Opinion
B207419 x-ref. B204743
8-31-2009
In re the Marriage of CHERYL and GARY SHERMAN. CHERYL SHERMAN, Respondent, v. GARY SHERMAN, Appellant.
Bergman Law Group and Daniel A. Bergman for Appellant. Cheryl Sherman, in pro. per., for Respondent.
Not to be Published in the Official Reports
Gary Sherman appeals from two orders entered in favor of his former spouse, Cheryl Sherman. We affirm.
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]espondents 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 October 30, 2007, the superior court entered a signed order granting Cheryl the requested relief, directing that all of the funds in the UBS account "be distributed to [Cheryl] for payment towards spousal support arrearages."
On December 6, 2007, Cheryl filed a motion for clarification of the October 30 order. In her declaration filed in support of the motion, Cheryl stated that her former attorney had asserted a lien on the UBS funds and that, as a result, UBS refused to distribute the funds in the absence of either a written agreement between Cheryl and her attorney or a judicial clarification of the October 30 order.
On December 26, 2007, before the court had heard Cheryls motion for clarification, Gary timely appealed from the October 30 order. Gary then filed a "brief" in the trial court arguing that all trial court proceedings concerning the October 30 order were automatically stayed as a result of the pending appeal, so the court could not rule on Cheryls motion for clarification.
On January 3, 2008, the trial court heard and granted Cheryls motion for clarification. The court entered a signed order directing that "[t]he distribution of IRA funds shall be made to the trust account of Jordan Metz [i.e., Cheryls former attorney]. Mr. Metz will retain the disputed amount in the trust account pending resolution. The remainder shall be distributed to Cheryl Sherman."
On January 9, 2008, Cheryl filed a motion for attorneys fees and costs. In support of the motion, Cheryl filed a copy of her income and expense declaration dated June 1, 2007, as well as her federal tax returns for the 2005 and 2006 tax years. In a separate declaration, Cheryl also described certain ways in which her financial situation had changed (for the worse) since she executed the June 1, 2007, income and expense declaration. She further stated that she "need[ed] representation in the court of appeal" and also needed representation "to deal with UBS which continues to refuse to release the monies to me, not[]withstanding the court orders, because of representations, I understand, by [Garys counsel] about the appellate process."
On January 29, 2008, Gary filed opposition to Cheryls motion for attorneys fees and costs. Gary contended that the motion should be denied because the California Rules of Court require that such a motion be supported by an income and expense declaration executed within the last three months, and Cheryls income and expense declaration was more than six months old. Gary did not file an income and expense declaration of his own. He did, however, file a one-page declaration stating that "two retirement accounts" of unspecified size "represent the only income" he receives, and that his prenuptial agreement with his current spouse "classifies everything as separate property." He also stated that he has over $50,000 in credit card debt and over $18,000 of "personal debt (loans, etc.)," and that his "brother has agreed to loan [him] monies to be used for the attorneys fees for the appeal." The declaration said nothing about Garys current living expenses or how he meets them.
Gary also contended incorrectly that Cheryl had failed to serve a blank income and expense declaration along with the motion.
On February 4, 2008, Cheryl filed a reply declaration in support of her motion for attorneys fees and costs. In her declaration she provided further detail concerning any changes in her financial position since she executed her income and expense declaration on June 1, 2007. She did not file a new income and expense declaration.
On February 11, 2008, the trial court heard and granted Cheryls motion for attorneys fees and costs, awarding her $15,000.
Three days before that hearing, on February 8, Cheryl filed a motion for an order directing UBS to distribute the IRA funds to her former attorney. In her declaration filed in support of the motion, Cheryl stated that UBS had informed her "that the funds would not be distributed as [Garys] counsel had sent correspondence regarding the appellate process." (Bold and underlining omitted.) She had informed UBS that "there was no stay on money judgments without a bond and that no bond had be[en] placed," but "UBS continued to stonewall the distribution." She went on to state that UBSs outside counsel had informed her that "a court order would be needed directing UBS to distribute the funds." (Underlining omitted.) She accordingly requested that the court enter the order that UBS told her was necessary.
We use the word "funds" to refer to whatever assets the UBS account at issue contains. Counsel for UBS informed the court that because the account might contain assets other than cash, a more comprehensive phrase such as "cash, securities and other positions" would be more accurate. Our use of the term "funds" is meant to cover all of those other possible assets as well.
On March 3, 2008, Gary filed opposition to Cheryls motion for an order directing UBS to distribute the funds. Gary contended Cheryl was seeking the same relief she had obtained on January 3, 2008, when her motion for clarification was granted, so this duplicative request should be denied. He also argued that UBS was not a party, that no proper grounds for joinder of UBS existed, and that the court lacked jurisdiction "to modify a prior order that is on appeal."
On March 6, 2008, Cheryl filed an application for an order shortening time to hear a motion for joinder of UBS, so that the motion for joinder could be heard on March 17, 2008, at the same time as her motion for an order directing UBS to distribute the funds. Gary opposed the motion for joinder.
On March 10, 2008, Cheryl filed her reply in support of her motion for an order directing UBS to distribute the funds. She explained that her understanding of the courts intent in the October 30 and January 3 orders was "that UBS was being ordered to disburse the funds, not that UBS had to wait for permission from [Gary] to release the funds." (Block capitals omitted.) She stated, however, that "because their name is not on the order, UBS reads the current order as saying that [Gary] is being ordered to distribute the funds and must release the funds. [Gary] is not releasing the funds." (Block capitals omitted.)
On March 17, 2008, the trial court heard Cheryls motions for an order directing UBS to distribute the funds and for joinder of UBS. UBS appeared through counsel at the hearing. The court stated its understanding that UBS was "willing to comply with an order from this court releasing the funds without being joined," and counsel for UBS confirmed on the record that the courts understanding was correct. Given UBSs position, the court concluded that there was "no reason to join UBS," because "it would be superfluous." Accordingly, the court denied the motion for joinder but granted the motion for an order directing UBS to distribute the funds.
Gary timely appealed from the order granting Cheryls request for attorneys fees and costs and the order directing UBS to distribute the funds.
In May 2009, we affirmed the October 30, 2007, order (i.e., the original order awarding the UBS funds to Cheryl) in a nonpublished opinion. (In re Marriage of Sherman (May 5, 2009, B204743) [nonpub. opn.].)
Respondents motion to augment the record on appeal is granted.
DISCUSSION
I. The Attorneys Fees Order
Gary argues, as he did in the trial court, that Cheryls motion for an award of attorneys fees and costs was improper because it was not accompanied by an income and expense declaration that was less than three months old. Gary does not, however, attempt to explain how he was prejudiced by that alleged error. Given that Cheryl did file declarations describing how her financial situation had changed since she executed her income and expense declaration, there was no obvious prejudice. It is the appellants burden to demonstrate both error and prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Because Gary has not even attempted to carry his burden concerning prejudice, we reject his argument concerning Cheryls failure to file a current income and expense declaration.
Gary also argues that he submitted evidence that his "income was $2,700 per month with no savings and no liquid assets," and that Cheryl did not submit sufficient evidence to rebut his showing. Garys brief does not, however, contain any citation to the record to support the $2,700 figure. When an appellants contentions are not supported by appropriate citations to the record, we may treat the points as waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
In addition, several of the record citations that Gary does provide on related matters are to pages of the appellants appendix that do not exist. Gary cites pages 809, 813, and 814. The table of contents for the appellants appendix, however, states that those pages were "deleted." The table is correct—the appendix contains no pages bearing those numbers.
We also reject Garys argument for the following additional reason: Because Gary was represented by counsel, when Cheryl moved for an award of attorneys fees Gary was required to file an income and expense declaration. (Cal. Rules of Court, rule 5.128(b).) He did not do so. Having violated his own obligation to provide the court with a full picture of his own finances, Gary will not now be heard to complain that the court lacked sufficient information about those finances. (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640.)
II. The UBS Order
Gary argues, as he did in the trial court, that the court lacked jurisdiction to rule on Cheryls motion for an order directing UBS to distribute the IRA funds because, while the appeal from the order awarding those funds to Cheryl was pending, all further trial court proceedings in connection with that order were stayed. We disagree.
Garys entire argument on this point relies expressly on the automatic stay provision of Code of Civil Procedure section 916, subdivision (a). As Cheryl pointed out both in the trial court and in her respondents brief, however, the automatic stay does not apply to "enforcement of the judgment or order in the trial court if the judgment or order is for . . . [m]oney or the payment of money," unless the appellant posts a bond. (§ 917.1, subd. (a)(1).) Cheryls application for an order directing UBS to distribute the IRA funds was merely an attempt to enforce the October 30, 2007, order awarding those funds to her. That order was for money or the payment of money. Gary appealed the October 30 order but did not post a bond. Accordingly, the automatic stay does not apply.
All subsequent statutory references are to the Code of Civil Procedure.
Although Cheryl raised that issue in the trial court, Gary says nothing about it in his opening brief on appeal. In his reply brief, his only argument on the point is that Cheryls position was rejected in Navarro v. Lippold (1948) 86 Cal.App.2d 677. That case is straightforwardly distinguishable because it involved claims to money that was on deposit with the superior court clerk rather than in private hands. (Id. at p. 677.) But even if the case were not distinguishable, Garys argument based on it would still fail, because the case was decided 20 years before enactment of section 917.1 (which provides that a bond is necessary to stay enforcement, pending appeal, of an order for payment of money). The statute is therefore superseding authority.
Gary also argues that the trial court lacked jurisdiction to enter an order as to UBS because UBS is not a party and the court denied Cheryls motion for joinder. We disagree. First, Gary does not explain how he has standing to raise a personal jurisdiction objection on behalf of UBS. Second, UBS appeared through counsel at the hearing on Cheryls motion for an order directing UBS to distribute the funds. UBS consented to entry of the order, and that is why the court denied joinder of UBS. Because UBS consented to the courts exercise of jurisdiction over UBS, Garys argument fails. (Cf. Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397 [a party consents to jurisdiction by "tak[ing] a part in the particular action which in some manner recognizes the authority of the court to proceed"].)
DISPOSITION
The orders are affirmed. Respondent shall recover her costs of appeal.
We concur:
MALLANO, P. J.
CHANEY, J.