Opinion
G054070
04-09-2018
In re Marriage of JAMES and JOAN McCARTY. JAMES McCARTY, Appellant, v. JOAN McCARTY, Respondent.
Holstrom, Block & Parke and Ronald B. Funk for Appellant. Angell Law Office and Susan L. Angell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07D007264) OPINION Appeal from a judgment of the Superior Court of Orange County, Julie A. Palafox, Judge. Affirmed in part, reversed in part and remanded with directions. Holstrom, Block & Parke and Ronald B. Funk for Appellant. Angell Law Office and Susan L. Angell for Respondent.
I. INTRODUCTION
This isn't so much a family law spousal support modification case as it is a discovery case. The parties disputed a fact: Did, or did not, Joan McCarty (Joan) get married in Mexico to Juan Lucero in 2013? Joan testified she did not, but her ex-husband, James McCarty (James), presented a certificate of marriage from a church in Mexicali showing she married Lucero on January 19, 2013.
There was one piece of easily obtainable evidence that might have impeached Joan's testimony and confirmed that her nuptials to James McCarty were a remarriage: her tax return for 2013 which probably would have revealed her marital status for the year. There is no dispute James asked for Joan's tax return for that year (as well as for the years 2014 and 2015) as early as November 2015, and was assured by Joan's counsel right up through 2016 that there indeed was a 2013 return and it would be produced. The trial court even made a direct order to have the 2013 return produced at a hearing in June, and neither Joan nor her attorney spoke up to say it didn't exist. It was only a month later - at the July hearing - that Joan and her attorney claimed for the first time in open court no return for 2013 had been filed in the first place.
Faced with Joan's belated revelation at the July hearing, James' counsel asked the court to order Joan to sign IRS form 4506. The form allows the IRS to disclose a tax return to a third party, or to establish that no return was ever filed for a given year. It was a simple way to resolve the disputed issue of fact. But the trial judge, taking Joan's testimony at face value, and, as the record also shows, becoming a bit concerned about the progress of the modification proceeding, thought the form was not "necessary," and denied James' request for an order she sign it. This appeal centers on that decision.
We must reverse that part of the trial court's order. This is not a "substantial evidence" case, but a "not all the evidence case." There were multiple assurances prior to the July hearing from both Joan and her counsel that she had filed a tax return in 2013 and it would be produced. When these assurances are taken in combination with Joan's last-minute representation in July 2016 that she had simply forgotten to file a 2013 return, it becomes impossible to justify the trial court's decision not to require Joan to sign the IRS form and concomitantly continue James's RFO (request for order) to get to the bottom of the matter. It's difficult to imagine a situation where so little prejudice to one party could result in so much potential benefit to the other in the context of a simple production of documents.
We reverse the trial judge's order denying James' modification request with directions to order Joan to sign IRS form 4506 so the issue of her possible remarriage can be resolved once and for all. However, since the $16,000 attorney fee order made by the court in Joan's favor at the conclusion of the July hearing was need-based, and we still do not have all the circumstances bearing on Joan's alleged remarriage, we affirm that part of the order.
II. FACTS
James and Joan had a 23-year marriage. They separated in 2007 and a judgment of dissolution was entered in 2009. That judgment included a spousal support order requiring James to pay Joan $1,800 a month. James had been a special education teacher in Los Angles, but in 2010 he was put on disability retirement reducing his pay. (He suffers from degenerative lumbar disc disease, lumbar spondylosis, fibromyalgia and vertigo.) His disability retirement at reduced pay resulted in a reduction in his spousal support obligation to $1,250 a month in 2012.
On November 20, 2015 - that is, about two months before filing anything in court - James' counsel wrote Joan's counsel requesting Joan's "tax returns for the last two years," which would necessarily have included the 2013 return. According to James' attorney, her request was "simply ignored," prompting James to file a formal RFO in mid-January. James' theory was that the parties' respective net incomes had grown out-of-balance (including support Joan was allegedly receiving from a fiancé) such that Joan was now receiving, with her support, about double the amount James had to live on.
Three factors slowed the initial progress of the RFO between January and April 2016. Two involved defenses raised by Joan. One of those defenses was Joan's assertion that since James had been declared a vexatious litigant in the 2009-2010 aftermath of the judgment for bringing, in propria persona, multiple frivolous orders to show cause, James had to post a bond. (See Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30 [noting scheme to "wear the husband down under the barrage of family law litigation"].) But because this time James was represented by an attorney, that issue was resolved in his favor - though not before the first substantive hearing on the RFO held April 11, 2016.
The second defense was the impact on the spousal support order of monies that James and Joan might receive from James' mother's estate. That issue was a factor in continuing a hearing scheduled for March 2016 to mid-April 2016.
The third factor was the evident animosity between both parties and counsel which resulted in enough miscommunication concerning the logistics of a scheduled March 2016 hearing to force continuance of that to April 11. Animosity prompted the trial judge at the April 11 hearing to admonish all concerned that it did "not appreciate the parties calling each other liars and the attorneys calling each other liars."
The RFO and the appeal before us, reflect events in three hearings over the space of four months: April 2016, June 2016, and finally July 2016. At the April 2016 hearing, the issue of Joan's possible remarriage surfaced for the first time, but only in the context of a possible remarriage within the United States. James thought that Joan had gotten remarried in either Orange or San Diego counties. At the April 11, 2016 hearing, the trial judge gave James 30 days to file a supplemental brief on the issue, with the next hearing scheduled for June 13.
James didn't make his deadline. It wasn't until May 23, 2016, that he filed his first formal paperwork on the issue of whether Joan had remarried, and that in the form of what was, substantively, a new RFO based on her alleged remarriage.
James's supporting declaration related that he had been wondering since February about a possible remarriage on Joan's part, but "couldn't prove it after visiting the county recorder's office in several counties." James had even discovered an "application for a marriage certificate at the county recorder's office in San Diego" but since there was no marriage, "they could not provide me with a copy."
Then James "started to think" Joan might have remarried in Mexico. He had learned from a mutual friend that after their divorce Joan "was dating a Mexican man who could only speak Spanish." The man was a "Juan Lucero," who "had family in Mexicali." James knew Joan had a post office box in San Diego, so he considered it plausible she could have remarried in Mexico.
James had himself remarried. His wife Lucy speaks Spanish and has a niece who lives in Mexicali. The niece tried to get a certificate from "the civil registrar's office" about a marriage between Joan and Lucero, an effort which required a mail-in request and required two bus trips. But the niece's efforts apparently resulted in at least some evidence of a Mexican remarriage.
On May 18, 2016, James received a copy of a certificate the niece had obtained "from the civil registry's office in Mexicali." He told his counsel the next day. James took the position that the remarriage ended his spousal support obligation as of January 19, 2013. James attached a copy of the certificate to his May 23 RFO papers. We reproduce the certificate at the end of this opinion as an appendix. Joan disputed the authenticity of the certificate which she said she first saw at the ex parte hearing where James presented his new RFO.
When James filed his new RFO on May 23, he did so in connection with an ex parte proceeding seeking to prevent a distribution from his mother's estate to Joan.
In the meantime, the issue of Joan's tax returns came up. The tax returns had been mentioned by James' counsel at the April 11, 2016 hearing, simply as part of his efforts to present his case concerning the parties' relative financial positions. James' attorney's point was that even by the time of the April hearing, Joan's tax returns for the years 2013 through 2015 should have been produced, but weren't: "We have not still received the tax returns from the petitioner."
Joan's attorney made no attempt to assert that the 2013 return did not exist. Rather, she said, "I believe I have them." Those returns were not, however, produced by the June 13, 2016 hearing, even though Joan admitted under oath she believed she had them. Specifically, when asked by James' attorney why she did not bring her tax returns with her to the June hearing, Joan replied, "I believe I provided them except for my 2015 maybe . . . ." (Italics added.) The "them" shows the 2013 and 2014 returns were contemplated by her answer.
Joan admitted she had lived with Lucero in Mexico in the year 2012, but the relationship had "fizzled" that year. She denied any wedding ceremony in Mexico in 2013. And when directly asked whether she had filed a 2013 return, Joan was unequivocal: "Q. Did you file taxes in 2013? A. I believe so. The court ordered a continuance to July 18 in light of the that answer
At the June hearing, however, James' attorney conceded that the certificate produced on May 23 was from a church and not "from a civil authority." She said James was "still attempting to establish some type of civil authority" to substantiate the alleged marriage in Mexico.
But if the June hearing had ended with the trial court interested in getting to the bottom of Joan's alleged 2013 remarriage, that interest appears to have waned by the July 18 hearing. The July hearing began with the trial judge's announcement she wanted to "close the door on the marriage certificate as being the basis of a change in circumstance" Coincidentally, the big revelation at the July hearing was - at least for the first time in open court - Joan's disavowal of the existence of any return for 2013.
The court directly asked Joan's counsel: "Where's the tax return?" Joan's attorney replied that Turbo Tax showed she requested a continuance in 2013, and from that it appeared she never filed her taxes for that year: "But I do have the printout from Turbo Tax that says, 'You requested a continuance.'"
James' counsel brought the anomaly of the last minute revelation to the court. "[I] t's interesting that all these months later, after being told they have them, and continuing these hearings to get them, now they're saying it was never filed and now they have a document saying she asked for an extension." James' attorney continued, "the tax return they are now saying they don't have, that they never had, that she never filed is the tax return for 2013, which coincidentally is the same year that the marriage certificate is dated, 2013." Counsel also pointed out previous continuances had been predicated on the existence and eventual production of the tax returns, including 2013. James' attorney pointed out that there is an IRS form, form 4506, by which a taxpayer can asked the IRS to send taxpayers' return to a third party or, if no return was filed, provide a notice of non-filing.
The trial judge recognized the significance of the 2013 return. "You're attempting to show that she would have filed as married. Is that the point of the tax return?" James' lawyer answered yes, but the court thought the remarriage issue needed no more exploration. Addressing James' counsel, the judge said: "Well, I think we have already addressed this issue and you have insufficient evidence on [the remarriage]. We've had five hearings. This has been going on for six months. The court has been very, very, very lenient with providing the extensions and the opportunities you have requested; but this is the end of the road and we can't just keep going down rabbit trails to try to prove something that should be very relatively easy to prove if somebody is, in fact, married. [¶] I now have testimony that there is no marriage. I have testimony that - I have no authentic marriage license from a government entity whether inside the United States or outside the United States. What you've produced is not admissible evidence and the court finds that you have failed in your burden of proof on the issue."
James' counsel made one last attempt to obtain the IRS form by pointing out that Joan had been ordered twice to produce the 2013 return and Joan and her counsel had kept "saying they have it and are going to bring it." But the trial court rejected this last-ditch effort, reasoning it was "not necessary." After establishing from James' counsel that if the IRS form 4506 showed no tax return for 2013 James counsel would be satisfied, the court still said: "Well, the court doesn't find that that's necessary. The court finds that the evidence that has been presented today, the testimony of the party, is substantial."
James' lost the balance of the RFO, with the court finding no change in the financial circumstances of the parties that would justify a modification of the existing 2012. No issue on appeal is presented as to that part of the trial court's order.
III. DISCUSSION
A. The IRS Form
We begin by identifying what this appeal is not about. It is not about whether there is substantial evidence - that is, substantial evidence thus far - that Joan has not remarried after her 2009 divorce. Obviously, Joan's testimony alone - at least on a complete record - would be good enough in that regard. (See e.g., In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 27.)
Rather, we are concerned with whether the trial court abused its discretion in refusing James' request to require Joan to sign a form that would either produce the mysterious 2013 tax return, or conclusively establish that no such return was ever filed. Clearly if a return showed Joan had availed herself of the filing status of married, Joan's credibility in disavowing any wedding in Mexico in 2013 would be put seriously in doubt.
As this court pointed out in In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332, tax returns "are, after all, ultimately enforced by federal and state criminal penalties." It seems safe to say that Joan would think twice about trying to claim marital status (often a preferable one given tax laws) when in fact she hadn't married. At the very least there might be an estoppel created by having signed tax returns taking advantage of a marital status. (See Taylor v. Taylor (N.C. 1987) 362 S.E.2d 542 [spouse estopped to deny even bigamous marriage given her obtaining license and marriage certificate from state].)
In light of Joan's many statements prior to July 2016, leading not only James but the trial court itself to believe a 2013 return not only existed, but existed as of mid-June 2013, it is impossible to justify the trial court's decision not to require her to sign the IRS form and concomitantly continue the case to find out the result. The dispositive points are the trial court's own reasons for refusing to order the form signed by Joan - the fact of "five hearings," a proceeding that had been "going on for six months," the court's previous leniency with "extensions," and the supposed easiness of proof of Joan's remarriage.
On scrutiny, these litigation-has-dragged-on-too-long reasons do not hold up because the court was ascribing to James delay which can only be properly ascribed to Joan. We note that the remarriage issue was introduced as substantively a new RFO in late May, yet the trial court was saying the case had gone on too long by the (comparatively short) interim period to mid-July, less than two months later. Under such circumstances, the trial court's desire to "close the door" on a nettlesome issue can be understood, but its action cannot be justified simply out of a desire for litigation closure. (See Yao v. Anaheim Eye Medical Group, Inc. (1992) 10 Cal.App.4th 1024, 1028, fn. 2 [calendar clearing insufficient reason to outweigh "legitimate concerns" of achieving justice in a discretionary dismissal situation].)
What we think particularly significant is that Joan and her counsel told James' counsel that the 2013 tax return was in existence and forthcoming up to and including the June 2016 hearing, and, what's more, Joan even testified at the June hearing she had the 2013 return in her possession. At most - and this isn't even supported by a record reference in Joan's brief, just her bald statement (repeated, we note, at oral argument) - James had only two weeks' notice of the revelation no 2013 return ever existed.
We will assume, for sake of argument, that James' counsel's concession at the June hearing to the effect that the Certificado de Matrimonio his niece found was insufficient by itself to show Joan had validly remarried under the laws of Mexico. (See Rosales v. Battle (2003) 113 Cal.App.4th 1178, 1183; but see In re Estate of Chandler (1931) 113 Cal.App. 630 [testimony about ceremony in Mexico factor in creation of a presumption of a valid marriage] (Chandler).) Even so, it is some evidence of a marriage, corroborated by Joan's own admissions she had dated Lucero as late as 2012, and had lived with him in Mexico. There was certainly enough indicia of a possible remarriage to warrant further investigation, rather than "close the door."
To be sure the facts in Chandler are certainly stronger than here, given that, among other things, the couple subsequently held themselves out as married for 20 years. (See Chandler, supra, 113 Cal.App. at pp. 633-635.)
It also should be noted that James faced several practical and relatively expensive obstacles if he wanted to establish the fact of a remarriage by Joan in 2013. In the face of a possible foreign remarriage, disproving Joan's testimony was not quite the "very relatively easy" matter the trial court assumed. Under Evidence Code section 1530, the attestation of a foreign official is required to validate an official foreign document. Who knows how long that would have taken, if it were possible at all? However, since James and his counsel were assured from the beginning the would receive tax returns for the years 2013 through 2015 - the exchange of tax returns is a routine matter in family law litigation - it was reasonable for James to forego the highly problematic task of researching Mexican records and having a Mexican official verify them. The 2013 return would be evidence, even if not necessarily conclusive, of a remarriage. An American tax return would be one way to impeach Joan's testimony that she had not been in any wedding ceremony with Lucero.
The statute provides in relevant part: "(a) A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if: [¶] . . . . [¶] (3) The office in which the writing is kept is not within the United States or any other place described in paragraph (2) and the copy is attested as a correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of (i) the person who attested the copy as a correct copy or (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy. Except as provided in the next sentence, the final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. Prior to January 1, 1971, the final statement may also be made by a secretary of an embassy or legation, consul general, consul, vice consul, consular agent, or other officer in the foreign service of the United States stationed in the nation in which the writing is kept, authenticated by the seal of his office. . . ."
Moreover, given the inconsistency between Joan's I-have-the-tax-returns-I-just-didn't-bring-them-with-me story in the period March through June (and maybe into July) and her oops-no-uh-got-an-extension-and-forgot-to-file-any-return story in July, it is impossible to say that such an impeachment might not affect a credibility determination made by a trier of fact.
We also find significant that Joan's approach appears rather casual about the fact she never filed a return. There are of course certain civil penalties for not filing a tax return. (See 26 U.S.C.S., § 6651; see also Weiss v. C.I.R. (1986) T.C. Memo 1986-469.) And there are also criminal penalties for willful failure to file. (26 U.S.C.S., § 7203.) It is hard to believe that Joan just "forgot" to file her 2013 tax return when she otherwise filed in 2014, and equally hard to imagine anyone could "forget" having failed to file a tax return. That is not something that typically "slips the mind." A reasonable trier of fact could believe that Joan was just prevaricating up to July 2016 when - belatedly - Joan somehow came to remember that she forgot to file a 2013 return.
It is further noteworthy that Joan's briefing itself never actually confronts the issue of her about-face in July. As alluded to above, the closest the respondent's brief comes in that regard is a cryptic section that merely says- and provides no record reference for the statement - that "weeks before" the July 2016 hearing James' attorney "received documentation" there was "no 2013 tax return." No attempt is made to explain why James had not relied to his detriment on Joan's many earlier promises of producing the 2013 return.
Finally, Joan makes no attempt to show any possible prejudice to herself from what would have been a simple matter (signing a form) and continuing the RFO to take into account the time needed to obtain the results of that form. As the court noted, the case had "dragged on" and it was clear time was not of the essence. We thus reluctantly conclude that given these very unusual circumstances, the trial court abused its discretion in refusing to order Joan to sign IRS form 4506 and continue the case to ascertain what actually happened in regard to the 2013 tax return. (See People v. Courts (1985) 37 Cal.3d 784, 788-789, 796-797 [abuse of discretion to deny defendant continuance to allow newly-retained attorney chance to prepare for the trial given defendant's diligence and lack of prejudice to the prosecution or witnesses].) B. The Attorney Fee Award
Though we reverse on the form 4506 issue, we note that to its credit the trial court resisted two irrelevant ad hominem attacks on James: One was Joan's effort to make James as a vexatious litigant obtain a pre-filing order and bond. As we have already alluded to, the trial court properly rejected that effort because this time he was represented by counsel. The second was James apparently contacting his pension plan (CalSTRS) in 2014 to stop deducting spousal support because Joan was dead. The trial court said it "doesn't consider extemporaneous statements of counsel in arguments unless it's something on point, and the court didn't find it to be on point with respect to these matters."
The trial court awarded $16,000 in attorney fees to Joan, payable from James' interest in his mother's estate. The trial court did not avail itself of two statutes (Fam. Code, §§ 271 and 3592) that otherwise would justify a fee award based on James' conduct. Rather, it relied on the need-based Family Code section 2030. James' argument is that the trial court did not properly take into account delays and extra fees occasioned by Joan's own failure to produce her tax returns as requested early on in the RFO.
James loses this one for the same reason he wins the battle on the IRS form: We don't yet know the whole truth about the 2013 tax return and Joan's possible remarriage to Lucero. That works in James' favor in regard to the IRS form - the trial court was premature in assuming the door could be closed on the marriage issue - but works against him here. Any assumption of bad faith on Joan's part is at this point premature for the same reason. It might yet turn out that Joan's statements about having filed a 2013 return and then not having filed one are susceptible of an innocent explanation.
While we are not unsympathetic with James' position - it is clear from our discussion above that hearings were continued because of what we will say was at the least Joan's too-casual attitude about her tax returns - the fact is we still do not know the whole story. When the final story is revealed the trial court will be in a better position to assess the fees from this as yet incomplete RFO.
IV. DISPOSITION
The order denying James' RFO is reversed to the extent that it is based on the absence of Joan's alleged remarriage in Mexico in 2013. The matter is remanded in that specific regard and the trial court is directed to order Joan to sign IRS form 4506 and proceed in light of what is revealed pursuant to that signing. The order is affirmed to the extent it requires James to pay to Joan attorney fees out of his mother's estate.
In the interests of justice we consider James to be the prevailing party. He will recover his costs on appeal.
BEDSWORTH, ACTING P. J. I CONCUR: IKOLA, J. ARONSON, J., Dissenting.
This is a fairly straightforward case. In February 2016 appellant James McCarty (James) asked the trial court to modify his spousal support obligation to his former spouse, Joan McCarty (Joan). James raised several theories to support his modification request, but eventually abandoned all of them except for one: his claim Joan had remarried in Mexico.
James's only evidence to support his theory was a copy of a purported certificate his wife's niece claimed she obtained from "the civil registrar's office" in Mexico. James later conceded the document was not "from a civil authority." Joan denied she had remarried and disputed the authenticity of the document, pointing out James had done something similar in 2014 when he informed the California State Teachers Retirement System that Joan had died, demanded termination of her spousal support garnishment, and attached a phony obituary that he in part was responsible for creating.
James initially sought Joan's tax returns to support his modification request, but mid-hearing offered a new basis for demanding the 2013 return, hoping it would show Joan filed as a married person. Joan initially testified at the June hearing she "believed" she filed a 2013 tax return, but learned later she instead had asked for an extension, but never filed a 2013 return. Joan explained this to the court at a subsequent hearing and produced a tax preparation software printout showing her request to delay filing her return.
James asked the trial court to order Joan to sign IRS form 4506, which would allow the IRS to send a taxpayer's return to a third party, presumably to show Joan filed as a married person. The court declined, explaining the request was speculative and cited Joan's "testimony there was no marriage."
A trial court has broad discretion in deciding whether to modify a spousal support order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) "Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357-358.) "'A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd. [Citation.] In determining whether there has been such an abuse, we cannot reweigh evidence or pass upon witness credibility. The trial court is the sole arbiter of such conflicts. Our role is to interpret the facts and to make all reasonable inferences in support of the order issued. [Citation.]' [Citations.]" (People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 1561, 1567 (Black Hawk).)
The record shows the trial court believed Joan's denial under oath that she had not remarried and her explanation about the 2013 tax return. The court may have concluded further inquiry into the matter with the IRS was based on speculation and unnecessary since the court found Joan's testimony credible. I am hard-pressed to see how we can second-guess the court's credibility call and find the court abused its discretion in believing Joan's testimony and disbelieving the purported basis James manufactured for his request. Under the standard of review, we cannot reweigh the evidence or pass on witness credibility.
The majority views the issues as an abuse of discretion involving discovery, but fails to explain why the trial court would order Joan to sign IRS form 4506 when the court believed Joan's testimony she did not remarry. I simply cannot agree with the majority's conclusion the court's decision was "arbitrary and patently absurd." (Black Hawk, supra, 197 Cal.App.4th at p. 1567.) I therefore respectfully dissent.
ARONSON, J.
APPENDIX
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