Marriage of Kahan & Diamond ( 2021 )

Filed 12/9/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Marriage of Tal Kahan and B306351
Scott Diamond
_________________________________ (Los Angeles County
SCOTT DIAMOND, Super. Ct. No. BD592808)
Appellant,
v.
TAL KAHAN DIAMOND,
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Anne K. Richardson, Judge. Affirmed.
Law Offices of Kenneth A. Ostrow and Kenneth A. Ostrow for
Appellant.
Brot Gross Fishbein and Gary Fishbein for Respondent.
__________________________
___________________
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exception of section 2
of the Discussion.
Scott Diamond (husband) appeals from the trial court’s order
denying his request to terminate or modify the spousal support he
pays to Tal Diamond (wife). Husband contends the trial court
(1) failed to consider required criteria under Family Code section 4320,
(2) erroneously excluded live testimony at the hearing on his motion,
and (3) abused its discretion in issuing attorney fee sanctions against
him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married for 17 years and had three children
together. They divorced in 2014. In the stipulated dissolution
judgment, husband’s gross annual income was listed as $196,440
(approximately $16,000 per month). He was ordered to pay $4,326 per
month in spousal support and $3,674 per month in child support.
In 2017, two years before the order challenged in the present
appeal, husband filed a request for an order to modify child and
spousal support. The court found his yearly gross income had declined
to $185,664 and the parties’ oldest child had aged out of child support.
Among other findings, the court found the reduction in child support to
be a material change of circumstances for purposes of husband’s
request for modification of spousal support under Family Code section
4326.1 In considering the factors listed in section 4320, the court
1 Family Code section 4326, subdivision (a) provides that the
termination of child support “constitutes a change of circumstances
that may be the basis for a request by either party for modification of
spousal support.”
All further undesignated statutory references are to the Family
Code.
2
found wife had made progress in her efforts to become self-supporting.2
The court reduced husband’s spousal support by $526 to $3,800 per
month.
On November 22, 2019, husband filed another request to modify
spousal support. The trial court’s order following the hearing on this
request is the one now before us. In this motion, husband relied on
three “material changes” he claimed affected the proper amount of
spousal support: (1) the parties’ second child had aged out of child
support, (2) husband’s income had decreased, and (3) wife had “failed
to make good faith efforts toward becoming self-sufficient.”3 Husband
argued the court should terminate spousal support or modify it “to
provide equity to the parties.”
In opposition, wife argued that husband’s request was without
merit as his own documentation showed his income had actually
increased. Although husband claimed his income had decreased, his
concurrently filed Income and Expense Declaration showed his annual
income had increased to $288,753 ($24,062 per month), and that he
was incurring $5,000 in “monthly expenses.” These numbers showed
that husband was earning approximately $19,000 in monthly income,
over $3,000 more than what he had earned monthly in 2017 when
spousal support was last modified.
Wife argued the motion was yet another example of husband
needlessly causing her to incur substantial attorney fees. She pointed
to three other examples: in 2015, less than a year after the parties
had executed the stipulated judgment, husband filed a request for
2 Section 4320 sets forth 14 “circumstances” the trial court shall
consider in ordering spousal support.
3 Husband also asked the court to modify child support for the
parties’ youngest child. This request is not at issue on appeal.
3
modification and then withdrew the request prior to the hearing; in
2018, six months after the court had modified spousal support,
husband threatened to file another request for modification and sent a
draft to wife’s attorney, but did not follow through; and in early 2019,
husband sought sanctions and fees, which the court denied. Wife
disputed husband’s contention that she had not made good faith efforts
to earn a living, and noted she had complied with the 2017
recommendation by a vocational expert that she join a real estate
brokerage. Wife also asked the court to order husband to pay her legal
fees under section 271.4
On January 17, 2020, one week before the hearing scheduled on
husband’s request and less than two months after he had filed his first
Income and Expense Declaration, husband filed a new Income and
Expense Declaration revising his income: he stated the income from
his work was $156,000 and his passive income was $68,654, for a total
of $224,654, not $288,753 per year as he had earlier attested. He
again claimed $5,000 in “monthly expenses.” Compared with the first
Income and Expense Declaration which reported approximately
$19,000 in gross monthly income, husband now reported roughly
$14,000.
Husband was self-represented at the January 24, 2020, hearing.
He testified that his first declaration erroneously reported $46,000 in
additional income. The court observed that, in 2017, husband’s income
was found to be $15,472 per month, and compared with his current
4 Section 271, subdivision (a) provides that “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.”
4
claimed income, whether calculated using his first or second Income
and Expense Declaration, his income had increased. Husband
responded that, in fact, if the court took into account the $5,000 in
“home office expense” as listed in his updated declaration, his gross
income had fallen. At this point, the court observed that husband’s
January 17, 2020, Income and Expense Declaration was untimely.
The court explained that “there’s a whole process for serving, giving
them an opportunity to respond . . . . And then having a hearing after
full notice.”
Husband proceeded to argue that his middle child’s aging out of
child support was a “change of circumstance” that required the court to
consider the factors set forth in section 4320 in the court’s evaluation
of whether to modify spousal support. The court initially disagreed
but ultimately accepted there was a material change in circumstance.
The court nevertheless found husband “now has an additional $671 a
month, and so he has not shown any reason based on the aging-out to
modify downward his spousal support, whether under Family Code
[section] 4326 or [section] 4320 . . . .” As for husband’s argument that
wife had not taken adequate steps to become self-sufficient, the court
observed that wife “has taken the steps that were suggested by the
vocational expert.”
The court denied husband’s request to modify support, finding
that his income had not decreased and wife had “made efforts” to
become self-sufficient. On the subject of sanctions, the court stated
that, in addition to threatening to file several requests to modify
support, husband himself had also unsuccessfully filed a motion for
sanctions “rehashing the issues in 2017.” The court concluded that
husband’s “litigation conduct is not what is contemplated by the
Family Code,” and that husband had asserted many of “the same
issues that were raised and rejected in 2017.” The court ordered
5
husband to pay wife’s attorney fees of $5,000 incurred in opposing the
current request.
Husband timely appealed.
DISCUSSION
1. The Relevant Law on Spousal Support Modification
“ ‘The trial court has broad discretion to decide whether to
modify a spousal support order. [Citation.]’ [Citation.] In exercising
that discretion, the court must consider the required factors set out in
section 4320.” (In re Marriage of Shimkus (2016) 244 Cal.App.4th
1262, 1273.) The first of these factors, “the marital standard of living,
is relevant as a reference point against which the other statutory
factors are to be weighed. [Citations.] The other statutory factors
include: contributions to the supporting spouse’s education, training,
or career; the supporting spouse’s ability to pay; the needs of each
party, based on the marital standard of living; the obligations and
assets of each party; the duration of the marriage; the opportunity for
employment without undue interference with the children’s interests;
the age and health of the parties; tax consequences; the balance of
hardships to the parties; the goal that the supported party be self-
supporting within a reasonable period of time; and any other factors
deemed just and equitable by the court. (§ 4320, subds. (b) – (l).)” (In
re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 303.)
We review the trial court’s order for abuse of discretion. (In re
Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.)
2. The Timeliness of the Appeal
Before we consider the merits of husband’s arguments, we first
address wife’s motion to dismiss the appeal as untimely.
6
Our analysis requires us to apply one of the emergency orders issued
by the Chief Justice in response to the COVID-19 pandemic and this
court’s implementation of the order made on April 15, 2020.5
Under California Rules of Court (CRC), rule 8.104(a)(1), a notice
of appeal must be filed within 60 days after service (whether by the
clerk or a party) of “a document entitled ‘Notice of Entry’ of judgment
or a filed-endorsed copy of the judgment, showing the date either was
served.”6 (CRC, rule 8.104(a)(1).) When considering a post-judgment
order that is appealable, such an order is “entered” on the date of entry
in the written minutes, or the date the signed order is filed. (CRC,
rules 8.104(c)(2), (c)(3).) CRC rule 8.104 applies to postjudgment
orders on the modification of spousal support. (See In re Marriage of
Mosley (2010) 190 Cal.App.4th 1096, 1101.)
5 On April 15, 2020, the Chief Justice authorized the Courts of
Appeal to issue orders extending the time “in which to do any act
required or permitted under the California Rules of Court.”
Accordingly, on April 15, 2020, the administrative presiding justice of
this district issued an order that provided in pertinent part: “All time
periods specified by the California Rules of Court that occur during the
time period between April 20, 2020, through and including May 18,
2020, are hereby extended for 30 days from the date of the specified
event. . . .” (Apr. 15, 2020 Implementation Order For the Renewed
Order Pursuant to Rule 8.66 of the California Rules of Court.)
6 CRC, rule 8.104(a)(1) provides in full: “A notice of appeal must
be filed on or before the earliest of: [¶] (A) 60 days after the superior
court clerk serves on the party filing the notice of appeal a document
entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the
judgment, showing the date either was served; [¶] (B) 60 days after
the party filing the notice of appeal serves or is served by a party with
a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed
copy of the judgment, accompanied by proof of service; or [¶] (C) 180
days after entry of judgment.” (CRC, rule 8.104(a)(1).)
7
On March 19, 2020, the trial court issued its minute order
denying husband’s request. In the order, the clerk certified that he or
she had served “Notice of Entry of the above minute order” and a copy
of the statement of decision on the parties. On March 24, 2020, the
court issued a second minute order stating, “Due to clerical
inadvertence and error, an[] incomplete Statement of Decision filed
and entered on March 19, 2020 was mailed out to Petitioner [husband]
and Attorney for Respondent [wife].” The clerk attested that he or she
was now serving a complete copy of the Statement of Decision with a
Notice of Entry of the March 24, 2020 minute order.
The parties agree that if the clerk’s March 19, 2020, service was
adequate, then the notice of appeal was timely. Sixty days from
March 19, 2020 was May 18, 2020. By the emergency order, if the last
day for filing a notice of appeal fell between April 20, 2020 and May
18, 2020, the time to appeal was extended 30 days. In that scenario,
husband had until June 17, 2020 (30 days after May 18, 2020) to file
his notice of appeal. His notice of appeal, filed on June 12, 2020, would
be timely.
Wife argues that the 60-day clock began not with the first notice
but with the clerk’s second notice of entry of the court’s minute order,
the one filed on March 24, 2020. The 60-day appeal period measured
by the second order expired on May 24, 2020, a date not subject to the
30-day extension of the April 15, 2020, emergency order. Under wife’s
theory, the June 12, 2020, notice of appeal was filed 19 days beyond
the May 24 deadline.
We find the appeal timely. Wife argues that it was the March 24
service that was effective to trigger CRC rule 8.104’s time periods. She
claims that on that date the clerk served “the actual and complete
Court’s Findings and Order After Hearing and Statement of
8
Decision.”7 Wife’s point is unpersuasive for two reasons: First, the
record is incomplete because it does not include the revised Statement
of Decision sent with the second minute order. Second, wife has not
provided authority for her proposition that, when a valid notice of
entry of an order has been served on a party, the clerk’s subsequent
service of a revised Statement of Decision cancels the running of the
appeal period and a new 60 days begins. As a rule, a party appeals
from a judgment or post judgment order, not from a Statement of
Decision.8 (But see Alan v. Amer. Honda Motor Co., Inc. (2007)
40 Cal.4th 894, 901 [“Reviewing courts have discretion to treat
statements of decision as appealable when they must . . . .”].)
7 Wife also argues in a footnote that the documents served on
March 19, 2021 were not titled “Notice of Entry” as required. (See,
e.g., Sunset Millennium Associates., LLC v. Le Songe, LLC (2006)
138 Cal.App.4th 256, 260-261 [60-day deadline not triggered by clerk’s
service of minute order not titled ‘Notice of Entry’ on page 1].) Wife
confuses (1) the notice of entry of the minute order, notice of which is
part of both the first and second minute orders, (2) and the statement
of decision, a separate document. The first page of each minute order
includes the clerk’s notice of entry. Wife is incorrect when she asserts
that the notice of entry was not on the first page of the original minute
order.
8 The Statement of Decision mailed with the second minute order
is not part of the record. We do not know the contents of the amended
Statement of Decision other than apparently it included pages that
were missing from the first Statement of Decision that had already
been served on the parties. Wife’s argument boils down to this: a
second minute order that does not contain the actual ruling of the
court was sufficient to vacate the running of the initial 60-day appeal
period and start a new 60-day period. We are not persuaded.
9
We conclude the appeal period commenced on March 19, the
emergency order extended the original 60-day period, and the appeal
was timely.
3. Husband’s Untimely Second Income and Expense
Statement
Husband argues the trial court abused its discretion in rejecting
as untimely his second Income and Expense Declaration. He argues
“no authority supports” the court’s refusal to consider this evidence.
On the contrary, CRC rule 5.92 requires that a party moving for
modification of support complete an Income and Expense Declaration
and file it with the Request for Order. (CRC, rule 5.92(b)(2)(A).) The
court correctly cited due process concerns, explaining that wife did not
have the opportunity to consider this new evidence when filing her
opposition. Considered in light of the downward reduction in income
from the first to the second declaration, the trial court reasonably
concluded husband had not shown good cause for the late filing of the
second declaration. Husband argues that the trial court should have
ordered a continuance, but he did not ask for one.
We conclude the court acted within its discretion.
4. Consideration of the Factors Set Forth in Section 4320
Husband next argues the trial court abused its discretion by
failing to consider each of the factors set out in section 4320 when it
denied his request on the ground that his son aging out of child
support was insufficient by itself to warrant a reduction in spousal
support.
Although by statute the trial court must consider section 4320
factors in deciding whether to modify a spousal support order, the
statute does not purport to require the court to address each factor
expressly. The trial court’s responsibility in applying section 4320 was
described this way in In re Marriage of Cheriton, supra,
10
92 Cal.App.4th at page 304: “ ‘In making its spousal support order,
the trial court possesses broad discretion so as to fairly exercise the
weighing process contemplated by section 4320, with the goal of
accomplishing substantial justice for the parties in the case before
it.’ (In re Marriage of Kerr, supra, 77 Cal.App.4th at p. 93.) In
balancing the applicable statutory factors, the trial court has
discretion to determine the appropriate weight to accord to each. (In
re Marriage of Baker (1992) 3 Cal.App.4th 491, 498 [4 Cal.Rptr.2d
553].) But the ‘court may not be arbitrary; it must exercise its
discretion along legal lines, taking into consideration the applicable
circumstances of the parties set forth in [the statute], especially
reasonable needs and their financial abilities.’ (In re Marriage of
Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 655 [235 Cal.Rptr.
587].) Furthermore, the court does not have discretion to ignore any
relevant circumstance enumerated in the statute. To the contrary, the
trial judge must both recognize and apply each applicable statutory
factor in setting spousal support. (In re Marriage of Watt[ (1989)]
214 Cal.App.3d [340,] 347; In re Marriage of Fransen (1983)
142 Cal.App.3d 419, 425 [190 Cal.Rptr. 885].) Failure to do so is
reversible error. (In re Marriage of Smith (1990) 225 Cal.App.3d 469,
479 [274 Cal.Rptr. 911]; In re Marriage of Ostler & Smith[ (1990)] 223
Cal.App.3d [33,] 47.)” Notably, Cheriton does not state that the trial
court must expressly identify each factor and set forth in writing or on
the record how it has weighed each of them. Husband has not cited
any appellate authority for this proposition. We are aware of no such
authority.
In contrast, the Legislature has required explicit findings in
other statutory contexts by using language not found in section 4320.
For example, Welfare and Institutions Code section 361.2, subdivision
(c), dealing with the removal of a child from a parent in dependency
11
proceedings, provides “The court shall make a finding, either in
writing or on the record, of the basis for its determination under
subdivisions (a) and (b).” Similarly, the Supreme Court held an
express finding of detriment was required when it interpreted
language in Civil Code former section 4600 that provided the trial
court “ ‘must make a finding that an award of custody to a parent
would be detrimental to the child.’ ”9 (In re B. G. (1974) 11 Cal.3d 679,
683, 695, italics omitted.) In In re Marriage of Morton (2018)
27 Cal.App.5th 1025, 1050, the court found the phrase “the court shall
make findings” in Family Code section 2030, subdivision (a)(2)
“requires the court to make express findings—that is, findings stated
in words, either in writing or orally on the record.”
Section 4320 does not have language of this type. The statute
does not require express findings, only that the court “consider all of
the following circumstances . . . .”
Here, husband acknowledges the court agreed that the son’s
aging out constituted a material change of circumstances triggering
section 4320. But husband ignores the court’s finding that the aging
out was the only arguable basis for a modification. Husband had not
shown a change of circumstances based on either (1) a reduction in
income or (2) wife’s alleged failure to make good faith efforts to become
self-sufficient, both of which are factors listed in, respectively, section
4320, subdivisions (c) and (l). The court concluded husband’s gain of
$671 a month due to the decrease in child support from the aging out
of his middle child was not a reason to modify “downward his spousal
support” under section 4320. Husband fails to identify which
9 The Family Law Act, including Civil Code former section 4600,
was reorganized into the Family Code, effective on January 1, 1994.
(See Stats. 1992, ch. 162, § 13.)
12
additional section 4320 factors he believes were relevant to, but
omitted from, the court’s analysis.
Given that the court specifically found a material change of
circumstance triggered section 4320 and expressly considered the
three applicable factors raised by husband, we find the trial court did
not abuse its discretion when it did not articulate its consideration of
any other factors in its statement of decision.
Our conclusion that the trial court was not required to make
express findings on each section 4320 factor prompts us to make one
final observation: Trial courts may consider it better practice to make
findings as to each section 4320 factor in writing or on the record.
Express findings likely will provide a more complete record on appeal
and advise the parties that the statute has been followed.10 The
failure to make express findings may also become relevant when a
judgment “provides no insight into how the court weighed the
statutory factors,” raising the question “whether the court in fact
weighed or even gave due consideration to the statutory factors.” (In
re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297.) In that
limited situation an appellate court may decline to accord the usual
deference to the court’s exercise of discretion and remand for the court
to reconsider the issue. (Ibid; see also In re Shimkus (2016)
244 Cal.App.4th 1262, 1278.) That did not happen here.
5. Husband’s Request to Cross-Examine Wife
Husband argues the trial court abused its discretion in denying
his request to cross-examine wife. The context was as follows: In her
responsive declaration, wife had sought attorney fees under section
271. At the hearing, wife’s counsel raised the point and argued that
10 We observe that following husband’s 2017 request for
modification, the trial court (by a different judge) made express
findings on each section 4320 factor.
13
husband’s repetitive filings had caused wife to incur unnecessary fees.
Counsel asserted husband would continue to file meritless motions
unless he was ordered to pay the accompanying attorney fees. The
trial court indicated wife’s fee request had merit, pointing to a prior
hearing “that was rehashing the issues in 2017” as an example of
husband’s litigious conduct.
Husband offered a largely incomprehensible explanation for his
prior request for sanctions. He said that his daughter had accused
him of giving wife breast cancer and threatened never to speak to him
again if he sought attorney fees. When the court indicated it could not
consider those issues, husband asked for a full hearing with live
testimony from wife. The court denied the request finding that the
issues “raised by the Petitioner [husband] were not relevant to the
issues before the Court.”
Husband argues on appeal the court was obligated under section
217 to allow him to cross-examine wife. Section 217 directs the trial
court to “receive any live, competent testimony that is relevant and
within the scope of the hearing” unless it finds “good cause to refuse to
receive live testimony and shall state its reasons for the finding on the
record or in writing.” (§ 217, subd. (a).) “Good cause” under the
statute is explicated in the CRC: “In addition to the rules of evidence,
a court must consider the following factors in making a finding of good
cause to refuse to receive live testimony under Family Code section
217: [¶] (1) Whether a substantive matter is at issue—such as . . .
spousal support . . . ; [¶] (2) Whether material facts are in controversy;
[¶] (3) Whether live testimony is necessary for the court to assess the
credibility of the parties or other witnesses; [¶] (4) The right of the
parties to question anyone submitting reports or other information to
the court; [¶] . . . and [¶] (6) Any other factor that is just and
equitable.” (CRC, rule 5.113(b) (Rule 5.113).)
14
Consideration of the factors identified in Rule 5.113 supports the
court’s finding of good cause to deny live testimony. First, husband
sought to cross-examine wife on the issue of sanctions and their
daughter’s accusation and threat. These were not “substantive
matter[s]” under Rule 5.113. Although the hearing involved husband’s
request for modification of spousal support, which is a “substantive
matter” under the rule, the live testimony was to relate only to
sanctions.
Second, there were no material facts in controversy. Husband
did not dispute he caused wife to incur attorney fees on this request
based on a current Income and Expense declaration that showed his
income had increased, that the court had rejected husband’s earlier
motion for sanctions and fees, or that husband had previously
threatened several times to bring wife to court on matters of spousal
support.
The remaining factors identified in Rule 5.113 are equally
unavailing to husband. He argues that cross-examination would have
aided the court in judging wife’s credibility. The trial court reasonably
could have found this was an insufficient reason as there were no
material facts in controversy regarding sanctions. Finally, husband
does not identify what other “just and equitable” factors under Rule
5.113(b)(6) weighed in his favor.
We conclude that the trial court complied with its statutory
obligation to not permit live testimony upon a showing of good cause
and that the proffered evidence was not “relevant and within the scope
of the hearing.” (§ 217.)
Finally, husband has not demonstrated on appeal that he
suffered any prejudice from the trial court’s refusal to allow him to
cross-examine wife. He does not identify any testimony he would have
elicited that would have had a bearing on the court’s decision.
15
6. Sanctions
Husband argues the sanctions order must be reversed because
wife did not give adequate notice and husband did not have a sufficient
opportunity to respond. Husband claims both his due process and
statutory rights were violated. Section 271, subdivision (b) provides
that an award of attorney fees as sanctions shall be imposed only after
notice and opportunity to be heard. This does not mean that wife was
required, as husband suggests, to file a formal noticed motion seeking
sanctions. Wife asked for sanctions under section 271 in her
opposition to husband’s moving papers. Husband, thus, had an
opportunity to address sanctions in his reply and at the hearing. He
failed to do so in his reply but as we have explained, husband did
argue the point at the hearing. We find no due process or statutory
violation.
DISPOSITION
The judgment is affirmed. Wife to recover costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
16