Opinion
E065072
05-19-2017
In re the Marriage of MICHAEL and MELISSA PROUD. MICHAEL PROUD, Appellant, v. MELISSA A. FULLGRABE, Respondent.
Michael Proud, Appellant in pro. per. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RID1202462) OPINION APPEAL from the Superior Court of Riverside County. Eric V. Isaac, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part, and remanded with directions. Michael Proud, Appellant in pro. per. No appearance for Respondent.
In this divorce case, the trial court ordered husband Michael Proud to pay wife Melissa Proud child support, spousal support, and attorney fees, in amounts that were based on a finding that Michael's income was $8,044 a month. Michael appealed.
While that appeal was pending, the parties stipulated to a judgment, which provided that Michael would pay Melissa $75,000, representing both (1) an equalizing payment and (2) full satisfaction of all unpaid child support, spousal support, and attorney fees.
Also while the appeal was pending, Michael filed a request to modify child support. The trial court granted his request, in part. However, it found that his income had not changed; therefore, in calculating the modified amount of child support, it continued to use $8,044 a month as Michael's income.
We then held that, in issuing the first order, the trial court had committed two errors that caused it to overstate Michael's income. We remanded with directions to redetermine the issues of child support, spousal support, and attorney fees.
On remand, Michael asked the trial court to reduce the amounts of support, spousal support, and attorney fees retroactively, and to require Melissa to reimburse him for the resulting overpayments. Based on the two crucial events while the appeal was pending — the stipulated judgment and the order modifying child support — the trial court declined to do so.
Thus, Michael appeals again. He contends, among other things, that the trial court failed to follow our directions in the previous appeal. We will hold that the events while the appeal was pending did at least partially eliminate the need to redetermine child support, spousal support, and attorney fees. Indeed, they may have done so entirely; however, the trial court erred by deciding this without considering the appropriate factors. Thus, we will affirm in part, reverse in part, and remand with directions to make the necessary determination.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Judge Asberry's Order Setting Child Support, Spousal Support, and Attorney Fees.
On January 4, 2013, the trial court (per Judge Irma Poole Asberry) found that Michael's income was $8,044 a month. Based on that figure, it ordered Michael to pay temporary child support of $1,426 a month, temporary spousal support of $1,913 a month (but only until April 30, 2013), and attorney fees of $4,300.
On January 11, 2013, Michael filed a notice of appeal.
B. The Stipulated Judgment Setting Support and Attorney Fee Arrearages Through March 2014 at Zero.
While the previous appeal was pending, on March 19, 2014, the parties filed a stipulation for judgment. It provided, among other things:
"As an equalization payment on the division of the assets and debts contained herein and payment in full of all child support and spousal support arrears and interest thereon owned by Michael Proud to Melissa Proud through 3/31/14 and payment of . . . any attorney fees owed by Michael Proud to Melissa Proud for all reasons up to and including the court hearing of today's date, Michael Proud shall pay to Melissa Proud, through counsel, the sum of $75,000.00."
It also provided:
"As of 3/19/14, child support arrears are Ø and spousal support arrears are Ø upon the $75,000.00 payment described herein . . . ."
It reserved jurisdiction over child support.
On July 7, 2014, the trial court entered a final judgment of dissolution incorporating the terms of the stipulation.
C. Commissioner Nagby's Order Setting Child Support from April 2014 On.
Meanwhile, also while the previous appeal was pending, Michael had filed a request to modify child support.
On October 15, 2014, the parties stipulated that "any subsequent modification of child support shall be retroactive to 4/1/14."
Michael had made the $75,000 payment on or about April 1, 2014.
On October 22 and 23, 2014, the trial court (per Commissioner Robert W. Nagby) held a full trial on Michael's request to modify child support (as well as other matters).
On October 31, 2014, it found that Michael's income was still $8,044 a month. Based on other changed circumstances, however, it ordered him to pay reduced child support of $1,363 a month, retroactive to April 1, 2014.
D. Our Direction to Redetermine Child Support, Spousal Support, and Attorney Fees.
On December 19, 2014, we issued our opinion in the previous appeal. (In re Marriage of Proud (Dec. 19, 2014, E058009) 2014 Cal. App. Unpub. LEXIS 9091 [nonpub. opn.].) We held that the trial court had made two errors in calculating Michael's income. First, it had erred by including in Michael's income the payments of $2,500 a month that he was making to his former partners to buy out their share of the business. (Id. at pp. *23-*25.) Second, it had erred by calculating his business income based on the business's "Net Ordinary Income" ($8,823.30), when it should have been based on the business's "Net Income" (a $1,328.55 loss). (Id. at p. *26.)
Our disposition was as follows: "The January 4, 2013 child support, spousal support, and attorney fee order is reversed. The trial court is directed to reconsider and redetermine these issues nunc pro tunc." (In re Marriage of Proud, supra, 2014 Cal. App. Unpub. LEXIS 9091 at p. *28.)
On February 20, 2015, we issued our remittitur.
E. Proceedings on Remand.
On May 12, 2015, the trial court (per Commissioner Eric V. Isaac), acting sua sponte, ordered Michael's attorney to recalculate child support and spousal support. It also ordered that any recalculation would be retroactive to February 15, 2015; it reserved jurisdiction over attorney fees.
It appears that the trial court made the order on March 2, 2015 but did not send notice of it to the parties until May 11, 2015, and for that reason, it reentered the same order on May 12, 2015.
Ten days earlier, however, Michael's attorney had substituted out, leaving Michael in propria persona.
On May 22, 2015, Michael filed a request to modify that order. He asked that the recalculation be retroactive to January 4, 2013. He also asked that the $4,300 in attorney fees be refunded to him.
On July 7, 2015, the trial court (again per Commissioner Isaac) held a hearing on the request for modification.
Melissa's counsel argued that there was no need for the trial court to do anything in response to our remittitur. In her view: (1) the stipulated judgment precluded any recalculation of child support, spousal support, or attorney fees for any time before April 1, 2014; and (2) Commissioner Nagby's order setting child support from April 1, 2014 on was not affected by the appeal.
The trial court seemed to be under the mistaken impression that the parties had stipulated, not only to the judgment, but also to Commissioner Nagby's order. For example, it repeatedly stated that the parties had stipulated to set future child support at $1,363 a month. It also stated that, by stipulating, Michael had forgone any benefit from the appeal: "[Y]ou filed an appeal, and while waiting to find out the results of the appeal, you filed another request for an order to modify the child support, so you weren't waiting . . . to hear what the Court of Appeal says. You come back into court, the parties stipulate. That's an agreement between the parties, something you don't have to do, but an agreement between the parties as to what the child support payment should be as of that date. So if you did, in fact, do that, even if the Court of Appeal[] does come down later and says the original order — that in effect, by your stipulation, is no longer in effect anyway."
It concluded that the parties' stipulation was dispositive of child support both before and after April 1, 2014: "You entered into a stipulation as to what the amount should be, so it's really a moot issue as to what it would be recalculated at because you freely and willingly entered into a stipulation as to what support should be. [¶] The only issue I see . . . is . . . attorney's fees."
Melissa's counsel asserted that Commissioner Nagby had also ruled on attorney fees — "He stated that neither side would get attorney fees." The trial court then stated that, because Commissioner Nagby had ruled on attorney fees, "that seems to wrap up all outlying issues."
At the end of the hearing, the trial court ordered:
"The Court[']s . . . order that was filed on 05/12/15 stands, except the Court revises the date of February 15, 2015 back to January 4, 2013, the date of Judge Asberry[']s original order. This . . . order does not supersede any subsequent agreements that the parties entered into after [Michael] filed his appeal. The Court is following the Court of Appeal[']s order to direct [Michael] to recalculate based on the numbers that were erroneously entered into by Judge Asberry. If there were subsequent stipulations and orders freely entered into between the Parties, this . . . order does not override that, including this [sic] issues of attorney fees that were addressed in Commissioner Nagby[']s statement of decision that was filed on 10/13/2014. The Court strikes part of the last paragraph of the . . . order that states that the Court reserves jurisdiction over attorney fees and refers the Parties to Commissioner Nagby[']s statement of decision [that was filed on] 10/13/2014."
Michael filed a motion for reconsideration of the order of July 7, 2015. The trial court denied the motion. Michael then filed a timely appeal from the order of July 7, 2015.
II
APPEALABILITY
We perceive a preliminary issue of appealability.
"Code of Civil Procedure section 904.1, subdivision [(a)(2)] provides that an order made after an appealable judgment is itself appealable." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651, fn. omitted.) However, "[d]espite the inclusive language of Code of Civil Procedure section 904.1, subdivision [(a)(2)], not every postjudgment order that follows a final appealable judgment is appealable." (Ibid.) In particular, "orders that, although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal," are not appealable. (Id. at p. 652.) Such "'postjudgment' orders lack[] finality in that they [a]re . . . preparatory to later proceedings. To hold these orders 'nonappealable' merely postpone[s] their appeal until the conclusion of later proceedings; it d[oes] not deny it altogether." (Id. at p. 653.)
This tees up the question: What did the July 7, 2015 order actually do? This question is complicated by the fact that it was in the form of a modification of the May 12, 2015 order.
"'The true measure of an order . . . is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court's order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court's intention in the making of the same.' [Citation.]" (Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77.)
The May 12, 2015 order directed Michael (through his attorney) to recalculate child support and spousal support, directed that any recalculation be retroactive to February 15, 2015, and reserved jurisdiction over attorney fees. Presumably Melissa was supposed to have an opportunity to object to Michael's recalculation; if she did not object, the trial court would adopt Michael's recalculation, but if she did object, the trial court would rule on the objection. In any event, the order contemplated some further action by the trial court. This is confirmed by the fact that it reserved jurisdiction over attorney fees. Thus, the May 12, 2015 order was not appealable.
The July 7, 2015 then order declared that the May 12, 2015 order "stands." This would seem to suggest that Michael was still supposed to do a recalculation. However, it also provided that "[t]his . . . order does not supersede any subsequent agreements that the parties entered into after [Michael] filed his appeal. . . . If there were subsequent stipulations and orders freely entered into between the Parties, this . . . order does not override that . . . ." Despite the trial court's use of the word "if," it was undisputed that there were, in fact, "subsequent stipulations and orders" — namely, the stipulated judgment and Commissioner Nagby's order. Thus, in substance, the trial court was saying that stipulated judgment and Commissioner Nagby's order were dispositive.
This is all the more apparent when its remarks at the hearing are considered. It agreed with — and rearticulated at some length —Melissa's counsel's argument that the parties' stipulation obviated the need for any recalculation. It also stated that Commissioner Nagby's order obviated the need to recalculate attorney fees. We recognize that a judge's comments in oral argument cannot be used to impeach his or her final order. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633.) Nevertheless, they may be valuable to illustrate the trial court's theory. (Ibid.) Here, they show that the trial court did not contemplate any further action.
Incidentally, we note that, even if we were to conclude that the July 7, 2015 order lacked finality with regard to child support and spousal support, it was clearly final as to attorney fees. The trial court flatly denied Michael's request for a refund of the $4,300. Accordingly, we could reach at least that issue.
We therefore conclude that the July 7, 2015 order is appealable.
III
MICHAEL'S MOTION FOR RECONSIDERATION
As mentioned, Michael filed a motion for reconsideration of the order of July 7, 2015, which the trial court denied. He does not claim that this was error. However, he does ask us to consider the evidence that was introduced in connection with that motion.
"It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.]" (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Michael can hardly claim the trial court erred based on evidence it had not yet seen.
Michael relies on Code of Civil Procedure section 909, which, as relevant here, provides: "The reviewing court may . . . take additional evidence . . . ." However, "'[t]he power created by the statute is discretionary[; it] should be invoked sparingly, and only to affirm the case.' [Citation.]" (Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048, italics added.) Michael is asking us to consider the additional evidence in order to reverse, not to affirm. We decline to do so.
IV
CHILD SUPPORT AND SPOUSAL SUPPORT THROUGH MARCH 2014
Michael contends that the trial court erred by refusing to recalculate child support and spousal support through March 2014, because the stipulated judgment did not supersede his right to relief in the previous appeal.
"Where . . . one party collects money by executing on a judgment that is later overturned on appeal, the other party may seek restitution of the collected funds upon remand. [Citations.]" (Cussler v. Crusader Entertainment (2012) 212 Cal.App.4th 356, 369.) "'A person who has conferred a benefit upon another in compliance with a judgment . . . is entitled to restitution if the judgment is reversed or set aside, unless . . . the parties contract that payment is to be final . . . .'" (Schubert v. Bates (1947) 30 Cal.2d 785, 791, italics added.)
Here, then, the question is whether the stipulated judgment — including its provision that the $75,000 would extinguish all support arrearages — should be construed as final.
Michael admitted that the parties simply never discussed this issue before entering into the stipulation for judgment. "When no parol evidence is introduced or when the evidence is not conflicting, 'construction of the instrument is a question of law, and the appellate court will independently construe the writing.' [Citation.]" (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 688, fn. 33.)
In our view, the stipulation precluded restitution, regardless of the outcome of the appeal, for one reason: The terms of the stipulated judgment made it impossible to determine the amount of any restitution. Support arrearages and attorney fees, as well as an equalization payment, were all lumped together into a single payment of $75,000; this sum was not apportioned between them. Presumably each of these items was discounted somewhat, but how much? There was no way of knowing.
Michael suggested below that, if he had known that the stipulated judgment would affect the appeal, he would not have entered into the stipulation. "However, his uncommunicated subjective intent is irrelevant. [Citations.] . . . '[M]utual consent is gathered from the reasonable meaning of the words and acts of the parties, and not from their unexpressed intentions or understanding.' [Citation.]" (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579-580.)
In addition, Michael admitted that, at the time of the stipulated judgment, Melissa was threatening him with contempt for nonpayment of support, his business was defunct, and he was facing bankruptcy. He sold his business premises to one Mr. Singh, in exchange for Mr. Singh making the $75,000 payment to Melissa. He paid the $75,000 to "stay out of jail." The only reasonable conclusion is that he would have entered into the stipulation in any event.
It could be argued that, if the payment was meant to be final, the stipulation would have required Michael to dismiss the previous appeal. However, this does not follow, because there were other issues in the appeal besides child support, spousal support, and attorney fees. Michael was arguing that the trial court erred by issuing a restraining order against him. (In re Marriage of Proud, supra, at pp. *10-*11.) He was also arguing that the trial court erred by giving Melissa custody of their son. (Id. at pp. *12-*14.) While it might have been nice if the parties had notified us of the stipulated judgment, they would not be the first to enter into a settlement of issues pending on appeal without telling the appellate court. (See, e.g., Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1162.)
We therefore conclude that the stipulated judgment obviated the need to recalculate either child support or spousal support for the period through March 2014.
V
CHILD SUPPORT FROM APRIL 2014 ON
Michael contends that the trial court erred by refusing to recalculate child support from April 2014 on, because it mistakenly believed that the parties had stipulated to set child support for this period at $1,363 a month, whereas actually Commissioner Nagby ordered this after a full trial.
As will be seen, we come to a different conclusion with respect to the period before the issuance of our remittitur than with respect to the period after the issuance of our remittitur.
Commissioner Nagby's order was effective, starting on April 1, 2014, even though the previous appeal was pending. While a child support order is on appeal, the trial court retains jurisdiction to modify child support based on changed circumstances. (See In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 379, 381-385 [spousal support].) Any new order modifying support is itself immediately appealable. (See generally In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Thus, "[a] given case may have a series of pendente lite orders, each of which is separately enforceable and appealable." (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 640.)
"[A]n appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.]" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; accord, In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.) Here, Michael did not appeal from Commissioner Nagby's order. Accordingly, it became final and binding on him. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.) We have no jurisdiction to modify that order in this appeal. (Code Civ. Proc., § 906.)
Michael claims that he did not appeal Commissioner Nagby's order because this appeal was pending. If so, that was a severe tactical mistake. It precludes him from obtaining any appellate relief from Commissioner Nagby's order.
Even if we could review Commissioner Nagby's order, Michael has not shown error. He claims that the order was erroneous because it relied on Judge Asberry's finding — which we later reversed — that his monthly income was $8,044. However, we reversed Judge Asberry's finding essentially because it lacked support in the evidence. Specifically, we found insufficient evidence that the buyout payments of $2,500 a month that he was making to his former partners were not bona fide. (In re Marriage of Proud, supra, at pp. *23-*25.) Similarly, we found insufficient evidence that "Net Ordinary Income" (as shown on one particular profit and loss statement) actually represented Michael's business income. (Id. at p. *26.)
The evidence at the trial before Commissioner Nagby, however, may have been different from the evidence that was before Judge Asberry. We cannot tell; Michael has not given us either the reporter's transcript or the exhibits from the trial before Commissioner Nagby. Thus, he cannot show that that evidence did not support the figure of $8,044 for his income.
The issuance of our remittitur on February 20, 2015, however, altered the landscape significantly.
Commissioner Nagby's order was, itself, subject to modification. Child support can be modified at any time, but only as to amounts that accrued after the date of the filing of the request for modification. (Fam. Code, § 3603; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595.) In this case, our remittitur functioned as a request for modification — it put the parties on notice of the possibility that a modification was coming. Thus, it allowed the trial court to modify child support for the period after February 20, 2015.
In addition, our reversal of Judge Asberry's order was — at least prima facie — a changed circumstance that justified a modification. At that point, our directions required a modification, unless Commissioner Nagby had already complied anticipatorily, by making a valid redetermination of child support. Therefore, the trial court should have considered whether Commissioner Nagby relied on Judge Asberry's erroneous finding that Michael's income was $8,044 a month, or whether, on the other hand, Commissioner Nagby made his own independent finding that Michael's income was $8,044 a month, unaffected by the errors that we identified in the previous appeal. If it found that Commissioner Nagby made an independent finding, it could decline to recalculate child support. However, if it found that Commissioner Nagby relied on Judge Asberry's finding, then it needed to allow the parties to file new income and expense declarations and it needed to recalculate child support.
It did not do any of this. Instead, it declined to redetermine child support because it was under the mistaken impression that Michael had stipulated to Commissioner Nagby's order setting child support at $1,363 a month. This was error.
We therefore conclude that the trial court did not err by declining to recalculate child support for April 1, 2014 through February 20, 2015. However, it erred by failing to consider recalculating child support from February 20, 2015 on.
VI
ATTORNEY FEES
Michael contends that the trial court erred by refusing to recalculate attorney fees.
Our disposition in the previous appeal stated: "The January 4, 2013 child support, spousal support, and attorney fee order is reversed. The trial court is directed to reconsider and redetermine these issues nunc pro tunc." (In re Marriage of Proud, supra, at p. *28.) Thus, it required the trial court to readjudicate the issue of attorney fees.
Michael seems to think that our disposition required Melissa to reimburse him $4,300 for the attorney fees ordered by Judge Asberry. It did not. In awarding attorney fees, the trial court must consider, among other things, the parties' respective incomes. (In re Marriage of M.A. (2015) 234 Cal.App.4th 894, 903.) Because the trial court had erred in calculating Michael's income, we required it to recalculate the amount of the attorney fees. Once it did so, Michael would be entitled to restitution of any amount that he had actually paid over and above the recalculated amount. --------
Melissa's counsel represented to the trial court that Commissioner Nagby had ruled on attorney fees — specifically, that he had refused to award attorney fees to either spouse. The trial court expressly relied on this representation in refusing to recalculate attorney fees. Michael argues that this was error because the representation was not true.
Actually, the truth is somewhere in between. The trial before Commissioner Nagby related not only to Michael's request to modify child support (filed in February 2014), but also to a request that Melissa had filed (in November 2013) for child care, medical expenses, the appointment of a receiver, and attorney fees. Commissioner Nagby's statement of decision did not mention attorney fees. Michael concludes that he did not consider them. However, Melissa's counsel — and the trial court — could reasonably conclude that he effectively denied them.
Michael also argues that any attorney fees that were at issue before Commission Nagby were different from the attorney fees that were at issue pursuant to our disposition. This time, he is correct. Our disposition related only to the attorney fees that Judge Asberry had ordered on January 2013. Any attorney fees that Melissa was seeking in her November 2013 request — and that Commissioner Nagby refused to award in October 2014 — must have related to some later time.
Thus, the trial court erred by reasoning that, simply because Commissioner Nagby had denied attorney fees, it did not need to recalculate attorney fees.
However, it does not necessarily follow that Michael is entitled to reversal. Subject to exceptions not applicable here, "we review the decision of the trial court rather than its reasoning, and thus ' . . . a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.' [Citations.]" (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)
In part IV, ante, we held that the stipulated judgment superseded the need to recalculate child support through March 2014. For the identical reasons, the stipulated judgment also superseded the need to recalculate attorney fees. The trial court therefore correctly refused to recalculate attorney fees.
VII
MISCONDUCT OF COUNSEL
Michael contends that Melissa's counsel committed misconduct by misstating facts and misleading the trial court. "To preserve a claim of attorney misconduct for appeal, a timely and proper objection must have been made at trial; otherwise, the claim is forfeited. [Citations.]" (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 598.) Michael did not object to the asserted misconduct below. He corrected Melissa's counsel's statements, but he did not assert that she was acting unethically or committing misconduct. Hence, he has forfeited this contention.
Separately and alternatively, the asserted misconduct was not prejudicial. We may assume that it misled the trial court. However, Michael has had the opportunity to point out any misstatements to us. We have reviewed the record independently; we have not relied on any representations by Melissa's counsel. Nevertheless, we conclude that the trial court reached the right result.
VIII
DISPOSITION
The order appealed from is affirmed with respect to child support for the period through February 20, 2015, spousal support, and attorney fees; it is reversed with respect to child support for the period after February 20, 2015. On remand, the trial court must determine whether the errors in Judge Asberry's order that we identified in the previous appeal also infected Judge Nagby's order; if so, it must consider modifying child support for the period after February 20, 2015. In the interest of justice, each side shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.