Opinion
A144325
01-04-2017
In re the Marriage of DAISY PARIMOO and ASHEET AWASTHI. DAISY PARIMOO, Respondent, v. ASHEET AWASTHI, Appellant.
ORDER MODIFYING OPINION NO CHANGE IN JUDGMENT BY THE COURT:
Respondent's request to modify the opinion is GRANTED.
The court orders that the opinion filed herein on January 4, 2017 be modified as follows:
1. On page 9, after the second sentence of the first and only full paragraph, insert the following:
All sanctions shall be paid no later than 15 days after the remittitur is filed.There is no change in the judgment. Dated:
/s/_________
Margulies, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF04139022)
In 2005, the trial court ordered Asheet Awasthi (Husband) to pay Daisy Parimoo (Wife) spousal and child support. In 2012, Husband filed a motion to set aside and retroactively modify the 2005 support order. The trial court found the 2005 support orders remained valid and concluded it lacked jurisdiction to retroactively modify them. Husband now appeals, arguing the trial court erred in holding it lacked jurisdiction. Wife has filed an unopposed motion to sanction Husband for filing a frivolous appeal. We affirm the order on appeal and grant Wife's motion for sanctions.
I. BACKGROUND
Wife and Husband married in July 1989 and separated 14 years later. They had two children together. In January 2004, Wife filed a petition for dissolution of marriage, and in November 2004, she filed an order to show cause (OSC) requesting child custody and child and spousal support, among other things. In a declaration attached to the OSC, Wife asserted Husband was a partner in Pumposh, Inc., doing business as Wazwan, which owned six East Indian fast food restaurants with locations in Portland, San Francisco, and Los Angeles. Wife also asserted the business generated a declared income of $60,000, as well as a great deal of cash income which was not declared.
At a December 22, 2004 hearing, at which Husband did not personally appear but was represented by counsel, the trial court awarded sole legal physical custody of the children to Wife and granted Husband reasonable visitation. The court found Husband was "living up to his standard of [$]5,000 a month," stating: "He is living on a standard higher than that. The Court's going to adopt, without prejudice—obviously, if he can prove something else, I'll let him. He's not here today. He should have been." The court also ordered Husband to pay monthly child support in the amount of $1,342, retroactive to the date of Wife's OSC. The court continued the hearing to February 16, 2005, explaining "there's [sic] a lot of things we're doing without prejudice that need to be addressed."
Husband again failed to personally appear, but was represented by counsel, at the February 16, 2005 hearing. At the hearing, the court indicated it intended to attribute an income of $8,621 per month to Husband, as Husband had claimed that income in a loan application submitted in June 2004. The court imputed this income to Husband in an order entered on May 17, 2005. Husband was ordered to pay monthly child support in the amount of $1,889, monthly spousal support of $566, and one-half of the $1,022 payments on the couple's home equity line of credit. The court indicated the child support and spousal support order was "made w[ith]o[ut] prejudice and may be modified retroactively to the original OSC."
Another hearing was held on May 17, 2005. Once again, Husband failed to personally appear. The court ordered that the existing orders remain in effect. Husband was ordered to appear at the next hearing, which was set for June 21, 2005, at which time the court intended to take up the issue of attorney fees for Husband's failure to appear at the prior hearings. Husband appeared at the June 21 hearing. He was ordered to return to court for a hearing on July 26, 2005, which he did. There is no transcript of the July 26 hearing in the record, but the minutes indicate both Husband and Wife testified. The matter was continued to September 21, 2005. According to the minutes for the September 21 hearing, both parties agreed the "matter may be dropped from the calendar."
In April 2012, Wife opened a case with the Alameda County Department of Child Support Services (DCSS) for enforcement of the 2005 support order. On August 7, 2012, Wife filed an OSC for contempt for Husband's failure to comply with the court's orders concerning child support, spousal support, debt payments, and attorney fees. In a declaration attached to the OSC, Wife claimed the outstanding amounts for child support and spousal support were $282,524.16 and $50,940, respectively.
In August 2012, Husband filed a motion to set aside and modify the 2005 support order and to enjoin DCSS from its enforcement action. Husband asserted the parties had executed agreements in August 2005, which conveyed Husband's interest in the family residence to Wife and provided that Wife was to sell the property within one year. According to Husband, his portion of the proceeds was to be held by Wife for payment of spousal and child support. Husband estimated his equity value in the home was in excess of $300,000. Husband attached two agreements to his motion: (1) an "Agreement Regarding Disposal of Community Properties and Final Settlement of Joint Debt and Joint Liabilities" (Disposal Agreement), which concerned the sale of the family residence for "the settlement of joint debt and joint liabilities[,] including Spousal and Child Support"; and (2) an "Agreement Regarding Community Property Waivers and Divestiture of Community Property Interests" (Waiver Agreement), in which Wife relinquished her claims against Wazwan. Wife denied executing the Disposal Agreement, and indicated she had a report from a handwriting expert stating the signature on the agreement was not hers.
At an August 8, 2013 hearing, the parties stipulated that both the Waiver Agreement and Disposal Agreement were unenforceable. The court approved the stipulation without prejudice to either party arguing that the Disposal Agreement was not authentic or that the document could be used as a defense in a contempt proceeding.
In May 2014, Wife filed an amended OSC for contempt, alleging 35 counts for Husband's failure to pay monthly child support from October 2009 to August 2012. A contempt trial was held on May 12, 2014. After hearing the evidence, the trial court sustained five of the counts for contempt. Husband was later sentenced to 168 hours in the county jail. The court stayed 120 hours of the sentence pending payment of $1,785 a month, commencing July 15, for a total of $10,710. If any payments were missed, the stay was to be lifted.
In an order issued on November 18, 2014, the trial court found the child and spousal support orders made on February 16, 2005 remained valid orders. The court also found it lacked jurisdiction over child and spousal support prior to August 11, 2012, when Husband moved to set aside the support orders. The court's decision was based in part on In re Marriage of Gruen (2011) 191 Cal.App.4th 627 (Gruen), which holds that a court lacks jurisdiction to retroactively modify a temporary spousal support order.
II. DISCUSSION
A. The Trial Court Lacked Jurisdiction to Modify the 2005 Support Order
On appeal, Husband contends the trial court erred in refusing to modify the 2005 orders. We disagree. The trial court lacked jurisdiction to retroactively modify the orders, as they were final and almost 10 years old.
As the trial court held, Gruen, supra, 191 Cal.App.4th 627, controls the outcome here. In that case, a husband filed for dissolution of marriage and applied for an OSC concerning child and spousal support, among other matters. (Id. at p. 632.) On August 1, 2008, the trial court entered an order directing the husband to pay temporary support in the amount of $40,000 per month, and also appointed an expert to assist in determining the husband's income available for support. (Id. at pp. 632-633.) Later that month, the husband asked the court take his OSC off calendar. (Id. at p. 633.) Several months later, in February 2009, the husband moved for "retroactive reimbursement," seeking a reduction in his support obligation back to August 1, 2008. (Id. at pp. 633-634.) The trial court granted the husband's request. (Id. at pp. 635-636.)
Our colleagues in the Fourth Appellate District reversed. The court noted the August 1 order was "final" and "immediately operative and directly appealable." (Gruen, supra, 191 Cal.App.4th at p. 639.) Accordingly, the wife was "entitled to rely on the amount of temporary support ordered without the threat of having to repay or credit [the husband] with any portion of accrued support." (Ibid.) Moreover, the fact the order was made " 'without prejudice,' " did not change the court's analysis, as "that is merely the general rule for temporary support orders." (Id. at p. 640.) The court also held that, to the extent the modifications of the August 1 order were prospective, they exceeded the trial court's jurisdiction because they were not based on any pending motion or OSC for modification. (Ibid.)
Gruen was later distinguished in In re Marriage of Freitas (2012) 209 Cal.App.4th 1059 (Freitas). In Freitas, the trial court entered a temporary spousal support award in favor of the husband at an October 2010 hearing. (Id. at p. 1061.) At the same hearing, the court ruled it would reserve jurisdiction over whether to amend the support award, and stated the husband could submit additional evidence pertaining to the wife's income for the relevant period. (Id. at pp. 1061-1062.) In June 2011, the court held that, under Gruen, it lacked jurisdiction to reassess the wife's income for the period of September and October 2010. (Freitas, at p. 1065.)
On appeal, the Fourth Appellate District held the trial court erred in concluding it was precluded from amending the original support award because it had expressly reserved jurisdiction to amend its original support awards as to September and October 2010. (Freitas, supra, 209 Cal.App.4th at pp. 1073-1074.) Thus, unlike in Gruen, "the parties' clear expectation was that the original support awards were not final as to these months. [Citation.] The trial court's original child and spousal support awards . . . were not fully dispositive of the rights of the parties with respect to the amount of support to be awarded for September and October 2010, and therefore did not constitute final support orders as to those months." (Freitas, at pp. 1074-1075.) Gruen was also distinguishable because, in that case, the husband had taken his original OSC off calendar and there was no pending motion to modify the support order. (Freitas, at p. 1075.)
The instant action is like Gruen, not Freitas. Unlike in Freitas, the trial court did not expressly reserve jurisdiction to amend its original support award. As a result, the order was final and could not be retroactively modified. Even if the court did reserve jurisdiction, Husband did not take advantage of the opportunity to present evidence that would warrant modification of the award. After the February 16, 2005 hearing, at which the trial court indicated its support order was made without prejudice "and may be modified retroactively to the original OSC," Husband failed to appear at the next hearing. Several months later, at a September 21, 2005 hearing, Husband agreed that the matter could "be dropped from the calendar." Husband did not make any further attempts to modify the temporary support order until 2012, after Wife opened a case with DCSS for enforcement of the 2005 support order. It strains credulity to suggest the trial court retained jurisdiction to retroactively modify the 2005 order for seven years, especially after Husband appeared to abandon his efforts to modify the order and stipulated to drop the matter from the court's calendar. The only reasonable inference that can be drawn from this record is that, at the latest, the support order became final when the matter was taken off the calendar in September 2005. After that time, the trial court lacked jurisdiction to retroactively modify the award.
Husband now contends "[f]airness and equity dictate" that we allow him to collaterally attack the 2005 order now. To the contrary, equity counsels against considering Husband's collateral attack. Husband allowed the 2005 order to stand unchallenged for over seven years. To reverse it now would frustrate the intentions of the parties, as well as Wife's expectations for support over the last several years. Moreover, since Husband shunned his support obligations in blatant violation of court orders, was held in contempt, and may have even filed forged documents with the court, he is in no position to request equitable relief.
In re Marriage of Wilson (2016) 4 Cal.App.5th 1011 does not demand a different result. In that case, the father appealed an order denying his request for an equitable set-aside of child support arrearages. (Id. at p. 1013.) There was evidence the mother was seeking arrears for times she neither cared for the minor nor provided for her financially. (Id. at p. 1018.) The court held the family court's equitable discretion to deny enforcement of a support order was broad enough to encompass situations in which neither parent is raising a child at home. (Id. at p. 1017.) At oral argument in this case, Husband asserted that, in light of Wilson, the trial court should have considered whether equitable considerations warranted setting aside the support orders because of his agreement to convey his interest in the family residence to Wife in lieu of child support payments. However, Husband stipulated the subject agreement is unenforceable. Moreover, the facts of Wilson are unique. The mother in that case was seeking child support arrears for periods when she was not caring or providing for the couple's child. (Id. at p. 1018.) Husband has offered no evidence that was the case here. B. Sanctions for Filing a Frivolous Appeal
Wife has moved for the imposition of sanctions against Husband for filing a frivolous appeal. Husband declined to oppose the motion, and we find it has merit.
Wife also moved for dismissal of Husband's appeal. This request is denied as moot.
We have the authority to impose sanctions on a party or an attorney for "[t]aking a frivolous appeal or appealing solely to cause delay." (Cal. Rules of Court, rule 8.276(a)(1).) "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [¶] However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Here, Husband's appeal crossed the line from meritless to frivolous. No reasonable attorney would believe Husband's appeal had merit. His entire appeal hinges on the argument that the trial court retained the authority to retroactively modify a support order entered in 2005. While the trial court initially gave Husband the opportunity to submit additional evidence and argument regarding the order, Husband allowed the matter to be dropped from the calendar, and did not attempt to challenge the order again until several years later. Husband cites absolutely no authority that would suggest the trial court had the power to retroactively modify the order in this situation.
Our conclusion is further bolstered by the inadequacy of Husband's briefing and his failure to provide a complete record. Husband's opening brief on appeal is less than five pages long and declines to even discuss the September 21, 2005 hearing, at which both parties agreed the matter of support was to be dropped from the calendar. In his briefing, Husband argued "[f]airness and equity dictate" that he be provided an opportunity to challenge the support order. Yet he failed to disclose he had been held in contempt for his repeated refusal to meet his support obligations. Nor has Husband attempted to respond to the arguments raised in Wife's respondent's brief or her motion for sanctions. To make matters worse, Husband provided a woefully incomplete record, forcing Wife to file multiple motions to augment. The only rational inference that can be drawn from the record is that Husband filed this appeal solely to delay the effect of the trial court's order.
As for the amount of the sanction, Wife shall recover attorney fees and any and all costs expended on this appeal, including the costs of augmenting the record. We remand to the trial court for determination of appellate attorney fees. Wife has also asked for $15,000 in sanctions. That sum is appropriate and consistent with sanctions imposed by other courts in similar situations. (See In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520 [awarding $15,000 and attorney fees as sanctions for a frivolous appeal].) Sanctions are imposed against Husband alone, not his attorney.
III. DISPOSITION
The order on appeal is affirmed. Wife's motion for sanctions is granted and we award her $15,000 in addition to her attorney fees and costs. We remand to the trial court for a determination of Wife's attorney fees on appeal.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.