proper notice of motion or order to show cause. Drobner further argues that the parties agreed to bear their own attorney fees and costs as of the date of the August 1, 2011 order and the trial court lacked authority to award such fees and costs in violation of this "court approved settlement agreement."
Darsky contends Drobner forfeited these appellate claims by not objecting to the August 29, 2014 findings and order on any of the grounds raised in her appeal and, further, is estopped from raising these claims because she invited any error made by the court. We agree with Darsky and affirm the August 29, 2014 findings and order in their entirety.
BACKGROUND
I.
Early Proceedings
On January 12, 2011, shortly after Drobner petitioned for dissolution of the marriage, Darsky filed a motion regarding certain matters, including that Drobner pay his attorney fees.
On February 2, 2011, the parties agreed and the court ordered that supervised visitations between the children and Drobner continue at Parents Place and, further, that Drobner "be responsible for advancing payment of . . . Parent[s] Place visitation costs pending further hearing on support and financial matters. The court to reserve jurisdiction over allocat[ion] of that cost."
In March 2011, Drobner asked the court to deny Darsky's request for attorney fees and costs. She also stated that she was paying all "childcare costs and supervised visitation costs," asserted that Darsky "must be ordered to share in the payment of these costs," and requested unsupervised visits with the children. Later that same March, Darsky's attorney declared that Darsky had incurred fees and costs totaling $15,295.55. The parties do not indicate that the court ruled on Darsky's attorney fees request, or changed its determination that Drobner was to pay for all of the supervised visitation costs; to the contrary, the court continued to order that Drobner do so, such as in a November 22, 2013 order that states "supervised visitation fees remain allocated 100% to [Drobner]."
Several months later, following more litigation, the court filed on August 1, 2011, another stipulation and order, this time regarding certain financial matters. The parties agreed and the court ordered that: (1) neither party would be obligated to pay the mortgage, taxes or insurance on a residential property that apparently had been their home; (2) the court would retain jurisdiction over any additional questions related to financial issues about the property; (3) pursuant to a post-nuptial agreement, Darsky would repay $190,500 of law school student loan debt he owed to Drobner at a rate of $300 a month without interest, with the full amount to be paid in twelve years; (4) on the basis of the property settlement, each party would bear his or her attorney fees incurred to date; (5) "[i]n recognition of the relative resources, including earning capacity and trust funds, available to each party and the needs of the children," the parties did not owe child or spousal support to each other, each would be deemed to be supporting the children sufficiently when they were in his or her care, and each would waive any right to spousal support; (6) the parties would "equally share all unreimbursed medical, dental, psychotherapy, educational, extra curricular, health insurance and agreed expenses and activities including summer camps dating from June 1, 2011 forward" and including certain medical and tuition expenses already incurred; (7) "[e]ach will pay the cost of their own child care providers," and (8) "[a]ll motions currently on calendar shall be dismissed."
On January 26, 2012, the court filed a limited judgment which dissolved the marriage and reserved jurisdiction over all other matters. The court ordered that all other existing orders remained in effect.
II.
Proceedings Between 2012 and 2014
Between 2012 and 2014, the parties continued to litigate various issues, particularly regarding custody and visitation. In January 2013, the parties stipulated to and the court ordered the implementation of a visitation regimen between Drobner and the children that required her to complete four "phases" of conduct in order to gain further access and physical custody of the children. Phase I called for supervised visits with the aid of a "supervisor" and "Parenting Coordinator," and mother's compliance with certain requirements regarding her conduct and participation in a psychological treatment and recovery program.
In a separate stipulation and order also filed in January 2013, the parties agreed to and the court ordered the appointment of a Parenting Coordinator who was authorized to "make orders resolving conflicts between the parents which do not affect the court's exclusive jurisdiction to determine fundamental issues of custody and visitation." The parties were ordered to generally share equally in the cost of the Parenting Coordinator.
In December 2013, Drobner asked the court to order Darsky to pay her attorney fees in the amount of $1,200, contending that she could not afford legal representation. Drobner stated a trust account she had primarily relied on for income was completely depleted, she needed legal assistance to respond to Darsky's financial discovery, and Darsky was an attorney with a monthly income of $8,000. She later also sought orders regarding other matters, including the terms of her visitations and communications with the children, the children's therapy, Darsky's behavior, their exchanges of the children, restrictions on the children's travel and the reappointment of a Parenting Coordinator to be paid mostly by Darsky. In January 2014, the court filed an order based on another stipulation between the parties in which the court addressed some of the issues Drobner raised, set a briefing schedule and scheduled a trial and further hearing regarding certain issues, including financial matters, for July 11, 2014.
In June 2014, Darsky sought ex parte relief in a dispute between the parties over $11,000 in a "529" college savings account for one of their children. Drobner insisted she could use these funds as she saw fit, while Darsky sought to have the account frozen and the funds used to fund a special master and supervised visitations. The court ordered the account frozen. It scheduled a further hearing for June 17, 2014, at which it issued a series of visitation orders.
III.
The Parties' Submissions for Trial
Both parties then submitted summaries of the financial issues between them in preparation for their upcoming trial. Darsky asserted in a June 20, 2014 filing that Drobner throughout the litigation had claimed she could not afford the cost of supervised visits, including when she had access to $400,000 in trust fund money. Also, Darsky claimed, his financial condition was unchanged while Drobner's had improved, she was not stating all her sources of income, and she made regular purchases at a "pot club" and liquor stores and had made other large expenditures while refusing to contribute to expenses for the children. Further, she had not paid anything to support the children other than to pay half of an insurance premium until November 2013, and did not make the minimum contribution required by their 2011 stipulation and agreement for summer camps, after school programs, and medical, dental and psychological/psychiatric expenses (which the parties later apparently referred to as "add ons"), putting her in arrears in the amount of $15,000 to $20,000. She also had not paid "stipulated child support" for two years. Darsky asked the court to order that Drobner's arrearage and her part of the costs for supervised visitations and the Parenting Coordinator be deducted from his student loan debt, and for an accounting of the "529" account funds.
Drobner indicated in a statement filed on June 20, 2014, that she intended at trial to address custody and visitation issues; payment or reallocation of certain fees; enforcement of orders concerning the Parenting Coordinator; Darsky's requests for child support; and her own request for attorney fees and costs.
In a subsequent trial brief filed on July 3, 2014, Darsky argued, among other things, that Drobner's motion before the court regarding visitations was unreasonable. He contended Drobner had not yet complied with certain Phase I visitation requirements and had "squander[ed] her resources, [Darsky's] resources and the resources of this Court by bringing this motion prematurely." She needed supervised visitation, was not paying child support, had caused Darsky to incur otherwise unnecessary fees, and "continued to buy luxury goods, drugs and alcohol while claiming that she does not have sufficient funds to pay for the needs of the children or her own need for fees."
Drobner submitted a trial brief on July 3, 2014, in which she requested, among other things, a change in the visitation regimen, that Darsky's requests for child support be denied and that he be ordered to pay her $1,600 in attorney fees and costs. Her contentions included that Darsky had been trustee of her trust, of which about $600,000 was spent during their marriage, and that Darsky had "a history of aggression, anger, lack of impulse-control, and violence." She asked the court to allocate child-related expenses proportionally based on each party's income, asserting Darsky's was far greater than hers, and that the court award her attorney fees, including as a sanction against Darsky because he, rather than she, had failed to pay what he owed for the Parenting Coordinator. Drobner also sought, if the parties' 2011 stipulation was "renegotiated," that Darsky increase his student loan debt payments from $300 a month to $1,322.91 to allow her to pay for an increased portion of the children's expenses.
IV.
Subsequent Proceedings
The trial, originally scheduled for July 11, 2014, was continued and a judicial settlement conference was held on July 17, 2014. The parties filed status/settlement conference statements in which they stated positions consistent with their previous submissions.
The record does not include a reporter's transcript of this July 17, 2014 conference. The court's "mini minutes" indicate the court added to the calendar a hearing on August 26, 2014, about "[f]inancial issues regarding whether or not reimburs[e]ment should be made by [Darsky] to [Drobner] for cost of supervised visits from 2/2/2011 and Attorney fees and cost by both parties." The court ordered the parties to file additional documentation by August 15, 2014, and reserved jurisdiction over the allocation of visitation expenses.
On August 15, 2014, Darsky filed an attorney fee declaration. It stated that Darsky had incurred in excess of $77,415.99 in attorney fees and $184.40 in costs since November 29, 2010. The record does not contain a filing by Drobner between the July 17, 2014, and August 26, 2014 hearings.
On August 26, 2014, the court conducted a hearing at which Drobner, Darsky and their counsel were present. Darsky's counsel stated that the parties were in agreement that Drobner owed an arrearage for "add ons" of $17,080 that would be credited to Darsky from the student loan debt of $190,500 that he owed to Drobner. She also said Darsky warranted that he had paid $9,300 of this debt. She indicated that the parties did not have any other agreements; the court then indicated in response to a clerk's question that they were "starting over" regarding "custody and financials." Drobner's counsel, Stephanie A. Leroux, indicated that she understood the hearing was to discuss "the issue of child support," "add-ons going forward," "how supervision costs will be paid going forward," and "attorney's fees which both parties have made arguments for."
The parties then discussed with the court their understanding of the scope of financial matters they had agreed at the July 17, 2014 conference to litigate before the court. Leroux stated that "it was initially my impression" they were not going to discuss expenses Drobner paid in 2011 and 2012, and "did not know we were going back until 2011 until just recently," meaning in the last week or two from an email exchange, apparently between counsel. Darsky's counsel said Leroux had missed the last hearing, "where her client [Drobner] demanded that we go back to the February 2nd, 2011 order. That was what hung us up on settlement last time. She wanted her supervision expenses back to the reservation date which was the February 2nd, 2011 stipulation that resolved everything but the financial issues that were pending from January 12th, 2011. So we're back to child support for 2011 and attorney's fees for 2011 when [Darsky] filed his request." The court stated, "That's my recollection as well."
Another counsel for Drobner, Javier Bastidas, who said he was attending the August 26, 2014 hearing only to observe, said Leroux had in fact left the previous conference early and that he was present for it. Leroux indicated that she understood Drobner's supervision costs would be discussed as Darsky's counsel indicated, but that she was not necessarily prepared to do so. The court then summarized the issues before it as "[c]hild support, add-ons going forward, supervision costs going forward, attorney's fees, and the prior claims," to which Leroux agreed. The court clarified that prior claims included claims for child support, reimbursement and arrearages. No counsel or party objected. The court took these matters under submission, as well as whether Darsky could send his student loan debt payments directly to the visitation supervisor as part of Drobner's contribution.
V.
The Court's August 29 , 2014 Findings and Order
The court filed written findings and orders on August 29, 2014. It ordered that the visitation regimen would remain in place until further order, including the requirement that Drobner meet the criteria for Phase I before progressing to Phase II. As for financial issues, the court noted that "[Darsky's] request for child support and attorney fees has been pending since 1/12/11 and [Drobner's] request to share visitation supervision expenses has been pending since 2/2/11." It then ruled largely in Darsky's favor on the financial issues between the parties.
First, the court, based on Darsky's calculations, ruled that he was entitled to child support for the full years of 2011, 2012 and 2013 in the amounts of $20,256, $18,576 and $20,532 respectively, plus add ons, and that he was entitled to child support for the first eight months of 2014 in the amount of $6,160, plus add ons, for an arrearage totaling $65,524. The court ordered Drobner to pay this $65,524 to Darsky in the form of a credit to his student loan debt, without interest.
Second, the court accepted Darsky's documentation of Drobner's arrearage for add-on expenses for the period starting on January 1, 2012, to the date of the court's order, and ordered Drobner to pay Darsky half of this amount, $17,080, in the form of another credit to Darsky's student loan debt.
Third, the court ordered Drobner to pay Darsky monthly child support payments of $770 a month plus half of the add ons beginning on September 1, 2014.
Fourth, the court ordered Drobner to continue to pay 100 percent of visitation supervision expenses.
Fifth, the court found that Darsky had shown attorney fee expenditures of $77,415 since he filed a request for domestic violence restraining orders in November 2010 and that these fees were reasonably incurred. It further found that Drobner had spent considerably more in fees, had acted to thwart settlement in the case, had superior financial resources, had improperly disparaged Darsky, had acted in bad faith, had failed to account as previously ordered by the court for funds in the "529" account, and had spent over $50,000 from the account for her own use. The court ordered that Drobner pay Darsky all of his attorney fees in the form of another credit to Darsky's student loan debt. These credits, along with what Darsky had already repaid, reduced Darsky's student loan debt from $190,500 to $21,l81. The court further ordered that for any month that Drobner did not make her child support and add-on payment to Darsky, Darsky could deduct that amount from the remaining debt. Further, Darsky's $300 monthly payment to Drobner would be applied directly to Drobner's visitation supervision costs.
Drobner filed a timely notice of appeal from the court's August 29, 2014 order.
DISCUSSION
Drobner argues that the court acted beyond its jurisdictional limits by retroactively modifying child support and attorney fees for obligations incurred before the date of the August 1, 2011 stipulation and order. She contends that stipulation and order provided "pendent lite" relief and, therefore, the court was barred by the doctrine of res judicata from modifying it except prospectively, and even then could do so only upon proper notice of motion or order to show cause. Further, she contends, the parties agreed to bear their own attorney fees and costs as of the date of their August 1, 2011 stipulation and the trial court lacked authority to award fees and costs in violation of this "court approved settlement agreement."
We need not discuss any of these issues at great length because it is obvious from the record that Drobner is estopped by the doctrine of invited error from pursuing her appellate claims by her conduct below, regardless of the nature and possible res judicata effect of the August 1, 2011 stipulation and order, or the parties' purported previous "settlement" of any attorney fees and costs issues.
" ' "Under the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal. [Citations.] Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal." ' " (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 181, quoting Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.) This court has described the doctrine as " ' "an 'application of the estoppel principle': 'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal. [Citation.] . . . At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court." ' " (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000, quoting Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 178.)
Further, contrary to Drobner's assertion that the family court lacked jurisdiction because of the res judicata nature of the August 1, 2011 stipulation and order, " '[r]es judicata is not a jurisdictional defense, and may be waived by failure to raise it in the trial court.' (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 281, p. 821.)" (David v. Hermann (2005) 129 Cal.App.4th 672, 683; accord Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 89; see also Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 977 [referring to possible waiver of the res judicata defense].)
The parties' discussion before the family court at the August 26, 2014 hearing and the mini minutes of the July 17, 2014 conference indicate that, sparked by Drobner's insistence that they litigate her visitation supervision expenses going back to the February 2, 2011 stipulation and order, the parties—including Drobner—and the court agreed to revisit several issues as they were raised prior to the August 1, 2011 stipulation and order, including child support and attorney fee disputes between them that dated back to the beginning of 2011. When the court listed these issues at the August 26, 2014 hearing as including child support and attorney fees (after indicating earlier in the hearing that it meant child support for 2011 and attorney fees as requested by Darsky in January 2011) without referring to any limitation imposed by the August 1, 2011 stipulation and order, Drobner's counsel Leroux, with Drobner present, expressly agreed with the court's list. Further, when the court stated in the hearing that they were "starting over" regarding "custody and . . . financials," Leroux did not disagree. She also did not raise any issues regarding the purported res judicata effect of the August 1, 2011 stipulation and order or contend that any further motion or order to show cause was required before that order could be modified. Nor did she argue that the parties' previous settlement of any attorney fees and costs issues in the August 1, 2011 stipulation precluded reconsideration of these issues.
In other words, the court and the parties, based on a unanimous agreement and a unanimous understanding, revisited issues extending to before the August 1, 2011 stipulation and order. We agree with Darsky that by these actions Drobner invited any error by the court and is, therefore, estopped from raising her appellate claims.
DISPOSITION
The findings and order appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.