Opinion
A147142 A147143 A147750
01-20-2017
JEANNA STOVALL, Plaintiff and Respondent, v. KIERAN COX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. AF12639961)
In a prior opinion filed in November 2014, this court reversed an order awarding Jeanna Stovall child support in the amount of $2,321 per month. (Cox v. Stovall (Nov. 24, 2014, A140942) [nonpub. opn.].) While we rejected many of the arguments raised by appellant Kieran Cox, we concluded that the court erred in two critical respects that required recalculation of the child support award. On remand, the trial court conducted a one-day trial, limited in scope to the two issues identified in our prior opinion, before recalculating the amount of the child support payments. Around the same time, the court entered an order awarding attorney fees and sanctions against Cox and an order selecting a school for the parties' son. Cox has challenged each of the court's orders and, upon motion by Stovall, the appeals were consolidated for all purposes.
Cox's notice of appeal purports to appeal from a December 9, 2015 "order after judgment" awarding child support. The December 9, 2015 document attached to the notice, however, is the court's final statement of decision which directs that a proposed order be prepared by Stovall's counsel within 15 days. No subsequent order is contained in the record. "The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits." (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) The statement of decision in this case is signed and filed and finally resolves the outstanding child support issues. In the interests of timely resolution of this matter, we treat it as an appealable order.
Finding no error, we shall affirm the orders.
Background
On October 27, 2015, the trial court issued an order requiring Cox to pay attorney fees of $7,512 and an additional $5,000 in attorney fees as sanctions.
On December 9, 2015, following a hearing on the outstanding child support issues, the court issued its final statement of decision. The court awarded child support as follows: $2,507 per month for 2012, $2,181 per month for 2013, $2,488 per month for January and February 2014, $2,168 per month for March and April 2014, $1,390 per month for May and July, no child support for June 2014, $1,352 for August 2014 and $1,390 per month for September 2014 to the present.
On December 9, 2015, the court also issued an order directing the parents to enroll their child at the Principled Academy school in San Leandro. The court ordered that the child remain enrolled at that school "unless the parties enter into a written stipulation that is filed with the court, there is a further order of this court or the minor completes eighth grade."
On December 21, 2015, Cox filed a notice of appeal as to the attorney fees and school selection orders. On February 5, 2016, Cox filed a notice of appeal from the child support award. Stovall's motion to consolidate the appeals was granted on September 14, 2016.
Discussion
1. The Child Support Order
In our November 2014 opinion reversing the initial child support order, this court rejected many of Cox's arguments that the court abused its discretion in calculating his monthly income for purposes of child support. We also acknowledged that Cox's lack of credibility made calculation of his income and expenses extremely difficult. (Ibid.) Nonetheless, we agreed with Cox that two errors required remand for recalculation.
First, we concluded that the trial court, having found that Cox's net income as reported on his tax returns was not credible, had discretion to reject the numbers on the return and calculate Cox's income using a different method. The court abused its discretion, however, in relying on the Social Security base wage as a proxy for Cox's self-employment income because the base wage bears no rational relationship to Cox's actual self-employment income. (Cox v. Stovall (Nov. 24, 2014, A140942) [nonpub. opn.].)
Second, we found that the trial court erred in calculating Cox's income from his rental properties. We explained that there is no authority or rationale for imputing as income the rental value of the apartment in which he lived. (Cox v. Stovall (Nov. 24, 2014, A140942) [nonpub. opn.].) We noted, however, that the court had discretion to consider Cox's reduced living expenses resulting from mortgage-free housing as a "special circumstance" under Family Code section 4057 subdivision (b)(5), allowing an upward adjustment of the guideline child support amount.
All statutory references are to the Family Code unless otherwise noted.
On remand, the trial court limited the scope of the hearing to the two issues described above, permitting the parties to supplement the existing record concerning only those issues. The court explained that the other issues previously determined, including but not limited to Stovall's income for purposes of the guideline child support calculation ($8,410 per month for the period in question) and Cox's income from rental property investments ($5,712 per month) (excluding the rental value of the unit in which he resided), were now final. The court added that to the extent the court has discretion to reopen portions of the record, it believed that "doing so would not be in the best interests of the minor. The minor's best interests are served by handling the errors identified by the court of appeal and by treating the other issues litigated at the original trial as law of the case." Despite Cox's objections, there was no error in the scope of the proceedings on remand. The absence of the phrase "affirmed in part" in our prior decision does not suggest, as Cox argues, that the court was required to begin anew in resolving Stovall's claim for child support.
With respect to the calculation of Cox's self-employment income, the court again found that Cox's representations as to his income, including those made on his federal tax returns, were not credible or reliable. Nonetheless, the court concluded that despite the lack of reliability, "the starting point for the court's child support analysis for 2012 and 2013 must remain the gross income reported in Mr. Cox's tax returns due to a lack of alternative sources of evidence on the existing record." Beginning with Cox's stated gross income, the court carefully analyzed each deduction taken for consistency with section 4058, subdivision (a)(2) and reviewed the evidence in support of each deduction. The court concluded that many of the deductions should not be allowed for purposes of reducing the gross income used in the guideline child support calculation. For those deductions that were determined to be appropriate under section 4058, subdivision (a)(2), the court concluded, nonetheless, that "it would be in the best interests of the minor and consistent with the factors set out in section 4053 to deviate upward from the guideline child support calculation."
As to Cox's income in 2014, the court indicated that it would not rely on Cox's tax returns because Cox did not submit a copy to the court until after the tentative statement of decision had been filed. The court declined to "reopen the record so that Mr. Cox can submit his 2014 tax return at this late date." Instead, the court took an "average of Mr. Cox's gross income reported on his tax returns from 2010-2013 to estimate his 2014 income. The average of those years takes the swings in Mr. Cox's income into account, and using it to calculate child support on an ongoing basis is in the best interests of the minor."
Contrary to Cox's argument on appeal, there was no abuse of discretion in (1) the trial court's refusal to apply the presumption that Cox's tax returns are accurate statements of income for purposes of calculating child support; (2) the trial court's careful and detailed review and rejection of the deductions listed on Cox's tax returns; or (3) the court's refusal to admit Cox's late filed 2014 tax returns or to hold a "supplemental evidentiary hearing" on his 2014 income. The trial court's calculations are supported by the evidence and bear a rational relationship to Cox's actual self-employment income and the court's decisions are reasonable and in the best interests of the minor.
With respect to Cox's real estate income, the court properly concluded that the amount of his investment income was settled in the first appeal. The sole issue on remand was whether Cox had reduced living expenses as a result of his occupancy of a unit at one of his rental properties and, if so, whether this fact is a special circumstance that justifies deviating from the California guideline formula for calculation of child support under section 4057, subdivision (b)(5). The court concluded that Cox had reduced living expenses of approximately $950 per month and that Cox's reduction in living expenses justified "deviating upward from the California guideline child support calculation by including $950 as 'other taxable income' in the guideline calculations." The court explained, "Given the needs of the minor at the time, it was in his best interests to treat Mr. Cox's substantial savings as a factor in deviating upward from the guideline calculation in ordering child support. Mr. Cox achieved a substantial savings by living in one of his own rental units." The trial court's calculation of Cox's reduced living expenses is supported by the testimony at the original trial and the court did not abuse its discretion in applying an upward adjustment to guideline support based on this savings.
Cox's remaining arguments with respect to the child support order are similarly unfounded. Cox argues that in determining the amount of time each parent had physical custody of their son for the purpose of calculating child support, the court should have retroactively applied the 50/50 timeshare arrangement established by an order dated November 6, 2014. The court reasonably rejected this argument, finding that it was in the child's best interest to use the actual percentage of time spent with each parent in the child support calculation. The court used the 5 percent timeshare employed in the first child support order for the period prior to March 2014 and then carefully detailed the visitation orders it used to determine actual time with each parent during the period after that. Ultimately, the court applied a 23 percent timeshare from March 7, 2014 to May 20, 2014; a 50 percent time share for the rest of May and all of July; a 100 percent timeshare for Cox for all of June; 50 percent time share from August through October 2014. There was no abuse of discretion in the court's determinations.
Nor did the court err in including an allocation of child care expenses in the calculation of child support. Cox argues, "In a 50/50 custody arrangement both parties should be presumed to be responsible for child care during their custodial time, thus the nature of even split times means child care add-ons are unnecessary and redundant." The court explained that the add-on expenses were to account for "child-care expenses incurred due to employment of the custodial parent." In response to Cox's objections to the tentative statement of decision, the court eliminated the child care add-ons for the period in May and June during which Cox had full custody. The court declined further reductions explaining that "other changes to the add-on calculation prior to June 2014 would not be in the minor's best interests." There was no abuse of discretion in the court's decision.
Finally, Cox argues that the court erred by failing to include a credit for any child support paid to date by Cox. The court, however, did not set a total amount due in its order. Rather, it set the amount of child support payable for each time period. Final calculation of the amount remaining unpaid will be determined by the agency overseeing collection of the child support payments.
2. Attorney Fees
On March 21, 2016, this court affirmed an order disqualifying Cox's father, an attorney, from further representing Cox in this matter. (Stovall v. Cox (March 21, 2016, A146084) [nonpub. opn.].) While the appeal was pending, Stovall filed a motion for attorney fees, requesting $16,496 in fees under section 6344, subdivision (a) in connection with the disqualification motion and $8,504 in fees as sanctions under section 271 for Cox's allegedly frivolous court filings. On September 16, 2016, the court awarded $7,512 in attorney fees for work performed in connection with the disqualification motion and $5,000 in attorney fees as sanctions.
Section 6344, subdivision (a) provides: "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party." Section 271, subdivision (a) provides: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award."
On appeal, Cox contends the court did not have authority under section 6344 to award attorney fees on the disqualification motion. Initially, he argues the court cannot grant fees to the prevailing party on a motion that is made by the court. As the trial court observed, however, the initial motion to disqualify was filed and initially noticed for hearing by Stovall although decided only after the court took the issue "back up" based on its own concerns. As a result, the court awarded "fees to [Stovall] only on the original brief that was filed and work that was done [by her attorney] on that matter, in the amount of $5,662; and the fees associated for bringing this motion, [in] the amount of $1,850; but not the additional fees that resulted in preparing for that motion, filing briefs, and making the argument."
Next, Cox argues the court had no authority to award fees under section 6344 because this action did not arise under the domestic violence protection act and there is no evidence of Stovall's financial need in support of the fee award. Cox's first claim has been forfeited by his failure to object in the trial court and again by his failure to provide sufficient argument on appeal. The sum total of his argument relating to this issue is the conclusory statement that "the request for attorney's fees was not related to a domestic violence case." The trial court's disqualification order states, however, that this action began with the granting of a domestic violence restraining order against Cox in July 2012 and one of the grounds asserted for the disqualification of Cox's father as his attorney of record in these related, ongoing proceedings was that Cox's father served as a percipient witness at the hearing on the domestic violence restraining order. Given the absence of an objection and the nexus between the domestic violence restraining order and the broader family law proceeding, we conclude that the court had authority to award fees under section 6344.
Contrary to Cox's argument, an attorney fee award under section 6344, subdivision (a) does not require that the party requesting attorney fees demonstrate financial need. The discretionary fee provision in section 6344, subdivision (a) should be contrasted with subdivision (b) under which an attorney fee award is mandatory upon a showing of financial need.
Subdivision (b) of section 6344 provides: "In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay." --------
Finally, Cox argues that the fee award is excessive because some portion of the fees awarded was incurred in connection with a motion to compel that was filed at the same time as the disqualification motion. Again, however, Cox did not challenge the fee award on this ground in the trial court. Absent a timely objection, this court will not review the trial court's discretion in this regard. In any event, Cox's citation to the May 2013 declaration submitted with the initial motion to disqualify does not establish that the amount awarded was excessive. The subsequent declaration on which the court relied included fees incurred later in May and in June 2013.
With respect to the sanction award, the court explained that Cox has filed "excessive litigation in this matter." The court continued, "I do not believe that everything that [Cox] has filed has been frivolous. I think there are legitimate issues [he] has tried to bring. In some instances, the court views them as being excessive, both in number and in length, and in [his] unwillingness to compromise on reasonable issues here that would both benefit . . . both parties' judicial resources and, really, ultimately the minor child." Cox faults the trial court for failing to identify the specific filings it found excessive. There was no such error.
"Section 271 does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay. Rather, the statute is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel. 'Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party's costs and attorney fees such conduct generates.' " (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.) "Section 271, subdivision (a) authorizes sanctions to advance the policy of promoting settlement of litigation and encouraging cooperation of the litigants. This statute . . . does not require any actual injury." (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479-1480.) Based on the record before us we cannot disagree with the trial court's observation that some of Cox's filings are "excessive, both in number and in length" and that more importantly, Cox has demonstrated, by those filings, an intention to frustrate the sound policy of the state to encourage cooperation and settlement in family court proceedings.
3. Preschool
On December 9, 2015, the trial court filed an order requiring that the minor attend the Principled Academy from preschool through 8th grade unless the parties enter into a written stipulation that is filed with the court or upon further order of this court. The court's order explains, "On December 18, 2014, Judge Pulido issued permanent custody orders, including an order that the minor be enrolled in preschool. In the interim (August 2014), [Stovall] enrolled the minor in preschool at Adventure Montessori Academy and School in Union City. In January 2015, for reasons that are unclear to the court, [Cox] enrolled the minor in a different preschool, Emeryville Child Development Center ('ECDC'). The minor has been attending two preschools, and the parents have been paying full-time tuition for each school, for approximately one year. [¶] Neither parent believes that it is in the best interest for the minor to attend two preschools. In fact on January 14, 2015, almost immediately after enrolling the minor in ECDC, [Cox] e-mailed [Stovall] stating, 'Having [minor] in two programs is both redundant cost wise and not in his best interests. [Minor] attending *one* [sic] school is ideal for any child.' Although ECDC is 24 miles from [Stovall's] home and the minor had already been enrolled at Adventure Montessori Academy for approximately six months, Cox advocated in his e-mail that [minor] attend ECDC 'exclusively'. In his e-mail [Cox] also informed [Stovall] that if [minor] was not picked up at ECDC promptly at 6 p.m. the late fee was $1 per minute. [Stovall] responded via e-mail to [Cox] later on January 14, 2015. She expressed frustration that she and [Cox] had been unable to reach an agreement about enrolling their son in one preschool that was located mid-way between the parties. Ultimately, [Stovall and Cox] were unable to agree on a single preschool. [¶] . . . [¶] The court initially heard the issue of a single preschool selection on October 5, 2015. Both parties and minor's counsel appeared at that hearing. [Cox] was adamantly opposed to the minor attending Adventure Montessori Academy. The matter was continued to November 16, 2016 because an issue was raised regarding the minor's speech. Specifically, [Stovall] expressed concerns that the minor, a very bright and curious child, sometimes stuttered or struggled with enunciation and intelligibility. [Stovall] informed the court that the minor was scheduled to be evaluated by a speech therapist at Kaiser within two weeks. [¶] In advance of the next hearing [Stovall] provided information from Kaiser regarding the evaluation of the minor's speech. The speech therapist at Kaiser concluded that the minor's intelligibility and stuttering issues did not rise to the level of a developmental delay that required speech therapy at Kaiser. Instead, the therapist provided age appropriate speech and language activities for the parents to utilize with the minor at home. The minor was also referred for a hearing evaluation. [¶] During the November 16, 2015 hearing, [Stovall] advocated that the minor attend The Principled Academy ('TPA'), which is located roughly mid-way between the parties in San Leandro. [Stovall] stated that she chose this school because of its central location as well as its ability to provide the minor with an IEP [Individual Educational Plan], should he eventually need one. [Cox] remained adamant that ECDC was the best option for the minor, but acknowledged that the school did not serve children beyond preschool (approximately 5 years of age). As discussed further below, minor's counsel stated that after reviewing and evaluating both options, she believed TPA was the best choice for the minor. . . . [¶] . . . [¶] [Cox] argued that what the minor needs most is stability. [Cox] also argued that the court should not consider the distance between the preschool and the parties, but should rather consider the amount of time it will take each party to drop off and pick up the minor. [Cox] has failed to pay child support and so his driver's license has been revoked. [Cox] described the lengthy amount of time it would take for him to transport his son to TPA if he used public transportation. He asserted that because [Stovall] can drive the long distance from her home to Emeryville, the preschool should be located closer to him. [Cox] also argued that it is more convenient for him if the minor attends ECDC because he has an increased number of clients that he must travel to meet and entertain. Those clients are located in San Francisco and extensively throughout the North Bay. Interestingly, [Cox] did not explain how he was able to travel so extensively each week without a valid driver's license. Minor's counsel reminded the court that [Stovall] works in Palo Alto, which is also in the opposite direction of either preschool, and yet [Stovall] was advocating for a school that was mid-way between the parties. [¶] The court agrees with [Cox's] argument that the minor's best interests would be served by stability in an academic program. The court finds that the minor's best opportunity for long-term stability is at TPA. TPA will provide the option of the minor attending through eighth grade, while choosing ECDC would require the minor to attend a new school in 2017 when the minor begins kindergarten. To be clear, the court is not ordering that the minor must be enrolled at TPA through eighth grade, but rather recognizes that it is a possibility. [¶] [Cox's] arguments relating to transportation concerns were not persuasive, and those arguments are also outweighed by the imperative for a stable academic program. One of the consequences of [Cox's] choice not to pay child support was the revocation of his driver's license. If [Cox] elects to comply with the child support orders, his driver's license will be reinstated, and so [Cox] himself can remedy the transportation concerns he identified at the hearing. Further, the court finds that [Cox] is able to travel expansively throughout the bay area for his work each week, and he has been able to appear in person for the many hearings that are set each month for the last several years in this highly contentious case. As such, the court finds it is reasonable for [Cox] to transport his son to a school that is located less than 15 miles from his home and is roughly equidistant between him and [Stovall]. [¶] The cost for the minor to attend TPA is significantly less expensive than ECDC, and the cost savings serves the minor's best interests. . . . The court also considered the fact that TPA's student to teacher ratio of 1:6 is lower than ECDC's 1:8. Finally, the court considered the recommendation of minor's counsel who advocated for TPA. She asserted TPA was the best option for the minor for a variety of reasons including cost, balancing the commute and travel obligations of both parents, the range of services provided by TPA and the potential for the minor to have the benefit of academic continuity for numerous years into the future."
Cox contends there is no evidence of Stovall's address to support the court's finding the new school was located generally equidistant from the parties' homes. We disagree. Although Stovall refused to provide her exact address due to the existing restraining order, she testified that she lived on the border of Union City and Fremont and that the San Leandro school was about half way between her home and Cox's home in Emeryville. This testimony amply supports the court's finding that the school was equally convenient for the parties.
Cox also faults the trial court for improperly continuing the hearing and changing the "subject of the trial" when Stovall raised concerns about minor's speech issues. He argues, "The trial was to be reviewing one of two preschools the minor was currently enrolled in. The trial was not to review potential medical issues of the minor." We find no abuse of discretion in the court's brief continuance to allow for the evaluation of minor's potential speech issues. Clearly, the evaluation of potential speech delays was relevant to the selection of the best school for minor.
Next, Cox contends the court abused its discretion in considering "monthly fees, teacher child ratio, or ages services by each school" in reaching its decision. He argues, "The trial court created this basis to support its ruling based on no testimony presented, and with regard to the Principled Academy, no evidence submitted." Stovall's trial brief indicates that she attached the Principled Academy's welcome packet as an exhibit and presumably this attachment provides the information about the school contained in her trial brief. Cox does not dispute the accuracy of the information. Instead he focuses on whether the evidence was formally admitted at trial and challenges its relevance to the court's decision. Cox's failure to provide a complete record on appeal precludes our ability to review the admissibility of the evidence. More importantly, the uncontested information about the school is clearly relevant and properly considered by the court.
Finally, Cox contends the court erred in basing its decision on his child support status. He argues there is no evidence in the record to support the court's statement that his lack of license is due to not paying child support. It does not appear, however, that Cox disputed this claim when made in the trial court and he provides no alternative explanation for the loss of his license on appeal. In any event, the court properly rejected Cox's lack of transportation claim on the alternative ground that Cox had demonstrated an ability to travel easily around the Bay Area for work and other reasons.
Disposition
The October 27, 2015 order awarding attorney fees, the December 9, 2015 order selecting minor's school, and the December 9, 2015 child support order are affirmed. Stovall shall recover her costs on appeal.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.