Opinion
A148714
05-24-2017
DONALD WOLFF, Plaintiff and Appellant, v. NANDITTA BANERJEE, Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD 10-6091)
In this proceeding for dissolution of marriage, Donald Wolff appeals from post-judgment orders denying his requests to divide assets purportedly omitted or not adjudicated by the judgment and declining to award him reimbursement for certain payments. He contends the court erred primarily because it found that the issues had already been considered by the court in rendering the judgment and were therefore not omitted or unadjudicated assets within the meaning of Family Code section 2556. We will affirm the orders.
I. FACTS AND PROCEDURAL HISTORY
In December 2010, Donald Wolff (Wolff) filed a petition for dissolution of his marriage to Nanditta Banerjee (Banerjee). After proceedings including hearings before Judge Fannin, the court entered judgment in November 2014 with respect to reserved issues including child support, division of property, and attorney's fees.
Wolff appealed the judgment in January 2015 (appeal number A144094). His opening brief in the appeal raised matters pertaining to the division of the community property, including an argument that the court had not divided assets with respect to certain houses in India. We affirmed the judgment in March 2016.
Meanwhile, on Wolff's application, the trial court issued an order for Banerjee to show cause concerning the transfer and sale of certain property and her alleged refusal to comply with a subpoena. In December 2015, the trial court discharged the order to show cause. Wolff appealed (appeal number A147309), and we affirmed.
In March 2016, according to the register of actions in the clerk's transcript in this appeal, Wolff filed a request for "orders re omitted asset division" and a request for "Epstein credits." The requests themselves, however, do not appear in the clerk's transcript. After a hearing on May 5, 2016, the court (Judge Santos) denied Wolff's requests in part and granted them in part, as follows.
In one order, the court directed Banerjee to pay Wolff $8,119, denied Wolff's requests to divide purportedly omitted assets because they had actually been considered by the court in the course of rendering the 2014 judgment, and denied his request for sanctions and attorney's fees. More precisely, the court stated: "The court denies Petitioner's request to review the issue of the community loan debt due May 1, 2014 in the amount of $80,000 on the medical condo . . . . The court finds that this issue is not an omitted asset and was considered by the court at the time of trial. [¶] The court denies Petitioner's request to find that Petitioner's legal fees in the amount of $73,306 [are] a community liability. The court finds that this issue is not an omitted debt and was considered by the court at the time of trial. [¶] The court denies Petitioner's request to find Respondent's 2010 income in the amount of $38,320 is an omitted asset. The court finds that this issue was raised and considered by the trial judge at the time of trial. [¶] The court grants Petitioner's request for reimbursement of postjudgment payment of separate property debts of Respondent as follows: [¶] a. Respondent owes to Petitioner the sum of $3,611.40 for taxes paid. [¶] b. Respondent owes to Petitioner the sum of $615.87 x 2 = $1,231.74 for two mortgage payments for [the] Lincoln property. [¶] c. Respondent owes to Petitioner the sum of $1,218.00 for mortgage paid on Millwood. [¶] d. Respondent owes to Petitioner the sum of $474.67 x 3 = $1,424.01 for three mortgage payments on Coventry. [¶] e. Respondent owes to Petitioner the sum of $633.85 for mortgage paid on DeOvan [¶] f. The court denies Petitioner's claim for flood insurance in the amount of $1,047 because it was prior to the October 16, 2014 trial date and should have or could have been raised at trial. [¶] g. The court denies Petitioner's claim for air conditioning repair for Millwood in the amount of $570 because it was paid prior to [the] October 16, 2014 trial date and could have or should have been raised at trial. [¶] Respondent shall pay the total sum owed of $8,119.00 to Petitioner by direct deposit on or before May 13, 2016. [¶] 5. Petitioner's request for sanctions and[/]or attorney fees is denied. The court does not find misconduct or malfeasance that would warrant such an order." (Italics added.)
A separate order also filed on May 5, 2016, stated: "The court denies Petitioner's request for [an] order to find that the India properties were an omitted asset and subject to division. The court finds that even though not specifically addressed in the judgment, . . . the issue of the India houses [was] considered and addressed at the trial in 2014." (Italics added.)
This appeal followed.
II. DISCUSSION
Family Code section 2556 allows a party to file a post-judgment motion to obtain adjudication of a community asset or liability that was omitted or not adjudicated by the judgment. Pursuant to the statute, "the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability."
Wolff complains that the court erred in not granting him several items of his requested relief, and in finding no wrongdoing on the part of Banerjee. We address each item he references in his appeal.
A. Wolff's Legal Fees
Wolff requested reimbursement of $73,306 in legal fees. The court explained at the hearing that, based on the evidence (and the pleadings), the issue was raised and considered by Judge Fannin in rendering the judgment. Wolff argues that this is incorrect, because there is no mention of the legal fees in the judgment or the court clerk's minutes.
Wolff's argument is unavailing. In the first place, he does not provide the evidence and pleadings the court considered, let alone any briefs the parties submitted with respect to his requests. He therefore fails to establish error. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [appellant's failure to furnish an adequate record requires the appeal to be resolved against him].)
Furthermore, the fact that the legal fees were not explicitly referenced in the judgment or the minutes does not mean they were necessarily community assets omitted or unadjudicated by the judgment. Wolff points out that the clerk's minutes of the trial state that "petitioner [Wolff] identifies his exhibits 2 through 15 but admits none on this date." But that merely means he failed to obtain admission of his exhibits, not that the parties were unaware of the legal fees issue or never raised it, or that the court failed to consider it. (In fact, if the exhibits constituted Wolff's proof on a matter, he never got into evidence the proof to support his claims.) Wolff fails to establish error.
B. Banerjee's 2010 Income
Wolff contends that Banerjee's 2010 income is a community asset that was not divided by the judgment. He argues that he is entitled to all of the gross income Banerjee reported on her tax return, as an unequal division of a community asset in the interest of justice, because she committed tax fraud and other wrongdoing.
The trial court concluded that the issue was raised and considered in the trial and the income was not an omitted asset. For the reasons stated ante, Wolff fails to establish error. Wolff also argues that the court refused to enforce his subpoena to Banerjee to produce her copy of the 2010-2011 tax returns. He fails to establish an abuse of discretion in this regard as well.
C. Community Loan on Doctor's Park Property
Wolff argues that there was an omitted community debt—a personal loan pertinent to a "medical condo" referred to as "Doctor's Park" that the parties acquired in 2004—which had an $80,000 balloon payment due in May 2014 before the trial. He contends the debt should have been paid from community funds, but it was not paid on time because "the Promissory Note Trustee disappeared for one year." He asks that the community estate repay all of the $80,000 to him as a credit due to Banerjee's refusal to pay her half. The trial court concluded that the issue had been considered in connection with the trial, and Wolff fails to establish otherwise.
D. Reimbursement for Mortgage and Other Payments
Wolff argues that he should have been reimbursed for paying Banerjee's mortgages, taxes, and insurance when she refused to pay. Judge Santos awarded Wolff $8,119 in reimbursement, but denied over $1,500 of his request (for flood insurance and air conditioner repair) because those items could have and should have been raised at trial. Wolff fails to establish an abuse of discretion.
Wolff also complains that the court found that Banerjee had not acted with fraud and intentional malice. He fails to demonstrate error.
E. India Retirement Homes
Wolff contends that Banerjee paid $10,000 from community funds to build two homes in a resort in India around 2004, citing evidence attached to his November 2016 motion to augment the appellate record. We denied that motion, however, in December 2016. He nonetheless contends that Banerjee concealed this community asset from Wolff and the court, refused to respond to a subpoena in regard to the current ownership of the homes, and subsequently admitted that the title to the homes is now in her brother's name, which Wolff characterizes as a "calculated thievery."
The trial court found that, even though the issue was not specifically addressed in the judgment, the issue of the India houses was considered and addressed at the trial in 2014. Wolff contends this is false, arguing that there is no mention of the houses in the judgment or the clerk's minutes. For reasons stated ante, he fails to affirmatively demonstrate error. Moreover, the issue of India houses being omitted and undivided assets was raised in Wolff's opening brief in his prior appeal from the judgment (appeal number A144094). We already affirmed the judgment, and our ruling in that appeal has become final.
F. Wolff's Other Arguments
Wolff claims the court agreed at the motion hearing to grant his request for reimbursement for $1,200 in airfare and then "conveniently forgot" to make the award. The reporter's transcript of the hearing indicates that the court said "okay" after Wolff stated he would like reimbursement for his airfare, but in context this "okay" seems not to have been in the sense of "I'm going to grant your request," but "I understand your request." In any event, even if the court had initially decided to grant Wolff's request, the court was free to change its mind during the hearing, and Wolff fails to establish that the court's ultimate refusal to order reimbursement for his airfare was erroneous.
Wolff also repeatedly makes disparaging comments about the judge who heard his requests, including that she was "distracted, inattentive, rambled about pointless subjects, suffered from a biased, faulty memory, fabricated that there was [certain evidence]," and made false statements, and that she was "unprepared, and just made up what she could not remember, and relied on [opposing counsel's] comments" to favor Banerjee. He contends the ruling demonstrated a bias against him, asserting that the judge and Banerjee "are both women of color." Our review of the reporter's transcript—nearly 50 pages recounting a hearing that lasted well over an hour— indicates that Judge Santos was prepared and proceeded in an orderly and even-handed manner.
Wolff has failed to demonstrate error.
III. DISPOSITION
The orders are affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.