Opinion
A155957
08-30-2021
In re the Marriage of JENNIE HEARN and ROCKFORD HEARN JENNIE HEARN, Respondent, v. ROCKFORD HEARN, Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL-1601048
MILLER, J.
Rockford Hearn appeals from an October 2018 postjudgment order in a marital dissolution proceeding. The order was entered to enforce previous orders requiring him to pay $15,000 toward the attorney fees of his former wife and divide his 401(k) plan in half with her. Finding no error, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Judgment of Dissolution
Rockford Hearn (Husband) and Jennie Hearn (Wife) separated on March 24, 2016, the day Husband was served with Wife's petition for dissolution. The marriage was dissolved on May 10, 2017. Husband has challenged certain financial aspects of the judgment in a separate appeal; our opinion in that matter is also filed today. (In re Marriage of Hearn (A152323 Aug. 30, 2021) [nonpub. opn.].) One aspect of the judgment Husband has not contested is the disposition of his 401(k) plan, which was to be divided equally between the parties pursuant a qualified domestic relations order to be drafted by Wife's counsel. The family court found that the balance of the 401(k) plan was $7,632 as of March 31, 2016. The court reserved jurisdiction to enforce all aspects of the judgment.
A qualified domestic relations order (QDRO), as defined by federal law, is used to divide community property interests in a pension. (In re Marriage of Marshall (1995) 36 Cal.App.4th 1170, 1174-1175, citing 29 U.S.C. § 1056(d).)
B. December 2017 Attorney Fee Order
In December 2017, in response to a motion filed by Wife, the family court issued an order granting Wife $15,000 in need-based attorney fees toward her representation in Husband's appeal from the judgment of dissolution, with the sum to be “paid in part from [Husband's] share of his... 401(k) Savings Plan by means of a Qualified Domestic Relations Order.” Husband did not appeal from the December 2017 order. But he did not comply with it, either.
C. Motions Filed in Summer 2018
In July 2018, Husband filed a motion seeking orders concerning Wife's reimbursement of costs he had incurred for work-related childcare for their two children. His motion was set for hearing in September 2018.
Shortly after Husband filed his motion, Wife filed her own motion seeking various forms of relief. As relevant here, she sought orders requiring Husband to reimburse her for medical costs for the children and childcare costs that she had incurred, and orders relating to the enforcement of the December 2017 order on attorney fees, which Husband had not paid. To these ends, she asked the court to order that the clerk sign Husband's name on a QDRO assigning the entire balance in the 401(k) plan to her, part as her community share, and the rest as partial satisfaction of Husband's obligation to pay $15,000 toward her attorney fees for the appeal. She also sought an order that any shortfall in that obligation remaining after Husband's share of the 401(k) plan was credited to her be paid within 30 days of entry of an order, or that she receive “a dollar for dollar offset against any child add-on expenses he claims are due to him” until the obligation is satisfied. Wife's motion was set for hearing the same day as Husband's.
California law authorizes the court to appoint a person “to sign documents on behalf of a recalcitrant party to effectuate its judgments or orders, where the party refuses to execute such documents.” (Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020-1021 [citing Code Civ. Proc., § 128, subd. (a)(4), which provides that “[e]very court shall have the power... [¶]... [¶] [t]o compel obedience to its judgments, orders, and process”].)
In his response to Wife's motion, Husband objected to the enforcement of the December 2017 fee order. As to the 401(k) plan, he stated that under the judgment of dissolution Wife was entitled to “one half of the balance of my 401k as of the date of separation, which the Court found had a balance of $7,362 as of March 31, 2016” and that accordingly Wife was entitled to $3,681 as her community share of the plan. He further stated that as of July 2018, the balance of the plan was $8,186. He calculated that after Wife's community share of $3,681 was deducted he was entitled to the remaining balance of $4,505.
At the evidentiary hearing on the motions, held in September 2018, Husband presented a 401(k) plan statement showing that in December 2017, when the court had ordered payment of Wife's attorney fees, the balance in the plan was about $13,000. He testified that in January 2018, after the family court had ruled that Wife's attorney fees were to be paid, in part, from his share of the 401(k) plan, he took a loan of $6,481 from the plan. He argued that Wife was entitled only to one half of $7,362, which was the balance of the plan on March 31, 2016, as referenced in the May 2017 statement of decision, and that he was entitled to any asset growth, dividends, or interest that had accrued in the plan after March 31, 2016.
D. Ruling on 2018 Motions
In an order issued in October 2018, the court ruled that the 401(k) plan was to be valued and divided at the date of its actual division. In so ruling, the court explained that in the judgment of dissolution it had “noted the value of the 401k as of March 31, 2016... because that is all the information it had been furnished by the parties; Husband cannot read into that an order that post March 31, 2016 appreciation on a community asset should all be awarded to him. If the asset had diminished in value after March 31, 2016, the diminution similarly would have been charged, half to each party.” The court found that Husband had withdrawn $6,841 from the plan in January 2018, and ordered that amount charged against his share of the plan. Although the actual current balance was to be determined on the date that the 401(k) plan administrator accepted the anticipated QDRO, the court provided a sample calculation based on Husband's statement that the current balance in the account was $8,186: “[T]he rough number for purpose of this analysis is a community balance of $15,027 ($8,186 + $6,841), so that each party's half is $7,513.50, of which Husband has already received $6,841 so that (using those numbers) the remaining balance of Husband's half is $672.50.”
The court found that Husband had not cooperated with Wife's attempt to obtain his signature on a QDRO to divide the 401(k) plan, and had not made any payment toward the December 2017 fee order. The court appointed the county clerk to sign the QDRO, a copy of which was attached to the court's order, and awarded the balance of the 401(k) plan to Wife “on account of her half of the community asset; Husband's half (after taking into account the money he withdrew in January, 2018) will also be awarded to Wife and credited against his fee obligation per the December 15, 2017 order.”
As for other unresolved payment obligations between the parties, the family court ruled that Wife owed Husband $10,911 for childcare and medical and dental premiums, that Husband owed Wife $2,772 for uninsured medical expenses, and that the debts would be offset, resulting in Wife owing Husband $8,139. The court offset that debt against Husband's outstanding fee obligation under the court's December 2017 order. The court also ruled that going forward Wife was to pay half the children's medical and dental insurance premiums, or $466 per month, and that Wife could offset that obligation against Husband's outstanding fee obligation until that obligation was paid in full.
Husband timely appealed from the October 2018 order.
DISCUSSION
Husband advances three main arguments on appeal: the family court abused its discretion in ordering him to pay $15,000 for Wife's attorney fees; the family court abused its discretion in offsetting Wife's debts to him for childcare and the children's medical insurance and expenses against the obligation imposed on him by the December 2017 order; and the family court improperly divided his 401(k) plan. We consider the arguments in turn.
A. Husband Cannot Now Challenge the Merits of the December 2017 Fee Order
A large portion of Husband's argument on appeal concerns the merits of the family court's decision to order him to pay attorney fees to Wife in the first place. We do not address these arguments because Husband did not appeal from that order. (The order granting attorney fees to Wife was filed on December 15, 2017. Notice of Entry of the order was filed on December 22, 2017.) Nor is the order reviewable in this appeal, which is taken from the court's October 2018 order. (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219 [“[i]f a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal”]; see Cal. Rules of Court, rule 8.104 [governing time to appeal].)
Husband disputes that the time has run for his appeal of the December 2017 order. He contends that the December 2017 order was not appealable as a final order, because it stated only that the fees were to be paid in part from the 401(k) plan and therefore did not resolve the issue of payment. Husband characterizes the December 2017 order as a “piecemeal disposition” of issues that did not become final until the family court issued its October 2018 order. The argument lacks merit. The issues before the court in December 2017 were whether Husband should be ordered to pay Wife's attorney fees and, if so, whether he should be ordered to pay them in part from his share of the 401(k). The trial court ruled on those issues. There was no issue “ ‘left for future consideration except the fact of compliance or noncompliance with the terms,' ” of the order, and therefore the order was an appealable final order. (Olson v. Cory (1983) 35 Cal.3d 390, 399; see In re Marriage of Weiss (1996) 42 Cal.App.4th 106 [applying rule to pendente lite attorney fee orders].) The court was not required to provide orders that spelled out how any unpaid balance was to be paid or to contemplate what might happen if Husband failed to comply with the orders, and Husband cites no authority to suggest otherwise. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen) [appellant must support claims of error with legal argument and citation to authority].) The fact that Husband did not follow the December 2017 order and Wife had to bring a motion to enforce it does not change the December 2017 final order into a “piecemeal” disposition or postpone the deadline for filing an appeal.
Husband's contention that the December 2017 order was not appealable appears to be a shift from the position he took below. At the September 2018 hearing, when the trial court asked whether he had appealed the fee order Husband responded, “No. The decision at the time was that because there are no assets, that the award was unenforceable. It wasn't worth the cost and time of an appeal.”
The cases cited by Husband in his appellant's brief do not advance his cause. Husband cites Nicholson v. Henderson (1944) 25 Cal.2d 375, 381 for the proposition that an appeal will be dismissed where a purported final judgment is rendered on a complaint without adjudicating the issues raised by a cross complaint; thus Husband suggests that any direct appeal of the December 2017 order would have been dismissed because some claims that were made in Wife's motion or in his response to it were not addressed. That is conjecture, and Husband identifies no issue that was raised in Wife's fee motion or his response that the family court failed to address in its December 2017 order. Husband also cites Neff v. Ernst (1957) 48 Cal.2d 628, 634, apparently for the proposition that if an order fails to address all the issues before the court, a subsequent order that addresses the issues is final for purposes of appeal. The premise of that proposition does not apply here. In any event, Neff v. Ernst concerns the effect of a new trial motion on a pending appeal (id. at pp. 632-635), which is not at all like this case.
Because it is too late for Husband to appeal from the December 2017 fee order, we do not address his arguments concerning whether the fee order was appropriate in the first instance. That issue is simply not before us.
B. The Family Court Did Not Err in Offsetting Wife's Support Obligations Against Husband's Fee Obligation
In ordering that Wife's debts to Husband were to offset Husband's obligation to pay Wife $15,000 in attorney fees, the family court was enforcing its December 2017 fee order. The court has broad discretion to fashion orders to enforce its rulings under Family Code section 290. (In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 135 (Schofield), citing Fam. Code, § 290 [judgment or order entered under the Family Code “may be enforced by the court by... such other order as the court in its discretion determines from time to time to be necessary”].) Accordingly, we review the family court's order for abuse of discretion and will uphold the order unless “the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.)
Husband does not show that the family court abused its discretion here in offsetting one spouse's debt against another's obligation. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham) [appellant has burden to affirmatively show that the trial court erred].)
Husband first complains that the court's order is “premised on the erroneous finding that ‘neither party has asked the court to make a child support order.' ” The court's order, however, is not premised on that supposed finding: it is premised on findings that the parties assumed and demonstrated by their conduct that they would share equally child care expenses related to their work and uninsured medical expenses; that the parties had been ordered to follow certain procedures with regard to reimbursement for child care expenses; that Wife stated she was willing to pay one-half the costs of health insurance; that Wife owed Husband $2,989 for child care and $7,922 for medical and dental insurance premiums; and that Husband owed Wife $2,772 for uninsured medical expenses. But even if the ruling had been premised on the purported erroneous finding, we would reject Husband's argument, because Husband does not show how that finding caused him any prejudice. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [appellant has burden to show prejudice from any error].)
Husband also complains that the court failed to rule on certain requests for reimbursement of childcare costs that he made before he filed his July 2018 motion. Husband does not provide us with crucial procedural and factual information about the prior requests, and he does not show that the family court erred in declining to rule on them. (Denham, supra, 2 Cal.3d at p. 564.) In any event, those prior requests are not at issue in this appeal and are not even reflected in the excerpt from the register of actions that Husband has provided.
Husband argues that by offsetting Wife's net debt to him against his obligation to pay her attorney fees, the family court “divert[ed] child support funds to pay attorney fees” and therefore “contravene[d] the purpose of California law.” This argument rests on Hoover-Reynolds v. Superior Court (1996) 50 Cal.App.4th 1273, which held that although an attorney can ordinarily obtain a contractual “ ‘charging lien' ” to secure payment of a client's attorney fees, such a lien does not attach to funds paid for child support obligations. (Id. at p. 1275.) The funds at issue there were past-due child support payments owed by a former husband to his former wife. (Ibid.) Wife's attorneys claimed the funds under their contractual arrangement with her regarding unpaid attorney fees. (Id. at p. 1276.) The County of San Diego also claimed the funds, based on wife's assignment of her rights to past-due child support owed by her former husband, an assignment made in order to receive Aid to Families with Dependent Children. (Ibid.) The rule announced by the Court of Appeal is that “an attorney cannot impress a charging lien on funds owed the client by a third party to the extent those funds are payments of the third party's obligations for child support, ” (id. at p. 1277), because an agreement in which a client purports to grant an attorney's lien against a child support award is analogous to an agreement between parents purporting to modify the child's right to support. (Id. at p. 1279.) Such an agreement is “not binding on the court or the child.” (Ibid.) Thus, public policy precluded an attorney's contractual charging lien from being enforced against court-ordered child support payments. (Id. at p. 1280.)
The situation here is different. The family court here is not enforcing a contractual arrangement between a parent and a third party that would affect payments intended to support the parent's child. Instead, the court is enforcing its own order (made months earlier, and flouted by Husband) regarding the payment of attorney fees as between formerly married parties. Further, the October 2018 order was made in light of the court's assessment of the parties' overall financial situation, including the expenses they incurred to support their children.
Husband also argues that offsetting Wife's existing debt to him for childcare and the children's health insurance and her future obligations for the children's health insurance against his fee obligation reduces the funds available to him to such an extent that “it is not possible to maintain services for the children, ” and claims that he “cannot sustain increasing debt.” There is no increase in debt from the court's offset order: Husband already owed the $15,000 fee obligation. The court was simply enforcing a previously existing obligation, and we see no abuse of discretion in the offsets ordered here, particularly in view of the court's finding that Husband had not made any payment toward his $15,000 obligation in the months between December 2017 and October 2018 and had not cooperated with Wife's attempts to obtain his signature on a QDRO pertaining to the division of the 401(k) plan.
C. The Family Court Did Not Err in Dividing the 401(k) Plan
1. Husband's Arguments
In the family court, Husband argued that Wife was entitled to half the March 2016 balance of the 401(k) plan that was mentioned in the judgment of dissolution (that is, half of $7,362, or $3,681), and that Wife was not entitled to any of the gains on the plan that accrued from March 2016 onward. As we have noted, the family court did not find this argument persuasive, and ordered that the plan was to be valued and divided at the date of its actual division.
On appeal, Husband apparently concedes that gains between March 2016 and the time of trial are community property, but insists that the family court erred in awarding Wife any gains that accrued to the plan after the March 2017 trial. We disagree. Husband also argues that he is entitled to post-divorce contributions of separate property that he made to the plan, though he does not tell us how much those contributions were or when they were made. We disregard his argument about separate property contributions to the plan, because the issue of those contributions had not been raised in the trial court when it made the order now before us. (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 (Nassimi) [we generally do not consider theories raised for the first time on appeal which could have been, but were not, presented to the trial court for consideration].)
After the family court issued its October 2018 order, Husband raised new arguments about the division of the 401(k) plan in a document entitled “Respondent Rockford Hearn's Objections to Findings and Order After September 28, 2018 Hearing” (Objection). We note that Husband does not claim to have filed a motion for reconsideration of the family court's October 2018 order under Code of Civil Procedure section 1008; he does not ask us to consider his Objection a motion for reconsideration; and nothing in the record suggests that the family court or the parties regarded the Objection as such a motion. We disregard the Objection because it was not before the court when it issued the order now on appeal. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 (Reserve Insurance) [ordinarily, “when reviewing the correctness of a trial court's judgment [or appealable order], an appellate court will consider only matters which were part of the record at the time the judgment [or order] was entered”].) Further, Husband's untimely Objection provided the trial court no details or documents concerning the amount or timing of his separate property contributions.
2. Analysis
In directing the division of the 401(k) plan and specifying how the balance of the plan would be applied to Husband's obligation to pay Wife's attorney fees in light of the loan he took from the plan, the family court's October 2018 order is an order that enforces a judgment and order of the family court. Accordingly, we review it for abuse of discretion. (Schofield, supra, 62 Cal.App.4th at p. 135.)
When the family court ruled in its May 2017 judgment that the plan was to be divided equally between the parties, half the value became Wife's and half became Husband's. (See Fam. Code, § 2552, subd. (a) [“[f]or the purpose of division of the community estate upon dissolution of marriage... the court shall value the assets and liabilities as near as practicable to the time of trial”].) When the court awards each party a portion of community retirement funds, like the 401(k) plan here, that portion of the fund (here, Wife's half of the balance) including any gains or losses on those funds, belongs to the party entitled to the funds. (In re Marriage of Janes (2017) 11 Cal.App.5th 1043, 1049-1050.) Thus, the family court can properly award Wife the gains and losses earned after the date of dissolution on the portion of the 401(k) plan that had previously been awarded to her. (Ibid.) Husband's delay in cooperating with the division of the account does not entitle him to the gains on Wife's portion of the balance.
Well over a year after the family court had ordered the 401(k) plan to be divided equally between the parties, the family court found that Husband had failed to cooperate with Wife in dividing the plan in the first place, and then failed to cooperate in applying his share of the plan toward his subsequent obligation to pay Wife's attorney fees. As a result of Husband's recalcitrance, Wife was forced to file a motion to obtain the funds to which she was entitled by court order. Husband presented no argument to the family court that he had made separate property contributions to the plan, nor did he proffer evidence purporting to detail such contributions. He focused solely on gains that had accrued to the account, which he sought to prevent Wife from realizing. In these circumstances the court's order is not an abuse of discretion. To the contrary, the order reflects the following reasonable assumption, which is consistent with the position Husband took in response to Wife's motion: any difference between the balance of the plan at time of trial (as disclosed in the information the court had received at time of trial) and the balance at the time of division (taking into account the amount taken as a loan by Husband) represents gains and losses on the balance as it existed at time of trial.
Accordingly, the court reasonably ordered that just as the balance at time of trial was to be divided equally between Husband and Wife, any gains or losses on that balance were to be divided equally between them. Because any loan taken from the plan by Husband after trial was necessarily a loan from his share of the plan (for he had no right to take a loan from Wife's share), the court properly charged the amount of the loan to Husband's share.
D. Husband's Other Claims of Error Fall Short
We turn now to arguments that Husband raises in a conclusory fashion at the end of his brief.
First, Husband claims that the family court failed to correct errors in calculation that appear in the October 2018 order. But Husband did not call these purported errors to the family court's attention in a motion for reconsideration; instead, he raised them in the Objection he submitted to the court after the order was entered. Again, we disregard this document, which was not before the court when it made the ruling from which Husband appeals. (Reserve Insurance, supra, 30 Cal.3d at p. 813.) Further, Husband does not set out the details of the purported errors in his appellate brief, or cite to the pages in the record where the assertions in his Objection are supported. He simply refers us to pages of his Objection, essentially seeking to incorporate the argument from that document into his opening brief on appeal, which is improper. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) Even if we were inclined to consider Husband's claims despite his failure to raise them below through a motion for reconsideration, we would regard the claims as forfeited because Husband does not support them with adequate citations to the record. (Nassimi, supra, 3 Cal.App.5th at p. 695; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [failure to provide adequate record citations forfeits a contention of error]; see Cal. Rules of Court, rule 8.204(a)(1)(C) & (a)(2)(C) [appellant's opening brief must include a summary of significant facts limited to matters in the record, with any reference to a matter in the record supported by a citation to the volume and page number of the record].)
Second, Husband claims that the family court failed to rule on a request he made at the September 2018 hearing that the December 2017 fee order be vacated. We disregard this contention for several reasons. First, Husband does not provide any supporting citation to the record to show that the request was made. (Air Couriers International v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928 [we may disregard unsupported factual assertions].) Second, Husband cites no authority suggesting that a trial court is obliged to issue a formal order on every verbal request made at an evidentiary hearing. Third, we see no basis for a complaint that the family court failed to rule on his request: by enforcing the December 2017 fee order, the court unambiguously rejected any argument by Husband that the order should be vacated.
To support his argument that the court erred by failing to issue a formal order denying his request to vacate the fee order, Husband observes that in In re Marriage of Johnson (1983) 143 Cal.App.3d 57, the Court of Appeal concluded that it was “grievous error” for the trial court to fail to hear and act upon repeated requests for upward modification of temporary spousal support. (Id. at p. 64.) There, however, the requests had been made by motions filed with the court, which is not the case here. (Id. at pp. 63-64.) Husband also relies on In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315-318, in which it was error for the trial court to deny a party's timely request for need-based fees on the basis of an absence of proof while failing to consider post-trial evidence of the fees incurred. Husband does not explain the relevance of that case to his, and we see none. (Allen, supra, 234 Cal.App.4th at p. 52 [“citing cases without any discussion of their application to the present case results in forfeiture”].)
DISPOSITION
The challenged order is affirmed. Wife shall recover her costs on appeal.
WE CONCUR: Kline, P.J., Stewart, J.