Opinion
G054004
06-28-2018
In re Marriage of TINA C. and VANCE C. EBERLY. TINA C. EBERLY, Respondent, v. VANCE C. EBERLY, Appellant.
Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Appellant. Tina Eberly, in pro. per., for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13D003802) OPINION Appeal from an order of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed. Motion to dismiss appeal. Denied as moot. Motion to augment the record on appeal. Denied as moot. Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Appellant. Tina Eberly, in pro. per., for Respondent.
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INTRODUCTION
Vance C. Eberly filed a request for modification of a support order entered against him and in favor of his ex-wife, Tina C. Eberly. When the matter came on for hearing 27 months later, the trial court dismissed the request for modification because Vance had failed to provide the court-appointed expert with the necessary information to allow the expert to calculate Vance's income and the value of Vance's business.
We will refer to the parties by their first names to avoid confusion; we intend no disrespect.
We conclude the trial court did not err in dismissing Vance's request for modification. The court properly determined that Vance's failure to comply with a court order requiring him to provide all requested documents and information to the expert witness without delay, which resulted in Vance's inability to support his request for modification with competent evidence, required denial or dismissal of the request. We conclude the trial court did not violate Vance's due process rights in dismissing the request for modification.
We therefore affirm the trial court's order.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tina and Vance married in 2001. Tina filed a petition for dissolution of the marriage in April 2013. In January 2014, Tina and Vance were awarded joint legal and physical custody of their one minor child. At that time, the court ordered Vance to pay Tina child support of $3,075 per month, and spousal support of $12,606 per month. The court did not impute income to Tina; the court ordered Tina to participate in a vocational evaluation, and gave her a Gavron warning.
In In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712, the court held that spousal support cannot be terminated early unless the party receiving support has had reasonable advance warning that he or she is expected to become self-sufficient after a reasonable time. The rule has been codified in Family Code section 4330, subdivision (b): "When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable."
Later in January 2014, the parties stipulated, pursuant to Evidence Code sections 730 and 731, to the joint retention of Dennis Sperry and the firm Sperry, Bauer & Associates to analyze Vance's income available for support and the valuation of Vance's medical practice. The court's order approving the stipulation required Tina and Vance to "provide any and all requested documentation to the forensic accountant as requested by him and/or his firm without delay," and required that Sperry "provide his report of findings to each of the parties['] counsel within ten days of completing the same. Said report and findings shall be admitted into evidence without foundation, subject to reasonable cross-examination."
In April 2014, Vance filed a request for modification of child support and spousal support. The basis for the request was Vance's contention that his income had decreased and his expenses had increased since the court set the support amounts.
Other filings by the parties included Tina's request that Vance be held in contempt for failure to timely make the support payments, and Tina's request for an alternate valuation date for Vance's medical practice. However, the only issue before us on this appeal is the order dismissing Vance's request for modification of support. These other matters will be addressed only as necessary to a full understanding of the matter actually before us.
In June 2015, Vance requested that the court reappoint Sperry under Evidence Code section 730. The court tentatively denied the request on the ground that if Vance "wishes for me to hear what his financial ability is, it's his motion, and he should do whatever is necessary. He can hire Sperry if he so desires. I have no opposition. I don't know if [Tina's counsel] objects. But it would be up to him to do it on his own, not the court's expert." Ultimately, however, the court reappointed Sperry to prepare a cash flow analysis of Vance's medical practice for purposes of a trial on a permanent order of support, with the understanding that the court might ask Sperry to provide assistance with other hearings.
On March 11, 2016, the trial court made the following statement on the record: "Previously, the court indicated to the parties that the court would be communicating with Mr. Dennis Sperry regarding his progress on the 730 report. I spoke to him on today's date, March 11th, at 11:30 a.m. [¶] He indicated the following: He has written to [Vance] indicating the letters dated March 7th where he still needs his individual tax returns for 2015, and corporate tax returns for 2015. He, also, indicated that he needs information regarding . . . the amount billed for [Vance's] services versus the amount collected for [Vance's] services . . . . And this is from January 1st, 2014, to December 31st, 2015. [¶] He indicated he would have the report within 30 days after receiving the last documents and that he has been paid for his services of this report." The court's statements were confirmed in a minute order on that date.
At a hearing in April 2016, Tina advised the court that Sperry had not prepared the requested report because "[h]e still has not received any of the information that he is asking for." Vance advised the court that he had mailed his corporate tax return to Sperry the day before the hearing, and would provide all other requested information "by next week." The court then set the hearing on Vance's request for modification of support to give Sperry 30 days to prepare his report after receiving the final information from Vance, and giving the parties 15 days after that to prepare for the hearing. As for the hearing, the court noted, "we will go forward, regardless whether Dr. Sperry's being here or not," and "[w]e are going to go forward on that modification no matter what happens; whether we have Sperry or not, we will go forward."
On June 6, 2016, the court filed a ruling on submitted matter as follows: "The Court having taken this matter under submission on 6/3/2016, now rules as follows: [¶] [Vance] has provide[d] the court's 730 expert, Dennis Sperry, with billing information. [Vance] is concerned with facts provided within that billing information that may be confidential and should not be released to the parties. This is a valid concern. [¶] The parties have a constitutional right to review all documents reviewed by the court's 730 expert. [¶] Therefore, Mr. Sperry shall allow such billing information to be reviewed by the parties and/or their attorney[s] of record. [¶] . . . [¶] Before providing copies of billing information to the parties, Mr. Sperry is order[ed] to do the following: [¶] He shall redact all billing documents to make sure that patient's complete name and any other personal information i[s] not conveyed to the parties and/or their attorney[s] of record. [¶] Mr. Sperry shall create a numbering system to each name redacted so as to be able to direct attention to each of the billing individual[s]. (i.e., replace name with a number) [¶] . . . [¶] Furthermore, Mr. Sperry has informed the court and the parties that [Vance] has yet to provide him with complete and accurate billing information. A 730 report without complete information would be useless to this court."
The request for order modifying support came on for hearing July 7, 2016. Tina's counsel made an oral motion to dismiss the request based on Vance's failure to cooperate in discovery. Sperry testified he could not complete the report because he had not received the documents he had requested. The trial court took judicial notice of the March 11, 2016 minute order and the June 6 ruling on submitted matter, discussed ante. After the parties argued the matter, the trial court made the following ruling from the bench: "On August 19th, 2015, this court restored [Vance]'s R.F.O. regarding modification of support. He originally filed this R.F.O. back on April 29, 2014.
On our own motion, we augmented the appellate record with the minute order of the July 7, 2016 hearing. Neither party filed objection to our motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
"On December 16, 2015, due to not a clear understanding, the court reappointed Dennis Sperry. [¶] . . . [¶] . . . The minute order reflects it was really done by stipulation of the parties and the court's concurrence. He was ordered to complete a cash-flow analysis for the time period of May 2014 to December 2015, for [Vance]'s business. The court further ordered both parties to communicate with Mr. Sperry in getting the report moving forward.
"On February 4, 2016, this court held a review hearing on Mr. Sperry's report. It appeared that [Vance] wanted him to prepare a month-to-month analysis. Mr. Sperry indicated he needed an additional $10,000 to get this done. The court granted [Vance] until March 11th to pay this additional fee; otherwise, the previous orders remain in effect.
"On March 4th, 2016, the court heard from Mr. Sperry that he was not receiving all necessary documents. The court indicated it would call Mr. Sperry.
"On March 11th, Mr. Sperry informed the court that he had sent a letter to [Vance] requesting documents that he needed to fulfill the court's order. The letter was dated March 7th. In that letter, it indicates he needs billing and collection information.
"On April 26th, 2016, the court was informed Mr. Sperry's report was not ready. The court ordered the parties to provide Mr. Sperry with all necessary documents by May 4th.
"On May 5th, the court held a hearing about the H.I.P.P.A. disclosure concerns and the court ruled on those concerns.
"On June 6th, Mr. Sperry informed the court that [Vance] had yet to provide him with all necessary documents; specifically, billing and collections. The court indicated on that date that a report without such information would be useless to it. [¶] . . . [¶]
"On today's date, Mr. Sperry testified that he did not write the report. He indicated he did not receive all of the necessary documents; therefore, he was not able to review the requested information for the report. Specifically, he did not have all the billing and collections.
"He indicated he had communicated such requests to [Vance] at least on five different occasions. He further testified that he had previously been requested to prepare such cash-flow analysis for doctor offices and has been able to fulfill those requirements with the requests, which include billing and collections.
"[Vance] testified that he could not comply with the production of those documents because those documents do not exist in his accounting system; therefore, he could not produce those.
"[Tina] testified, basically, that she had worked in [Vance]'s office and that information is available.
"For this court, in order to make an appropriate support order, it needs to know the father's income. In cases like this when the court has concluded it needs expert testimony from an accountant to determine, we need exact income from both parties, specifically, [Vance]. The reason for that is the court concludes that the parties' own testimony is insufficient.
"[Vance] is a doctor. He is not an accountant. The court concludes he cannot provide the required information through his own testimony. He did not provide the court with his own expert [pursuant to Evidence Code section] 733 or his own accountant report. He has had many opportunities to comply with the request and he has not.
"The appointment of an accounting expert is necessary to obtain information and analysis necessary for this court to understand the cash flow of [Vance]'s business to make an appropriate support order. These orders are in the nature of a discovery order. The court has authority, pursuant to Civil Code of Procedure section 2023.030 and its inherent powers to impose sanctions for the failure to comply with its court orders.
"When a party's deliberate misconduct in the course of litigation renders any other sanction short, to protect the fairness of the trial proceeding, this court must dismiss the R.F.O. So, therefore, . . . [Vance]'s R.F.O. for modification of support is dismissed."
Following the July 7, 2016 hearing, the court issued a minute order dismissing the request for order modifying support. Vance appealed from that order.
Vance filed a second request for order to modify child support and spousal support in July 2016. This request for modification of support was eventually granted. At the October 2017 hearing on the second request, Sperry's report was submitted and he testified; the court gave "his testimony great weight." Sperry made findings regarding Vance's monthly income, which the trial court accepted. Based on these findings and the testimony of a vocational expert, the court imputed income to Tina, reduced monthly spousal support from $12,606 to $3,000, and reduced monthly child support from $3,075 to $1,018. The new support orders were made retroactive to August 1, 2016, not April 2014. Tina did not appeal from this order.
The ultimate modification of the support orders does not make the current appeal moot. Generally, a modification of a child support order or spousal support order can only be made retroactive to the date the request for modification was filed. (Fam. Code, § 3653, subd. (a); In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1169; In re Marriage of Everett (1990) 220 Cal.App.3d 846, 852.) If the court had ruled on the initial request for modification rather than dismissing it, and had reached the same result regarding the new support amounts, the retroactivity of the new support awards might have stretched back to April 2014. We do not decide that issue here.
Importantly, Vance was not prejudiced by the trial court's dismissal of his first request for modification, as he claims he was, due to the inability to make the modified support orders retroactive to April 2014, rather than August 2016. At the October 2017 hearing, the court found that the arrears were an appropriate "sanction" for Vance's failure to timely provide necessary documents to Sperry. In response to the second request, Tina argued that the modification should not be granted "due to the fact that [Vance] has been found in contempt of court and in violation of his probation for failure to pay the ordered support." The court ruled: "[Vance's] failure to cooperate with the court's expert resulted in the long delay in hearing this matter. His failure has resulted in his having a large amount of past due support due. That past due support is nonmodifiable or nondischargeable in bankruptcy or subject to statutes of limitations since support is due, including interest until paid in full. [¶] Court finds it must exercise its discretion and grant the relief. Based on the evidence received by the court, failure to do so would result in a miscarriage of justice. His owing past due support is sanction enough."
DISCUSSION
I.
APPEALABILITY AND STANDARD OF REVIEW
An order denying a request to modify or terminate temporary support in a family law case is appealable. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637-638; In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506.)
An order modifying (or refusing to modify) a spousal or child support order is reviewed for abuse of discretion. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384; In re Marriage of Rising (1999) 76 Cal.App.4th 472, 478.) "In conducting our review for an abuse of discretion, we determine 'whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.' [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order." (In re Marriage of Bodo, supra, 198 Cal.App.4th at p. 384.)
Vance contends that the de novo standard of review applies because his appeal raises constitutional issues of due process. As we explain post, Vance's framing of the issue is incorrect.
II.
THE COURT DID NOT ERR IN DISMISSING THE REQUEST FOR AN ORDER MODIFYING THE
SUPPORT ORDERS
The trial court dismissed the request for modification of the temporary support orders because Vance could offer no evidence proving his income was different than the income used when the initial orders were issued. We conclude the trial court did not err in making this determination.
Sperry was appointed in January 2014 as the court's expert regarding Vance's income available for support and the valuation of Vance's business. At that time, Vance was ordered to provide all requested documents to Sperry "without delay." Vance's request for modification was filed in April 2014, based on his contention that his income was not as high as the income used in the initial support calculation. When the court communicated with Sperry, almost two full years later, Sperry informed the court he could not provide the expert report requested because he had not received the necessary documentation from Vance, despite repeated requests. More than two weeks after that communication, Vance advised the court he had mailed one required document—his corporate tax return—to Sperry the previous day, and that the remaining documents would be provided within one week. More than one month later, Sperry informed the court and the parties that Vance still had not provided him with complete information. As the court noted at that time, "[a] 730 report without complete information would be useless to this court."
After yet another month, Sperry testified at the hearing on the request for modification that he still did not have all the documents he had requested from Vance, and had therefore been unable to prepare an expert report, and could not provide an expert opinion on Vance's income and the value of Vance's business.
Vance testified that the documents requested by Sperry did not exist; Tina testified they did exist.
The court correctly determined that Vance was not qualified to testify as to the accounting issues for which Sperry was appointed. As the court noted, Vance did not offer testimony from any qualified accounting expert.
Based on all the foregoing, the court's finding that the request for modification be dismissed due to a lack of evidentiary support was amply supported.
While styled as an order on a motion to dismiss, the court's order can be viewed as an order denying the request for modification due to Vance's failure to support the request. Vance did not offer any evidence on the accounting issues at the trial court and, on appeal, does not address what evidence he would have presented at the hearing that would have justified the court's granting of the request for modification.
In its order dismissing the request for modification, the court noted that it had the authority to do so pursuant to Code of Civil Procedure section 2023.030, as well as its inherent powers. Section 2023.030 authorizes a trial court to impose a variety of sanctions for "misuse of the discovery process," but only after notice and a hearing. (Ibid.) We need not address whether Vance's failure to provide requested documents to the court-appointed expert is a misuse of discovery. The trial court had the inherent authority to dismiss the request for modification due to Vance's failure to provide necessary information to the expert witness. "'It is . . . well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. . . . That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . . . in order to insure the orderly administration of justice.'" (People v. Rodriguez (2016) 1 Cal.5th 676, 682.) The order appointing Sperry ordered Vance to provide any requested documents to Sperry "without delay." The failure to provide those documents for more than two years is not without delay.
III.
THE COURT DID NOT DENY DUE PROCESS TO VANCE.
Vance presents this case as one in which his due process rights to a hearing were denied. Vance had notice of, appeared at, and had the opportunity to present evidence at the hearing on his request for modification, although he had no evidence to offer. Vance claims denial of due process by focusing on the trial court's statements at the April 6, 2016 hearing that "we will go forward, regardless whether Dr. Sperry's being here or not," and "[w]e are going to go forward on that modification no matter what happens; whether we have Sperry or not, we will go forward." Sperry was present at the July 7 hearing and testified. He could not testify, however, about Vance's income or the value of Vance's medical practice because Vance had failed to provide Sperry with the necessary documents to render an opinion. Vance did not offer the testimony of any other expert witness, and the court ruled that Vance himself could not testify as to those issues because he was not qualified to do so. The trial court did not prevent Vance from offering evidence; Vance's own actions and inactions prevented him from doing so.
The cases cited by Vance in support of this argument are therefore inapposite to the real issues presented by this appeal. In Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1550, the appellate court reversed a $1.7 million restitution order that was entered without notice or a hearing. In In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 293, the trial court entered a final judgment in a dissolution matter after abandoning the trial in the middle of the appellant's case. And in In re Marriage of Siegel (2015) 239 Cal.App.4th 944, the appellate court held that the appellant was denied due process because the court held a hearing and made orders on issues about which the appellant had no notice. (Id. at p. 947.) Specifically, the respondent's request for order asked that the appellant provide proof of the existence of a life insurance policy that the appellant was required to establish for the respondent, pursuant to their marital termination agreement, which had merged into a judgment. (Id. at pp. 946-947.) The appellant consented to the request for order, and did not appear at the hearing. (Id. at p. 947.) At the hearing, the trial court ordered the appellant to establish a $126,916 trust with the respondent as the beneficiary. (Ibid.)
IV.
THE TRIAL COURT DID NOT ENGAGE IN PROHIBITED EX PARTE CONTACTS WITH THE
COURT-APPOINTED EXPERT.
Vance contends that he was prejudiced by the trial court "continually engaging in ex parte communications with the appointed expert." The only alleged improper ex parte communication actually identified by Vance is the communication between the court and Sperry on March 11, 2016. The court had previously told the parties it would contact Sperry regarding his progress on the section 730 report. The March 11 communication, as summarized on the record by the court, reflects communications regarding issues pertaining to scheduling, and not regarding the substance of Sperry's work and opinions. Specifically, the transcript reflects that Sperry advised the court he could not complete the report because he had not received the necessary documents that had been requested from Vance on multiple occasions. The court repeatedly and promptly informed the parties about its communications with Sperry.
Vance contends that this ex parte communication violated Family Code section 216, subdivision (a), which provides: "In the absence of a stipulation by the parties to the contrary, there shall be no ex parte communication between the attorneys for any party to an action and any court-appointed or court-connected evaluator or mediator, or between a court-appointed or court-connected evaluator or mediator and the court, in any proceedings under this code, except with regard to the scheduling of appointments." California Rules of Court, rule 5.235(b)(4) defines "'court-appointed mediator or evaluator'" as "a professional in private practice appointed by the court to conduct a child custody evaluation or mediation." Therefore, Sperry is neither an evaluator nor a mediator within the meaning of Family Code section 216.
In In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1133, we expressed concern regarding ex parte communications between counsel for the children and a custody evaluator. In that case, counsel had several telephonic conferences and an in-person meeting with the court-appointed evaluator. (Ibid.) We cautioned that such communications were prohibited by Superior Court of Orange County, Local Rules, rule 716(F) and Family Code section 216, subdivisions (a) and (b), to "advance[] the sound policies of protecting the evaluator from unilateral influence and preserving the evaluator's neutrality." (In re Marriage of Seagondollar, supra, 139 Cal.App.4th at p. 1133.) Neither Family Code section 216 nor the local rule is applicable here.
The rule has been renumbered as local rule 703(F), and provides in relevant part: "If the care and upbringing of a child are contested issues, the quality and conduct of an evaluation by the court are of the utmost importance for the well-being of the child and for society at large. Whenever possible and appropriate, multiple examinations of the child by different examiners must be avoided. [¶] . . . [¶] In the absence of a stipulation, ex parte communications by the attorneys with the evaluator are prohibited, except to schedule appointments. An attorney for a party, or minor's counsel, must not provide the evaluator with documents pertaining to the case without first providing the other side and minor's counsel, if any, with a copy of the documents." (Super. Ct. Orange County, Local Rules, rule 703(F), Child Custody, Parenting Time.) --------
V.
RESPONDENT'S REQUESTS
The day before oral argument, Tina filed a motion to augment the record and a motion to dismiss the appeal. At oral argument, Vance's counsel responded to the motions. In view of our disposition, the motions are denied as moot.
DISPOSITION
The order is affirmed. Respondent Tina Eberly to recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.