Opinion
NOT TO BE PUBLISHED
APPEAL from two orders of the Superior Court of Los Angeles County No. BD145600 Michael Paul Linfield, Judge.
Bergman Law Group and Daniel A. Bergman for Appellant.
Cheryl Sherman, in pro. per., for Respondent.
ROTHSCHILD, J.
Gary Sherman appeals from two orders entered in favor of his former spouse, Cheryl Sherman. One order awarded certain funds to Cheryl in payment of Gary’s spousal support arrearages. The other order denied Gary’s request for modification or termination of spousal support. We affirm the former order but reverse the latter and remand for further proceedings.
To avoid confusion, we henceforth refer to the parties by their first names. No disrespect is intended.
BACKGROUND
Gary and Cheryl were married on March 3, 1983. Their marriage ended on August 19, 2002, when the trial court entered a judgment of dissolution. The judgment required Gary to pay Cheryl $5,000 per month in spousal support beginning in December 2001. The judgment also determined that Gary owed Cheryl over $150,000 in spousal support arrearages accumulated before December 2001.
On May 10, 2007, Cheryl filed an order to show cause in which she requested an “[o]rder [d]istributing [r]espondent’s IRA to [p]etitioner pursuant to [w]rit of [e]xecution.” Cheryl contended that Gary had recently rolled over certain pension funds “into an IRA with UBS Financial Services.” Cheryl sought an order awarding her the funds in the UBS account as payment for spousal support arrearages. On July 17, 2007, Cheryl filed a supplemental declaration, a memorandum of points and authorities, and an income and expense declaration in support of her order to show cause. Gary filed opposition on July 26, 2007, arguing that because the funds in the UBS account are from a private retirement plan, they are exempt from enforcement of a spousal support judgment pursuant to Code of Civil Procedure sections 703.070 and 704.115. Cheryl filed a reply on August 2, 2007.
All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.
On June 15, 2007, Gary filed an order to show cause seeking to modify or terminate spousal support. In his declaration in support of the order to show cause, Gary stated that because his “income has decreased substantially,” he is “unable to pay the current amount that is ordered for spousal support.” Cheryl filed opposition to Gary’s order to show cause, contending that all of Gary’s requests for relief “should be denied... until [Gary] is in full compliance with all orders of the court contained in” the dissolution judgment. (Bold, underlining, and block capitals omitted.) In her declaration, Cheryl contended that Gary had consistently attempted to evade his support obligations, causing her to incur substantial attorney’s fees in order to enforce the judgment. Gary filed a reply in which he again argued that he is currently unable to pay the ordered amount of spousal support. Later, Gary also filed a “supplemental reply.”
Gary had filed a similar order to show cause on April 23, 2007. The copy in the record on appeal is not accompanied by a proof of service, and Gary concedes that he did not serve it.
The trial court heard both orders to show cause together, on August 21, 2007. Cheryl was represented by counsel on her order to show cause to obtain the UBS funds, but she appeared in propria persona on Gary’s order to show cause to modify or terminate spousal support.
After argument on Cheryl’s order to show cause, the court ruled that none of the UBS funds are exempt. In making that determination, the court considered the “relevant circumstances” under section 703.070, including that Gary “is being partially supported by a new spouse” and “doesn’t need the IRA to live on.”
The court then heard argument on Gary’s order to show cause. The court denied Gary’s request for relief because the court concluded that Gary “is in an attitude of contempt and I’m not going to consider his OSC to modify support when he hasn’t been paying support for the last five years since the date of the judgment. I understand he’s not voluntarily paid one month of spousal support. Wife has had to incur substantial fees and numerous attempts to execute on various assets that husband has had because he’s tried to make himself as judgment proof as possible, make it as hard as possible for her to get what was rightfully hers under the judgment.” The court cited a number of cases for the proposition that the court “has the discretion to deny the request to modify support because [Gary] is in what this court would determine an attitude of contempt. The court is exercising its discretion to do so.”
On October 30, 2007, the court entered signed orders granting Cheryl’s request for relief and denying Gary’s. The order on Gary’s order to show cause states that “[t]he [c]ourt found that [Gary] is in an attitude of contempt and his [o]rder to [s]how [c]ause shall not be considered when he has not been voluntarily paying support for the last five years since the date of the judgment. [Cheryl] has incurred substantial fees and numerous attempts to execute on various assets.”
Gary timely appealed from both orders.
DISCUSSION
I. The Award of the UBS Funds
Gary contends on several grounds that the trial court erred in awarding the UBS funds to Cheryl. We conclude that none of Gary’s arguments has merit.
First, Gary argues that the order awarding the UBS funds to Cheryl violated due process because Cheryl’s order to show cause sought only an order “regarding distribution” of the UBS funds, not an order distributing those funds. On that basis, Gary concludes that he was not “formally advised of the full extent of the relief that was being requested.” We disagree. The first page of Cheryl’s order to show cause expressly stated that Cheryl sought an “[o]rder [d]istributing [r]espondent’s IRA to [p]etitioner pursuant to [w]rit of [e]xecution.” Cheryl simultaneously filed two proposed orders granting her application, each of which provided that the UBS funds were “hereby awarded to [p]etitioner.” Gary therefore received adequate notice of the relief Cheryl sought.
Second, Gary argues that “[i]f a pension benefit is awarded to an alternate payee, such as Cheryl, it must be pursuant to a” qualified domestic relations order (QDRO) within the meaning of the Employee Retirement Income Security Act of 1974. Because the trial court ordered distribution to Cheryl of the UBS funds but did not do so by means of a QDRO, Gary concludes that the trial court erred. We disagree. Gary’s UBS account is an individual retirement account, not a pension. Gary does not contend, with or without citation of supporting authority, that funds in an individual retirement account (including funds that were rolled over from a pension) cannot be awarded to an alternate payee without a QDRO. Although Gary argues that he might suffer certain adverse tax consequences if the UBS funds are distributed to Cheryl without a QDRO (a matter on which we express no opinion), he cites no authority for the proposition that ordering such a distribution without a QDRO constitutes error. We therefore reject his argument that the trial court erred by distributing the funds to Cheryl without a QDRO.
Third, Gary argues that because the funds in the UBS account are exempt, Cheryl was required to bring a separate motion to determine what portion of those funds could be applied to satisfaction of his spousal support obligation. As support for the argument, Gary quotes subdivision (c) of section 703.070, which provides that “if property sought to be applied to the satisfaction of a judgment for... spousal support is shown to be exempt under subdivision (a) in appropriate proceedings, the court shall, upon noticed motion of the judgment creditor, determine the extent to which the exempt property nevertheless shall be applied to the satisfaction of the judgment.” Assuming for the sake of argument that the quoted provision does require (rather than merely allow) a noticed motion in certain circumstances and that Cheryl’s order to show cause did not constitute such a noticed motion, Gary’s argument still fails because Gary has not shown any way in which this putative error was prejudicial. Gary raised the exemption in opposition to Cheryl’s order to show cause, Cheryl addressed it in her reply, and both parties argued the issue at the hearing. The claim of exemption was fully and fairly litigated.
Fourth, Gary claims that the trial court appears to have based its decision, in part, on the earnings of Gary’s current wife. Gary argues that such reliance constituted error because Family Code section 4323, subdivision (b), prohibits reliance on a new spouse’s earnings. The argument lacks merit because the cited statute provides only that “[t]he income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.” (Fam. Code, § 4323, subd. (b).) In ruling on Cheryl’s order to show cause, the trial court was not “determining or modifying spousal support.” Rather, it was ruling on Cheryl’s request to have certain funds awarded to her as payment for Gary’s spousal support arrearages. The statute on which Gary relies is therefore inapplicable.
For all of the foregoing reasons, we reject Gary’s challenge to the trial court’s ruling on Cheryl’s order to show cause.
II. The Refusal to Consider Gary’s Order to Show Cause
Gary argues that the trial court erred when it refused to consider his order to show cause on the ground that he was in an “attitude of contempt.” We agree.
California’s appellate courts have held, in a variety of contexts including marital dissolution actions, that a court may decline to consider requests for affirmative relief brought by a party who has refused to comply with court orders. (See, e.g., In re Baby Boy M. (2006) 141 Cal.App.4th 588, 596; In re Claudia S. (2005) 131 Cal.App.4th 236, 244; In re C.C. (2003) 111 Cal.App.4th 76, 84; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299; TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379-380; Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1682-1683; Rude v. Rude (1957) 153 Cal.App.2d 243, 247-249; MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277; Knoob v. Knoob (1923) 192 Cal. 95, 96-97.) Gary contends that application of the doctrine requires a formal adjudication of contempt, but that is not correct. (See, e.g., In re Baby Boy M., supra, 141 Cal.App.4th at p. 596; In re Claudia S., supra, 131 Cal.App.4th at p. 244; Guardianship of Melissa W., supra, 96 Cal.App.4th at p. 1299; TMS, Inc. v. Aihara, supra, 71 Cal.App.4th at p. 379; Alioto Fish Company, Ltd v. Alioto, supra, 27 Cal.App.4th at p. 1683.) The cases do make clear, however, that the party’s defiance of the court’s orders must be willful. (See, e.g., In re Baby Boy M., supra, 141 Cal.App.4th at p. 596; In re Claudia S., supra, 131 Cal.App.4th at p. 244; In re Marriage of Milch (1975) 47 Cal.App.3d 666, 669-670; Rude v. Rude, supra, 153 Cal.App.2d at 249; Knackstedt v. Superior Court (1947) 79 Cal.App.2d 727, 729-730.) Willfulness presupposes the ability to comply. (In re Marriage of Milch, supra, 47 Cal.App.3d at p. 670; Knackstedt v. Superior Court, supra, 79 Cal.App.2d at p. 730.)
Strict adherence to the willfulness requirement is particularly important here because Gary is seeking modification or termination of the spousal support order, with which he is concededly not in compliance, on the ground that he presently lacks the ability to pay. If Gary is right, and if the court refuses to address the merits of Gary’s request for relief merely on the ground that he is (and has long been) not in compliance with the spousal support order, then the consequence will be that Gary can never get the spousal support order modified or terminated precisely because his request for relief is meritorious (i.e., because he cannot pay).
Cheryl’s opposition was concerned in significant part with Gary’s long history of failure to pay spousal support, contending emphatically that Gary has not voluntarily made a single payment. At the hearing on the orders to show cause, the court too focused at times on Gary’s record of failure to pay from the outset (e.g., “If a judgment is entered on August 19th, 2002 for [$]5,000 in support and next month he doesn’t pay his support, what’s the excuse?”) The court’s order on Gary’s order to show cause took up the same theme, stating that Gary “has not been voluntarily paying support for the last five years since the date of the judgment.” But the court made no express determination, either orally at the hearing or in its written order, that Gary presently has the ability to pay the ordered amount of spousal support.
It is true that failure to pay spousal support in the first month after the support order was entered is strong circumstantial evidence of willful defiance at that time. We of course do not condone any such behavior, any more than we condone Gary’s allegedly ongoing efforts “to become judgment proof.” But willful defiance in 2002 does not constitute willful defiance in 2007, nor does it show that Gary had the ability to pay the ordered spousal support in 2007, when he filed his order to show cause.
We note that Gary’s order to show cause sought modification or termination of spousal support retroactive only “to the date of service of this [o]rder to [s]how [c]ause.” Thus, even if completely successful, the order to show cause would not provide any relief from earlier failures to pay, regardless of their willfulness.
Because the trial court did not determine that Gary has the present ability to meet his spousal support obligations and that his present noncompliance with those obligations is therefore willful, the court erred in refusing to consider the merits of Gary’s order to show cause. We therefore reverse the court’s order on that order to show cause and remand for further proceedings.
DISPOSITION
The “order after hearing” concerning Cheryl’s order to show cause, entered October 30, 2007, is affirmed. The “order after hearing re respondent’s OSC re modification of spousal support” concerning Gary’s order to show cause, entered October 30, 2007, is reversed. The parties shall bear their own costs of appeal.
NOT TO BE PUBLISHED.
We concur: MALLANO, P. J. TUCKER, J.
Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.