Opinion
2d Civil No. B230516 Super. Ct. No. SD038375
01-19-2012
In re Marriage of MARK JAMES and CINDY TROY. MARK JAMES TROY, Respondent, v. CINDY TROY, Appellant.
Law Office of Robert N. Greenberg and Robert N. Greenberg for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Cindy Troy appeals from orders denying her requests for spousal support arrearages and monetary sanctions for breach of fiduciary duty. We affirm.
Facts and Procedural History
Appellant Cindy Troy and respondent Mark Troy were marred in 2000. They separated in July 2008. The couple has two children. Cindy has been unemployed since July 2008. Mark was employed by the City of Santa Monica, beginning in 1998. Mark was enrolled in the City's deferred compensation plan which had a value at the time of separation of approximately $5,537. The only other asset the couple had at the time of separation was a used car.
We refer to the parties by their first names for clarity, not out of disrespect.
On June 24, 2009, the trial court ordered Mark to pay Cindy $503 per month for spousal support and Cindy to pay $32 per month for child support, commencing July 21, 2009, resulting in a net monthly payment to Cindy of $471.
In March 2010, Cindy and Mark resumed living together. On June 24, 2010, Mark sought ex parte orders modifying custody and visitation and a residence exclusion order based on Cindy's drug use. Cindy failed to appear at the hearing and the trial court granted Mark's requests, giving him sole legal and physical custody of the children.
On September 15, 2010, Cindy filed an order to show cause for modification of child and spousal support, attorney fees and determination of spousal support arrears. Cindy asserted that Mark had stopped making spousal support payments in February 2010 and was in arrears in the amount of $4,239; that he had withdrawn money from the pension plan without her knowledge or consent; and that he failed to disclose that he had been earning extra income from handyman work. In response, Mark filed a declaration and exhibits showing that for the period January 6, 2010, through April 12, 2010, he had made payments on Cindy's behalf in the total amount of $1,771 to Priority Bail Bonds. In addition, he made payments toward the purchase of a vehicle for Cindy in April and May 2010 in the amount of $2,823, and had made other purchases for Cindy in the amount of $193.55. In total, he had paid $4,787.55 on Cindy's behalf. Cindy had never paid Mark $32 for child support. Mark argued he should be credited with spousal support payments of $5,551.55, an amount greater than the amount claimed by Cindy.
After a hearing on December 15, 2010, the court rejected Cindy's arguments that the payments Mark had made were not in lieu of spousal support, and reduced spousal and child support to zero, as of November 17, 2010. The court retained jurisdiction over child support and attorney fee issues. The court also found that there were no arrearages in spousal support and that Mark had "complied with his obligation under the law." The court concluded: "Frankly, Ms. Troy in this case has been given way too many chances in a lot of different things. I don't know why he was so generous in doing that. I will presume it's [sic] looking after the best interest of the children." Cindy appeals from the order.
On February 10, 2011, Cindy filed a motion for attorney fees and costs, one-half the amount of the pension plan, and monetary sanctions in the amount of $50,000 for Mark's alleged breaches of fiduciary duty (Fam. Code, §§ 1101, 2107) in improperly withdrawing money from the pension plan and his nondisclosure of the existence of the pension plan and his earnings from handyman work. Mark opposed the motion. After a hearing on March 14, 2011, the court issued a minute order stating: "No breach has been proven; issue reserved to time of trial. Issue of attorney's fees is reserved to time of trial." Cindy appealed the order.
DISCUSSION
Spousal Support Arrearages
Cindy argues that she is entitled to past due spousal support because there is no evidence that Mark made monetary payments directly to her. Retroactive modification of a temporary spousal support order is not permissible. (Fam. Code, § 3603; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 596.) However, orders approving payments to third parties for a spouse's benefit in lieu of spousal support is a common, approved practice. (Fam. Code, § 2023; In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 892 ["It is permissible to include in a spousal support order a requirement that the payment of overdue . . . debts, or a portion thereof, be made to third parties"].)
Here, the evidence shows that Mark made payments to Priority Bail Bonds on Cindy's behalf, made her car payments and paid some of her living expenses. Substantial evidence supports the order. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 51.)
Breach of Fiduciary Duty
Ordinarily, we review the issue of breach of fiduciary duty for substantial evidence. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1095.) Here, however, the court's minute order shows that the order is not appealable because the trial court did not make a final determination on the issue of breach of fiduciary duty, but rather reserved the issue for trial. (Code Civ. Proc., § 904.1.)
The orders of the trial court are affirmed. No costs are awarded on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Roger L. Lund, Judge
Superior Court County of Ventura
Law Office of Robert N. Greenberg and Robert N. Greenberg for Appellant.
No appearance for Respondent.