NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. FAM0110709)
Chantal Blosse appeals a judgment entered after a bench trial in these divorce proceedings, and a related order denying her post-trial motions (No. A146192). She also separately appeals two post-judgment orders: one reducing the amount of child and spousal support her former husband, Alain Blosse, was ordered to pay, and another dividing the proceeds from the sale of their marital home (No. A148826).
We reverse the judgment in part, and vacate and remand other portions of it for further proceedings. We conclude the court erred in awarding nearly $18,000 in damages to Alain for Chantal's breach of fiduciary duty in connection with their 2007 taxes; erred in setting spousal support in an insufficient amount given Chantal's needs and Alain's ability to pay; erred in denying Chantal's request for attorney fees; and abused its discretion in ending the trial before Chantal had completed her case. In all other respects the judgment will be affirmed.
We also reverse the post-judgment order reducing her spousal support because it unsupported by any evidence of changed circumstances, and we vacate the court's post-judgment order dividing the proceeds from the sale of the family home because the court made an error in its calculations that resulted in an overpayment to Alain of nearly $115,000.
The parties were married in 1981 and separated after approximately 29 years, in September 2010. They had seven children, two of whom were still minors at the time of trial and were living with Chantal (two sons, 16 and 17 years old).
The parties are French citizens. In 1996, they moved to the United States for Alain's career. They had five children at the time, and Chantal was pregnant with a sixth.
The marriage was volatile, at least at times. According to Chantal, Alain first hit her in 1988, when she was holding their 14-month-old baby in her arms and was pregnant with another child. In 2002, as a result of an altercation, Chantal ended up with a fractured wrist and Alain was arrested, but Chantal declined to testify and charges were dropped. In 2009, there were more incidents of violence in which she sustained bruises and called police. At some point in 2009 or later, Alain complained to police that Chantal had assaulted him.
Alain is an engineer and holds a Ph.D., and his background is in the semiconductor industry. At the time of trial, he was employed as an executive in Silicon Valley, earning approximately $180,000 in gross annual income, not including bonuses.
By the time of the trial, which took place on various dates in late 2014 and early 2015, Chantal was nearly 60 years old. She had not worked outside of the home during their 29-year marriage. Although she had earned two masters degrees in France (in marine economy and in geography), she had stayed home to raise their seven children while Alain had worked to advance his career. Alain had traveled often, including abroad, and had lived away from his family for long periods.
The parties owned three properties. One was their family residence, a three-bedroom townhome in Belmont, California in which Chantal continued to live by the time of trial. They also owned two properties in France: the six-bedroom house where they had lived before moving to the United States, which was located in the province of Nantes, in a town called Thouaré; and a rental apartment in Toulouse they had bought when one of their daughters had moved there to attend college. According to the parties' estimates in their trial briefs, the net value of all three properties combined was between $740,000 and $770,000.
Alain handled the parties' finances and controlled Chantal's access to funds. Chantal was kept in the dark about Alain's earnings and how the money was spent. He handled the tax returns without requiring her to sign them. The bills and accounts were in Alain's name alone, creating difficulties for her when he was travelling.
The divorce proceedings were bitterly contested. A full summary is unnecessary. In April 2013, a judgment of dissolution as of December 20, 2012, was entered. It required the Nantes property to be sold before either of the other two properties, and the proceeds used to fund Chantal's buyout of Alain's interest in the Toulouse apartment and to pay down the parties' debt on their California home; it ordered Alain to cooperate with Chantal to rent out their Toulouse apartment pending her buyout of him; and it permitted Chantal to remain in their family home in California temporarily but also ordered that the house be put on the market in June 2014. All other issues were reserved, and later proceeded to five (partial) days of trial, beginning on November 12, 2014, and ending nearly two months later, on February 4, 2015.
Matters did not go smoothly. By the time of trial, Chantal maintained Alain was in arrears on support payments. Chantal hadn't moved out of the family home despite having been ordered to do so. None of their properties had been sold, nor had the Toulouse apartment been rented continuously, and for the most part the parties' blamed each other for their real property headaches. Many other issues remained too. In the midst of trial, moreover, Chantal's attorney moved to withdraw but ultimately agreed to remain as her counsel of record for the duration of trial. At trial, the court acknowledged the case was "very difficult" for both sides for a variety of reasons. And on the final day of trial, Chantal asked for an additional hour of trial time to present rebuttal evidence, but the court denied her request and gave her two minutes to make an offer of proof which her counsel then hurriedly attempted.
The parties submitted post-trial briefs, and on July 8, 2015, the court entered a judgment containing detailed findings. Among other things, the judgment disposed of the marital property on various terms, awarded $2,804 in monthly child support and $2,000 in monthly spousal support to Chantal (effective February 2, 2015), and awarded Alain some of his attorney fees as sanctions against Chantal in addition to nearly $18,000 in damages relating to their 2007 income taxes. It also directed that the Belmont home be sold, and specified the manner in which the proceeds were to be divided.
After moving unsuccessfully for a new trial and/or to vacate the judgment, Chantal timely appealed the judgment.
Approximately five months after the court entered judgment, Alain filed a motion, on December 22, 2015, asking the court to reduce Chantal's child and spousal support. In a sworn declaration attached to the motion, he asked the court to "terminate and/or temporarily suspend" his support obligations as of December 21, because his employer's board of directors had decided to temporarily shut the company down and place its employees on leave without pay (not including any accrued personal time off), for a three-week period commencing on December 21. His company also had scheduled a board meeting for the day after operations were to resume, on January 12, to decide whether to make the shutdown permanent, which Alain anticipated the board would decide to do. He therefore asked the court to "terminate and/or temporarily suspend" his support obligations until he found new employment. Attached to the motion, in addition to his sworn declaration, was an income and expense declaration filed the prior month, on November 6, 2015, which among other things attached copies of his pay stubs for the two prior months of September and October. Those documents reflected no drop in income. Chantal, who was no longer represented by counsel, opposed Alain's motion to modify support, and she included a lengthy, factually detailed declaration of her own (with exhibits) along with her own income and expense declaration.
By that point, his child support had decreased to $1,765 because one of their supported sons was no longer a minor.
In the meantime, the Belmont residence was sold (in January 2016) and, pursuant to court order, the sale proceeds were being held in trust by Alain's counsel. Net of deductions for payments of various community debts and attorney liens, the total proceeds available for distribution to Alain and Chantal were $547,158.79.
On February 5, 2016, Alain filed another motion, this one asking the court to order the immediate disbursement of his share, which he argued was $493,231.26. He noticed the motion for March 29, 2016. Chantal opposed this motion in writing too. Among other things, she contended vaguely Alain was in arrears on his child and spousal support obligations. She also contended he was improperly trying to recover more than $150,000 in excess of his rightful share.
Thereafter, Alain's motion to reduce his support obligations was heard on March 1, 2016. No evidence was introduced. Alain's counsel orally advised the court the company had indeed shut down on January 15, 2016, and that Alain was "actively seeking employment" but that it "sometimes takes a while" for someone in his position to find a new job and, in the meantime, he had begun receiving $450 in weekly unemployment benefits. Chantal argued she hadn't received any child or spousal support since February, and was "very worried." Alain's counsel then advised the court that Alain's motion for disbursement of funds from the sale of the house was on calendar at the end of the month, and there was $547,000 currently in a trust account. In response to a question by the court, he said that "potentially" some of that would be available to distribute to Chantal, but that it would "depend a lot on the true-up" that would have to be calculated. The court then did an impromptu "dissomaster calculation" on the spot, and reduced Chantal's child support to $456 and her spousal support to $550, effective January 15, 2016. The court ruled it was a "temporary" modification but specified no duration; and, it ordered "work search efforts," directing Alain to submit 10 employment applications every two weeks. And it ordered that any support arrears would have to be paid out of the proceeds of sale of the family home.
More than two months later, Alain's disbursement motion was heard on May 17, 2016. The court granted his motion in full, ordering $493,231.25 disbursed to Alain (the amount he had requested) and the balance, $53,927.54, disbursed to Chantal.
On March 28, 2016, this court temporarily stayed the original March 29, 2016 hearing on Alain's motion to disburse funds held in trust, but we dissolved the stay on May 3, 2016, upon denial of Chantal's petition for writ of supersedeas.
Formal orders on both post-judgment rulings were prepared and filed on May 18, 2016, from which Chantal then timely appealed. On our own motion, we consolidated both appeals for purposes of argument and decision.
Chantal raises many claims of error in her two appeals, and her briefing is quite lengthy. Although we recognize Chantal is proceeding in pro per, and much of her briefing is well-supported and persuasive, her briefing in some respects does not conform to the rules of appellate advocacy which has constrained our consideration of the issues to some degree. We comment briefly, so that the parties comprehend how we have approached these appeals.
For example, some of Chantal's arguments contain no legal authority or analysis concerning the substantive issues she asks this court to consider. " 'The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956; see also In re S.C. (2006) 138 Cal.App.4th 396, 408.)
In addition, Chantal's opening brief on appeal from the judgment contains no factual summary (see Cal. Rules of Court, rule 8.204 (a)(2)(C) [appellant's opening brief must include "a summary of the significant facts limited to matters in the record"]), nor does it fairly summarize, in a full and complete manner, the evidence pertaining to each factual finding that she challenges on appeal. An appellant who challenges the sufficiency of the evidence must set forth " 'all material evidence on the point . . . and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact.' " (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317; see also, e.g., North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 677.) Despite these difficulties, we have exercised our discretion in a few limited instances to consider certain factual issues that Chantal has raised, which we specifically address below. All other factual issues Chantal attempts to raise have been forfeited.
We will ignore all factual statements in either party's briefs (including Alain's) that contain no citations to the record, which violates California Rules of Court, rule 8.204 (a)(1)(C). (See Villanueva v. Fidelity National Title Co. (2018) 26 Cal.App.5th 1092, 1110, fn. 8; Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868.) We also decline to consider claims of error that are mentioned in Chantal's briefing but are not properly captioned under a specific argument heading, as the rules require. (See Cal. Rules of Court, rule 8.204 (a)(1)(B); see In re S.C., supra, 138 Cal.App.4th at p. 408.) "Arguments not raised by a separate heading in an opening brief will be deemed waived." (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6.) And, finally, we do not consider new arguments Chantal makes for the first time in her reply briefs in the two appeals (which we refrain from summarizing). " 'A contention made for the first time in an appellant's reply brief, unaccompanied by any reason for omission from the opening brief, may be disregarded.' " (Opdyk v. California Horse Racing Board (1995) 34 Cal.App.4th 1826, 1830.)
With these parameters in mind, we turn to Chantal's appeals.
The Parties' 2007 Income Taxes
A major issue at trial concerned the parties' respective rights and liabilities concerning a ballooning tax debt, including accrued interest and penalties, that arose out of their 2007 income taxes.
The basic facts were not in dispute. By Alain's own account, which was consistent with Chantal's, Alain solely managed the parties' American finances during their marriage and prepared their income taxes. Due to what he characterized in his trial brief as inadvertent error, however, no 2007 tax return was ever filed. As a result, the IRS claimed over $100,000 in tax liability in connection with the exercise of some stock options that, in reality, would have been subject to a considerably lower tax burden had the couple actually filed a tax return and reported the stock's basis. IRS penalties and interest began to accrue. Eventually, the IRS placed a lien on the family home and levied approximately $17,000 on his separate property account. He also testified the IRS intercepted some of his tax refunds for subsequent years.
Alain introduced no evidence concerning the precise details of when the liability came to light, the amount the IRS initially claimed, or how much of their current liability was for the principal balance versus accrued interest and penalties. However, according to his trial testimony, their current tax liability for the 2007 tax year was more than $100,000. He also introduced into evidence an account summary from the IRS he received the prior year, dated December 2013 but relating to tax year 2007, showing nearly $96,000 still owing to the IRS by that point after various payments and credits had been applied, nearly $78,000 of which was for the delinquent taxes and the remainder for accrued interest and penalties. That document also reflects that the IRS had assessed $105,665 in additional taxes for the 2007 tax year, penalties of about $35,000 and interest of $11,350.
Chantal testified without contradiction that she discovered the situation in 2007, when she opened letters from the IRS claiming they owed $100,000 in taxes. Alain assured her it was a mistake and he would resolve it, but for the next several years he avoided answering her questions as penalties and interest kept accruing. Eventually, in 2010 or 2011, she contacted the IRS herself to find out what was going on because she didn't understand. She testified the IRS advised her to try to file for innocent spouse relief once she explained the situation, and that eventually the IRS advised her to file separately for 2007. On cross-examination she testified confusingly that, at some point after they were already separated, she did in fact file a separate 2007 return for herself "through someone from the IRS" on the IRS's advice, probably in 2012. She testified she told Alain she intended to do this, and that she didn't notify him after she did so because the IRS had told her it would notify him ("they say that we will receive right away letters from the IRS to his own address"). She acknowledged she did not produce a copy of her 2007 return in discovery nor with her final financial disclosures to him. The reason, she testified, was "[b]ecause I was directed by the IRS."
After the close of evidence, but before the entry of judgment, Chantal notified the court, in her objection to a tentative statement of decision, that she had contacted the IRS to verify the accuracy of her trial testimony and learned the IRS cannot—and did not—file a 2007 tax return for her, and hence she had been mistaken and no 2007 tax return ever had been filed for her. She argued she had been unsure and confused during cross-examination when the issue arose, was ignorant of IRS procedures, English was not her primary language, and she sought a chance to testify again to clarify that she had not in fact filed a 2007 tax return.
She later filed a declaration to the same effect, along with documentary proof from the IRS dated May 19, 2015, that no 2007 return had been filed, asserting she had inadvertently omitted this proof from her earlier filings. That declaration pre-dated the entry of judgment but was filed one day after judgment was entered.
Alain's response was tactical and blithe: "Petitioner provided testimony and must bear the consequences thereof. She testified that in 2012 she filed an individual 2007 tax return. Petitioner's counsel had the opportunity during re-direct to clarify any confusion she deemed necessary. Petitioner and/or her counsel could have contacted the IRS prior to and even during trial to confirm the status of her 2007 tax return. Instead, they continued to waive [sic] letters from the IRS alleging that she was absolved of any responsibility for the 2007 tax return."
The trial court, implicitly rejecting her offer of proof, subsequently entered its judgment with detailed findings. The court found that Chantal breached her fiduciary duty to Alain "by her failure to cooperate with [Alain] as to their 2007 tax returns, and her filing separately for 2007 without notifying [Alain] of same." It found "[Alain's] testimony persuasive as to [Chantal's] failure to cooperate with [Alain] to file joint tax returns for 2007" and his "testimony credible regarding his not being notified by [Chantal] that she filed taxes separately for 2007, and regarding the significant increase in taxes owed as a result." It found Chantal's testimony "not credible as to each of these issues." It further found that Chantal "failed to disclose to this Court her filing of her amended 2007 tax return in 2012, which she finally admitted on the witness stand during this trial . . . ." The court found that "the IRS has levied [Alain's] separate property wages in the amount of $17,839.68 as a result of [Chantal's] conduct." Pursuant to Family Code section 1101, it awarded Alain $17,839.68 as fiduciary duty damages in connection with this issue.
Further references to statutory sections are to the Family Code except where otherwise indicated. Section 1101 governs inter-spousal claims for breach of fiduciary duty. It states, in pertinent part, that "[a] spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate." (§ 1101, subd. (a).)
In her post-trial motion seeking to vacate the judgment and/or for a new trial, Chantal again claimed she had been confused and mistaken, did not understand American tax law, and in reality had not filed a 2007 return and her trial testimony was a mistake. The court denied her motion.
A. The Award of Breach of Fiduciary Duty Damages
Chantal challenges the $17,839.68 damages award on many grounds. The existence and scope of a marital fiduciary duty is a question of law we review de novo, whereas the question as to whether a fiduciary duty has been breached is a question of fact that we review for substantial evidence, considering the evidence in the light most favorable to the court's ruling and resolving all conflicts and drawing all reasonable inferences in support of the court's finding. (In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 144 (Kamgar).)
Chantal's principal argument is that she had no fiduciary duty to file a joint tax return with Alain because she had the right under federal tax law to file separately. We do not resolve this question. Chantal is correct that nothing in federal tax law requires a married couple to file jointly; each spouse has the legal right to file separately if they choose to do so, and if they do so then that necessarily dictates the other spouse's filing status too (i.e., married filing separately). (See In re Marriage of Carlton & D'Allessandro (2001) 91 Cal.App.4th 1213, 1218-1219.) Alain's own tax expert admitted this at trial. The absence of a fiduciary duty, however, by no means follows. The fact Chantal had the legal right (vis-à-vis the federal government) to file her income taxes using the married filing separately status does not necessarily resolve whether, in exercising that right (or in attempting to), she violated a duty owed to her husband. For example, a married person who is a named account holder on a brokerage account undoubtedly has the legal right to make a risky investment using community funds, but in doing so she still might very well breach a duty owed to her spouse. (See, e.g., Kamgar, supra, 18 Cal.App.5th at pp. 148, 153 [upholding $19 million judgment entered in wife's favor for husband's trading losses].) Chantal does not cite or discuss any legal authority addressing the scope of marital fiduciary duties, and so we are unable to decide the extent to which she had a duty, if any, to her husband in connection with her tax filing status. Therefore, we refrain from deciding that issue.
We agree, however, with Chantal's contention there was no evidence that anything she did concerning their 2007 taxes caused Alain any damage, which Alain conceded below at page 4 of his "closing argument" trial brief was a required element. And that concession was well-founded, because section 1101 provides a remedy for breaches of fiduciary duty that "results in impairment to the claimant spouse's present undivided one-half interest in the community estate." (Italics added.)
Even accepting Chantal's testimony, as we must, that she did in fact file a separate income tax return for 2007, we agree with her argument there was no evidence of any causal connection between her actions and any increased tax liability. Even Alain's tax expert testified to calculations that entailed roughly the same overall tax picture for 2007 regardless of whether the parties filed married or separately for 2007. And she argues, correctly, there was no evidence that any of her conduct caused the tax liability to arise in the first place. Alain does not respond to these points, apart from generally accusing Chantal of improperly trying to "retry her case" and improperly asking this court to "reweigh" the evidence. But there is no evidence of any damage she could ask us to reweigh. There is simply no evidence. The court's finding the IRS levied on Alain's separate property "as a result of [Chantal's] conduct" is not supported by substantial evidence.
She testified the couple would be entitled to a $1,007 refund for 2007 using the joint return she had prepared at the time of the trial. And she testified that if they had filed separately for 2007, Alain would receive a $2,221 refund and Chantal would owe $1,214, which in effect would yield a net $1,007 refund for the community.
Alain in fact admitted in his trial brief that he personally made an error in connection with their 2007 taxes that could potentially cost the community upwards of $100,000 in tax liability.
Damages aside, we are troubled that the court found that what Chantal did amounted to a breach of fiduciary duty. Alain, who had entire control over the parties' finances including their taxes, created the tax problems in the first instance. Even assuming he did so inadvertently, he then exacerbated the problem by failing to deal with it for a period of years—a subject about which Chantal testified which he did not deny or contradict in his own trial testimony. Chantal was left to try to sort things out having never before handled their finances or touched the parties' federal income taxes. And if Alain's theory was that she failed to cooperate with him to try fix their tax headaches years down the road, little wonder if she didn't trust him and failed to do exactly as he demanded but instead tried to follow what she understood to be the IRS's advice. According to her testimony at trial, at least, Alain had assured her for years he would fix their tax problems, but then apparently just stuck his head in the sand as their predicament worsened. That Alain asserted a fiduciary duty claim against Chantal in these circumstances, and that the trial court credited that claim, seems particularly unfair. Put simply, the 2007 tax issue became a runaway train at trial, even though it was Alain, not Chantal, who barreled it off the tracks.
We recognize the court found Chantal's testimony not credible in some respects (regarding her failure to cooperate with Alain to file a joint tax return for 2007, and her failure to tell him she filed separately for 2007). But the court clearly did find her credible in other respects concerning their 2007 taxes (although to what degree is unclear) because it cited and relied on her testimony that she filed a separate tax return for 2007 on her own. Furthermore, copies of emails between the parties' counsel that were never introduced into evidence, but were attached to Alain's post-trial closing brief, reflect that Chantal relied on the recommendations of the IRS in pursuing the course of action that she did.
We also note our concern that the trial court imposed a sizable monetary damages award against a supported spouse of quite limited means—nearly $18,000, an amount higher than what her own actual employment earnings would yield on a projected annual basis (i.e., $1,000 per month, or $12,000 annually)—despite an offer of proof that the key factual premise of the award was not true, and despite a request to reopen the evidence briefly to correct mistaken trial testimony. We are troubled by what transpired and puzzled as to why the court did not take some step, however modest, to address the situation before entering judgment (such as by eliciting evidence about her erroneous testimony, even by way of a declaration on shortened time). What happened here has the appearance of a rush to judgment that put expedience ahead of truth and fairness.
B. Equal Division of Liability for 2007 Tax Debt
In addition to imposing a damages award against Chantal for the parties' 2007 taxes, the court also ruled that all tax debt assessed for the 2007 calendar year is community debt and ordered that it be divided equally. Chantal argues this was "arguable" error too, because the ruling was "manifestly unfair." We express no opinion on the merits, because Chantal has waived any challenge to the trial court's ruling by failing to provide any legal analysis and citing no legal authority. (See Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 218-219; Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.)
Next is Chantal's challenge to the original support award. In its judgment, the court awarded permanent monthly spousal support in the amount of $2,000. This was on top of $2,804 in total monthly child support which, given the ages of their teenage sons, would decline to $1,765 in a year and then terminate altogether within two. (See §§ 58, 3901, 6500.) Chantal asserts the court abused its discretion in setting spousal support, arguing principally that $2,000 per month is insufficient to meet her needs in light of her limited income, uncertain economic future and Alain's ability to pay more, and that the award rested in part on erroneous factual findings.
The court awarded $1,039 per month for support of their 17-year-old son, and $1,765 per month for support of their 16-year old son.
Awards of spousal support are governed by Family Code section 4320, which sets forth the factors a court must consider in fixing the amount and duration of spousal support. Our review of such determinations is highly deferential: "An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines. [Citation.] In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. . . . In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] 'Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.' " (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn. omitted.)
While broad, the trial court's discretion in this realm is not unfettered. " ' "[T]he 'court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially, [the parties'] reasonable needs and their financial abilities.' [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error." ' " (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297 (Geraci).)
Here, the trial court discussed the required statutory factors, but nothing in its decision reflects the court actually weighed them. Instead, to a large degree its recitation was perfunctory and short on specifics, and in any event most of the court's findings pertaining to the statutory factors tipped heavily in Chantal's favor. For example, it found that Alain's earning capacity was sufficient to maintain the upper middle-class standard of living they enjoyed while married, but Chantal's was not. (See § 4320, subd. (a).) It found Alain was working full time, and while Chantal "has the ability to work full-time," earning potentially up to $40,000 a year, she presently had the ability to earn only $27,130 annually. It found, too, that Chantal had stayed home raising their seven children which had impaired her earning capacity (see id., subd. (a)(2)). She had contributed to Alain's career by moving with him to the United States as his career advanced (see id., subd. (b)). It found Alain has the ability "to pay spousal support." (See id., subd. (c).) With regard to the parties' respective needs based on the marital standard of living (see id., subd. (d)), the court found Chantal "is in need of support" and Alain "has the ability to pay support," and that both "want[ed] to maintain the standard of living achieved during marriage." The parties had been married approximately 29 years (see id., subd. (f)). And Alain had engaged in domestic violence against Chantal (see id., subd. (i)).
The court also found Alain could, without hardship, pay Chantal enough to maintain their marital standard of living, yet in assessing both the balance of hardships (see § 4320, subd. (k)) and the goal that Chantal become self-supporting within a reasonable period of time (see id., subd. (l)), it penalized Chantal largely because it found she had delayed finding full-time employment for five years. Chantal contends the court's finding on this factor is not supported by substantial evidence, and we agree. The parties separated in September 2010, and Chantal began attending community college full-time very soon after, in 2011, to work toward earning credentials that would enable her to work in early childhood education. She finished her schooling in December 2013, earning multiple certificates and receiving highest honors. While still in school, and afterwards, she patched together various teaching jobs as best she could but the work was spotty, part-time and low-paying. We refrain from summarizing the many details, which Chantal summarizes in her opening brief without contradiction by Alain. Suffice it to say, even Alain's vocational expert testified Chantal had taken a "whirlwind of classes within just a short time" to obtain her credentials in early childhood education "[a]ll the way from the lowest level to the highest level of certifications," and he admitted Chantal was not a "malingerer." Alain cites no evidence that Chantal delayed trying to re-enter the workforce. He just asserts she is rearguing the facts. We disagree. The court's finding lacks support in this record.
Here, specifically, is what the court said: "[Section 4320, subdivision] k. Each party will be awarded approximately one-half of the marital estate. Each party has the ability to work full time. The evidence shows that [Chantal] has delayed finding full time employment for many years, since separation. It is not a hardship to [Alain] to pay spousal support to [Chantal], in order to allow [her] to maintain the standard of living during marriage. [¶]
"[Section 4320, subdivision] l. [Alain] is selfsupporting at the marital standard of living. [Chantal] has the ability to be selfsupporting below the marital standard of living. However [she] has failed to secure full time employment at her ability to earn, despite the passage of almost 5 years from date of separation. . . . [Chantal] presently has the ability to earn $27,130 per year."
Contributing to our concern the court did not properly exercise its discretion is that the court didn't quantify much of anything in actual dollar terms. Not the parties' marital standard of living ("they enjoyed an upper middle class marital standard of living") (§ 4320, subd. (a)); not Alain's earning capacity (ibid.); not the amount of spousal support he could afford to pay (id., subd. (c)), not his earned and unearned income, his assets and his own standard of living (ibid.); not the parties' respective economic needs based on their marital standard of living (id., subd. (d)); and not their respective obligations and assets, including their separate property (id., subd. (e)). With virtually no findings concerning the parties' actual economic circumstances, the court's decision to set spousal support at $2,000 per month leaves us with little confidence the figure is not arbitrary.
As to their assets and debts, the court stated only that "[t]he community assets and debts of the parties will be divided equally by this Order."
We could remand this award solely because we cannot determine from the record how the court arrived at the $2,000 support figure and because it was based in part on an erroneous factual finding about Chantal's employment efforts. (See Geraci, supra, 144 Cal.App.4th at pp. 1297, 1299 [reversing where "the record provide[d] inadequate grounds to accord the usual deference to the court's exercise of discretion in making the award of spousal support" even though trial court recited required statutory factors, because court did not explain how it actually weighed the factors and the evidence "raise[d] some question" as to whether court gave due consideration to them].) But some further explanation of the court's reasoning would be pointless because it resulted in an award that, as a matter of law, is too low as we next explain. And so we will reverse with directions that the court reconsider the support issue anew, as of the date of its original decision. Although we must defer to the trial court, our review is not toothless and like other courts before us in similar circumstances, we conclude this award is an abuse of discretion.
Here, Chantal's needs greatly exceeded her income. Her income and expense declaration showed $1,000 in monthly average income, with only $520 earned the prior month but $6,679 in expenses. She had no separate assets, nearly $14,000 in credit card debt plus a $15,000 car loan, and she owed her lawyer nearly $84,000. She testified she needs $6,000 just to meet basic living expenses, not including spending on discretionary things they enjoyed during the marriage like vacations. And the only health insurance she had was through Alain which presumably would terminate upon formal divorce. Her job prospects were dim, particularly given her age and the 29-year period she was out of the workforce, and she faced an uncertain financial future. As noted, the court found she had sacrificed a career to become a homemaker, and there had been domestic violence in the marriage.
Alain, by contrast, had nearly $5,000 in discretionary monthly income available for spousal support and would have nearly $8,000 available by the time his child support obligations were to end in two years' time.
He reported $15,000 in gross monthly income, but only $5,414 in monthly expenses. He also was contributing approximately $600 monthly to a 401(k) retirement account, with employer-matched funds. He paid only $1250 in rent, and he owed his attorney $25,000. He reported approximately $2,134 in monthly installment payments and debts. And in the following two years, his $2,800 in monthly child support obligations would drop by approximately $1,000, and then terminate altogether.
When the supporting spouse has the ability to pay, a gross disparity between the supported spouse's needs and the supporting spouse's ability to pay is inequitable. (See In re Marriage of Beust (1994) 23 Cal.App.4th 24, 30-31 [abuse of discretion not to continue spousal support after six years following long-term marriage, where 60-year-old wife has limited employment prospects and husband is an executive earning $100,000; "the court's failure to give any weight to [wife's] evidence of continuing need is more egregious in light of [husband's] continuing ability to pay spousal support; . . . this situation is not one where the financial needs of both parties cannot be satisfied"]; In re Marriage of Ramer (1986) 187 Cal.App.3d 263, 273 ["grossly inadequate" spousal support award held an abuse of discretion]; In re Marriage of Andreen (1978) 76 Cal.App.3d 667, 671-672 [reversing support award that ensured husband a much higher continued standard of living than wife who has a "shaky economic future" after 27-year marriage, and would at best enjoy a "drab, relatively austere standard of life" under amount awarded].) Simply put, this award is unreasonably low in light of large differences between the parties' incomes and their respective earning capacities, judged in light of even Chantal's most basic needs. It must be recalculated, based upon the parties' circumstances as of the date of the close evidence at their original trial (February 5, 2015).
Finally, Chantal also asserts briefly, in passing and without an appropriate argument heading, that the court erred in failing to make future spousal support subject to a bonus supplement pursuant to Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33. She does not adequately brief this issue with argument and analysis, nor does she indicate whether she raised this issue in the trial court and, if so, cite the record to show she did so. (See In re S.C., supra, 138 Cal.App.4th at pp. 406-407 [appellate court can deem a claim of error forfeited where party fails to cite where in the record the issue was preserved below].) Presumably, she did raise this issue because the court ordered this relief with respect to child support. Alain does not argue Chantal waived this argument or respond to it at all. Since we are remanding the support award for recalculation, Chantal may address this issue on remand.
Attorney Fees As Sanctions
The trial court shifted $31,294.68 of Alain's attorney fees and costs to Chantal under Family Code section 271, as a sanction for her willful and intentional failure to comply with several court orders to sell the family residence in Belmont, California and to sell their house in Nantes, France, and also on the ground that such conduct breached her fiduciary duties to Alain. With regard to the marital home in Belmont, the court found Chantal violated several court orders by "failing to cooperate with [Alain] in his attempts to list and sell the family residence" and by "unreasonably and intentionally fail[ing] to vacate the family residence." With regard to the Nantes property, the court found Chantal "prevented the sale of the Nantes, France property" in violation of two prior court orders, because "subsequent to an offer to purchase being accepted regarding said property, [Chantal] informed the French Notaire involved in the sale that she did not agree to sell the property, and she also refused to sign the contract for sale."
Section 271 authorizes an award of attorney fees and costs as a sanction, for conduct by a party or attorney that "frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).)
The imposition of sanctions pursuant to section 271 is "committed to the discretion of the trial court, and will be reversed on appeal only on a showing of abuse of that discretion, that is 'only if, considering all of the evidence viewed more favorably in its support, and indulging all reasonable inferences in its favor, no judge could reasonably make the order.' " (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524 (Davenport).)
Chantal challenges the sanctions award on several grounds. To start with, she purports to challenge it on factual grounds, captioned under a general argument heading asserting there was "insufficient evidence" to impose sanctions against her. But the arguments that follow under various subheadings are somewhat different. Concerning the Nantes property, Chantal asserts she was unfairly prevented from presenting rebuttal evidence to challenge Alain's version of events concerning the sale of that property, and that had she been permitted to do so there would have been no basis to sanction her in connection with the Nantes property. Similarly, she contends "the court failed to consider mitigating circumstances" concerning her actions relating to the Belmont home. Yet the argument that follows is not that the court erred in finding that she failed to move out of the family residence and failed to cooperate with Alain to sell that house. Nor does she assert that there was evidence at trial of any of the mitigating circumstances she now says were relevant (and Alain implies, without contradiction in Chantal's reply brief, there was not). Rather, her argument concerning the Belmont home as we understand it, is again that had she been given additional time at trial, she would have presented rebuttal evidence about some of the circumstances that might have lessened the amount of sanctions the court imposed. In short, although her arguments concerning the Nantes property and the Belmont property are captioned generally as a challenge to the sufficiency of the evidence, both arguments, in effect, amount to a contention she was prejudiced by the court's refusal to give her more trial time. Therefore, we will analyze these points below when we address the trial time issue. Apart from that contention, Chantal has failed to show the court abused its discretion in sanctioning her either in connection with the Nantes property or for violating its orders to move out of the family home.
On the contrary, Chantal admits the court was "understandably distressed" by her failure to move out. And, indeed, she stipulated below that she had been non-cooperative in connection with the sale of their home. And in her closing trial brief, filed in February 2015, she admitted "that from December, 2014 to the present she was uncooperative in vacating and selling the family residence."
Her final factual contention is that in imposing sanctions against her, the court failed to consider evidence of Alain's deliberate efforts not to cooperate with her in renting out their Toulouse apartment as he was directed to do by the April 2013 judgment. She cites no legal authority in support of this point, but merely argues the result was "unfair" to her. The court's ruling is presumptively correct, and we will not second-guess it. Rearguing the facts does not establish an abuse of discretion. (See Davenport, supra, 194 Cal.App.4th at pp. 1531, 1538 [upholding award of attorney fees as sanctions against wife under section 271].)
We disregard her factual assertion that his actions "left the Toulouse property unrented for nearly two years at a loss to the community in rental income" because it lacks any citation to the record.
Finally, Chantal also challenges the sanctions award on legal grounds, contending the court improperly assessed sanctions against her without regard to her ability to pay, and without inquiring whether sanctions would impose an unreasonable financial burden on her. Alain argues she waived this issue by not raising it below, a point she does not dispute. Because we are reversing and remanding the sanctions award on other grounds, however, we will briefly address this issue for guidance on remand.
The statutory language supports Chantal. Family Code section 270 states: "If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay." (Italics added.) Likewise, section 271 states: "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." (§ 271, subd. (a), italics added.) Should the court impose sanctions on remand, the amount may not exceed what Chantal is able to pay nor may it impose on her an unreasonable financial burden.
Chantal's Request for Attorney Fees
Chantal devotes approximately seven pages to an argument captioned under a heading stating that the court erred in denying her an award of attorney fees pursuant to Family Code section 2030.
That statute authorizes the court to "order, if necessary based on the income and needs assessment, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the [divorce] proceeding" during its pendency. (§ 2030, subd. (a)(1).) It further directs that, when a request for attorney's fees and costs is made, "the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 2030, subd. (a)(2).) Section 2032, in turn, imposes a "just and reasonable" standard for attorney fee awards under section 2030, and sets forth several mandatory factors the court must consider.
In pertinent part, section 2032 states: "(a) The court may make an award of attorney's fees and costs under Section 2030 . . . where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.
"(b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320 [governing awards of spousal support]. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.
"(c) The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income."
Chantal's arguments on appeal are difficult to follow, to a large degree because she does not identify where in the record she raised the issue of attorney fees below, nor specify the ruling(s) she challenges on appeal. Although it was not our burden to search the record, we have ascertained the following basic facts, which will define the scope of our review.
If we have overlooked any material portion of the record on this issue, Chantal must live with the consequences. (See Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435, fn. 2.)
At trial, Chantal requested an award of $50,000 in legal fees and costs, set forth in the "Trial Brief/Declaration" her trial counsel filed on February 2, 2015. This was approximately $35,000 less than the total outstanding fees and costs incurred by her counsel. In its July 8, 2015 judgment, the court summarily rejected her request for the sole reason that she "has the ability to pay her own attorney fees and costs from the property division contained herein."
Her total fees and costs were more than $110,000, and only $24,990 had been paid. However, the court's judgment reflects it had previously ordered Alain to advance a total of $30,000 in attorney fees and costs to Chantal (in three prior orders) which the court confirmed in its judgment remained Alain's sole and separate responsibility. It is unclear whether Alain has paid those fees, and Chantal has raised no issue on appeal concerning his compliance with the court's orders.
It is unclear whether Chantal also is attempting to challenge rulings on any earlier requests for an award of attorney fees pendente lite. If so, the issues are not cognizable in her appeal from the final judgment because those other rulings would have been independently appealable, yet Chantal has not appealed them. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 16:269 ["a direct appeal lies from temporary support and attorney fee orders, whether granting or denying relief"].)
Chantal argues this was erroneous, and we agree. "The proper legal standard for determining whether to award attorney fees in [marital dissolution] proceedings is not . . . whether the party requesting attorney fees and costs had resources to pay attorney fees without considering other factors. [Citation.] Instead, the trial court is required to determine how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406 [reversing denial of wife's request for attorney fees and remanding for reconsideration].) "[T]he statute is concerned with relative need." (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662.) Indeed, the court's ruling is inconsistent with the statute's express language: "The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties." (§ 2032, subd. (b), italics added.) In short, the court applied the wrong legal standard when it denied Chantal's request for attorney fees.
That alone would require us to remand the question of Chantal's attorney fees for reconsideration. (See In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 405.) In addition, though, we also agree with Chantal that the court made a second error: that is, it failed to make necessary findings under Family Code section 2030 for a needs-based fee award. The statute on its face requires this. (See § 2030, subd. (a)(2), quoted at p. 22, ante.) Chantal also requested additional findings in her request for a statement of decision, yet the court made none. Alain responds only that the error was harmless because "the Judgment clearly contemplates the necessary determinations." But he does not explain how or where, and we do not agree. The court's failure to make findings regarding Chantal's request for attorney fees is reversible error. (See In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1279-1280 (Shimkus) [reversing and remanding where court denied request for attorney fees without explanation].)
She asked for findings concerning "[t]he basis and method for determining the ability of Petitioner to pay for her attorney fees and costs of suit." Although she did not specifically ask for findings regarding the section 2032 factors, it is evident on this record that such a request would have been equally futile.
Given the vast disparity in monthly income between the parties here, we also express doubts the court acted within its discretion in denying an award of additional legal fees to Chantal. "It is well established in California that, although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion. . . . Where, as here, there was no showing that the time spent or fees charged were unreasonable, and the parties' respective financial circumstances clearly justify a higher fee award, . . . a drastic reduction in the requested amount cannot be sustained." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827, fn. omitted; see also Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315-1316 [error to deny wife's request for attorney fees given disparity in parties' ability to pay, regardless of wife's access to community property].) Nevertheless, we will not prejudge that issue before the trial court has discharged its duty to weigh the appropriate factors, nor do we express any opinion concerning the factual issue as to whether Chantal was in fact unable to pay her own legal fees out of her share of the property division, as she contends. We leave those questions to the trial court in the first instance on remand, with directions that it reconsider Chantal's request for attorney fees pursuant to the factors set forth in sections 2030 and 2032, and make appropriate findings as required by section 2030.
Chantal argues her lack of success on a number of claims does not preclude a fee award. But nothing in the court's decision suggests that it took that into account. And while Chantal is correct that the purpose of a needs-based award is not to punish but to level the playing field, the success of her attorney's efforts is a factor the court is required to consider in setting the amount of a reasonable needs-based award. In Braud, we discussed the factors that have developed in the case law pertaining to that question, which the parties may address on remand. (See Braud, supra, 45 Cal.App.4th at p. 827, fn. 30.)
Finally, Chantal also argues Alain improperly used community funds to pay legal fees for which he was solely responsible, for which she contends she should have been reimbursed. This argument is not captioned under a separate argument as it should be, and we could deem it forfeited. However, Chantal raised these improper withdrawals below, in her closing trial brief and in her objections to the proposed statement of decision. But even had the issue been forfeited we would exercise our discretion to review it because the facts are undisputed. Specifically, it appears to be undisputed that Alain withdrew at least $22,000 in funds from a brokerage account containing community funds to pay attorney fees that were his sole legal responsibility: $5,000 of Chantal's attorney fees the court on February 15, 2011, ordered Alain to pay, and another $17,000 to pay his own attorney. Chantal contends Alain should reimburse her for her community share of that amount, or put another way, for one-half of that amount. Alain does not dispute this. Accordingly, we will modify the judgment to direct that Chantal be reimbursed in the amount of $11,000 for Alain's use of community funds to pay legal fees that he should have paid from his own separate property.
Chantal also asserts at page 37 of her brief that Alain improperly withdrew community funds to comply with an April 30, 2013 ruling of the court to pay her attorney fees, but the only portion of the record she cites is a minute order relating to a motion for attorney fees she apparently filed (but does not cite) stating that "[t]he issue of attorney fees is reserved. [¶] Unallocated funds in the sum of $15,000 will be advanced from community [property] funds." (Italics added.) If Alain did withdraw community funds to comply with this order (and Chantal cites no evidence one way or the other), Chantal has not demonstrated it was improper. Nor has she shown that she raised this issue in the trial court.
The Denial of Chantal's Request for Additional Trial Time
Finally, we come to the asserted procedural error that looms large throughout Chantal's briefing in her appeal from the judgment and was a central focus of her post-trial motions. That is, Chantal argues the court abused its discretion and violated due process by denying her request for additional time at trial to provide rebuttal evidence regarding the three properties and the tax debt, and "prevented her from presenting evidence on numerous reimbursement claims for property tax, tuition payments, and support arrearages." Although her briefing is not entirely clear, we understand her to challenge two rulings: the court's refusal to grant her more time on the last day of trial, and its later denial of her request for a new trial on the ground that denying her sufficient time to present her case constituted an irregularity in the proceedings that deprived her of a fair trial (Code Civ. Proc., § 657, subd. (1)).
In its final judgment the court did not make any ruling on Chantal's request for support arrears but reserved that issue for future determination. So no further discussion of that issue is warranted in connection with our review of the court's curtailment of Chantal's trial time.
We conclude the court abused its discretion when it ended the trial without affording additional time for Chantal to present her case, and so it is unnecessary to address the court's ruling on Chantal's motion for a new trial.
A. Procedural Background
The trial was originally scheduled to last two days, November 12 and 13. Each day would consist of six hours, which meant the trial was projected to last 12 hours. By the end of the second day, however (according to time notations in the minutes of trial), trial had consumed approximately only 7.5 hours, not 12 as anticipated. At that point, the court added an additional half day (on January 5, 2015), with the goal of completing the trial within that time frame. It also reserved half of another day after that, if necessary (on February 4, 2015), and ordered the parties to present their closing arguments and their requests for attorney fees and costs in written format.
The court later added another half-day (on February 2, 2015) to make up for the fact that a settlement conference consumed the first half-day of trial. That schedule change simply restored the status quo.
By the morning of the final day, Alain had consumed significantly more trial time than Chantal. By then, Chantal had testified in her case in chief for nearly five hours, while Alain had presented three expert witnesses who testified for about three and a half hours in total. In addition, Alain himself had testified for about four and a half hours and was not yet done.
Indulging all presumptions in favor of the judgment, this figure assumes that Chantal finished testifying at 5:00 p.m. on the second day because the record is silent as to the time that proceedings adjourned that afternoon.
On the last morning of trial, the disparity widened when Alain testified for two more hours. By that point, Alain alone had testified for at least an hour and a half longer than Chantal, and in total he and his expert witnesses had consumed ten hours of trial time, more than twice as many hours as Chantal. After his testimony concluded, Chantal then presented a rebuttal vocational expert, Lee Hartley, for 40 minutes. At approximately 11:55 a.m., she asked, through counsel, to re-take the witness stand and was refused:
"[WIFE'S COUNSEL]: . . . my client would like to testify, would like to reply on the issues that were raised by Mr. Blosse regarding her lack of cooperation in terms of the French properties and the property here, to rebut that. And that we were prepared today to do that for approximately an hour. She hasn't had the opportunity to do that and I would like to make either an offer of proof or respectfully ask the court to give us one more quarter day so she can do that.
"THE COURT: That request for an additional day is denied. It is your client's reason that it didn't happen. She has been late to the court appearances both today and Monday, Monday by more than half an hour and today by 20 minutes. If she had been here on time both days she would have had the opportunity to testify.
"[WIFE'S COUNSEL]: Can I just clarify for the record, she got here on time today but she had to go to the restroom on the fourth floor, I believe, because there is no restroom today. We were at that time in the courtroom discussing before she came in but she was actually in this courtroom today. She came to the court on time.
"THE COURT: She was not here at nine o'clock ready to proceed. She was not ready to proceed until 9:20. That is not my fault, that is not the fault of anybody else in this room except for hers. If you would like to make an offer of proof, I'm happy to hear it. You have about two minutes to do that."
Chantal's counsel then made a rushed offer of proof (principally addressing the French properties and their 2007 taxes). She was interrupted by frequent objections from Alain's counsel who insisted that her doing so was "unfair." And when her counsel tried at the end to get a word in about the marital residence in Belmont, the court interrupted her twice, mid-sentence; it told her, "Your time is up," then gave her just "one sentence" to make an offer of proof about the Belmont situation, and then cut her off again after two and a half sentences and another objection by Alain's counsel, telling her "This is absolutely argument. You are done."
The court then ordered the parties to file supplemental closing trial briefs by close of business the following day, rejecting the request by Chantal's counsel for a week, or even just a few days, to do so ("I had two hours sleep last night. Yesterday I was inundated with documents from Mr. Blosse, I hadn't had a chance to read them. Your Honor, we discussed how I will be given some time to supplement the two skimpy briefs"). And it declared that it intended to issue a ruling the following morning.
In the papers that followed (a supplemental closing trial brief and, later, objections to a proposed statement of decision), Chantal repeatedly objected she had been given insufficient time to present rebuttal testimony and had not even been given enough time to complete her offer of proof. And in those documents, she expanded on her oral offer of proof concerning a number of subjects, including mitigating circumstances as to why she hadn't yet moved out of the family home by the time of trial and reimbursement claims she had against Alain for her having paid various community debts, the evidence of which she hadn't had an opportunity to introduce at trial (both because of time constraints and because it had been unclear whether the court intended to resolve reimbursement issues at trial rather than reserve them for a later time). She maintained in those papers she needed just one day more.
Her requests were to no avail. The court entered judgment, and in the detailed findings and rulings contained in its final judgment made no mention of Chantal's requests for additional trial time or the specifics of her various offers of proof. Chantal then moved for a new trial objecting yet again, which she supported with a nine-page declaration containing a detailed offer of proof concerning all of the subjects upon which she wished to be heard that, among other things, detailed nearly $130,000 in reimbursement claims the court had not considered. She later filed a second declaration making yet another offer of proof concerning their Nantes property. The court denied her motion.
In its judgment the court found that Chantal "provided no credible evidence and failed to establish that she is entitled to any reimbursements."
Time limits at trial are, of course, appropriate provided they are carried out reasonably, with the input of counsel and with flexibility should circumstances warrant. (See generally People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 148-151 (ConAgra Grocery Products).) And the court's imposition of time limits are reviewed for abuse of discretion. (Id. at p. 148.) "Unquestionably, the trial court has the power to . . . expedite proceedings which, in the court's view, are dragging on too long without significantly aiding the trier of fact," and if the court errs in expediting proceedings, we will reverse the court's ruling if the error is prejudicial. (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291 (Carlsson).)
Despite the court's discretion to manage trials efficiently, however, " '[t]rials are a dynamic process without the benefit of a dress rehearsal, which makes forecasting the length of a trial less than precise.' " (ConAgra Grocery Products, supra, 17 Cal.App.4th at p. 151.) Expediting proceedings in the interest of efficiency must not be at the expense of affording the parties a meaningful opportunity to be heard, even in the face of a busy calendar of a family law department. Although trial courts are under pressure to expedite their caseloads, judicial efficiency " 'is not an end in itself. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits.' " (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396.) " 'A trial, unlike grandmaster chess or the last two minutes of a close football game, should not become a race against the clock.' " (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 684.)
As our Supreme Court has explained, the efforts of a judge presiding over family law cases to expedite matters " 'should never be directed in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California. . . . To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.' " (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357-1358.) A court errs if it arbitrarily curtails a party's right to present evidence on all material disputed issues. (See Carlsson, supra, 163 Cal.App.4th at pp. 291-293; accord, Spector v. Superior Court (1961) 55 Cal.2d 839, 844; cf. In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1131 [reversing, where trial court erred prejudicially in denying brief continuance to allow testimony of rebuttal witness].) Carlsson, for example, reversed a judgment in a divorce action after the trial was abruptly called to a halt in the middle of one party's case in chief, before they had a chance to finish their presentation of evidence or present rebuttal evidence. (See Carlsson, at pp. 291-293.)
Although the circumstances here were not as extreme as those in Carlsson, we conclude, based on a careful review of the record, that the trial court abused its discretion in a similar manner. By the time the trial ended, Chantal had not yet completed her case in chief, much less did she have a chance fully to rebut the evidence Alain had presented out of order. By that point there were three material issues the court knew it would decide but as to which Chantal had not had an opportunity to present any evidence: more than $100,000 in reimbursement claims she had, and evidence to rebut Alain's version of events concerning the Belmont home and the Nantes property. Depriving Chantal of additional trial time when she had not presented any evidence on those issues which the court clearly intended to reach, was an abuse of discretion. She had not refrained from presenting evidence concerning those issues for any strategic reason. She had not mismanaged her trial time to any significant degree. On the contrary, on the second to last day of trial, the court complimented both attorneys for having done "an outstanding job in dealing with such a very difficult case." And although the court extended the trial by an additional day early on (which was in addition to the extra half day it added to make up for time spent in an effort to settle the dispute), in the end it was Alain who was by far the prime beneficiary. He and his witnesses consumed a disproportionate share of the total trial time, whereas Chantal was denied an opportunity to present an effective rebuttal and was barely given the time to make an offer of proof. We also understand the court's frustration that Chantal was late to court. But in the second instance she apparently was in the courthouse but needed to use the restroom and did so while counsel was engaged with the court; while perhaps reflecting poor judgment on the part of her or her counsel, it was certainly excusable. And although Chantal offered no explanation for her tardiness the first occasion and we presume it was inexcusable, it was unduly disproportionate to deny her the opportunity to present rebuttal evidence on important issues as a penalty for being 30 minutes late to court. That drastic punishment did not fit the crime.
After Chantal testified, by stipulation, Alain took three expert witnesses out of order and then he testified. Chantal's counsel made clear at the outset of his testimony that her case in chief was not yet complete.
And the situation concerning her reimbursement claims was complicated, too, by her lack of certainty as to whether the court intended to rule on them at trial; she requested in her trial brief that the parties retain a neutral financial expert to address the calculation of their reimbursements. Evidently it did not become clear to her the court intended to rule on all reimbursement claims until the court issued its tentative decision after trial, stating that "Petitioner's reimbursement request is denied."
Chantal argues the error is reversible per se, but we need not resolve that question. Here, Chantal was clearly prejudiced by the court's rigid adherence to its final trial schedule. She was prevented from presenting evidence regarding mitigating circumstances concerning her delay in complying with the court's order to move out of the family home and Alain's interference with the sale of their French home, both of which bore directly on her exposure to sanctions. And, as explained, she also was prevented from presenting evidence of more than a hundred thousand dollars of reimbursement claims the court never considered. Alain argues any error was harmless because Chantal did testify concerning her non-cooperation concerning the French properties and the Belmont home; but that mischaracterizes the record. He cites snippets of her cross-examination that barely scratched the surface of some of these areas which, in any event, do not negate the prejudice occasioned by her failure to offer testimony in rebuttal to Alain's lengthy examination that took place after Chantal testified. Alain also argues any error was harmless because Chantal was permitted to submit post-trial briefing, but the arguments of counsel are no substitute for actual evidence. (See In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) The parties in Carlsson were permitted to file closing briefs too, yet that did not cure the error posed by a trial that was run "essentially . . . on a stopwatch," and ended abruptly before one party had completed the presentation of their evidence. (See Carlsson, supra, 163 Cal.App.4th at pp. 289-290, 292.) Had Chantal been permitted to complete her case, she might well have obtained a more favorable result on these issues.
We refrain from summarizing the details.
Alain argues the reimbursement issue is waived because Chantal did not request additional time, nor make an offer of proof, concerning evidence she wished to present concerning her reimbursements claims. We are unwilling to deem that a forfeiture, given the rushed manner in which Chantal was asked to proceed in the final few minutes of trial when it became clear she would have no further opportunity to present evidence. Moreover, she later made an adequate offer of proof concerning her reimbursement claims. (See Carlsson, supra, 163 Cal.App.4th at p. 294.)
Relatedly, Chantal has filed a motion requesting judicial notice of "findings and order after hearing" entered on October14, 2016, incorporating an earlier minute order from a 2011 hearing at which the court authorized her to liquidate her Ameritrade IRA in order to pay for her sons' tuition and other expenses, which relates to her claims for reimbursement. Alain has opposed her motion and we previously took it under submission. We now deny her request for judicial notice, because the order is not relevant to our analysis.
As for the Belmont home, Alain cites a portion of Chantal's cross-examination where she testified that the reason she received a site permit to run a daycare center at their home after the court had already ordered the home to be sold was because it had been a two-year process to get the license which had been underway for quite some time. Chantal never testified to other reasons she apparently delayed leaving too, including concern for her sons' schooling and their emotional well-being, and because she herself had an emotional breakdown.
Alain also cites a portion of her crossexamination in which she was asked about the efforts she had made to sell the Nantes property. She responded briefly: "It's a long story with Nantes. But at the time he told me I was right to avoid any setting [sic] because a lot of things were wrong it would be interpreted with the French law and the previous tenant could be kicked out of the house before the end of the lease and there is rent control." Later, Alain testified at some length about his version of events regarding her noncooperation in the sale of that property and she was not permitted to take the stand after that to respond, including by explaining that she had been advised by French officials not to sign the sale documents Alain had presented to her, and to start the process over again, because those sale documents violated French law in a number of respects.
Accordingly, we will vacate that portion of the judgment imposing sanctions against Chantal and remand the matter for a retrial, limited to the issues of her alleged breach of fiduciary duty concerning the Belmont home and the Nantes property (including Alain's request for sanctions in connection with those matters), and her unadjudicated claims for reimbursement.
Post-Judgment Modification of Child and Spousal Support
Next, we address Chantal's appeal from the court's post-judgment order temporarily reducing child support to $456 and spousal support to $550, effective as of January 15, 2016. As we understand it, she raises three issues.
First, citing Shimkus, supra, 244 Cal.App.4th 1262, Chantal argues no evidence was presented in support of the motion, because Family Code section 217 required live testimony and yet no witnesses were sworn, and the declaration Alain submitted with his motion was inadmissible hearsay and was never actually offered into evidence. We disagree. Shimkus is not on point. It held that a trial court did not err in refusing to consider declarations a wife submitted in opposition to her husband's request to terminate support at a hearing where the court made clear it intended to rely on live testimony, the wife had a chance to present live testimony in rebuttal to her husband's live evidence, and never actually offered her declarations into evidence. (See Shimkus, 244 Cal.App.4th at pp. 1270-1271.) Unlike in Shimkus, the court here did not tell the parties it intended to take live testimony; on the contrary, it proceeded to entertain argument on Alain's motion without eliciting any additional evidence, with no objection from Chantal. Chantal never asked for the opportunity for a live hearing; nor did she argue the court could not proceed without live testimony. Further, she did not object to the court considering Alain's declaration (on any ground, including objecting to its use in lieu of live testimony, or as inadmissible hearsay). Indeed, she submitted a declaration of her own in response to Alain's motion. "[S]ection 217 does not mandate live testimony when the parties indicate their desire to rely solely on declarations. Rather, the right to live testimony may be forfeited." (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127.) By proceeding as she did, Chantal implicitly agreed to the procedures used here and forfeited her right to challenge the court's reliance on declarations. (See id. at pp. 1130-1131 [distinguishing Shimkus].)
Section 217 states: "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
"(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
"(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Relatedly, though, Chantal contends there was no evidence Alain's income had materially changed, or that a modification of his support obligations was warranted considering the Family Code section 4320 factors. She also contends the court failed to make findings required by Family Code section 4320 in setting the amount of support. And here, we agree. The only income and expense declaration Alain provided by the time of the hearing stated his earnings were still $15,000 a month. The court reduced child and spousal support based only on evidence that Alain's work was shutting down temporarily for several weeks in January 2016, with the theoretical possibility of unemployment looming sometime in the future. There was no competent evidence Alain's regular income actually declined, apart from the few weeks of unpaid leave he faced.
Even had there been competent evidence that Alain had been permanently laid off (as opposed to merely the arguments of counsel), the trial court would have erred in reducing Alain's support obligations solely for that reason. "[A] supporting party's . . . cessation of gainful employment does not automatically compel a finding of a sufficient changed circumstance to warrant a decrease or termination of a support obligation. Rather, whether modification is warranted is governed by the surrounding circumstances and the trial court's consideration of relevant statutory criteria" under Family Code section 4320. (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 80-81; see also Shimkus, supra, 244 Cal.App.4th at p. 1273 [in exercising discretion to decide whether to modify a support order, "[f]ailure to weigh the [section 4320] factors is an abuse of discretion"].)
Since the court had no evidence before it at the time of the hearing demonstrating that Alain's financial circumstances had materially changed, there was a failure of proof of any changed circumstances warranting a modification of his support obligations. (See In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 576 [husband's request to modify support order properly denied where husband provided no evidence of his current financial circumstances at time of hearing].) Accordingly, it is unnecessary to address the court's failure to address the statutory factors or Chantal's other arguments concerning the court's ruling. The order reducing her child and spousal support effective as of January 15, 2016, is reversed.
Disbursement of Proceeds from the Sale of the Marital Home
Finally, Chantal challenges the post-judgment order disbursing the Belmont home sale proceeds, arguing the court miscalculated the amount that Alain was owed by misapplying the formula set forth in the judgment. Under that formula, she contends, Alain should have received $378,403 and she, $168,754. Instead, the court awarded him $493,231.25 and her only $53,927.54. In other words, she contends the court made a $114,826 mistake.
Notably, Alain does not dispute Chantal's calculations. Rather, he argues she is "impermissibly attempt[ing] to provide new evidence, i.e., her new calculations, which were never presented to the trial court" and improperly urging this court to "reweigh the evidence." Alain is correct that Chantal did not present this mathematical analysis to the trial court, and we also agree that her opposition papers below were not particularly "coherent or concise." Nevertheless, we exercise our discretion to review the issue because the manner in which the judgment formula applies to the sale proceeds presents a pure question of law on undisputed facts. (See Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.) We would be remiss in turning a blind eye to an error we may easily correct through simple math. (Cf. In re Sheena K. (2007) 40 Cal.4th 875, 887.)
Chantal's calculations are correct. It is undisputed that, after all closing fees, costs and outstanding community debts were paid from the $1.5 million sale proceeds, $627,158.79 remained to be distributed in accordance with the judgment. The judgment specified that out of those proceeds, "any and all liens shall first be paid, and then the remaining proceeds shall first be used to equalize the property division described herein and pay the reimbursements, attorney fees and sanctions orders made herein. Any remaining balance shall be divided equally by the parties."
Applying the first calculation called for by the judgment (payment of "any and all liens"), there were $80,000 in attorney liens, and those were paid directly out of the sale proceeds ($30,000 to Alain's attorney and $50,000 to Chantal's). This reduced the net proceeds to $547,158.79.
The second calculation called for "equalizing the property division" and paying "the reimbursements, attorney fees and sanctions orders" specified by the judgment. Using the figures contained in Alain's declaration submitted below, it is undisputed that this second calculation results in a payment to Alain of $209,651 out of the proceeds. (Under the judgment, logically, that is the amount by which Alain's share of the house proceeds should have exceeded Chantal's share; and yet, inexplicably, the court awarded Alain nearly $440,000 more than Chantal.)
That figure consists of: (a) a $127,750 equalizing payment to Alain reflecting 50 percent of the value of the two French properties which the judgment awarded to Chantal as her separate property ($108,000 for 50 percent of the value of the Nantes property, and $19,750 for 50 percent of the value of the Toulouse apartment), plus (b) $81,901.86 which was the total of all of the reimbursements, attorney fees and sanctions the court awarded him under the judgment. --------
Third, deducting that figure from the remaining $547,158.79 proceeds leaves $337,509 to be "divided equally between the parties." Half is $168,754.50, which should have been awarded to each party. So, in other words, Chantal should have received $168,754, and Alain should have received that amount too plus his additional reimbursements ($209,651), for a total of $378,406.
The court instead awarded Alain $493,231.26, a figure taken from a calculation contained in a spreadsheet attached to Alain's declaration. We perceive two errors in the calculation Alain presented to the court: it failed to take into account the payment on the $50,000 attorney lien held by Chantal's counsel, and it divided the remaining proceeds from the sale of the Belmont home, and allocated half to Alain, before deducting the $209,651 he was owed for equalizing payments, reimbursements, attorney fees and sanctions. The judgment called for the latter amounts to be deducted first, and then for the remaining house proceeds to be divided equally. By reversing the order of those steps, Alain's calculation resulted in an artificially inflated figure for his one-half share of the residual house proceeds (i.e., $313,579.40 rather than, as explained above, $168,754).
Ordinarily, we would modify the court's order using the figures we have just discussed. But because we also are reversing the court's award to Alain of $17,839.68 in damages relating to their 2007 income taxes, and vacating the $31,294.68 attorney fee award and remanding the sanctions issue for retrial as it pertains to the Belmont home and Nantes property, the order disbursing the house proceeds instead will be vacated. On remand, the court must recalculate the amounts to be disbursed to the parties in accordance with the formula set forth in the judgment after it has reconsidered all remaining issues on remand, including consideration of Chantal's adjudicated requests for reimbursements and reconsideration of her request for attorney fees. In addition, at oral argument counsel stated that the French properties had not yet been sold and/or rented, and on remand the court may adjust for any changes in their value as appropriate. In addition, if the proceeds of sale have already been distributed to the parties pursuant to the court's May 17, 2016 order, the court must order restitution from Alain to Chantal in an amount necessary to compensate Chantal in accordance with the recalculated figure. (See Code Civ. Proc., § 908.)
Finally, Chantal makes a number of vague arguments about the court's rulings based on the disentitlement doctrine. As Alain argues, however, Chantal failed to invoke the disentitlement doctrine below, and thus her arguments have been forfeited. Disentitlement is a discretionary doctrine based in equity. (Shimkus, supra, 244 Cal.App.4th at p. 1272.) We will not consider that new theory for the first time on appeal.
Nevertheless, the one intelligible point Chantal does make in the "disentitlement" section of her brief (albeit unrelated to the disentitlement doctrine) is that at the hearing on Alain's motion to disburse the house proceeds, the court erroneously took no account of the fact Alain still owed her $10,500 in support arrears, which the court previously had ordered would be distributed out of the share of the house proceeds. As we understand this limited point, Chantal argues it was an abuse of discretion for the court to ignore that figure when calculating the amount she was owed, because she specifically brought it to the court's attention at the hearing. Alain does not respond in substance to this contention. Because we are remanding the distribution order for recalculation, on remand the court must reduce Alain's recalculated share by an additional amount sufficient to compensate Chantal for any and all accrued, unpaid support obligations as of the date of the court's decision on remand.
That portion of the judgment awarding Alain $17,839.68 for Chantal's breach of fiduciary duty in connection with the parties' 2007 income taxes is reversed. That portion of the judgment awarding Chantal spousal support in the amount of $2,000 per month effective February 1, 2015, is vacated and remanded for further proceedings consistent with this opinion to re-calculate spousal support effective as of February 1, 2015. That portion of the judgment denying Chantal's request for attorney fees is vacated and remanded for further proceedings consistent with this opinion. Those portions of the judgment awarding Alain $31,294.68 for Chantal's conduct with regard to the Belmont, California home and the Nantes property, both as sanctions under Family Code section 271 and as breach of fiduciary duty damages, are vacated, and those matters are remanded for a limited retrial in accordance with this opinion. That portion of the judgment denying Chantal any reimbursements also is vacated and remanded for a limited retrial in accordance with this opinion. And finally, the judgment is modified to provide that Alain shall reimburse Chantal in the amount of $11,000 for his use of her share of community funds to pay legal fees that were his sole responsibility. In all other respects the judgment is affirmed.
The post-judgment order reducing Chantal's child and spousal support effective as of January 15, 2016, is reversed. The post-judgment order directing the disbursement of proceeds from the sale of the Belmont, California property is vacated and the matter is remanded for the disbursement amounts to be recalculated in accordance with this opinion.
Chantal shall recover her costs on appeal.
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________