Opinion
G037043
4-20-2007
SHANNON TANG, Plaintiff and Appellant, v. PETER DOBIAS, Defendant and Respondent.
Law Offices of Stephen W. Berger and Stephen W. Berger for Plaintiff and Appellant. Peter Dobias, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED
Shannon Tang appeals from an order modifying the amount of child support she receives for her child by Peter Dobias. Although the courts order did obligate Dobias to pay an increased amount of support, Tang contends that increase was insufficient, because the court erroneously imputed income to her without sufficient evidentiary support. Notwithstanding the narrowness of that issue, Tang has devoted three pages of her factual statement (out of a total of five), to documenting her claim that Dobias "blatantly lied" about his own income in connection with a hearing held in March of 2002.
The court also ordered Dobias to pay arrearages, although those arrearages were merely a function of the courts order that Dobias pay the increased support retroactively to the date upon which Tang filed her order to show cause re modification. Prior to Tangs order to show cause, Dobias had not been ordered to pay support, and there were consequently no preexisting arrearages.
That assertion is utterly irrelevant to the issue at hand; and it is frankly a bit insulting to this court to see it so prominently featured in Tangs opening brief. Whats more, if we were inclined to consider extraneous character issues in connection with this appeal (and we are not), the issue we would choose to focus on is the allegation that Tang herself had attempted to hire someone to kill, or perhaps merely "hurt," Dobias wife. Although that suggestion seemed, at first blush, to be outlandish, we discovered that the trial court actually found it credible. Under these circumstances, Tangs attempt to smear Dobias with irrelevant allegations of wrongdoing seems very much like a rock in a glass house.
The court later characterized Tangs alleged conduct as "reprehensible," and as something that "just cant be tolerated." Nonetheless, the court felt that it could not "punish the child by not allowing the child to have any contact [with Tang]" and noted that its "best information" is that Tang "is not mentally disturbed. The court did impose $ 2,000 in sanctions against Tang and expressed its hope that "nothing like that ever happens again."
Turning to what is at issue in this appeal, we conclude the trial court did not err in imputing the income to Tang. The evidence was undisputed that Tang signed a loan application which reflected the amount of income imputed to her, and although she claimed the application was blank when she signed it, and that she had never authorized the amount of income reflected upon it, the evidence on the point was conflicting; the court was not required to believe her testimony. The order is therefore affirmed.
* * *
In March of 2002, at a hearing which addressed (among other things) the issue of child support, Tang testified she earned approximately $1,200 per month as a hairdresser, and Dobias testified he was earning about the same amount working for a mortgage company. Dobias acknowledged he had been earning substantially more in his prior employment as a sales representative with a company referred to as Olympus, but explained his employment had been terminated due to "low sales in the area." Because the parties had approximately the same income, and shared custody of their daughter on a 50/50 basis, the court ordered that no child support be paid by either.
In December of 2003, Tang filed a request for an order to show cause regarding a modification of child support. Among other things, Tang explained that evidence had come to light showing Dobias had continued with his employment at Olympus after the March 2002 hearing, and had earned a far greater income between June of 2002 and July of 2003 than he had testified to earning in connection with that hearing.
The child support issue did not come on for hearing until May of 2005, nearly a year and a half after the order to show cause was filed. Dobias acknowledged he was currently working for Olympus, and did not dispute that his income, during the period from July of 2002 to the hearing, was substantially higher than what he had testified to in March of 2002. However, based upon a loan application Tang signed within a month of the March 2002 hearing, he asserted that her income was also substantially higher than the $1,000 per month she had testified to at that time.
The application document is a multi-paged form, on which various information about Tang is filled in by hand. Among other things, it reflects that Tangs monthly income is $4,850, although the "4" appears to have been written on top of what may have originally been a "3." Next to the apparently-altered figure are the initials "ST." The application is signed by Tang, and dated "3-20-02."
Above the signature line executed by Tang, the application states: "The undersigned specifically acknowledge(s) and agree(s) that . . . the Lender, its agents, successors and assigns will rely on the information contained in the application and I/we have a continuing obligation to amend and /or supplement the information provided in this application if any of the material facts which I/we have represented herein should change prior to closing. . . .[¶] Certification: I/we certify that the information provided in this application is true and correct as of the date set forth opposite my/our signature(s) on this application and acknowledge my/our understanding that any intentional or negligent misrepresentation(s) of the information contained in this application may result in civil liability and/or criminal penalties . . . ."
Tang admitted she had purchased a new home for $250,000 shortly after the March 2002 hearing. She made a $60,000 down payment from the proceeds of her sale of a condominium, and obtained a mortgage in the amount of $190,000. However, Tang asserted she had signed a blank loan application form for her loan, based upon the representation of the loan officer that she would qualify for the loan as long as she made a down payment of at least 20 percent. She explained she had signed the blank form because the loan officer was pressuring her about the need to process the application "immediately." She denied her income had been $4,850 per month at that time, and denied authorizing anyone to represent that it was.
At a continued hearing on June 3, 2005, Dobias called Bryan Graves to testify as an impeachment witness. Graves explained that he was the mortgage lender who worked with Tang to obtain her mortgage in approximately March of 2002. Although he acknowledged he did not remember Tangs transaction "well," Graves did recall "filling out the application with her." He expressly stated that he and Tang "filled it out together," and denied that he had ever asked her to sign a blank form. Graves testified that Tangs income figure had come "from her," although he could not identify the handwriting in which it was actually written — other than to say it was not his, and noting that it appeared to have been "written over." He stated that the initials next to the over-written figure "look to be Shannons [i.e., Tangs]." Graves stated that at no time did Tang ever indicate she did not understand what she was signing, and that she had signed the application in his presence.
On cross-examination, Graves acknowledged that because the income figure in the application appeared to have been "written-over," and not in his handwriting, he was not sure "when that came in." He speculated that it could even have been done in the final escrow when Tang signed her final loan document: "they would have clarified and had her initial at that point which is at the closing part of the process." Graves acknowledged he did not "know for a fact" that the initials next to the over-written income figure were Tangs, nor did he actually know, one way or the other, whether Tang herself had over-written the income figure. He stated that she had not done so in his presence.
Graves also explained that Tangs loan did not require her to provide any proof of her stated income, and that such loans are often used in the case of self-employed people. This loan was used for Tang because she told Graves she did not want to document her income. However, despite the lack of any required verification of an applicants stated income, Tang still needed a certain level of income to qualify for the loan. Graves could not say exactly what the required income would have been for Tangs $190,000 loan, but he opined that she would not have qualified with a stated income of $1,000 per month, the amount she had reported in her October 2001 income and expense declaration.
Graves acknowledged that it is "often the case" that not every blank in the application is filled out by hand during the initial meeting with a client, but denied ever having any client sign a blank application document. He also explained that Tang would have also signed a final, typewritten loan application, because "the bank would not have funded the loan without it." That type-written application would be in the possession of the bank that they "closed the loan with."
Tang asserts in her brief that she actually never signed the banks "final typed loan application" either. But the evidence cited in support of this point is merely a copy of an application supplied by Dobias in response to her order to show cause. It is neither authenticated nor even identified by anyone as her "final typed loan application."
On August 8, 2005, Tang again testified regarding the loan application. She again insisted that she had signed a totally blank application on the one occasion she met with Graves. Tang denied initialing next to the hand-written "$4,850" monthly income figure, and provided the court with what was described as an "exemplar" of her initials for comparison with those on the document. She did not offer any expert testimony suggesting that the initials on the loan document were not made by her.
Tang also stated that, although she had spoken to Graves over the telephone "once in a while" after the initial meeting, the only information she ever gave him was her social security number and her address. She expressly denied giving him any information about her income, explaining that she told him instead "if you ask my income information, you have to talk to my boss." As far as Tang knew, Graves never contacted her boss.
The court continued to take evidence at sessions over the next several months, and finally heard arguments and took the matter under submission in January of 2006. On February 8, 2006, the court issued its statement of decision. In its decision, the court imputed significant additional income to Dobias for the years 2004 and 2005, concluding that Dobias had misrepresented both his earnings and his assets in income and expense statements filed with the court.
However, the court also concluded Tang had engaged in significant misrepresentations as well: "On October 10, 2001 Tang declared in her Income and Expense declaration that she earned $1,010.00 per month as a hair stylist. On March 20, 2002 Tang submitted a Uniform Residential Loan Application which stated that her gross monthly income was $4850.00. She applied for a loan of $ 190,000.00 at 7.125 [percent] interest rate to purchase a condominium home for a total price of $260,000.00 The home is on Tamarack Drive in Corona (`Tamarack home). As of March 20, 2002, Tang also owned a single family home on Clearsprings Drive in Fullerton (`Clearsprings home). She had owned that residence since 1998. She estimated that the market value was $162,500.00 and she declared that she owned it free and clear. In Tangs Income and Expense Declaration of October 10, 2001, she declared that her real or personal property had a "nominal" value. Tang was not truthful with the Court in October 2001. Moreover, at the March 26, 2002 hearing, she did not advise the Court of her true real property assets and income. On April 30, 2002, Tang took title to the Tamarack home. On March 25, 2002, the sellers signed the Grant Deed, thus escrow was open as of that date. Based on said loan application, Tangs ownership of the Clearsprings home, and the fact that Tang secured a loan in 2002 for $190,000.00, there is sufficient proof for the court to impute Tangs monthly income as $4,850.00 in 2002. (In re Marriage of Chakko (2004) 115 Cal.App.4th 104). Furthermore based upon the above factors the Court finds that Tangs imputed monthly income for 2003, 2004, and 2005 continue to be $4,850.00."
Based upon the income figures it had imputed to Dobias and Tang for the period since the filing of the order to show cause, the court concluded that Dobias should pay child support in the amount of $193.00 per month for the months of December of 2003 through December of 2004, and $552.00 per month from and after January 2005.
After the court issued its decision, Tang moved for reconsideration, and filed an ex parte application for a new trial. In support of the new trial motion, Tang filed a declaration in which she stated: "Mr. Graves (the loan broker) told me that the loan was `easy qualify, and that no income information was needed. I told him that I made about $1,200 per month, and that my sister would co-sign with me if necessary. My sister faxed her employment and income information, and Mr. Graves had that available. Mr. Graves said that having my sister co-sign would take too long. He told me that he did not need my sisters information, that he would take care of everything, and that I should not worry. I did not initial or sign anything relating to any income information. I never received a copy of any loan application or documentation containing any income information, with the $4,850 amount or otherwise." (Italics added.)
Tang also acknowledged that some of the information on her prior income and expense reports had been inaccurate, but blamed her prior attorneys, claiming she simply signed the forms they prepared, and they did not explain anything to her. She also asserted she had not understood the meaning of the word "nominal" in describing the value of her property.
Although the court denied reconsideration, it gave Tang permission to pursue the motion for new trial on shortened time. The court later denied that motion.
The sole contention raised by Tang on appeal is that the trial court erred in determining that her income was $4,850 per month, based solely upon the information in the loan application, because there was insufficient evidence to establish she was even aware of (let alone responsible for) the information disclosed in that application. Of course, "[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, "`[w]here findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. (Jessup Farms v. Baldwin [(1983)] 33 Cal.3d [639,] 660.)" (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166.)
In this case, the key evidence was the loan application itself, which Tang admitted she had signed, and which reflected that her income was $4,850 per month. Although that income figure had been corrected from an initial figure that appears to be $3,850 per month, the correction was accompanied by what appear to be Tangs initials, "ST." As explained in In re Marriage of Chakko, supra, 115 Cal.App.4th 104, 109, "[t]he loan application, standing alone, constitutes substantial evidence" that the applicants income is as stated therein.
Moreover, the fact that Tang testified the information was filled in only after she signed it, and was not authorized by her, in no way compelled the trial court to disregard the document. Indeed, in Chakko, the appellant father made nearly the identical argument; i.e., "that the sole evidence of his income, the loan application, does not constitute substantial evidence because it was completed by a third party, contains only an estimate of his actual earnings, and bears a forged signature." (In re Marriage of Chakko, supra, 115 Cal.App.4th at pp. 108-109.) The appellate court rejected the assertion, which it characterized as requesting an "impermissible reweighing of the evidence."
This case is similar. While Tang certainly attempted to rebut the significance of the loan application by testifying that the version she had signed was entirely blank, and that she had never provided the mortgage officer any information about her income, the court was not required to believe her. Nor was it required to believe her when she denied that she had written the initials "ST" next to the final figure of "$4,850" in monthly income represented on the document. Without any testimony from a handwriting expert, she was simply asking the court to take her word for that. The court was not obliged to do so, especially in light of the other untruths it found.
In any event, Tangs testimony was impeached by Graves, the mortgage officer who met with Tang to fill out the application. He flatly denied that he had allowed Tang (or had ever allowed any applicant) to sign a blank application, as she had claimed. He testified Tang herself had supplied him with her stated income for the loan when they initially met, contrary to her claim. And although he acknowledged the final hand-written figure of $4,850 was not filled in during that initial meeting, he believed Tang had altered, and initialed, that figure herself at a later time. Graves made it clear that Tangs income was a required item of information to determine her qualification for the loan, and opined that the $1,000 per month in income, which Tang had been claiming to the court at about the same time she was applying for the loan, would have been insufficient to qualify. In short, Graves testimony was brutally inconsistent with the story Tang told.
"Where the trial court recognizes deception, it may draw adverse factual inferences . . . ." (In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 31.) In this case, the court specifically found that "Tang was not truthful with the court in October, 2001" and cited several examples of her mendacity. Thus, the court certainly could, and presumably did, disregard everything she said about the circumstances surrounding the completion of her loan application. And having done that, the court could accept, at face value, what that signed application reflects — that Tangs income was $4,850 per month.
Tangs effort to repair her image, in connection with her motion for a new trial, was unsatisfactory to say the least. Having testified at the hearing, rather vehemently, that she did not provide Graves with any information about her income, her declaration in support of the motion rather inconsistently stated that she actually had told him that her income was "about 1200 per month, and that my sister would co-sign with me if necessary."
The order is affirmed. Dobias is to recover his costs on appeal.
We concur:
SILLS, P. J.
OLEARY, J.