Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FL014736.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The parties to this appeal are former spouses, appellant Jeanne M. Welch (Jeanne) and respondent Robert H. Welch (Robert). Jeanne challenges two family court orders, which were made following an evidentiary hearing in a post-judgment dissolution proceeding. The first order denied Jeanne’s motion for rescission of an agreement concerning spousal support, which was brought on the ground of Robert’s fraud. As to that order, Jeanne asserts both that her right to rescission was established in a prior appeal and that her fraud claim is not precluded by the doctrine of res judicata, as the trial court found. The second order granted Robert’s request to modify spousal support, which was brought on the ground of changed circumstances. As to that order, Jeanne asserts that the trial court lacked subject matter jurisdiction to modify support since Robert had a pending appeal, and, in any event, the modification lacks evidentiary support.
For reasons explained below, as to the first order, we reverse and remand the matter for further proceedings, based on our determination that Jeanne’s rescission claim is not barred by res judicata. As to the second order, for support modification, we affirm.
BACKGROUND
Jeanne and Robert married in 1969 and separated in 1991. Their marriage was dissolved in 1993. Post-dissolution litigation followed in various courts.
Family Court Proceedings
In 1991, Jeanne petitioned the family court for dissolution of the marriage (docket number 1-91-FL014736). In November 1993, a judgment of dissolution was entered. The judgment incorporated the parties’ marital settlement agreement (MSA). It provided that Robert would pay Jeanne both child support and spousal support according to a schedule set forth therein, which was based on Robert’s annual income.
In December 1998, Jeanne filed an order to show cause (OSC), which alleged Robert’s failure to pay support as required by the judgment. Jeanne asserted that Robert owed more than $200,000 in support arrearages.
As alleged in Jeanne’s later civil complaint, Robert responded to the OSC by requesting support modification and forgiveness of past due support obligations, based on his representation “that he had begun working for a start-up company at a greatly reduced salary and had no prospects for making anywhere near the money he had made anytime soon.”
In April 1999, Jeanne and Robert resolved their pending disputes over support and arrearages by written stipulation (the 1999 Agreement). In the 1999 Agreement, the parties agreed to modify the spousal support provisions of the MSA, including a cap on Robert’s income, and they further agreed that Robert would pay Jeanne $30,000 for arrearages.
Thereafter, both parties sought support modification in various family court proceedings. Those proceedings included Robert’s 2003 motion to modify or terminate spousal support; Jeanne’s 2004 motions to modify support and to reverse a scheduled support termination date; and Jeanne’s 2007 motions to modify support and to set aside a prior order.
In May 2008, the court granted Jeanne’s August 2007 modification request, and it ordered Robert to pay $1,800 per month in spousal support. In July 2008, Robert filed a notice of appeal from that order. (H033142, In re the Marriage of Welch.) In December 2008, Robert abandoned the appeal.
Civil Court Proceedings
In December 2004, while the post-dissolution proceedings in family court were ongoing, Jeanne filed a civil complaint against Robert for fraud and negligent misrepresentation (docket number 1-04-CV032759). Several rounds of pleading ensued. Jeanne filed a third amended complaint in December 2006. In addition to causes of action for fraud and negligent misrepresentation, that complaint included a claim for declaratory relief under the Family Code.
Robert demurred to the third amended complaint, arguing that a civil action may not be brought for misrepresentations made in connection with a family law proceeding. The trial court overruled the demurrer, but it granted Robert’s motion for judgment on the pleadings as to the declaratory relief claim, based on its determination that the Family Code statutory remedies are exclusive.
Appellate Writ Proceeding
Seeking reversal of the order overruling his demurrer, Robert petitioned this court for a writ of mandate or prohibition, which we decided on the merits. (H031554, Welch v. Superior Court, unpublished opinion filed March 21, 2008.) In his petition, Robert argued that Jeanne could not state a cause of action in tort because the claimed misrepresentations were made in connection with a dissolution proceeding. In her opposition, Jeanne disagreed with Robert’s legal argument. She also contended that she would be left without a remedy if we granted Robert’s petition.
In the decision filed by this court, we concluded that “Jeanne cannot state causes of action in tort for Robert’s alleged misrepresentations regarding his income when they negotiated the 1999 Agreement and that her remedy is limited to an action or motion to vacate the 1999 Agreement.” In discussing Jeanne’s contention that she would be left without a remedy, we noted Robert’s statement at oral argument that nothing prevented Jeanne from seeking rescission of the 1999 Agreement in family court. We concurred in that statement, concluding that Jeanne’s remedy for Robert’s alleged misrepresentations inducing the 1999 Agreement “is in the family court.”
We issued a peremptory writ of mandate, which directed the trial court to sustain Robert’s demurrers “with leave to amend to permit Jeanne to state whatever causes of action she may have, other than an action in tort, to vacate the 1999 Agreement.” The writ further directed the court to transfer the matter to family court and to consolidate it with the family law action.
Subsequent Family Court Proceedings
In June 2008, pursuant to the remittitur from this court in the writ proceeding, the superior court sustained Robert’s demurrer to Jeanne’s third amended complaint, with leave to amend, and it ordered the civil action transferred to family court, to be consolidated with the dissolution action. Shortly thereafter, Jeanne filed a motion in family court for rescission of the 1999 Agreement and for attorney fees, supported by her declaration.
In September 2008, the family court and civil matters were consolidated. Representing herself, Jeanne filed a fourth amended complaint. In November 2008, Robert answered the complaint, interposing affirmative defenses based on the statute of limitations, res judicata, collateral estoppel, and laches. Jeanne responded to those affirmative defenses by declaration.
A two-day evidentiary hearing began in November 2008 and concluded in December 2008. The hearing covered three separate matters: (1) Jeanne’s motion for rescission; (2) Jeanne’s OSC re: contempt; and (3) Robert’s OSC re: support modification. Prior to the hearing, Jeanne submitted a combined written offer of proof and hearing brief, to which Robert objected.
The court first took up the contempt matter, which apparently consumed the first day of hearing (November 24, 2008) and continued into the second day (December 22, 2008). The court found Robert guilty of a single count of contempt, for failure to pay one month’s spousal support. That determination is not at issue in this appeal.
After concluding the contempt hearing, the court took up Jeanne’s rescission motion and Robert’s request for support modification. Both parties offered documentary evidence. Jeanne offered 15 exhibits concerning her rescission claim and 14 exhibits concerning Robert’s modification request. Robert objected to some of the exhibits, citing relevance, foundation, and hearsay grounds. The court initially sustained Robert’s objections, but later admitted one of the challenged exhibits, and part of another, after Jeanne laid a foundation for them. For his part, Robert offered seven exhibits. The court overruled Jeanne’s objections to those documents. In addition to the documentary evidence, two witnesses gave brief testimony. Jeanne called William Barnes to testify about his privately-held company, Clean Tech, and Robert’s relationship to it. Robert called Jeanne to testify on the subject of attorney fees.
After the evidence was in, the court gave the parties an opportunity to argue about each of the two matters (rescission and modification), at times guiding them with questions about their contentions. The court invited Jeanne to address Robert’s res judicata defense, then invited Robert’s counsel to respond to Jeanne’s comments. Counsel acknowledged that Jeanne had never requested rescission but stated that “the misrepresentation was made a basis for relief several times.” As proof of that statement, counsel specifically identified Exhibit A32, which is the transcript from a hearing held in November 2004. Moreover, counsel stated, res judicata applies not only to issues that were actually litigated but also to those that could have been, and Jeanne’s fraud claim could have been litigated in prior hearings.
At the conclusion of the hearing, the trial court denied Jeanne’s rescission motion. The court stated that it was persuaded by Robert’s arguments on the rescission claim “both with respect to the statute of limitations and res judicata.” In making its ruling, the court specifically referred to Exhibit A32. The court stated: “The fraud, which is the basis of the claim, is a fraud as to which [Jeanne] has sought relief from the Court, and the doctrine of res judicata does apply [to] forms of relief that could have been requested, not just to those that have been requested.”
The court also granted Robert’s request to modify support. In doing so, the court adopted its May 2008 decision, which applied the statutory factors relevant to support, “except to the extent that it addresses [Robert’s] ability to pay spousal support.” After listing the changed circumstances relevant to that last factor, the court found it “appropriate for spousal support to be set at 0 effective September 9, 2008.”
Robert’s counsel prepared a formal order after hearing, which was signed by the trial judge and filed in January 2009. Dissatisfied with the form of the order, Jeanne thereafter submitted her own proposed order, which was signed by the same judge and filed in March 2009. The court thereafter vacated the March 2009 order.
Current Appeal
In February 2009, Jeanne brought this appeal from the January 2009 order. She challenges (1) the denial of her rescission motion and (2) the grant of Robert’s request for support modification.
Robert defends both orders on the merits. In urging affirmance, Robert also asserts Jeanne’s appellate rules violations. We address that point now.
Appellate rules violations
Under the governing rules, appellate contentions must be supported by adequate legal analysis, including citation to pertinent legal authority where possible. (Cal. Rule of Court, rule 8.204 (a)(1)(B); Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1250, fn. 9.) Arguments must be set forth under separate headings. (Cal. Rule of Court, rule 8.204 (a)(1)(B); In re S.C. (2006) 138 Cal.App.4th 396, 408.) All of the material evidence germane to each argument must be presented, not just the evidence favoring the appellant. (Cal. Rule of Court, rule 8.204 (a)(2)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) The appellant must provide an adequate record for review. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) The parties must cite to evidence in the record, not to unverified statements. (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 578.) “Points that are irrelevant to the appeal should be omitted.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388; see In re S.C., at p. 411 [“cited pages of the appellate record deal with a variety of matters, some of which seem to have no bearing on the claim of error”].)
Violation of the rules risks various sanctions, including forfeiture. (See, e.g., Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) Nevertheless, reviewing courts have discretion to entertain an appellate claim on the merits even in the face of a defective brief or inadequate record. (Cal. Rules of Court, rule 8.204(e)(2)(C); Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 363, fn. 7; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237.)
Jeanne’s briefing in this case fails to comply with the governing rules. Nevertheless, except as indicated below, we shall exercise our discretion to resolve her arguments on the merits.
The appellate record
We granted Jeanne’s two requests to augment the appellate record. (Cal. Rules of Court, rule 8.155(a)(1).) Additionally, on our own motion, we augmented the record with the minute orders from the November/December 2008 hearing. (Ibid.) We also requested the trial court to transmit the exhibits admitted at that hearing. (Id., rule 8.224(d).)
DISCUSSION
We consider the two challenged orders in turn. As to each, we proceed in three steps. First, we set forth the parties’ contentions. Next, we summarize the legal principles that inform our analysis. Finally, we apply those principles to the case at hand.
I. Denial of Motion for Rescission
The first order challenged here is the denial of Jeanne’s motion to rescind the 1999 Agreement, which was brought on the ground that Robert’s fraud induced her to enter the agreement. As noted above, the court determined that Jeanne’s rescission claim was barred by res judicata.
A. Contentions
Jeanne first contends that she was not “afforded the remedy of rescission” that was promised by Robert and mandated by this court in the prior appellate writ proceeding. She thus raises questions of estoppel and law of the case. Jeanne also contends that the family court erred in concluding that her rescission claim was barred by res judicata.
Robert disputes both arguments. Additionally, he maintains that Jeanne failed to prove damages as required to support her rescission claim and that the challenged decision may be affirmed on that ground as well.
B. Legal Principles
As framed by the parties’ contentions, the relevant legal principles are (1) rescission, (2) res judicata, (3) law of the case, and (4) estoppel.
1. Rescission
Rescission serves “to restore the parties to the position they would have been in had they not entered the contract.” (Akin v. Certain Underwriters At Lloyd’s London (2006) 140 Cal.App.4th 291, 298.) Fraud is a ground for rescission. (Civ. Code, § 1689, subd. (b)(1).)
Rescission principles apply in marital dissolution actions. (See, e.g., Locke-Paddon v. Locke-Paddon (1924) 194 Cal. 73, 81 [wife could seek to rescind marital settlement agreement “tainted with fraud”]; cf., In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1526 [husband was entitled to rescind transmutation agreement procured by duress and undue influence]; see Fam. Code, §§ 2120-2129.) To quote the terminology from an earlier era, “the rules governing extrinsic fraud and mistake apply to alimony awards and property settlements incorporated in divorce decrees.” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)
2. Res Judicata
“ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “The doctrine of res judicata has two distinct aspects.” (Mitchell v. Jones (1959) 172 Cal.App.2d 580, 584; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 530.) In its primary aspect, the doctrine has claim preclusive effect; in its secondary aspect, called collateral estoppel, the doctrine is issue preclusive. (Clark v. Lesher (1956) 46 Cal.2d 874, 880; Ferraro v. Camarlinghi, at pp. 530-531.)
“The doctrine of res judicata, whether applied as a total bar to further litigation or as collateral estoppel, ‘rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.’ ” (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) The doctrine thus is intended to deter litigants “from bringing repetitive challenges to the trial court’s orders.” (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1027.) “The burden of proving that the requirements for application of res judicata have been met is upon the party seeking to assert it as a bar or estoppel.” (Vella v. Hudgins, at p. 257.)
As a general rule, res judicata does not apply when “the first ruling was not in a former action” but instead “was an earlier ruling in the same action.” (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185.) Nevertheless, “a prior appealable order becomes ‘res judicata’ in the sense that it becomes binding in the same case” if no appeal is taken. (Id. at pp. 1185-1186; see In re Matthew C. (1993) 6 Cal.4th 386, 393.) As more specifically relevant here, res judicata “applies to final adjudications rendered in the course of a divorce proceeding over which a court may have continuing jurisdiction and which may require several orders for its ultimate disposition.” (Wodicka v. Wodicka (1976) 17 Cal.3d 181, 188.)
3. Law of the Case
The “law of the case” doctrine precludes a party from obtaining appellate review of the same issue more than once in a single action. “Where an appellate court states in its opinion a principle or rule of law necessary to its decision, that principle or rule becomes the law of the case.” (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156.) But the doctrine does not apply to points that were not raised or decided. (Ibid.; see also, e.g., DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179.)
4. Estoppel
Judicial estoppel, also referred to as the preclusion of inconsistent positions, prevents a party from asserting contradictory positions in legal proceedings. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.) “The inconsistent position generally must be factual in nature.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies.” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986, internal quotation marks and citation omitted.)
C. Analysis
Guided by the above principles, we examine the challenged order. Because the pertinent facts are undisputed, our review is de novo. (See, e.g., Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Plaza Home Mortgage, Inc. v. North American Title Co., Inc. (2010) 184 Cal.App.4th 130, 135.) As we explain below, Jeanne is entitled to an opportunity to prove her rescission claim, which has not yet been litigated. Nothing in the prior appellate writ proceeding establishes that claim. Conversely, no prior trial court determination precludes Jeanne from attempting to prove her entitlement to the remedy of rescission.
1. Effect of the prior appellate writ proceeding
In this court’s decision in the prior appellate writ proceeding, we discussed and resolved the parties’ contentions concerning the availability of a rescission remedy for Jeanne and the proper forum for seeking that remedy. But contrary to Jeanne’s claims in this appeal, Robert’s concessions in the prior appellate proceeding did not estop him from opposing her rescission claim on the grounds proffered in family court. Nor did this court reach the merits of Jeanne’s rescission claim, such that her right to rescission is established as law of the case.
a. Robert’s concessions
In our prior decision, we noted the assertion made by Robert’s counsel at oral argument that “there is no reason Jeanne cannot got to family court and seek a rescission of the 1999 Agreement that would restore the parties to the positions they were in prior to the time they entered into the 1999 Agreement.” We also noted his further statements that “Jeanne is entitled to seek relief in family court back to the date of filing of her original OSC in December 1998 and that he would not oppose granting relief back to the date of filing the original OSC.”
Robert thus conceded Jeanne’s right to seek the remedy of rescission in family court. But Robert did not concede Jeanne’s right to secure that remedy. We thus find no merit in Jeanne’s claim that Robert agreed not to oppose rescission. Consequently, we find no basis for an estoppel. (Cf., Aguilar v. Lerner, supra, 32 Cal.4th at p. 987 [no judicial estoppel where party did not take inconsistent positions].) Robert therefore retained his right to oppose Jeanne’s rescission claim, both on the merits and on any procedural ground not previously conceded or decided.
b. This court’s determinations
In her briefing in this appeal, Jeanne suggests that our prior appellate decision established her right to rescission as law of the case. According to a heading in Jeanne’s opening brief (albeit without supporting argument), the family court violated this court’s “mandate” by denying her rescission motion. And according to statements in Jeanne’s reply brief, unspecified “language” in our prior decision “seems to indicate that it was instructing the trial court to allow Jeanne to rescind the 1999 Agreement. It does not suggest that Jeanne should be denied rescission if she asked for it.”
We reject Jeanne’s suggestions that her right to rescission was established by our prior decision. In that decision, we made only two determinations that are relevant here. First, we determined that Jeanne’s remedy “is in the family court.” Second, we determined that no statutory bar would preclude Jeanne “from obtaining relief back to the date of the filing of her OSC in December 1998.” We reached no conclusions concerning the merits of her rescission claim. Our prior decision thus has no “law of the case” effect as to whether rescission is warranted. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles, supra, 157 Cal.App.4th at p. 156.)
In sum, Jeanne’s rescission claim was not established in the prior appellate proceeding, either by Robert’s concessions or by our determinations. All that was established there was Jeanne’s right to seek rescission in the proper forum, the family court. When Jeanne attempted to exercise that right following remand, the family court denied her claim on res judicata grounds. We consider the propriety of that decision now.
2. Effect of the family court’s earlier determinations
As noted above, Jeanne alleges that Robert fraudulently induced her to enter the 1999 Agreement by concealing material facts concerning his income and business dealings, including the impending sale of stock in his start-up company.
The parties dispute whether these allegations have been litigated in family court. Jeanne maintains that they have not. In her words: “There has been no order from the trial court stating that Robert did not commit fraud in failing to disclose the $1.2 million gain he was four days from obtaining.” Robert disagrees, identifying several family court hearings at which Jeanne asserted Robert’s fraud in connection with the 1999 Agreement. First, Robert cites a hearing in January 2004, which resulted in modification of support and an award of attorney fees to Jeanne. Next, Robert cites Jeanne’s motion for reconsideration of the foregoing ruling. Finally, Robert cites another modification hearing in August 2005, where the fraud allegations again surfaced and the court again determined the amount of support. As Robert’s counsel acknowledged at the December 2008 hearing, Jeanne never requested rescission in these prior hearings, although “the misrepresentation was made a basis for relief several times. There were requests for spousal support and increases in spousal support based on that.”
As we now explain, nothing that occurred in any of the referenced hearings satisfied either aspect of the res judicata doctrine. The doctrine thus does not preclude Jeanne from litigating her fraud allegations against Robert.
a. No prior adjudication of claim
The primary aspect of the res judicata doctrine, claim preclusion, “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896; Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 866-867.) “If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202; see also, e.g., In re Marriage of Mason, supra, 46 Cal.App.4th at p. 1028; Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 576.)
A fundamental requirement for claim preclusion is an identical cause of action. (See Murray v. Alaska Airlines, Inc., supra, 50 Cal.4th at pp. 866-867.) Under longstanding California law, “a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) The invasion of a primary right gives rise to only one cause of action, “even if multiple theories of recovery are asserted.” (Citizens for Open Access to etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1067; Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904 .) Where different primary rights are at stake, “the causes of action are not the same, ” and findings in the first proceeding “would not give rise to res judicata or claim preclusion.” (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.)
Here, although Robert’s alleged fraud provided the factual predicate both for Jeanne’s rescission motion and for some of her arguments concerning support modification, the two represent distinct claims. (See Robertson v. Robertson (1939) 34 Cal.App.2d 113, 116 [decision to reduce support “was not res judicata of the cause of action on the contract” that settled the spouses’ property rights].) Viewed as a cause of action, Jeanne’s rescission motion seeks to vindicate her primary right of redress for Robert’s misrepresentations, with the aim of securing (1) a return to the pre-1999 support provisions of the MSA and (2) support arrearages claimed to be due as of December 1998. By contrast, the referenced support modification requests involved no such primary right. The first such request cited by Robert was considered at the January 2004 hearing on Robert’s June 2003 motion to modify or terminate spousal support. In connection with that request, Jeanne was not prosecuting a cause of action at all, but instead was attempting to (1) defend against Robert’s reimbursement claim, (2) avoid a support reduction, (3) secure arrearages incurred in 2003, and (4) obtain an award of fees. The second modification request cited by Robert was considered at the August 2005 hearing on Jeanne’s December 2004 motion to change the scheduled date for support termination. With that request, Jeanne was seeking to (1) extend the period for support, which was scheduled to terminate in January 2007, and (2) obtain an award of fees. The stated basis for that motion was Jeanne’s loss of employment, though Jeanne also mentioned the claimed fraud by Robert in connection with the 1999 Agreement.
The fact that Jeanne previously made the same factual allegations of fraud against Robert is irrelevant, since distinct claims can “arise from the same set of operative facts.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Put another way, the same wrongful conduct can violate different primary rights. (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 342.) That is the situation here. Although Jeanne has previously asserted Robert’s fraud in connection with the 1999 Agreement, she has not yet prosecuted a cause of action for redress of her primary right to a contract free of fraud.
To sum up, the record contains no evidence that any prior family court proceeding involved the cause of action that Jeanne now seeks to prosecute. That being so, the primary, claim-preclusive aspect of res judicata has no application here. We therefore consider whether the secondary, issue-preclusive aspect of the doctrine applies.
b. No prior adjudication of issue
The secondary aspect of the res judicata doctrine – referred to as issue preclusion or collateral estoppel – generally “bars the relitigation of specific issues that were actually litigated in an earlier proceeding and decided adversely to the party against whom the doctrine is asserted.” (Ferraro v. Camarlinghi, supra, 161 Cal.App.4th at p. 531; Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849.)
In contrast to the primary aspect of the res judicata doctrine, this aspect of the doctrine “is confined to issues actually litigated.” (Clark v. Lesher, supra, 46 Cal.2d at p. 880; Murray v. Alaska Airlines, Inc., supra, 50 Cal.4th at p. 867; Gorman v. Gorman (1979) 90 Cal.App.3d 454, 464.) “For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.) “Findings which might have been made but were not necessary to the judgment are not conclusive.” (Matthews v. Matthews (1977) 74 Cal.App.3d 683, 689.) Furthermore, collateral estoppel does not apply “if anything is left to conjecture as to what was necessarily involved and decided.” (Irwin v. Irwin (1977) 69 Cal.App.3d 317, 322.)
Here, at the December 2008 hearing, the trial court barred Jeanne’s rescission claim on res judicata grounds, based on its determination that the claim could have been litigated during previous family court proceedings where the issue of Robert’s asserted fraud was raised. As explained above however, this secondary aspect of res judicata requires actual litigation of the issue in question. The trial court erred in disregarding that requirement. And as we now explain, that requirement is not met here, since the issue of Robert’s asserted fraud in connection with the 1999 Agreement was never actually litigated in the previous proceedings referenced by him.
At the January 2004 modification hearing, Jeanne raised the question of fraud, describing the claimed misrepresentations in her trial brief. But the issue was never determined by the court. In its April 2004 statement of decision, the court discussed various statements made by Robert in the course of the parties’ dispute over support. For example, the court found that Robert’s bank deposits did not correlate with his claimed income and that “due to the commingling of his business and personal accounts” it was “virtually impossible to know what his true income is at this point.” Significantly, however, the court did not specifically mention any statements made by Robert in connection with the 1999 Agreement.
At the November 2004 reconsideration hearing, in the course of describing her unsuccessful settlement discussions with Robert, Jeanne again raised the allegations of Robert’s fraud, stating that “because of his dishonesty” she had “waived over $243,000” in arrearages. As before, however, those allegations remained unresolved. In denying Jeanne’s request for reconsideration, the court explained that it had conducted “a lengthy trial with a full statement of decision” in which it had “imputed... income” to Robert based on his bank deposits and expenditures. In a colloquy with Jeanne at the end of the hearing, the judge stated: “I actually did factor in everything that you’ve discussed today.” Jeanne asked: “Did you factor in the fraud?” The judge responded: “I absolutely did. In fact, I did put that in my opinion that I found it almost impossible and incredible at times to figure out what he was earning.” Jeanne persisted, saying: “I meant the fraud when we made our decisions in 1999, Your Honor?” The judge did not respond directly to that question, instead assuring Jeanne that there was not an automatic termination date for support.
Following the August 2005 modification hearing, the trial court modified support without making any findings concerning fraud. In its written order, the court denied Jeanne’s “request to reinstate the 1999 stipulation.” But that order is silent with respect to rescission of the 1999 Agreement.
As Jeanne stated in arguing against res judicata at the December 2008 hearing, “the reference to his dishonesty was always to prove a lack of credibility. The fraud was never tried, it was never allowed to be tried.” The record before us supports Jeanne’s contention that her fraud claims were never litigated. (Cf., In re Marriage of Mason, supra, 46 Cal.App.4th at p. 1028 [where husband attempted but failed to prove wife’s fraud, he was precluded “from resurrecting the fraud claim based on the new theory that business goodwill was an ‘omitted’ asset”].)
To sum up, so far as the appellate record discloses, the issue of Robert’s fraud in connection with the 1999 Agreement was never actually litigated in any prior family court proceeding. Because actual litigation is a requirement of collateral estoppel, this secondary, issue-preclusive aspect of res judicata does not apply.
The trial court thus erred in concluding that Jeanne’s rescission claim was precluded by res judicata. Because that error deprived Jeanne of a determination on the merits of her fraud claim, reversal is required. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Dvorin v. Appellate Dept. (1975) 15 Cal.3d 648, 651 [deprivation of fair hearing is prejudicial].) Moreover, as we explain next, the decision cannot be affirmed on the alternate ground proffered by Robert.
3. Availability of other grounds for affirmance
According to Robert, an alternative ground for affirmance exists, because Jeanne failed to prove damages as required to state a cause of action for rescission. (See Akin v. Certain Underwriters At Lloyd’s London, supra, 140 Cal.App.4th at pp. 296-298.) In Robert’s view: “There was a complete failure of proof as to any monetary amount Jeanne was entitled to recover. Accordingly, in any event, the denial of the Motion for Rescission must be affirmed.”
We decline Robert’s invitation to affirm on this ground, for two reasons: (a) the basis for the trial court’s decision and (b) the evidentiary record before the trial court.
a. The trial court’s reasons
“While usually an order will be affirmed if any ground exists which supports it, irrespective of the reason advanced by the trial court [citation], this is not so where it appears that the trial court has declined to pass upon the merits of a motion.” (Gosnell v. Webb (1943) 60 Cal.App.2d 1, 5.) “The right result is an inadequate substitute for an incorrect process. Thus the appellate scrutiny should be on the reasons expressed by the trial court in the context of counsel’s arguments, not merely whether the trial court reached a result which can be justified by implication.” (Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611-612.)
In this case, as the hearing transcript makes clear, the court did not decide Jeanne’s rescission claim on the merits. In a thoroughgoing discussion, the court clarified the parties’ respective positions on the matter by inquiring about their arguments and evidence, but it gave no indication that it was ruling on the merits. This is not a case in which the court rested its decision on a party’s failure of proof. (Cf., In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1288 [appellate review of family court determination that husband “had failed to carry his burden of identifying his separate property contributions to the property”]; In re Sheila B. (1993) 19 Cal.App.4th 187, 198 -199 [appellate review of juvenile court’s conclusion “that there was a failure of proof”].)
Instead, the stated basis for the court’s decision here was res judicata and the statute of limitations. Concerning limitations, nothing in the appellate record sheds any light on that issue, nor have the parties argued the point on appeal. For that reason, only the preclusion rationale concerns us here. And as explained above, res judicata does not preclude Jeanne’s fraud claims. To paraphrase an early case, Jeanne had “the right to have [her] motion weighed to see if it did have merit, and the trial court plainly, and erroneously, never came to that question, because it first of all decided” the matter on res judicata grounds. (Gosnell v. Webb, supra, 60 Cal.App.2d at p. 5; cf., American Broadcasting Companies, Inc. v. Walter Reade-Sterling, Inc. (1974) 43 Cal.App.3d 401, 408 [trial court erred in attaching res judicata effect to judgment of nonsuit].)
b. Evidentiary record
Even if we were to disregard the court’s stated rationale for its decision, the evidentiary record does not compel affirmance. This is not a case in which “regardless of the rulings complained of, a judgment for the defendant was the only one that could properly be rendered.” (Bechtel v. Chase (1909) 156 Cal. 707, 712; see id. at p. 711 [“no possible theory” supported appellant’s claims]; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881 [nonsuit proper where there was “no evidence creating even an inference” to support plaintiffs’ statutory claim].)
Contrary to Robert’s contention that there was a complete failure of proof, the record contains some evidence on the question of rescission damages. In her combined offer of proof and hearing brief, Jeanne claimed entitlement to two elements of damage: (a) “[h]alf of the revenue” that Robert realized from his sale of Zitel stock, and (b) waived support resulting from the income caps in the 1999 Agreement. As supporting evidence for the first element of damages (revenue from the stock sale), Jeanne offered Exhibit 3, which was renumbered Exhibit 103 at trial. As supporting evidence for the second element of damages (waived support), Jeanne offered Exhibit 7, which was renumbered Exhibit 107 at trial. Robert contends that neither exhibit was received in evidence at trial. But a review of the hearing transcript reveals that the court admitted Exhibit 103 in part. After verifying that some of the information in that exhibit came from Robert’s tax returns, the court received it “only as to the top part above the ‘Insider Trading Logo’ and excluding the information under ‘Type and Press.’ ” Furthermore, the court solicited an explanation from Jeanne, who was under oath, as to what she “would have got[ten]” if she had gone to court on her 1998 OSC instead of signing the 1999 Agreement.
Given its stated rationale, the trial court apparently did not decide the case on the basis of the evidence, and we decline to affirm on that basis.
II. Spousal Support Modification
The second order challenged in this appeal is the decision modifying Robert’s spousal support obligation.
A. Contentions
First, Jeanne contends that the trial court lacked jurisdiction to enter the order reducing Robert’s spousal support obligation to zero, because Robert had a then-pending appeal. Next, Jeanne notes procedural irregularities in “the form of the order” filed by the court, though she offers no argument for reversal on that basis. Finally, in her reply brief, Jeanne asserts the lack of substantial evidentiary support for the support modification.
Robert disputes all three contentions. First, he argues that the court had jurisdiction to enter the order. Next, with respect to the claimed procedural irregularities in the written order, Robert asserts that the claim is not cognizable on appeal and, further, that any irregularities are inconsequential. Finally, concerning the evidence, Robert maintains both that the presumption of correctness applies and that the trial court properly weighed the evidence.
B. Legal Principles
1. Support; Modification
Upon dissolution of a marriage, the family court has authority to order permanent spousal support. (Fam. Code, § 4330; see, e.g., In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) The court also has authority to modify a spousal support award. (Fam. Code, § 3591 ; see, e.g., In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 237.) Where modifications are permitted under the parties’ marital settlement agreement, they generally “require a showing of a change in circumstances.” (In re Marriage of Aninger, at p. 238.) “Moreover, in determining what constitutes a change in circumstances the trial court is bound to give effect to the intent and reasonable expectations of the parties as expressed in the agreement.” (Ibid.)
2. Jurisdiction
As a general rule, the trial court lacks jurisdiction to act on a judgment or order that is the subject of a pending appeal. As set forth in Code of Civil Procedure section 916, subdivision (a), “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a); see generally, Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-200.) “The purpose of the rule depriving the trial court of jurisdiction pending appeal in civil actions is to protect the jurisdiction of the appellate court; the rule prevents the trial court from rendering the appeal futile by changing the judgment into something different.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381.)
Nevertheless, as the Horowitz case holds, the family court retains “jurisdiction to modify spousal support pending appeal upon a proper showing of changed circumstances.” (In re Marriage of Horowitz, supra, 159 Cal.App.3dat p. 385.)
B. Analysis
With those principles in mind, we consider Jeanne’s challenges to the order for support modification.
1. Jurisdiction
The parties dispute whether the trial court retained jurisdiction in this case to modify support during the pendency of Robert’s appeal (H033142), which was brought in July 2008. According to Jeanne, “the court acted without subject matter jurisdiction because of the pendency of [that] appeal.” Jeanne acknowledges the Horowitz case, which holds that the trial court retains jurisdiction to modify support on changed circumstances despite a pending appeal. (In re Marriage of Horowitz, supra, 159 Cal.App.3d at p. 379.) But she maintains that Horowitz is distinguishable, in part because Robert was the one who sought modification while his own appeal was pending, and in part because of the short lapse of time between modification orders. Robert disagrees. He maintains that the holding in Horowitz does not depend on which party appeals or how much time elapses between orders.
The parties’ dispute over this point turns on uncontroverted facts. It thus presents an issue of law, which we review de novo. (Ghirardo v. Antonioli, supra, 8 Cal.4th at p. 799.)
The Horowitz case concerned an interlocutory judgment that included a provision for modifiable spousal support. (In re Marriage of Horowitz, supra, 159 Cal.App.3d at pp. 379, 382.) The husband and the wife both appealed the judgment. (Id. at p. 379.) While their appeals were pending, the wife obtained a wage assignment and moved for an order requiring the husband to pay support during the appeals’ pendency. (Id. at p. 380.) The husband moved to terminate both the wage assignment and any temporary spousal support obligation. (Ibid.) At the hearing on the motions, the trial court determined that the wife’s financial circumstances had changed and it terminated support on that basis. (Ibid.)
As framed by the reviewing court in Horowitz, the question presented was “whether, upon changed circumstances, a modifiable spousal support obligation is a matter ‘embraced’ in or ‘affected’ by an interlocutory judgment ordering payment of spousal support, so that modification proceedings in the trial court are stayed pending an appeal from the interlocutory judgment.” (In re Marriage of Horowitz, supra, 159 Cal.App.3d at p. 381.) Furthermore, “whether a matter is ‘embraced’ in or ‘affected’ by a judgment within the meaning of Code of Civil Procedure section 916 depends on whether postjudgment proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (Ibid.) The court concluded that a modifiable support order, based on changed circumstances, “does not interfere with the jurisdiction of the appellate court, since its review is based upon the record at trial.” (In re Marriage of Horowitz, supra, 159 Cal.App.3dat p. 384.) And as the court further observed: “The purpose of Code of Civil Procedure section 916 is to protect the appellate court’s jurisdiction by preserving the status quo pending appeal. Upon rendition of a permanent spousal support order..., the status quo includes a modifiable money judgment. [Citation.] If the trial court lacked jurisdiction to modify the support order pending appeal, the appeal would alter the nature of the order; the order would become nonmodifiable until after resolution of the appeal.” (Id. at p. 383.)
We find the reasoning in Horowitz persuasive and we agree with its holding. Moreover, contrary to the suggestion in Jeanne’s reply brief, the pertinent holding in Horowitz was not criticized in a later case, In re Marriage of Braud (1996) 45 Cal.App.4th 797. The Braud court was discussing a different case, In re Marriage of Horowitz (1984) 159 Cal.App.3d 368 [docket number A012244]; it was not discussing In re Marriage of Horowitz, supra, 159 Cal.App.3d 377 [docket number A016450]. (In re Marriage of Braud, at p. 809.) Accordingly, we apply the holding of Horowitz here. Nor do we find any basis for distinguishing Horowitz. Contrary to Jeanne’s contentions, the rationale of that case does not depend on which party appeals or how much time separates orders.
We therefore conclude that the trial court had jurisdiction to modify spousal support, based on changed circumstances, notwithstanding Robert’s pending appeal.
2. Procedural Issues
In her opening brief, Jeanne states that she “disagrees with the form of the order” that was prepared by Robert’s counsel and filed by the court in January 2009. In her reply brief, Jeanne complains that Robert “improperly” presented that order to the trial court. But Jeanne does not argue that judicial error occurred as a result.
Given the lack of any analysis or legal authority to support Jeanne’s bare complaint of procedural irregularities, we deem the point forfeited. (Berger v. California Ins. Guarantee Assn., supra, 128 Cal.App.4th at p. 1007 [issue forfeited for appellants’ failure “to make a coherent argument or cite any authority to support their contention”]; Critzer v. Enos, supra, 187 Cal.App.4th at p. 1250, fn. 9 [court may disregard point lacking authority].)
3. Evidence
Finally, Jeanne asserts the lack of evidentiary support for the modification, which reduced Robert’s spousal support obligation to zero. As argued in Jeanne’s reply brief, the “only evidence of a change of circumstances” was Robert’s “testimony that he was then living on Social Security income alone” – testimony that she characterizes as “inherently incredible” given his “history of earning considerable income” and his “past record of lying” that led to the 1999 Agreement.
We reject Jeanne’s assertion. Based on the evidentiary record before us, and on the deferential standard of review that controls our analysis, we affirm the modification order. “Orders modifying support will not be set aside on appeal without a clear showing of abuse of discretion.” (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 237.) “The evidence is viewed in the light most favorable to respondent who is entitled to the benefit of every reasonable presumption.” (Id. at p. 238.) When the court’s ruling is challenged on evidentiary grounds, an abuse of discretion is shown only if the court’s findings are wholly unsupported by evidence. (Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, 998-999.)
In this case, the court had sufficient evidence of changed circumstances to warrant modification. In ruling on the modification request, the court stated that it had “taken into consideration all of the evidence concerning respondent’s ability to pay, including the circumstances of his income and – in 2008, and, in particular, as reflected on exhibit A-20.” That exhibit, offered by Robert, is a spreadsheet covering the period from January to October 2008, which shows bank transactions for his business, Coast Ventures. In addition, as the hearing transcript reflects, Robert proffered “an updated income and expense declaration regarding the motion for modification.” That “alone was sufficient to establish [his] current income.” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 824.) The court also mentioned its prior finding that Robert “has passed the traditional retirement age of 65, ” and it cited Robert’s “age, income, and ability to generate income” as factors in its decision to modify support. This evidence adequately supports the court’s decision.
Nor are we persuaded by Jeanne’s claim that the trial court “thwarted” her presentation of evidence concerning Robert’s income and ability to pay support. In the first place, Jeanne’s claim is not cognizable; she forfeited it by failing to raise it in her opening brief. (Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.) In any event, the claim lacks merit. As the hearing transcript reflects, the court took pains to ensure that Jeanne had an opportunity to present her case. For example, the court invited Jeanne to explain the basis for her contention that certain stock was community property and to describe the particular facts giving rise to the rescission remedy that she was seeking.
In short, this record discloses no abuse of discretion by the trial court in modifying spousal support.
SUMMARY OF CONCLUSIONS
I. Motion for Rescission.
First, Jeanne’s rescission claim was not established by estoppel or law of the case, but neither is it precluded by res judicata. Because the trial court erred in applying res judicata to her rescission claim, Jeanne retains the right to a hearing in family court to prove that claim, subject to any available defense other than res judicata, including limitations. Second, under the circumstances of this case, the denial of Jeanne’s rescission claim cannot be affirmed based on the evidentiary record.
II. Support Modification.
First, Robert’s pending appeal did not deprive the trial court of jurisdiction modify spousal support. Next, Jeanne’s complaint of procedural irregularities is forfeited. Finally, the trial court did not abuse its discretion in modifying support, as its order is supported by the evidentiary record.
DISPOSITION
We reverse the January 2009 order denying Jeanne’s motion for rescission of the 1999 Agreement, and we remand the cause to the superior court with directions to render a decision on the merits on that claim, which may include the taking of further evidence at the court’s discretion. We affirm the January 2009 order modifying spousal support. The parties shall bear their own costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.