Opinion
A166864 A166903
03-20-2024
SUMUDU D. JAYASURIYA, Plaintiff and Appellant, v. MIHIRI Y. JAYASURIYA, Defendant and Respondent.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSD19-03877)
PETROU, J.
In this marital dissolution action, Sumudu D. Jayasuriya filed two requests, one in Department 24 and one in Department 52 of the Contra Costa County Superior Court, to modify various portions of an amended judgment entered by Department 18 of the Contra Costa County Superior Court. Both Departments 24 and 52 rejected Sumudu's motions on the basis that he failed to demonstrate a material change of circumstances, and imposed sanctions pursuant to Family Code section 271.
For clarity, and intending no disrespect, we refer to the parties by their first names. Because Mihiri has not filed a respondent's brief, we have decided the appeal on the opening brief and the record. Our factual summary is not intended to be exhaustive, but rather to summarize the relevant facts. (See In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 903.)
All further undesignated statutory references are to the Family Code.
Sumudu appeals from both orders. We reverse and remand Department 24's award of section 271 sanctions. In all other respects, we affirm the orders.
Factual and Procedural Background
Mihiri and Sumudu married in 2008 and had a child the following year. In 2019, Sumudu petitioned to dissolve the marriage.
In July 2020, the court (Department 18) granted Sumudu 25% physical custody pursuant to the parties' stipulated agreement for custody and visitation. The court also ordered Sumudu to pay child support in the amount of $600 per month and spousal support arrears in the amount of $2,100. In August 2020, Sumudu petitioned the court to increase his physical custody to 50%. He also requested the court terminate any child support payments.
The stipulated agreement also established the parties' spousal support. However, this agreement does not appear to be included in the record, and its terms on spousal support are unknown.
The court's order following the July 2020 hearing states, "Mother opened a case with the Department of Child Support Services and her request for child support will be transferred to Dept. 52." None of the Department 52 proceedings on Mihiri's request have been provided as part of the record, and it appears the issue of child support was ultimately decided as part of the trial in Department 18.
In March 2021, the court issued an order stemming from an October 2020 hearing, in which the court modified child support to $455 per month, beginning October 1, 2020, and deferred any potential modification of custody and visitation to December 2020. In a second March 2021 order, this one arising from the December 2020 hearing, the court modified Sumudu's visitation schedule to add approximately four additional days per month.
The prior custody schedule was as follows: pick up on Thursday at 2:20 p.m. and drop off on Saturday at 9:00 p.m. on the first, second, third, and fifthweeks/weekends of each month. The schedule was revised as follows: pick up on Wednesday at 2:20 p.m. and drop off on Saturday at 9:00 p.m. on the first, second, third, and fifth weeks/weekends of each month.
The court noted this visitation order "is temporary pending further order of the court," reserved jurisdiction over Sumudu's request for a modification of parenting time, and set the matter for trial. The court further reserved Mihiri's request for child support and Sumudu's request to modify spousal support for trial.
The court held a three-day trial on the issues of child custody, child support, permanent spousal support, arrears, and property division. In March 2022, the court issued a tentative statement of decision. On the issue of custody, the court held "[t]he testimony presented supports the Court's temporary custody order as being in the best interest of the minor child" and would "remain in full force and effect. As to spousal support, the court concluded Mihiri was then earning $4,700 per month, and Sumudu was earning approximately $1,800 per month-down from his normal earnings of approximately $10,000 per month-due to alleged disability. The court thus declined to impute income to Sumudu and, "[a]fter balancing all of the Family Code section 4320 factors[,] . . . set[ ] spousal support at zero ...."
However, the court ordered Sumudu to pay guideline child support of $130 per month payable beginning April 1, 2022 and determined he owed $6,370 in child support arrears and $8,400 in spousal support arrears.
The remaining orders and findings by the court are not relevant to this appeal.
The DissoMaster report, attached to the tentative statement of decision, indicates it was prepared in 2022 by "Father." That report lists his custody as 25%, Mihiri's income as $4,645, and his income as $1,800.
Sumudu objected to the tentative statement of decision on the basis that it contained errors in the child custody percentage, spousal support arrears, child support arrears and finding of permanent support.
Specifically, he argued: (1) "[t]he Court's finding of [Sumudu's] current child custody percentage is inaccurate" as it "is 36% not 25%"; (2) "[Mihiri] actually owes [Sumudu] $8,526.50 in spousal support arrears"; (3) "[Sumudu] only owes [Mihiri] $3,238.50" in child support arrears; (4) Mihiri should pay Sumudu spousal support; and (5) Mihiri should pay Sumudu "monthly child support in the amount of $299.00."
The final statement of decision reached the same conclusions as the tentative decision. The court clarified its "permanent spousal support" ruling, stating in part that "the Court finds [Mihiri] does not have the ability to pay spousal support" and "the Court finds [Sumudu] has not demonstrated his need for spousal support." The court confirmed the amount of child support and arrears set forth in the tentative decision and attached the same DissoMaster report as was attached to the tentative decision. Judgment was entered consistent with the final statement of decision.
The court subsequently entered an amended judgment, which only removed the date on which the marital partnership status was terminated. Neither party filed an appeal from either the judgment or the amended judgment.
The judgment and prior proceedings were conducted by Department 18. Approximately two months after entry of the amended judgment, in June 2022, Sumudu filed a "request for order" (1) modifying the spousal support, child support, spousal support arrears, and child support arrears, (2) requiring Mihiri to pay the child's medical and dental insurance, and (3) awarding attorney's fees. He filed an accompanying income and expense declaration, which stated his monthly income was $1,595 before taxes. This request was scheduled to be heard in Department 24.
Mihiri opposed the request. She asserted Sumudu was attempting to relitigate issues already considered and rejected by the trial court and had failed to identify any new law or facts to justify reconsideration. She requested sanctions and attorney fees.
In July 2022, Sumudu filed a separate request for order (1) modifying the child support and child support arrears, (2) requiring Mihiri to pay the child's medical and dental insurance, (3) imposing section 271 sanctions, and (4) awarding attorney's fees. He asserted Mihiri should be required to pay him (1) $378 per month in child support based on his 36% custody, Mihiri's monthly income of $6,819, and his monthly income of $1,595, and (2) $5,400.50 in child support arrears. He also sought $7,000 in sanctions and $3,000 in attorney's fees. This request was scheduled to be heard in Department 52.
Mihiri also opposed this request. As with her other opposition, she asserted Sumudu was attempting to religitate issues decided via the trial. Mihiri also requested the court maintain the current child support order because, while his "unemployment terminated, . . . that only goes to support my position that he is able to work full-time and that he has not been approved for any type of permanent disability."
Following a hearing on Sumudu's first request to modify, on December 28, 2022, Department 24 entered an order denying the request. It explained, "[T]he court finds that the parties had [a] lengthy trial where the court was in the position to determine everyone's income, credibility, and that the same issues contained in [Sumudu's] motion were before the court at trial. If [Sumudu] had new facts or law he could have raised them within 10 days of the judgment which he did not do .... His only remedy is an appeal." The court awarded $2,000 in attorney's fees to Mihiri as a sanction under section 271. The court also noted it did not discuss child support because Sumudu's request to modify those issues was "already filed with Dept[.] 52."
Department 52 conducted a hearing on Sumudu's second request to modify, in which both Sumudu and Mihiri provided testimony. On September 22, 2022, at the conclusion of the hearing, the court denied Sumudu's request. It confirmed all the issues raised in Sumudu's request were presented to the trial court. The court stated, in relevant part, as follows:
I am looking at father's objections to the court's tentative statement of decision. And he submitted his own alternative DissoMaster calculation with a . . . 36% timeshare. Which means that he told that judge what he thought that timeshare was, and the judgment resulted in a timeshare of 25%. What that means is that the judge considered father's position but ruled against him. What this request is today is not a modification. The circumstances are the same today as they were then. Dad is partially disabled or alleges to be partially disabled, he is receiving reduced income, and he believes the timeshare is 36%. Those were all positions argued by him at the time of trial.
Nothing is different today then there was then so this is actually not a motion to modify because a motion to modify requires a material change in circumstances. There is none here. Everything is exactly the same. It appears to me that father is dissatisfied with the orders made by the other court. There perhaps is a remedy for that. I do not know. But those are issues to be brought up in the department where those orders were made. So, the requests brought to this department today, those are denied.
The court also awarded $750, payable at the rate of $50 per month, as section 271 sanctions.
On September 29, 2022, in A166903, Sumudu filed a notice of appeal from Department 52's September 22, 2022 order. On December 30, 2022, in A166864, Sumudu filed a notice of appeal from Department 24's December 28, 2022 order.
On the court's own motion, we consolidate A166864 and A166903 in the interests of judicial economy.
Discussion
Sumudu filed two post-judgment motions, one with Department 24 and one with Department 52. The requests he filed with these courts were entitled "Request for Order," with the "Change" box marked. Both departments rejected his requests because he failed to demonstrate a material change of circumstances. On appeal, Sumudu now contends his requests for modification were requests to set-aside certain portions of the judgment under section 3690 et seq. Sumudu also asserts Department 52 erred by stating he was required to file his requests with the original judge/department, and both departments erred by (1) concluding the original trial court ruled against his objections to the tentative statement of decision, and (2) imposing sanctions. We address each argument below.
Sumudu also alleges the judge in Department 52 was biased against him because he was not given an equal amount of time and asked "manipulative" questions. Having reviewed the hearing transcript, we reject Sumudu's position. Sumudu was provided a meaningful opportunity to present his motion and was asked clarifying questions about the relief he sought. He has failed to identify any specific facts that would lead a reasonable person to doubt the judge's ability to be impartial. (See Code Civ. Proc., § 170.1, subd (a)(6)(A)(iii).)
I. Sumudu's Post-Trial Motions
A. Requests for Modification
"As a general rule, courts will not modify child or spousal support unless there has been a material change of circumstances following the previous determination. [Citations.]' "[T]he reason for the change of circumstances rule is to preclude relitigation of the same facts" and to bring finality to determinations concerning financial support.' [Citations.]' "Without a changed circumstances rule,' "dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants' "are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree."' [Citation.] Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order." '" '" (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357.)
"The burden of proof to establish changed circumstances sufficiently material to support an adjustment in [ ] support rests with the party seeking modification. [Citations.] 'The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.]' [Citation.] '[A]n abuse [of discretion] occurs when a court modifies a support order without substantial evidence of a material change of circumstances.'" (In re Marriage of Usher, supra, at pp. 357-358.)
Here, Sumudu has failed establish changed circumstances to support his requests for modification. In a single sentence, Sumudu argues "[t]he fact that [Mihiri] committed a perjury is considered as new evidence." He does not identify any other changed circumstances and fails to cite any authority or evidence to support his position. We decline to consider this unsupported argument. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 [" 'In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' "].)
Departments 24 and 52 framed Sumudu's requests as ones for reconsideration. Regardless of whether we construe Sumudu's requests as ones for modification or reconsideration, both require a showing of a material change of circumstances. (Compare In re Marriage of Usher, supra, 6 Cal.App.5th at p. 357 ["As a general rule, courts will not modify child or spousal support unless there has been a material change of circumstances following the previous determination."]; with Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 296 [" 'any party affected' by an order of the trial court 'may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.' "].)
Sumudu argues Department 24 failed to consider his updated income and expense report when denying his request to modify spousal support. But he fails to identify any material changes contained in that report.
Moreover, the alleged perjury at issue occurred during trial, based on information known to Sumudu. Presumably, Sumudu was able to crossexamine Mihiri or otherwise identify any inconsistencies in her testimony at that time. In addition, the record indicates Sumudu explicitly raised the issue of alleged perjury with the trial court in his objections to the tentative statement of decision, asserting that "[Mihiri] gave inaccurate information during her testimony."
Based on the foregoing, neither Department 24 nor Department 52 abused their discretion in rejecting Sumudu's requests for modification due to his failure to demonstrate a material change of circumstances.
B. Family Code Section 3690 et seq.
Rather than address the lack of changed circumstances, Sumudu asserts he is entitled relief because his filings were actually motions to set aside the judgment based on Mihiri's alleged fraud and/or perjury under section 3690 et seq. We disagree.
Section 3690 et seq. applies to stand-alone support orders. Sumudu is contesting the judgment entered in his dissolution proceedings, which falls under section 2120 et seq. Section 2121, subdivision (a), provides "In proceedings for dissolution of marriage, . . . the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter." Section 2122 then provides the available grounds for relief. As applicable to Sumudu's allegations, "The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: [¶] (a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.....[¶] (b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement ...." (§ 2122, subds. (a), (b).) A judgment may not be set aside solely on the grounds that it was "inequitable" when made or because subsequent circumstances caused the division of assets or liabilities to become inequitable or the support to become inadequate. (§ 2123; Marriage of Heggie (2002) 99 Cal.App.4th 28, 33.)
Arguably, Sumudu should have sought relief from the judgment under Code of Civil Procedure section 473 because his motions were filed within six-months of the judgment. However, we need not address that issue to resolve the merits of these appeals.
Sumudu's set-aside requests do not qualify for relief under the provisions for actual fraud or perjury. First, Sumudu does not contend he was "kept in ignorance" or "fraudulently prevented from fully participating in the proceeding." Here, the alleged fraud occurred during trial when Mihiri testified about her income. As noted above, Sumudu would have been able to cross-examine Mihiri at trial based on her December 2021 income and expense report, which he asserts sets forth the correct income. Additionally, he raised this issue in his objections to the tentative statement of decision.
Second, any alleged perjury under this provision must occur "in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement." (§ 2122, subd. (b).) Here, the only alleged perjury was in Mihiri's testimony, which is not encompassed within the statute. (See Mora v. Webcor Constr., L.P. (2018) 20 Cal.App.5th 211, 219-220 [" '[w]hen a statute omits a particular category from a more generalized list, a court can reasonably infer a specific legislative intent not to include that category within the statute's mandate.' "].) Hence, Sumudu's allegations do not entitle him to relief under either subdivision (a) or (b) of section 2122.
C. Judicial Bias
Sumudu also argues Department 52 improperly criticized him for not filing his requests with the judge (Department 18) who had handled the parties' dissolution proceedings and issued the judgment at issue. Sumudu asserts Department 52 had jurisdiction over his requests for modification, and he was not required to file his requests with the original judge.
While a motion for reconsideration may be heard before a different judge if the original judge is unavailable (International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 784, 786, fn. 2), Sumudu has made no showing that the original judge transferred out of Department 18 or was otherwise unavailable. Moreover, his requests were not denied due to lack of jurisdiction; Department 52 denied his request due to lack of merit.
D. Ruling on Objections to Tentative Statement of Decision
Sumudu argues Departments 24 and 52 erroneously concluded the judge in Department 18 ruled against his objections to the tentative statement of decision when issuing the final statement of decision. Sumudu asserts if the judge had disagreed with his position, then the judge would have stated as much in the final statement of decision.
While the California Rules of Court authorize a party to file objections to a proposed statement of decision (Cal. Rules of Court, rule 3.1590(g)), Sumudu does not direct us to any authority stating a trial court is obligated to issue a ruling on those objections. "In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court's determination would reversible error result. [Citations.] Even then, if the judgment is otherwise supported, the omission to make such findings is harmless error unless the evidence is sufficient to sustain a finding in the complaining party's favor ....[Citation.] A failure to find on an immaterial issue is not error." (Hellman v. La Cumbre Golf &Country Club (1992) 6 Cal.App.4th 1224, 1230.)
Sumudu's objections did not identify any principal controverted issue, ultimate fact or material issue the court failed to resolve. (See generally Cal. Rules of Court, rule 3.1590(c); Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 558.) Instead, his objections were argumentative and reflected disagreement with the court's factual findings. (See, e.g., Yield Dynamics, Inc. v. TEA Systems Corp. at pp. 558-560 [argumentative, tendentious or vague queries that fail to conform to the manifest purpose of Code of Civil Procedure sections 632 and 634 are improper].) Accordingly, Departments 24 and 52 did not err in interpreting the court's materially unchanged final statement of decision to constitute an implicit overruling of Sumudu's objections.
E. Sanctions
Department 24 denied Sumudu's request for modification and awarded $2,000 in attorney's fees because the trial court "had before [it] the same issues that [Sumudu] has raised now in his objections to her proposed Statement of Decision....[T]here is nothing new or change of law or circumstances. [Sumudu] simply disagrees with what [the judge in Department 18] did ...." Similarly, Department 52 denied Sumudu's request for modification and awarded $750 in attorney's fees as section 271 sanctions. It explained, "Nothing is different today then there was then so this is actually not a motion to modify because a motion to modify requires a material change in circumstances. There is none here. Everything is exactly the same."
If a party to a dissolution action frustrates settlement or otherwise increases the cost of litigation, the trial court may order that party to pay the other party's attorney fees. (§ 271, subd. (a).) However, the party subject to sanctions must first be provided notice of the proposed sanctions and an opportunity to be heard. (Id., subd. (b).) We review the imposition of an attorney fee sanction for abuse of discretion. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 828.)
Sumudu asserts Departments 24 and 52 erroneously imposed sanctions because his objections to the tentative statement of decision were distinct from his motion to set aside the child support order, and he could not raise the issue of perjury and/or fraud in his objections.
We disagree. The record reflects Sumudu raised these same issues in his objections to the tentative statement of decision, including asserting Mihiri fraudulently testified at trial. In addition, within the scope of one month, Sumudu filed two separate requests for modification in two separate departments, both of which sought to (1) modify the child support and child support arrears, (2) require Mihiri to pay their child's medical and dental insurance, and (3) impose attorney's fees as sanctions. Sumudu's repeat filings alleging identical issues and arguments, without any showing of changed circumstances, sufficiently constitutes conduct that frustrates the policy to promote settlement and cooperation under section 271. (See In re Marriage of Blake &Langer (2022) 85 Cal.App.5th 300, 310 [affirmed section 271 sanctions because voluntary dismissal "did not 'rectify the harm already done by the filing of a groundless [motion or] extinguish the court's interest in deterring and punishing the waste of judicial resources.' "]; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 [court may impose section 271 sanctions for delaying resolution of issues and "wast[ing] the court and the parties' time"].) Neither Department 24 nor Department 52 abused their discretion in imposing section 271 sanctions.
However, while Department 52 expressly considered Sumudu's ability to pay when calculating the amount of sanctions and manner of payment, it is unclear whether Department 24 undertook a similar assessment. (See § 271, subd. (a) ["In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed."].) Accordingly, we vacate the $2,000 sanctions imposed by Department 24 and remand for the court to redetermine an appropriate sanction, if any, considering Sumudu's financial resources.
II. Validity of Judgment
Sumudu identifies various alleged errors in the final statement of decision, including the child custody timeshare. We acknowledge, based on the limited record before us, that it appears the operative child custody order awards Sumudu custody for approximately 36% of the time rather than 25% custody.
However, to the extent Sumudu also seeks to challenge the validity of the original and amended judgments, we find his appeal lacking. Sumudu did not appeal from either the original or amended judgments. And Sumudu did not include the trial transcript as part of the record in this appeal. Without such evidence, this court is unable to assess the accuracy of any party's testimony or the basis for the court's judgment. (United Grand Corp. v. Malibu Hillbillies, LLC, supra, 36 Cal.App.5th at p. 146 [" 'In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' "].) These principles of appellate practice apply to Sumudu, even though he is proceeding with this appeal as a self-represented litigant." '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) "In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel." (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)
Disposition
The attorney's fee award of $2,000 in Department 24's December 28, 2022 order is vacated and remanded to the trial court to consider in the first instance whether an attorney's fees award under Family Code section 271 is appropriate in light of appellant's financial situation. In all other respects, the December 28, 2022 order is affirmed. Department 52's September 22, 2022 order is affirmed. The parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: Tucher, P. J. Rodriguez, J.