Opinion
G054206
05-29-2018
In re Marriage of ANN MICHELLE and LEWIS S. ROSENSITTO. ANN MICHELLE ROSENSITTO, Appellant, v. LEWIS S. ROSENSITTO, Respondent.
Holstrom, Block & Parke and Ronald B. Funk for Appellant. Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Bremer, Whyte, Brown & O'Meara and Sheila C. Stiles 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10D003993) OPINION Appeal from an order of the Superior Court of Orange County, Mark S. Millard, Judge. Affirmed. Holstrom, Block & Parke and Ronald B. Funk for Appellant. Law Offices of Marjorie G. Fuller, Marjorie G. Fuller; Bremer, Whyte, Brown & O'Meara and Sheila C. Stiles for Respondent.
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Ann Michelle Rosensitto appeals from an order setting aside a prior stipulation and order concerning her spousal support and child support, pursuant to Family Code sections 3690 and 3691. The trial court found the stipulation resulted from Ann's fraudulent concealment of a new job and higher income during negotiations she and her ex-husband, Lewis, had regarding modified support amounts. Ann argues the set aside was error because Lewis's request for it was untimely and there is inadequate evidence to support the trial court's fraud determination. We conclude otherwise and affirm the order.
All further statutory references are to the Family Code unless otherwise stated.
As is common in marital cases, the parties share the same last name. We consequently refer to them by their first names for the sake of clarity. No disrespect is intended.
FACTS
In April 2010, Ann filed a petition seeking to dissolve her marriage to Lewis. They had three minor children, ages five, eight and 10.
At the time, Ann was employed part-time as an adjunct professor at Pepperdine University. She also had her own business through which she provided assistance to students writing their dissertations. Between the two jobs, Ann's income was approximately $1,300 per month.
Lewis worked full-time as a private banker. His monthly income was roughly $20,800, and he occasionally earned additional income in the form of bonuses and incentives.
In March 2011, a couple of months before judgment was entered in the action, Ann filed an updated income and expense declaration. She indicated she was still employed part-time at Pepperdine University and listed her average monthly income as $1,395. The declaration also included her income for the immediately prior month, $3,584, which she indicated was for "Spring 2011, only."
Ann and Lewis ultimately entered into an agreement resolving all matters between them, including spousal and child support. They submitted a proposed judgment to the court, which the court signed and filed in May 2011. Under the judgment, Lewis was to pay Ann $3,827 per month for child support and $3,020 per month for spousal support, plus specified additional amounts if his income exceeded that specified in his filed declaration.
Less than one year later, Lewis lost his job. Though he was able to find a new one, the base salary was significantly less than at his prior job—$12,500 versus $20,800 per month. He, however, would be eligible for periodic bonuses, as he had been in his prior position.
Due to his reduced salary, in March 2012, Lewis sought to modify his support obligations. Along with his order to show cause concerning the modification, Lewis filed an updated income and expense declaration. In his papers, he indicated he did not know Ann's then-current actual income, but he believed she may have been earning more than before. He was informed she was teaching two full-time classes at Pepperdine University, as well as online seminars, and he was aware she had her own dissertation writing assistance business.
Ann contacted Lewis via e-mail concerning his new job. She stated: "I'm glad you were able to find a new position. You have my income & expense declaration on file. Please have [your attorney] run the numbers with your new salary & make a proposal for support. This should save us both many billable hours." Lewis responded, letting Ann know her "income and expense declaration need[ed] to be updated."
A couple of weeks later, Lewis's counsel sent a letter to Ann's counsel providing proposed amounts and terms for the modified child support and spousal support. The letter indicated neither Lewis nor his counsel had Ann's current income information, so the proposed amounts were based on Ann's previously filed information—monthly income of approximately $1,300.
Ann's counsel responded, providing a slightly revised proposal, as well as a draft stipulation and order signed by Ann. The revised proposal based its support calculations on the same previously filed information concerning Ann's income that Lewis had used for his proposal.
Lewis signed the stipulation and order. It was filed with the court in April 2012, and the court issued the signed order that same day. Under the order, Lewis's modified support obligations were $2,676 per month for child support and $1,350 per month for spousal support, plus certain additional sums if his income exceeded a specified amount.
More than three years later, Lewis once again sought to modify his support obligations. As part of his request, Lewis asked the court to order a vocational evaluation of Ann to determine her true earning capacity. He indicated he believed Ann "continue[d] to only work part-time, despite her wealth of education, training, and experience in the education field as both a consultant and professor."
Thereafter, Ann filed her own motion, asking the court to determine support arrears. Filed with her motion was an updated income and expense declaration which stated she was employed full time at Brandman University, earning a monthly income of $7,102. Shocking to Lewis was that it also stated she had started the job in September 2011.
Surprised by the revelation in Ann's declaration, Lewis sought discovery of documents concerning Ann's employment over the prior several years. He confirmed she had, in fact, been employed full-time since September 2011, and since that time had been earning an annual salary of at least $75,000.
Within six months of being served with Ann's updated declaration, Lewis filed a motion to set aside the April 2012 stipulation and order based on fraud by Ann, pursuant to sections 3690 and 3691. In addition to the set aside, Lewis asked the court to order an accounting to determine the amount of past support overpayment, and to order that she reimburse him for any overpaid amounts. He argued Ann had "willfully concealed" her higher income when they were negotiating modified support amounts in March and April 2012, and the concealment was "an effort to continue to deceive [Lewis] and continue to receive . . . unjustified levels of support . . . ." Among other documents, Lewis submitted to the court portions of a transcript from a deposition of Ann.
Ann opposed the motion, asserting it was both untimely and without merit. She did not dispute that she failed to reveal the new job and higher income to Lewis when they were discussing modification of support based on Lewis's job change, and that she knew at the time the salary used for her in calculating the modified amounts included in the April 2012 stipulation and order was not accurate. However, according to her, it was Lewis's fault he did not insist on an updated income and expense declaration from her prior to making a proposal for modified support amounts. She further claimed Lewis was manufacturing the fraud to distract the court from over $160,000 in support arrears he owed her.
The trial court heard the matter, during which both Lewis and Ann provided oral testimony, and ruled in Lewis's favor. In its oral statement of decision, the court indicated it believed Ann's testimony that during the time the April 2012 stipulation and order was being negotiated, she did not tell anyone, not even her own attorney, about her new job and higher income. But, the court concluded she fraudulently misled Lewis by (1) telling him her income and expense declaration was "'on file'" when she knew he was going to be calculating appropriate modified child support and spousal support amounts; and (2) signing and sending to Lewis for his signature the revised stipulation and order prepared by her attorney, attached to which were the numbers used to calculate the modified support—numbers which she admitted she knew at the time were inaccurate as to her. It also found Lewis did not have reason to know of Ann's new job or higher income until he received an income and expense declaration from her in December 2015 when he asked the court to order a vocational evaluation of her.
Ann timely appealed from the order granting Lewis's motion to set aside the April 2012 order.
DISCUSSION
Ann contends the trial court erred in granting Lewis's motion because it was untimely and because there is a lack of substantial evidence to support the conclusion she committed fraud. We disagree with both assertions.
We reject Lewis's claim that Ann waived her right to challenge the trial court's order because she did not request a statement of decision. Regardless of how it came to be, the trial court provided a fairly lengthy oral statement of decision detailing its factual findings and legal conclusions. The transcript is in the record before us and it is sufficient to permit review of the issues Ann raises on appeal.
After the six-month time limit for relief from an order under Code of Civil Procedure section 473 expires, a party seeking to set aside a spousal or child support order must seek relief under sections 3690 and 3691. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910-911.) Collectively, those sections permit a trial court to set aside a support order upon a showing of any of the following: actual fraud, perjury or lack of notice. "Actual fraud" is defined as a situation "[w]here the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in a proceeding." (§ 3691, subd. (a).)
A set aside motion based on fraud must "be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud." (§ 3691, subd. (a).) And, in order to grant the motion, the court must find the fraud "materially affected the original order and that the moving party would materially benefit from the granting of the relief." (§ 3690, subd. (b).)
Ann does not dispute Lewis learned of her new job and higher income on the day in December 2015 when he received her income and expense declaration stating she was employed full-time at Brandman University, earning a salary of $7,102 per month. The crux of the timeliness issue, therefore, is the date on which Lewis "reasonably should have discovered the fraud." (§ 3691, subd. (a).)
The evidence demonstrated there was no reason Lewis reasonably should have discovered the fraud prior to December 2015. In March 2012 when Lewis sought to modify support based on his change in employment and salary, Ann directed him to her income and expense declaration "on file." Though she did not affirmatively state her income had not changed since the time the declaration was filed, the reasonable implication to draw from her statement is that the information in the declaration remained accurate. That reasonable inference was further solidified when Ann signed and sent to Lewis a version of the support modification stipulation which had been revised by her attorney. The revised stipulation contained the same income information Lewis had taken from Ann's prior declaration and included in his proposed version. And, on the record before us, nothing occurred between that time and December 2015 which should have led Lewis to believe Ann's employment and income had changed.
The timeliness issue before us can be likened to a statute of limitations question, which is generally a question of fact subject to a substantial evidence standard of review. (Pacific Shores Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 34.) However, if the facts relevant to a statute of limitations issue are not in dispute, the issue may be decided as a question of law. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.) Here, our review of the timeliness of Lewis's motion is de novo because the relevant material facts are undisputed. --------
Ann argues Lewis should have discovered her changed income no later than the day he signed the April 2012 stipulation because there was a mechanism through which he could have obtained the information from her. She blames him for not insisting upon, and waiting for, an updated income and expense declaration before he agreed to modified support amounts and signed the stipulation.
But, the fact that Lewis had a right to demand an updated income and expense declaration from Ann does not alter our conclusion under the circumstances. The two were not strangers engaging in a transaction with a reason to be skeptical of the forthrightness of one another; they had been married for over 17 years. Further, nothing in the record evidenced, for example, a history of dishonesty and distrust between them. Thus, it was reasonable for Lewis to believe Ann's statements and to trust that the numbers she signed off on in the revised stipulation were accurate.
Ann's argument concerning the sufficiency of the evidence to support the court's fraud conclusion is likewise without merit. There was undisputed evidence of the following: Ann knew support amounts are calculated based on the parties' incomes; Ann's monthly income increased by roughly $5,000 as of September 2011, but she did not tell Lewis or file an updated income and expense declaration; in February 2012, with knowledge that Lewis was seeking to modify support due to his new job, Ann referred Lewis to her income and expense declaration "on file" so he could have his attorney calculate the modified support amounts; at the time Ann referred Lewis to the declaration on file, Ann knew her then current income was "significantly higher" than in the document on file; and Ann knew the income listed for her in the draft stipulation provided by Lewis and in the version revised by her attorney was inaccurate, but she told no one. All of this evidence combined, including the fact Ann said nothing to anyone throughout, evidences purposeful concealment and is substantial enough to support the trial court's conclusion that Ann defrauded Lewis.
DISPOSITION
The order is affirmed. Respondent is entitled to his costs on appeal.
IKOLA, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.