Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1093841 of Santa Barbara Thomas P. Anderle, Judge
Robert M. Lane, in pro. per. for Appellant.
Griffith & Thornburgh, Marisa K. Beuoy and Bruce Glasby for Respondent.
COFFEE, J.
Robert M. Lane appeals from several post-judgment orders in this dissolution case. We previously affirmed the judgment, which required him to pay child support in the amount of $6,000 per month, notwithstanding his efforts to obfuscate his wealth with a network of trusts and business entities. (In re Marriage of Lane (Jan. 13, 2011, B215911) [nonpub. opn.] [hereafter "Lane I."].)
Appellant now challenges (1) an order denying his motion to modify the child support award and awarding $3,000 in attorney's fees to his ex-wife, Vikki M. Lane, entered December 7, 2009; (2) an order joining appellant's pension plan, denying his motion to dismiss a notice of delinquency and denying his request for a hardship exemption without prejudice, entered January 26, 2010; and (3) an order awarding $15,000 in attorneys' fees on appeal to Vikki, entered March 9, 2010. We affirm each order.
We do not consider appellant's contentions concerning the trial court's fee orders of August 10, 2009 and November 10, 2009, because appellant did not identify those orders in his notice of appeal. (Cal. Rules of Court, rule 8.100(a)(2).) We also do not review the discovery order of February 9, 2010, which appellant identified in his notice of appeal, but about which his briefs present no argument or authority. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 196.)
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of this case is more fully set forth in our prior opinion in Lane I. We take judicial notice of the opinion and the record in the prior appeal. (Evid. Code, §§ 459, 452.)
Judgment was entered in March 2009. It required appellant to pay $6,000 per month in child support, make five $50,000 annual payments to Vikki, and pay $175,000 to her for attorneys' fees. The court attributed $75,000 as monthly income to appellant.
In the months following entry of judgment, appellant satisfied only a fraction of his obligations. He paid $212 in child support in April, $40 in May, $112 in June, $22.01 in July, and $157.27 in August. In July he moved to modify child support. The court denied his motion in August.
On August 25, 2009, the court arraigned appellant on charges of contempt of court for failure to pay child support. Appellant pled not guilty to the contempt charges and waived time for trial.
In September 2009, Robert brought another motion to modify child support. He declared his monthly income had been reduced to $500 per month. He asked that Vikki be ordered to pay him $1,008 per month in support, retroactively to August. He declared that on August 25, 2009, he was terminated from his fulltime job as Vice President of Penboscot, as a result of being arraigned for contempt, and that he could no longer participate in its pension plan. He acknowledged that Penobscot "could pay me some income at year-end based upon their financial performance, " but declared that was not promised or expected, and that he expected his annual income to be about $7,200. He also repeated his trial contentions that his personal net worth was negative, that he had received no income from the two trusts of which he is a beneficiary, and that neither trust had any value. He disclosed living expenses of $4,400 per month, including $2,400 per month to lease a three bedroom house in Santa Barbara.
The court denied the motion to modify support and awarded Vikki $3,000 in attorney's fees on December 7, 2009. It found that appellant's "claim that he was fired by his sister because he was arraigned for his failure to pay child support is not persuasive." The court also found "no persuasive facts of a change in circumstance[s]. Much of what he has told me is a reiteration of what he said at trial or at the last motion for modification."
In November, Vikki requested joinder of appellant's employee pension plan, Penobscot Enterprises Defined Benefit Pension Trust ("the Plan"), as a party necessary for enforcement of the judgment. (Fam. Code, § 2060.) The clerk issued a joinder order pursuant to section 2060, subdivision (a). Vikki also filed a notice of delinquency with respect to unpaid child support.
Vikki first incorrectly named "Penobscot Enterprises Defined Benefit Pension Plan" as the party to be joined and subsequently amended her proposed complaint.
All statutory references are to the Family Code unless otherwise stated.
Appellant filed opposition to the joinder. He pointed out that Vikki had stated the Plan's name incorrectly. He argued that the joinder was barred by the prenuptial agreement and Michigan law, and that the court had no jurisdiction over the Plan. He submitted a declaration of the Plan's trustee (his sister) that she and the Plan have little or no contact with California. Neither the Plan nor its trustee moved to quash service, and neither is a party to this appeal. Vikki amended her proposed joinder pleading to correctly state the Plan's name. In December, the court entered an order approving the joinder request as amended.
Appellant moved to dismiss Vikki's notice of delinquency and requested a hardship exemption from delinquency penalties. On January 26, 2010, the court denied appellant's motion without prejudice. The court explained that it did so because "he has not attached the 'attached notice of delinquency' to his documentation and I do not know exactly what he is contesting." As the trial court noted a few months later, "The court has considerable difficulty in finding all relevant documents on any of the matters.... The Clerk's transcript is now in the 18th volume." Appellant did not appear for the hearing on his motion to dismiss the notice of delinquency and did not re-file, renew or otherwise clarify his motion.
On March 9, 2010, the court awarded Vikki $15,000 for attorney fees to respond to appellant's prior appeal. (Lane I.) On the same day, appellant filed notice of the present appeal.
DISCUSSION
Modification of Child Support
Appellant contends that the trial court erred on December 7, 2009, when it denied his motion to modify child support based on changed circumstances. We disagree.
The amount of child support rests in the sound discretion of the trial court. We review its determination for abuse of discretion. (In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 876.) The party seeking to modify support has the burden of showing a change of circumstances warranting modification. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1304.)
The court did not abuse its discretion when it determined that appellant demonstrated no material change in his financial circumstances. The existing support order was not based on appellant's nominal salary, which he contends he has now lost. The support order was based on the court's affirmed finding that $900,000 per year was a reasonable estimate of appellant's earning ability and a reasonable reflection of his standard of living. The court made that finding based on extensive trial evidence that appellant hid his wealth in a network of trusts and business entities which he used to support his lifestyle. The facts asserted in appellant's declaration were contradicted by evidence that was adduced at trial and the trial court was entitled to discredit it. We will not disturb the court's credibility determinations on appeal.
Joinder
Appellant contends that the trial court erred on December 7, 2009, when it granted Vikki's motion to join his pension plan as a party because (1) in the prenuptial agreement, the parties waived any interest in each other's pension plans; (2) Vikki should have joined the trustee of the Plan rather than the Plan; (3) the Plan's trustee was not properly served and the court lacks personal jurisdiction over the trustee and the Plan; (4) joinder is precluded by Michigan state law absent a statutory notice in the support order; and (5) Vikki did not first attempt informal resolution with the trustee. We reject appellant's contentions.
Judgment in a dissolution case is enforceable against the obligor's pension plan. (§ 2060, subd. (b); In re Marriage of Williams (1985) 163 Cal.App.3d 753, 758.) Section 2060 authorizes joinder of a pension plan for purposes of enforcement. Generally, we review joinder of a third party in a dissolution case for an abuse of discretion. (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 763.) When the third party is a pension plan, the joinder process is streamlined. The clerk issues a joinder order upon filing and service of the joinder request and the joinder pleading, without need for judicial action. (§ 2060, subd. (a).) The party requesting a joinder must serve the plan. (§ 2062, subd. (a).) Service on the plan may be accomplished by service on the plan trustee, its administrator, or its designated agent for service of process. (Ibid.) Where the court lacks personal jurisdiction, the plan may challenge the joinder by a motion to quash service of the summons on or before the last day of its time to plead. (Code Civ. Proc., § 418.10, subd. (a)(1); In re Marriage of Bastian (1979) 94 Cal.App.3d 483, 487-488.)
Here, the clerk's joinder order was authorized by section 2060, subdivision (a). The Plan did not move to quash service and did not otherwise challenge service or jurisdiction. Appellant had no standing to do so, having resigned as trustee of the Plan before the joinder request.
The court did not abuse its discretion when it rejected appellant's objections to the joinder. In the prenuptial agreement, Vikki waived any ownership interest in appellant's separate property, including his pension plan, but a party may invade the separate property pension plan of a support obligee for purposes of enforcement. (§ 5103, subd. (a).)
Vikki was not required to join the trustee of the Plan as a party. Section 2060 authorizes joinder of "the plan, " not the trustee. (§ 2060, subds. (a) & (b).)
Joinder of the Plan for enforcement of the support orders was not precluded by Michigan's statutory notice requirements. The parties chose Michigan law to govern enforcement of the prenuptial agreement, but that agreement did not address child custody or child support and could not adversely affect the right of a child in California to support. (§ 1612, subd. (a)(7).)
Appellant offers no authority for his assertion that informal efforts toward resolution are a prerequisite to a section 2060 joinder. It is evident from the record that any informal efforts would have been futile.
Delinquency
We reject appellant's contention that the notice of delinquency should have been dismissed for failure to demonstrate proof of service. The court's file includes proof of personal service on appellant on November 10, 2009.
We reject appellant's contention that delinquency penalties are barred by Michigan law. Michigan law does not govern enforcement of the child support order or the fees related to child custody and support. The notice of delinquency pertained only to child support.
The court did not abuse its discretion when it denied appellant's hardship exemption without prejudice. The trial court has discretion to grant relief from delinquency penalties under section 4726 based on a finding that the support obligor "suffered... unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order." (Id., subd. (b)(2).) We review its determination for abuse of discretion. (In re Marriage of De Prieto (200) 104 Cal.App.4th 748, 756.) Here, appellant did not attach the notice of delinquency to his motion. The court stated in its tentative decision that it did "not know exactly what it is he is contesting." Appellant did not appear at the hearing. The court denied his motion without prejudice and he made no attempt to re-file or clarify his request. Moreover, it does not appear likely that the result would have been different if the court had reached the merits. It was faced with overwhelming evidence that appellant had not made every possible effort to comply with the support order.
Attorney Fees
We reject appellant's contentions that Michigan law barred the award of fees on appeal and that Vikki's supporting financial declaration was untimely. As we have explained, Michigan law does not apply with respect to child support and custody. The trial court limited its award for fees on appeal to $15,000, the amount it calculated was necessary to respond only to that portion of the appeal that challenged the child support order.
Appellant forfeited his objection to the timeliness of Vikki's financial declaration filed in connection with her fee request by not objecting in the trial court. Her financial declaration was, in any event, timely. She prepared it within three months of filing her request for fees on appeal as required by California Rules of Court, rule 5.128 and Santa Barbara Rules of Court, rule 1419. Six months passed before the court ruled on her request, but this delay was not attributable to Vikki. Appellant obtained several extensions of time to file his opening brief on appeal, and the trial court reserved ruling on the fee request until appellant actually filed an opening brief.
DISPOSITION
The orders appealed from are affirmed. Appellant shall pay Respondent's costs on appeal.
We concur: YEGAN, Acting P.J., PERREN, J.