In re Marriage of Reed CA2/7 ( 2015 )

Filed 10/21/15 In re Marriage of Reed CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CHRISTINE REED, B253728, B255233
Appellant, (Los Angeles County
Super. Ct. No. BD555764)
v.
MARTIN S. REED,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles County. Robert
Willet, Judge and Marjorie S. Steinberg, Judge. Reversed in part and remanded.
Laurence M. Berman, Stephen Temko and Dennis Temko, for Petitioner and
Appellant.
Parcells Law Firm and Dayton B. Parcells; Tracey Hom and Ryan D. Golds for
Respondent.
_____________________________
Following the dissolution of their marriage, Martin Reed and Christine Reed filed
a series of motions related to the stipulated judgment setting forth the terms of their
divorce. Christine appeals three orders that resulted from the motions, including: (1) an
order denying her motion to quash writs of execution Martin had obtained to enforce two
prior attorney’s fees awards; (2) an order requiring Christine to return property she
removed from Martin’s residence; and (3) an order granting Martin’s motion to modify
the amount of the monthly child support payment.
We reverse the order denying Christine’s motion to quash, concluding that a
settlement agreement precluded Martin from enforcing the attorney’s fee awards that
served as the basis for his writs of execution. We reverse the order modifying Martin’s
child support payment based on the trial court’s failure to provide a statement of decision.
We affirm the order requiring Christine to return property she removed from Martin’s
residence.
FACTUAL BACKGROUND
On June 14, 2012, the trial court entered a stipulated judgment of dissolution
terminating the marriage of Martin Reed (husband) and Christine Reed (wife). The
judgment contained provisions describing how the parties had agreed to divide their
property, which included three residential properties located in Los Angeles County,
California. Wife was assigned ownership of a residence located in Malibu, California.
Husband was assigned ownership of a residence located on Thayer Avenue in Los
Angeles, California (the Thayer residence). The parties agreed they would sell their third
residence, located on Beverly Drive in Beverly Hills, California (the Beverly residence),
which was being renovated at the time of their divorce proceedings. Under the terms of
the judgment, husband was required to use his separate funds to pay for the constructions
costs necessary to complete the renovation. Following the sale of the Beverly residence,
husband was to be reimbursed “100% [percent] of any such payments up to the sum of
$325,000” and any payments “in excess of $325,000” if the residence sold for $6 million
or more.
2
Section 7.9 of the judgment described how the proceeds from the sale of the
Beverly residence were to be distributed. The initial set of costs to be paid from the
proceeds included the balance of the sum they had borrowed to purchase the property, the
closing costs of the sales transaction and the costs husband had incurred in renovating the
residence. The second set of costs to be paid with the proceeds included various sums the
parties had borrowed against their other properties and insurance policies. Any
remaining proceeds were to be divided equally between them.
The judgment also described various payments husband agreed to make to wife.
Section 14 provided that husband was to pay wife spousal support in the amount of
$11,000 per month “until the close of escrow on the sale of the Beverly residence.” Upon
close of escrow, husband was to pay wife $150,000 per year for a period of five years
($750,000 total), commencing one year from the date of the close of escrow. However,
husband was entitled to a “credit against the payment of the $150,000 per year” in the
amount of $5,500 per month for each month he was required to pay the $11,000 spousal
support. The credit was to be “applied pro-rata over the five year term.”1
Section 10 additionally required that, upon the close of the Beverly residence
escrow, husband was to issue wife a “noninterest bearing” loan in the amount of
$750,000. Wife was required to repay the loan in five annual payments of $150,000,
with the first payment due one year from the date of the close of escrow. If wife failed to
make any of the annual payments at the time they were due, husband was permitted to
“deduct any unpaid payment (or portion thereof) from any outstanding spousal support
owed . . . pursuant to paragraph 14.”
Section nine required husband to pay wife a separate “equalization payment” of
$1,200,000 plus 4% [percent] interest, which was to be paid over a seven-year period
following the close of the Beverly residence escrow. For the first four years, husband
1 The judgment included the following example to illustrate how the “credit” was to
operate: “if the close of escrow of the sale of the Beverly Drive residence shall occur
after twelve months of [husband paying the monthly $11,000 spousal support payment],
then [husband’s remaining] spousal support obligation . . . shall be reduced to $136,800
per year ($5,500 x 12 = $66,000/5 = $13,200; $150,000 - $13,200 = $136,800.)”
3
was to pay wife $4,000 a month (which equaled the interest payment on the principal); in
the fifth through seventh years, husband was to pay wife $5,000 a month; at the
conclusion of the seven-year period, husband was to make a “balloon payment” equal to
the remaining principal and any accrued interest.
The judgment addressed numerous additional issues related to the dissolution,
including payment of child support (husband was required to pay $7,000 a month),
custody of the children, use and ownership of the parties’ automobiles and the parties’
duties to pay various tax obligations.
Following the termination of their marriage, husband and wife filed a series of
motions related to their respective obligations set forth in the judgment. The motions
involved, among other things: husband’s claim for reimbursement of approximately $1.5
million he had spent to complete the renovation of the Beverly residence; husband’s
claim that wife had concealed $50,000 in cash during the negotiation of the judgment;
husband’s request for modification of the child support payment; husband’s motion for an
order requiring wife to return property she had removed from the Thayer residence;
wife’s motion to set aside the dissolution judgment; and wife’s claim that husband had
failed to make several of the payments required under the judgment, including the
equalization payment, the spousal support payment and the $750,000 loan that was due
upon close of the Beverly escrow.
Wife has appealed three orders that resulted from these various motions. In Case
Number B255233, wife appeals: (1) an order denying her motion to quash two writs of
execution husband had obtained to enforce prior orders awarding him attorney’s fees;
and (2) an order requiring wife to return property she had removed from the Thayer
residence. In Case Number B253728, wife appeals an order reducing husband’s child
support payment.2 The factual and procedural summary related to each of the appealed
orders is discussed in more detail below.
2 Wife filed a separate notice of appeal from each of the three orders, which initially
resulted in three different appellate case numbers. We ordered wife’s appeal from the
order denying her motion to quash husband’s writs of execution (originally assigned case
4
CASE NUMBER B255233
In case number B255233, wife appeals the trial court’s order denying her motion
to quash two writs of execution and an order requiring her to return property she removed
from the Thayer residence.
A. The Trial Court Erred in Denying Wife’s Motion to Quash
Wife contends the trial court erred in denying her motion to quash two writs of
execution that husband obtained as a means to enforce two prior orders awarding him
attorney’s fees under Family Code section 271.3 Wife contends the court should have
quashed the writs because the terms of a settlement precluded husband from executing on
those awards.
1. Factual summary
a. Summary of events preceding the parties’ settlement
During the six-month period following entry of the stipulated judgment, husband
and wife filed a series of motions against one another related to their divorce. In
September of 2012, husband filed an omitted asset claim alleging wife had concealed
$50,000 in cash that constituted community property. Husband sought an order awarding
him the omitted funds and the attorney’s fees he had expended in litigating the claim.
number B255233) and her appeal from the order requiring her to return property removed
from the Thayer residence (originally assigned case number B256413) to be consolidated
under Case Number B255233. Wife’s appeal from the order modifying the child support
payment, assigned Case Number B253728, was not included in our consolidation order.
Accordingly, this decision addresses two separate appeals: Case Numbers B255233 and
B253728.
3 “Section 271 provides that a family court may impose an award of attorney fees
and costs ‘in the nature of a sanction’ where the conduct of a party or attorney ‘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.’ (§ 271,
subd. (a).) . . . . [¶] . . . [¶] Sanctions under section 271 are appropriate whenever a party’s
dilatory and uncooperative conduct has frustrated the policy of promoting settlement of
litigation and cooperation among litigants.” (In re Marriage of Tharp (2010) 188
Cal. App. 4th 1295, 1316-1317.)
5
Following a hearing, the court granted husband’s motion, concluding that the $50,000
had not been adjudicated in the judgment and that wife had “breached her fiduciary duty
with regard to the community asset by intentionally misleading [husband] for the purpose
of depriving him of his community rights to that money.” As a remedy, the court
awarded husband the omitted asset and his “attorney fees and costs according to proof.”
Husband subsequently submitted a request for attorney’s fees totaling $13,670.00.
In November of 2012, the parties sold the Beverly residence for more than $6
million. The “net proceeds of the sale,” which totaled approximately $2.8 million, was
placed into escrow (the Beverly escrow). Husband then filed a motion seeking
approximately $1.5 million from the Beverly escrow to reimburse the costs he had
incurred in renovating the residence. Husband asserted the renovations had cost
significantly more than originally estimated because wife had hired “unqualified”
laborers whose work resulted in numerous construction defects. Wife opposed the
reimbursement claim, arguing that husband had breached his fiduciary duties by hiring
his son (from a former marriage) to serve as the general contractor and then overpaying
him for the project.
Wife also filed a motion to set aside the dissolution judgment, contending that
husband had “made it financially impossible for [her]” to obtain independent counsel to
aid her in negotiating the terms of the divorce. Wife also argued husband had attempted
to “defraud” her by (among other things): (1) inflating his true costs of the Beverly
residence renovation; (2) misrepresenting the value of the Thayer residence; and (3)
misrepresenting the parties’ respective incomes.
On February 27, 2013, the court held a hearing on numerous matters pending
between the parties, including husband’s reimbursement claim, wife’s motion to set aside
the judgment and husband’s request for $13,670 in attorney’s fees incurred in litigating
the omitted asset claim. The court informed the parties that an evidentiary hearing would
be necessary to resolve husband’s reimbursement claim and scheduled a pretrial
conference. The court then heard argument on wife’s motion to set aside the judgment,
which it denied, concluding that she had failed to demonstrate any basis for such relief.
6
The court also awarded husband attorney’s fees as “sanctions pursuant to Family
Code 271,” explaining that the evidence showed wife’s motion was “based on untrue
statements and . . . brought in bad faith.”
Finally, the court approved husband’s request for $13,670 in attorney’s fees
related to the omitted asset claim. The court clarified, however, that wife would not
be required to pay the award until the parties had resolved husband’s reimbursement
claim. The court thereafter entered an order stating: “The Court . . . orders that [wife]
shall pay . . . $13,670 in 271 sanctions to [husband] representing [husband’s] attorney’s
fees, the payment of which shall be set by further order of the court after the parties settle
or after the trial on the reimbursement issues is concluded.”
Several weeks after the February hearing, husband filed a request seeking
approximately $275,000 in attorney’s fees incurred in opposing the motion to set aside
the judgment and an additional “penalty” of $225,000. At a hearing on June 25, 2012,
the court granted the request in part, ordering wife to pay husband approximately
$109,000 in attorney’s fees. The parties stipulated, however, that: (1) wife was not
required to pay the award until husband’s reimbursement claim was resolved; and (2) the
award was to be paid directly from wife’s share of the Beverly escrow. They also agreed
that a portion of the attorney’s fees award would be offset by a prior $9,000 attorney’s
fee sanction the court had awarded wife regarding a dismissed civil complaint husband
had filed against her.
Pursuant to the parties’ stipulation, the court entered an order stating: “[Wife]
owes [husband] $109,920.38 in Family Code section 271 sanctions as a result of the
[costs he incurred in litigating the request for an order to set aside the judgment], and
[husband] owes [wife] $9,714 in Family Code section . . . 271 sanctions . . . ; The Court
Orders that [wife] shall be charged with the net sum of $100,207.38 from her sole share
of the Beverly [escrow] proceeds. The sum of $100,207.38 shall be paid from the
escrowed funds . . . and charged to the ultimate share of the escrowed funds which [wife]
is to receive . . . . []”
7
During the June 25th hearing, the court also ordered the parties to attend a
mediation on husband’s reimbursement claim. (See Code Civ. Proc., § 639.) The court
stated that if the parties were unable to reach an agreement, a pretrial conference would
be held on August 28, 2013. The court was scheduled to hear several other pending
motions on that date, including (among other things): (1) wife’s claim that husband had
been failing to pay her the full amount of the “equivalent payment” required under
section nine of the dissolution judgment; (2) wife’s request for escrow instructions
directing that husband issue her the $750,000 loan described in section 10 of the
judgment; (3) husband’s motion for possession of the parties’ Aston Martin; (4)
husband’s request for an executed deed to the Thayer residence; and (5) husband’s
motion for reduction in his child support payment.
b. The settlement
Following an unsuccessful mediation of husband’s reimbursement claim, the
parties returned to court on August 28, 2013. Because Judge Robert Willet’s courtroom
(the parties’ home court) was dark that day, the matters were heard by Judge Scott
Gordon, who continued the hearing until September 5, 2013. The parties agreed,
however, to participate in a mediation with Judge Gordon on September 3rd.
After a mediation held in Judge Gordon’s chambers, the parties announced they
had reached an agreement that resolved many of the issues pending between them. At
Judge Gordon’s request, the parties placed the terms of their settlement on the record.
Husband’s counsel stated that the parties had agreed to take the evidentiary hearing on
husband’s reimbursement claim off calendar and distribute the $2.8 million Beverly
escrow as follows: wife was to receive $862,000 with the remainder to husband. The
parties also agreed that: (1) husband would take possession of the Aston Martin and, in
exchange, pay $142,500 into an educational fund for the parties’ children; (2) husband
would resume paying the $4,000 equalization payment with no further offsets; (3) the
parties’ counsel would negotiate final escrow instructions directing the release of the
remainder of the $750,00 loan required under the judgment.
8
When asked whether the settlement included any other terms, husband’s counsel
stated: “[T]he other thing that we agreed on in chambers is that all attorney’s fees to
date, whether 2030 fees or 271 fees, are to be borne by each party,” clarifying that this
provision did not apply to any fees incurred after the date of the hearing (September 3,
2013). Wife’s counsel confirmed she agreed with this term of the settlement, explaining
that there would be no “additional motions based on conduct to date.” The court obtained
each party’s consent to the settlement and then directed them to prepare a written order of
settlement.
On October 2, 2013, the parties appeared before Judge Gordon to resolve various
disputes about the specific language that should be incorporated into the settlement order.
On the issue of attorney’s fees, husband requested that the settlement incorporate
language that tracked the statements counsel had made during the September 3rd hearing:
“All attorney’s fees up until and including September 3, 2013, whether § 2030 or § 271
are to be borne by each party. This does not include any litigation going forward.”
Wife’s counsel, however, requested that the provision include specific language
clarifying that it extended to any attorney’s fees that had previously been awarded to
either party as a sanction. Wife’s counsel asserted this language was consistent with the
agreement the parties had reached during the mediation in Judge Gordon’s chambers.
Judge Gordon questioned whether the two proposals differed in their effect, noting
that “the language of [the September 3rd] transcript” indicated that both sides had agreed
to bear all of the attorney’s fees they had accrued prior to the hearing date, including any
fees that were awarded as a sanction. Husband disagreed, stating that he believed he had
“a valid June 25th order [for attorney’s fees] . . . [and] . . . did not waive anything with
regard to that order . . .” Judge Gordon, however, explained that husband’s current
position conflicted with the language set forth in the September 3rd transcript: “[T]hat is
different than the settlement that you agreed to. . . . That is different than what that states.
Because the plain language of this is that . . . everyone bears their own costs historically,
that’s how this reads. So what [husband] is articulating is different, so you would have to
bring a motion to set [the settlement] aside because that is different.”
9
Ultimately, Judge Gordon elected to incorporate the language husband had
proposed, but clarified that he interpreted the language to mean “as of the date of
September 3rd, the parties have waived any kind of fee and they’re bearing their own
cost. And to go back and try to enforce an order [awarding fees] would be in conflict of
this. That’s the way I read that.” Husband’s counsel then requested the court to “clarify”
whether it was “ruling” on the meaning of the language in the settlement or merely
providing its “opinion” on the issue. In response, the court stated: “I indicated what I
think the judgment says. [¶ ] . . . . It’s very clear to me, that’s the judgment. . . . [T]hat’s
the order that I’m making. [¶] . . . . That’s the judgment. That’s as I understand the
settlement on its face. We’d have to bring a motion to set aside to do something other
than that.” The following exchange then followed:
HUSBAND: The question I’m asking is that when I get my writ of execution for
$110,000 –
COURT: If you do that, I think you’re violating the order and I think you’re
violating the settlement if you attempt to get a writ of execution.
HUSBAND: There would be a hearing on it.
COURT: It’s up to you. If you want to file a hearing in the home court, but
I’m telling you what I think the order clearly says.
HUSBAND: Well, okay.
COURT: You can bring a motion to set aside if you wanted.
After the hearing, Judge Gordon signed a written order of settlement stating, in
relevant part: “11. All attorney’s fees up until and including September 3, 2013, whether
§ 2030 or § 271 are to be borne by each party. This does not include any litigation going
forward. Any additional motions or litigation on the remaining issues, if unable to be
settled, or any fees claims past September 3, 2013, are fine.”
10
c. Wife’s motion to quash husband’s writ of execution
On January 10, 2014, husband, acting pro per, obtained two writs of execution that
sought to enforce the prior attorney’s fees awards related to the omitted asset claim and
the motion to set aside the judgment. After wife was informed her accounts had been
levied, she filed a motion to quash the writs of execution arguing that Judge Gordon had
specifically found paragraph 11 of the settlement precluded husband from enforcing
those awards. In support of her motion to quash, wife filed a request for judicial notice
requesting that the court take notice of the settlement order and the transcripts from the
September and October settlement hearings before Judge Gordon.
In opposition, husband argued that paragraph 11 related solely to attorney’s fees
that had been incurred in litigating the specific claims and motions the parties had
resolved through the settlement, which did not include the omitted asset claim or the
motion to set aside the judgment. Husband contended that because paragraph 11 did not
specifically reference the February 27th or June 25th orders awarding him attorney’s fee
pursuant to section 271, the settlement did not preclude enforcement of those orders.
Husband also argued the court should not consider the statements Judge Gordon made at
the October hearing “regarding the interpretation of the [settlement] order . . . because
Judge Gordon was [sitting as] a non-decisional making neutral” when he made those
comments. As with wife, husband filed a request for judicial notice requesting the court
take notice of the transcript from the October 2nd hearing.
Judge Willet denied wife’s motion to quash the writs of execution. The court
concluded that paragraph 11 only applied to attorney’s fees that related to the two
motions identified in paragraphs one and two of the settlement order, which included
wife’s motion for escrow instructions requiring disbursement of the $750,000 loan and
husband’s motion for possession of the Aston Martin and an executed deed to the Thayer
residence. The court explained that because both motions had “included requests for 271
sanctions, it [was] clear that [paragraph 11] resolved th[ose] pending requests for
sanctions. There is absolutely nothing in [paragraph] that waives either party’s right to
collect on previous orders for sanctions entered in this matter.”
11
Although the trial court acknowledged that both parties had requested it take
judicial notice of the transcript of the October 2nd hearing, it declined to do so because
neither party had provided a copy of the transcript that “contain[ed] a clerk’s stamp or
conforming stamp indicating that the original [wa]s part of the court’s file.” The order
did not discuss the statements Judge Gordon had made at the October 2nd hearing.
2. The settlement order precludes enforcement of the February 27th and June
25th orders awarding husband attorney’s fees as a section 271 sanction
Wife argues the trial court should have granted her motion to quash because the
parties’ settlement precluded husband from enforcing the prior attorney’s fees awards on
which his writs of execution were predicated. Wife contends that, consistent with Judge
Gordon findings at the October 2nd hearing, the language of paragraph 11 requires both
parties to bear any attorney’s fees they incurred prior to September 3, 2013, which
necessarily includes any fees awarded as a section 271 sanction. Husband, however,
contends that Judge Willet properly concluded paragraph 11 was only intended to apply
to attorney’s fees that were incurred in litigating the two motions that were specifically
referenced in the settlement order.
“A settlement agreement is interpreted according to the same principles as any
other written agreement. [Citations.] It must be interpreted to give effect to the mutual
intent of the parties as it existed at the time, insofar as that intent can be ascertained and
is lawful. [Citations.].” (Leeman v. Adams Extract & Spice, LLC (2015) 236
Cal. App. 4th 1367, 1374.) “The mutual intention to which the courts give effect is
determined by objective manifestations of the parties’ intent, including the words used in
the agreement, as well as extrinsic evidence of such objective matters as the surrounding
circumstances under which the parties negotiated or entered into the contract; the object,
nature and subject matter of the contract; and the subsequent conduct of the parties.
[Citations.] [¶] . . .[¶] Extrinsic evidence is . . . admissible to interpret the language of a
written instrument, as long as such evidence is not used to give the instrument a meaning
to which it is not reasonably susceptible.” (Morey v. Vannucci (1998) 64 Cal. App. 4th
12
904, 913 (Vannucci); see also In re Marriage of Iberti (1997) 55 Cal. App. 4th 1434, 1439;
Jacobson v. Jacobson (1963) 211 Cal. App. 2d 580, 583.)
The interpretation of a written agreement is a question of law which we review de
novo “where (a) the trial court’s . . . interpretation is based solely upon the terms of the
written instrument without the aid of extrinsic evidence; [or] (b) there is no conflict in
the . . . extrinsic evidence. . . .” (Vannucci, supra, 64 Cal.App.4th at p. 913.) “This is
true even when conflicting inferences may be drawn from the undisputed extrinsic
evidence. . . . If, however, there is a conflict in the extrinsic evidence, the factual conflict
is to be resolved by the [trier of fact].” (Wolf v. Walt Disney Pictures and Television
(2008) 162 Cal. App. 4th 1107, 1126.)
“To ascertain the intent of the parties, we must first resort to the language of the
[agreement] itself.” (Rancho Pauma Mutual Water Company v. Yuima Municipal Water
District (2015) 239 Cal. App. 4th 109, 115 (Rancho Pauma).) Paragraph 11 of the
settlement order states: “All attorney’s fees up until and including September 3, 2013,
whether § 2030 or § 271, are to be borne by each party. This does not include any
litigation going forward. Any additional motions on the remaining issues, if unable to be
settled, or any fees claims past September 3, 2013 will be fine.” While not a model of
clarity, the language of paragraph 11 essentially provides that: (1) each party will bear
“all” attorney’s fees he or she incurred prior to September 3, 2013; (2) the parties are not
prohibited from filing motions for attorney’s fees incurred on any matters (including any
pending matters not resolved by the settlement) litigated after September 3, 2013. There
is no language in the provision excluding attorney’s fees incurred prior to September 3,
2013 that were the subject of a section 271 sanction award. Indeed, paragraph 11
specifically references “§ 271,” suggesting the parties did intend that their agreement
would include attorney’s fees previously awarded as a section 271 sanction. Because
husband’s omitted asset claim and wife’s motion to set aside the dissolution judgment
were both fully adjudicated prior to September 3, 2013, the language of paragraph 11
requires the parties to bear the fees they incurred in relation to those matters, thereby
precluding enforcement of the February 27th and June 25 attorney’s fee orders.
13
This interpretation is supported by “extrinsic evidence . . . of the circumstances
under which the parties negotiated or entered into the [settlement].” (Manufactured
Home Communities, Inc. v. County of San Luis Obispo (2008) 167 Cal. App. 4th 705, 714;
see generally Rancho Pauma, supra, 239 Cal.App.4th at p. 115 [“We may . . . consider
extrinsic evidence where it will assist in determining a contract’s meaning: ‘“[T]he test of
admissibility of extrinsic evidence . . . is . . . whether the offered evidence is relevant to
prove a meaning to which the language of the instrument is reasonably susceptible.
[Citations.]” [Citation.]’ [Citation.]”].4) At the time the parties entered into their
settlement agreement, wife was not yet obligated to pay the section 271 attorney’s fees
the court had awarded at the February and June hearings. At both hearings, the trial court
clarified that wife would only be required to pay those awards after husband’s
reimbursement claim had been resolved and the Beverly escrow proceeds had been
distributed between them. Moreover, at the June 25th hearing, the parties specifically
agreed husband’s $109,000 attorney’s fees award was to be paid directly from the
Beverly escrow and charged against wife’s share of those proceeds. At the September
3rd hearing, the parties announced they had reached a settlement on how to divide the
Beverly escrow proceeds, which effectively resolved husband’s reimbursement claim.
The parties explained that under their agreement, wife was to receive $862,000 from the
escrow and that husband would receive the remainder, later adding that they had further
agreed “all prior attorney’s fees,” including “271 fees,” would be “borne by each party.”
The parties did not make any statements suggesting that wife’s portion of the escrow was
to be reduced an additional $114,000 to pay for the prior attorney’s fees awards. The
parties’ statements and conduct at the September 3rd hearing suggest that they intended
any prior attorney’s fees awards, including those awarded under section 271, were to be
subsumed into the distributions they had agreed to in the settlement. This is consistent
with the language of paragraph 11.
4 Neither party has objected to our consideration of extrinsic evidence; indeed, both
parties submitted extrinsic evidence in the trial court and rely on extrinsic evidence on
appeal.
14
Husband, however, argues paragraph 11 should be interpreted more narrowly,
contending that other language in the settlement shows the attorney’s fee provision was
only intended to apply to fees incurred in relation to two motions identified in paragraphs
one and two of the document, which state: “1. This order resolved the Requests for
Orders filed by [wife] on June 12, 2013 for Entry of Escrow Instructions and Release of
funds. [¶] 2. This Order resolves the Request for Order filed by [husband] on June 17,
2013.” Wife’s June 12th “request for order” (RFO) sought escrow instructions directing
the release of the loan described in sections 10 and 6.1.a.6(c) of the dissolution
judgment.5 Husband’s June 17th RFO sought possession of the parties’ Aston Martin and
a deed to the Thayer residence. Husband contends that because the June 12th and June
17th RFOs were each accompanied by a “‘request[] for 271 sanctions, it is clear that
paragraph 11 [only] resolved [those] pending requests for [attorney’s fees] sanctions.’”
Thus, husband effectively contends we should interpret paragraph 11 as applying only to
attorney’s fees incurred in litigating the RFOs that were actually resolved through the
settlement.
There are several problems with this interpretation. First, contrary to husband’s
suggestion, the June 12th and June 17th RFOs were not the only issues resolved through
the settlement. Indeed, the parties’ agreement addressed a wide range of additional issues
that were pending between them, including: (1) husband’s reimbursement claim for the
costs he incurred in renovating the Beverly residence; (2) division of the Beverly escrow
proceeds; (3) husband’s compliance with the “equalization payment” requirement set
forth in section nine of the judgment; and (4) the parties’ respective obligations to pay
5 Section 10 of the judgment provided that husband would issue wife a “non-interest
bearing” loan of $750,000 upon the close of escrow of the sale of the Beverly Drive
residence.” Section 6.1.a.6(c), in turn, provided that “an escrow shall be opened by
[wife] and [husband] to document, disburse, and record [the] $750,000 . . . loan,” which
was to be secured by a deed of trust to the Malibu residence.
15
any costs that might result from a pending “Borson motion.”6 Given the wide range of
issues addressed in the agreement, we find no basis to conclude that paragraph one and
two’s references to the June 12th and 17th RFOs shows that paragraph 11 was limited to
fees incurred in litigating those two specific matters.
Moreover, husband’s proposed interpretation is not consistent with the language of
the attorney’s fees provision. Paragraph 11 contains no language suggesting it was
limited to fees incurred in litigating the June 12th and June 17th RFOs. Rather, as
explained above, the provision states that each party agreed to bear “all” attorney’s fees
he or she had had incurred “up until and including September 3, 2013.” Husband’s
interpretation would effectively require us to read a limitation into the provision—that
it applied only to fees related to the June 12th and June 17th RFOs—that does not exist.
(Klein v. Chevron U.S.A., Inc. (2012) 202 Cal. App. 4th 1342, 1385-1386
[“when ‘constru[ing] an instrument, . . . [courts may] “not . . . insert what has been
omitted, or . . . omit what has been inserted . . . .”’ [Citations.]”] [citing Edwards v.
Arthur Andersen LLP (2008) 44 Cal. 4th 937, 954 & Code Civ. Proc., § 1858].)
Husband’s interpretation would also render meaningless a portion of the language that
does appear in Paragraph 11. (See Brandwein v. Butler (2013) 218 Cal. App. 4th 1485,
1507 [“when interpreting a contract, we strive to interpret the parties' agreement to give
effect to all of a contract’s terms, and to avoid interpretations that render any portion
superfluous, void or inexplicable.”].) If the provision was only meant to apply to fees
incurred in litigating the June 12th and June 17th RFOs—both of which were explicitly
resolved through the settlement announced on September 3rd—there would have been no
reason to include language stating that the provision only applied to fees incurred on or
before September 3, 2013 and that it did not apply to “any litigation going forward.” Had
the parties merely intended paragraph 11 to apply to the June 12th and June 17th RFOs,
6 A “Borson motion” permits “a discharged attorney to pursue a request for direct
fee payment from the former client's spouse if the request is expressly or impliedly
authorized by the former client.” (In re Marriage of Erickson & Simpson (2006) 141
Cal. App. 4th 707, 709; see also In re Marriage of Borson (1974) 37 Cal. App. 3d 632.)
16
they could have stated as much in the agreement. By choosing broader language
referencing “all attorney’s fees” incurred on or before September 3, 2013, we must
presume they had a broader intent.
Given the broad phrasing of paragraph 11, and its specific reference to section
271, we conclude the provision was intended to preclude enforcement of any section 271
awards that related to attorney’s fees incurred prior to September 3, 2013. Accordingly,
the court should have granted wife’s motion to quash the writs of execution.7
B. The Trial Court Did Not Err in Ordering Wife to Return Property She
Removed from the Thayer Residence
1. Factual Summary
On September 20, 2013, husband filed a motion for an order requiring wife to
return various items she had removed from the Thayer residence, including (among other
things) two floor lamps, a vase, a blender, a “large wooden bucket” and a “statue of a
bear that sat on the fireplace mantle.” In support of these requests, husband cited
language in section 6.2.a of the dissolution judgment stating that he was awarded “[a]ll of
the parties’ right title and interest in [the Thayer residence], together with all furniture,
furnishings and artwork therein.”
In opposition, wife argued that husband’s request was barred by paragraph 12 of
the settlement order, which states: “There will be no additional motions based on
conduct prior to September 3, 2013.” Although wife admitted she had removed the items
from the Thayer residence, she asserted that paragraph 12 precluded husband from
seeking their return because she had removed the items before September 3, 2013.
The court rejected wife’s argument, explaining that the language in paragraph 12
did not “eliminate the obligation of the parties to comply with court orders entered before
that date. A continuing violation of the court order is not excused by that settlement.”
7 Based on our interpretation of the settlement order, we need not address the
parties’ disputes regarding whether we should consider the transcript of the October 2nd
hearing and what effect, if any, we should assign to the comments Judge Gordon made at
that hearing regarding the meaning of paragraph 11.
17
The court further explained that “the [dissolution] judgment . . . obligate[d] the [wife] to
turn over . . . all furniture, furnishings and artwork. So her obligation to do that
continued. And the items . . . that fall within that category are the antique matching floor
lamps, the bear statue, . . . the ten-inch high vase, the blender, and the large wooden
bucket . . . All of that was encompassed by that judgment.”
In response, wife’s counsel questioned whether the bear statue should be included
in the court’s order because wife had “inherited [the item] from her [parent] when she
died.” The court disagreed, explaining that husband was entitled to the statue “[b]ecause
it is artwork, and that is what the judgment said. It didn’t say separate property or
community property. It just says artwork in the house.” Following the hearing, the court
issued a written order requiring wife to return items she removed from the Thayer
residence, including the bear statue.
2. The settlement agreement did not permit wife to continue withholding property
that was assigned to husband under the terms of the judgment
Wife asserts the trial court committed two errors in granting husband’s request that
she be ordered to return property she removed from the Thayer residence. First, wife
asserts that “under the plain terms of the [settlement agreement], [h]usband was barred
from bringing . . [a motion] based on the ‘conduct’ . . . which was alleged to have
occurred prior to September 3, 2013.” Second, she argues that the court erred in ordering
her to return the bear statue because she provided evidence showing the statute was her
separate property.
Wife’s first argument is predicated on paragraph 12 of the settlement order, which
provides that the parties would bring “no further or additional motions based on conduct
prior to September 3, 2013.” Even if we were to assume this language was actually
intended to preclude motions based on any conduct occurring before September 3, 2013,
husband’s request for the return of his property does not fall within that prohibition. The
conduct at issue in husband’s motion was wife’s refusal to return property that had been
assigned to him under the terms of the dissolution judgment. Wife’s withholding of
18
husband’s property was a continuing act in violation of the judgment that persisted after
September 3, 2013.
We also reject wife’s contention that she should have been permitted to retain the
“bear statue” based on evidence that she inherited the statue from her parent. As
explained by the trial court, regardless of whether the bear statue initially qualified as her
separate property, the terms of the dissolution judgment transmuted the statue to
husband’s separate property.
Family Code section 850 states in part: “Subject to Sections 851 to 853, inclusive,
married persons may by agreement or transfer, with or without consideration, do any of
the following: [¶] . . . [¶] (c) Transmute separate property of one spouse to separate
property of the other spouse.” Section 852, subdivision (a) states: “A transmutation of
real or personal property is not valid unless made in writing by an express declaration
that is made, joined in, consented to, or accepted by the spouse whose interest in the
property is adversely affected.” A statement qualifies as an “express declaration” within
the meaning of section 852 if it “expressly stat[es] that a change in the characterization or
ownership of the property is being made. [Citation.] . . . . [¶] An ‘express declaration’
does not require use of the terms ‘transmutation,’ ‘community property,’ ‘separate
property,’ or a particular locution. [Citation.]” (In re Marriage of Starkman (2005) 129
Cal. App. 4th 659, 663-664 [citing and quoting Estate of MacDonald (1990) 51 Cal. 3d
262, 272-273].) Thus, section 852 “requires only a clear demonstration of a change in
ownership or characterization of the property at issue.” (In re Marriage of Barneson
(1999) 69 Cal. App. 4th 583, 593.)
The dissolution judgment contains express language confirming that any prior
interest wife may have had in the bear statue was transferred to husband as his separate
property. Section 5 of the judgment states that although the parties had previously
disputed “what constitutes their community, quasi-community property, and separate
property[,] . . . [they] ha[d] resolved such issues and . . . agreed that their property
(regardless of how characterized) shall be divided between them” in the matter set
forth in the judgment. Section 6.2 of the judgment further states: “The following assets
19
are . . . awarded to [husband] and/or confirmed as his sole and separate property and
[wife] shall have no right, title or interest in or to them. Any right, title or interest which
[wife] may have is hereby assigned and transferred to [husband][:] . . . [¶] All of the
parties’ right, title and interest in the real property located at 624 Thayer Ave. . . . .
together with all furniture, furnishings and artwork therein.” These provisions expressly
declare that, regardless of what property rights the parties may have had prior to entry of
the stipulated judgment, all “furnishings” and “artwork” within the Thayer residence
qualified as husband’s separate property. Wife has presented no argument or authority
suggesting that the bear statue, which sat on the mantel of a fireplace within the Thayer
residence, did not qualify as a furnishing or artwork. Thus, under the terms of the
judgment, husband was entitled to the statue.
CASE NUMBER B253728
In Case Number B253728, wife appeals the trial court’s order modifying
husband’s child support payment. We reverse, concluding that the court erred in
calculating wife’s gross income and by failing to provide a statement of decision.
A. Factual Background
1. Summary of request for modification of the child support payment
On June 13, 2013, husband filed a request for an order reducing the monthly child
support payment from $7,000 (the amount set forth in the dissolution judgment) to
approximately $4,000 a month.8 Husband argued the reduction was justified because his
overall monthly income had dropped more than 50% [percent] during the prior twelve-
month period. Husband asserted that the decrease in income was primarily caused by a
reduction in his “self-employment income”—i.e., profits from his law firm—which had
8 Husband initially sought to reduce the child support payment to approximately
$3,000 a month, which was based on a 25% [percent] timeshare of custody. However,
while his request for modification was pending, a dependency matter arose that resulted
in wife taking full custody of both children. To address this change in timeshare,
husband amended his reduction request from approximately $3,000 a month to
approximately $4,000 a month.
20
fallen from $39,500 a month to $7,200 a month. In support of these assertions, husband
provided “profit and loss” statements showing that his law firm’s revenue over the prior
12-month period was more than $500,000 less than the firm’s average revenue during the
previous three-year period. Husband also asserted wife’s monthly income had increased
over the past 12 months from $7,900 to over $18,000 because she was now receiving
spousal support.
Wife opposed the modification request, arguing that husband had significantly
understated his “self-employment income” by deducting numerous “business expenses”
from his law firm’s revenue that were actually “personal expenses.” In support, wife
provided a declaration from Jennifer Ziegler, a forensic accounting expert, who had
reviewed deposition testimony and documents that husband had provided in support of
his modification request. Ziegler identified numerous categories of deducted business
expenses she believed to be personal in nature, including (among other things): fees
husband had paid to administer his personal retirement accounts ; personal automobile
and mileage expenses ; personal travel and entertainment expenses; and fees and costs
husband had incurred in personal litigation, including payments for legal services that he
had made to his son.
Wife also argued husband’s income and expense declaration substantially
overstated her own income by including the spousal support payment and the
equalization payment required under the terms of the judgment. Wife contended these
payments should not be attributed as income because husband had routinely failed to
make them.
In his reply brief, husband argued wife had presented no evidence disputing that
his law firm’s revenue had dropped over $500,000 during the prior 12-month period.
According to husband, this fact alone warranted a reduction in child support. Husband
also argued that the categories of “business expenses” to which wife had objected were
“no different in category or type” than the expenses he had claimed when calculating his
income for purposes of the dissolution judgment. Husband asserted that because wife
had not challenged such business expenses in the past, she should not be permitted to do
21
so now. Husband also provided a declaration stating that many of the individual
expenses Ziegler had identified in her declaration were “legitimate” business expenses,
including his automobile and entertainment expenditures.
2. Hearing on modification request
At the motion hearing, husband’s counsel emphasized that the undisputed
evidence showed the revenue of husband’s firm had declined over $500,000 in the prior
12 months, thereby demonstrated a change in circumstance warranting a reduction in
child support. Counsel also argued the firm’s profit and loss statements showed the firm
had reduced its business expenses by more than $200,000 over the same 12-month
period, undermining wife’s theory that husband was inflating such expenses to understate
his self-employment income. Husband’s counsel further asserted that it was appropriate
to include the spousal support payment in wife’s income because the parties had recently
reached an agreement that would require husband to begin disbursing those payments in
full.
Wife’s counsel argued that husband had made no evidentiary showing that the
expenses Ziegler had identified in her expert declaration were properly deducted as
“business expenses” rather than personal expenses. According to counsel, the only
argument husband had presented regarding the deductions was that they were proper
because he had “been doing it [the same way] for years.” On the issue of spousal
support, wife’s counsel did not dispute the parties had reached an agreement regarding
disbursement of the payments, but argued that it would be improper to attribute those
amounts as income until husband actually complied with their agreement.
The court granted husband’s modification request, concluding that wife had not
shown any of the business expense deductions were improper: “The court is satisfied
based on the totality of the evidence that it would be inappropriate and the court exercises
its discretion not to include as taxable income the business expenses at issue between the
parties and which have not previously been conceded. I’ve looked at Ms. Ziegler’s
declaration and I’m not persuaded that in those instances where Mr. Reed has not
22
conceded the point, that there’s an appropriate adjustment to be made there.” The court
also elected to include wife’s forthcoming spousal support payments and her equalization
payments as income.9
After the court announced its ruling, wife’s counsel requested a “statement of
decision” on several issues related to the modification request, including the “change of
circumstance” that warranted a reduction in the child support; “calculation of [husband’s]
income” and “calculation of [wife’s] income.” The court denied the request, explaining
that it did not believe a statement was required unless the hearing was more than four
hours. Following the hearing, the court issued an order stating: “Child Support from
July 24 forward shall be $4,061 per month.”10
B. Discussion
Wife contends the court committed several errors that require reversal of the child
support order, including: (1) treating her spousal support payment as part of her gross
income; (2) failing to provide a statement of decision; (3) failing to “add back
[h]usband’s personal expenses to his business income”; and (4) “fail[ing] to include as
income husband’s withdrawals from his retirement plans.”
“‘“[T]he trial court’s determination to grant or deny a modification of a support
order will ordinarily be upheld on appeal unless an abuse of discretion is demonstrated.”
[Citation.] Reversal will be ordered only if prejudicial error is found after examining the
record of the proceedings below. [Citation.] However, questions relating to the
interpretation of statutes are matters of law for the reviewing court. [Citation.]’”
(In re Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1150-1151.)
9 The court ruled on various other issues wife had raised that are not directly
relevant to this appeal, including whether to include the following sums in husband’s
gross income: social security payments; contributions made to his 401(k) account and
monthly interest that had accrued on the funds in various retirement accounts.
10 The order further provided that husband’s child support payment from June 13,
2013 (the date on which the request for modification was filed) until July 23, which was
the last date on which the husband had a custody share of children, was to be $3,207.
23
1. The trial court erred in treating wife’s spousal support payment as
gross income
Wife argues that, under Family Code section 4058, the court was not permitted to
include her spousal support payment as gross income when calculating child support.11
We agree.
“California has adopted a ‘statewide uniform guideline’ for determining child
support according to a complex formula based on each parent’s income and custodial
time with the child.” (In re Marriage of McHugh (2014) 231 Cal. App. 4th 1238, 1245
(McHugh); see also §§ 4050 & 4055.) “The family law court uses an algebraic formula
to calculate the presumptively correct amount of child support. (§ 4055.) In computing
guideline child support, the family law court first determines each parent’s annual gross
income. Section 4058, subdivision (a) defines gross income expansively: ‘The annual
gross income of each parent means income from whatever source derived, except as
specified in subdivision (c) and includes, but is not limited to, the following: [¶] (1)
Income such as commissions, salaries, royalties, wages, . . . unemployment insurance
benefits, . . , social security benefits, and spousal support actually received from a person
11 Husband argues wife forfeited this argument by failing to raise it in the trial court.
Although wife argued her spousal support should not be considered part of her gross
income until husband began making the payment, she never argued that her spousal
support payment should have been excluded from her gross income based on section
4058. A party’s “failure to present an issue to the trial court generally forfeits it on
appeal[. However], we [retain] discretion to consider the issue to the extent it presents a
pure question of law or involves undisputed facts. [Citations.]” (People v. Mitchell
(2012) 209 Cal. App. 4th 1364, 1370; Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal. 4th 1, 24.) In this case, whether the trial court erred by including wife’s spousal
support payment when calculating her gross income is a pure question of law. Moreover,
there are compelling reasons to review the issue. “[A] child support obligation ‘. . . runs
to the child and not the parent. [Citation.]’ [Citations.]” (In re Marriage of Comer
(1996) 14 Cal. 4th 504, 517 (Comer).) “In essence, the parent, to whom such support is
paid, is but a mere conduit for the disbursement of that support.” (Williams v. Williams
(1970) 8 Cal. App. 3d 636, 640.) Thus, “‘the actions of one parent should not diminish the
child’s right to support.’ [Citation.]” (Comer, supra, 14 Cal.4th at p. 517.) Given these
principles, it would be inappropriate to deny review of an alleged error in calculating the
child support payment based solely on wife’s failure to raise the issue.
24
not a party to the proceeding to establish a child support order under this article. . . .’
Section 4058, subdivision (c) excludes from annual gross income any child support
received for children of other relationships and payments from public assistance
programs.” (In re Marriage of Corman (1997) 59 Cal. App. 4th 1492, 1498 (Corman).)
As wife correctly notes, our courts have repeatedly interpreted section 4058 to
exclude from gross income any spousal support payment received from a party to the
child support proceeding: “Although section 4058 defines gross income broadly, and
party spousal support is not expressly excluded, the only type of spousal support
specifically included in gross income is spousal support from a person who is not a party
to the child support proceeding. By necessary implication, the Legislature did not intend
the inclusion of spousal support from a person who is a party to the proceeding.
Otherwise, spousal support, without qualification, would have been included in the list of
qualifying income. Thus, the specific inclusion of nonparty spousal support as gross
income impliedly excludes party spousal support, despite the expansive initial definition
of gross income.” (Corman, supra, 59 Cal.App.4th at p. 1498; In re Marriage of Stanton
(2010) 190 Cal. App. 4th 547, 561 [following Corman’s reasoning].)
Husband does not argue that these cases were wrongly decided nor does he dispute
that they apply here. Instead, he asserts that excluding wife’s spousal support from her
gross income will result in a “de minimus change to the child support award.” Even
assuming that such error need not be addressed if only a small change would result,
husband has provided no evidence demonstrating what impact the exclusion of the
spousal support payment would actually have on the amount of the child support
payment.
2. The trial court erred in failing to provide a statement of decision
Wife also contends the trial court erred when it denied her request to provide a
statement of decision.12 The hearing transcript shows that wife requested a statement of
12 Husband argues that wife has forfeited any argument regarding the court’s failure
to provide a statement of decision because she did not raise the issue until her reply brief.
“‘Points raised for the first time in a reply brief will ordinarily not be considered, because
25
decision regarding, among other things, the “change of circumstances” justifying a
modification in the child support payment, calculation of husband’s income and
calculation of her income. The trial court denied the request, explaining that it did not
believe “the hearing . . . justified having a statement of decision.”
The trial court’s ruling conflicted with the requirements of Family Code section
3654, which states: “At the request of either party, an order modifying, terminating, or
setting aside a support order shall include a statement of decision.” Section 3654 thus
requires that “[w]hen modifying a support order, the trial court must provide a statement
of decision explaining its ruling if requested by either parent. [Citations.] [The]
statement . . . must provide the factual and legal basis for the trial court’s decision as to
each of the principal controverted issues.” (McHugh, supra, 231 Cal.App.4th at p. 1248
[emphasis omitted].) The requirement set forth in section 3654 “is as much, or more, for
the benefit of the Court of Appeal as for the parties. [The statement of decision] ‘is our
touchstone to determine whether or not the trial court’s decision is supported by the facts
and the law. [Citation.]’ [Citation.]” (In re Marriage of Sellers (2003) 110 Cal. App. 4th
1007, 1010.)
Although husband concedes error, he contends that the court’s failure to provide a
statement of decision was harmless because “[t]he record demonstrates that the [trial
court] . . . articulated its factual findings and the legal basis for its ruling.” In support,
husband cites the trial court’s oral statements that it had had reviewed Ziegler’s
declaration and was “not persuaded that” any adjustments should be made to husband’s
business income due to improperly deducted personal expenses.
such consideration would deprive the respondent of an opportunity to counter the
argument.’” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1538 ; see also Varjabedian
v. City of Madera (1977) 20 Cal. 3d 285, 295, fn. 11; People v. Superior Court of Los
Angeles County (2015) 234 Cal. App. 4th 1360, 1384 [“raising arguments for the first time
in a reply brief is unfair to the other parties, who lack an opportunity to respond”].) In
this case, however, we permitted husband to file a surreply brief addressing the merits of
wife’s assertion that the court’s failure to provide a statement of decision constituted
reversible error. He has therefore been provided an adequate opportunity to address the
issue.
26
Even if we were to assume for the purposes of this appeal that a trial court’s
failure to provide a statement of decision required under section 3654 may be deemed
harmless where the court otherwise discloses the legal and factual basis for its decision,
the trial court did not do so here.13 Although wife requested a statement of decision on
the issue of whether husband proved a change of circumstance justifying the proposed
modification, husband has cited no portion of the record in which the trial court
specifically addressed that particular issue. (See generally In re Marriage of Laudeman
(2001) 92 Cal. App. 4th 1009, 1015 [when seeking to modify a child support order, a party
must demonstrate a change in circumstances justifying the proposed modification].)
Wife also requested a statement of decision regarding the calculation of husband’s
income. The primary argument wife raised in opposing any modification to the child
support was that husband had understated his “self-employment income” by improperly
deducting business expenses from his law firm’s revenue that were in fact personal
expenses. In support, wife provided an expert declaration supported by almost 500 pages
of exhibits identifying 18 categories of expenses that were improperly attributed as
“business expenses.” The trial court’s assertion that it was “not persuaded” by Ziegler’s
declaration or the evidence she had relied on is not sufficient to inform the parties of the
factual or legal basis for its ruling.
Third, wife asked the court for a statement of decision on the calculation of her
income. The court, however, provided no explanation why it rejected wife’s argument
13 Numerous decisions have held or implied that a “trial court’s failure to file a
statement of decision following a timely request constitutes ‘per se reversible error’
[citations]” and is therefore not subject to harmless error analysis. (Wallis v. PHL
Associates, Inc. (2013) 220 Cal. App. 4th 814, 825; see also Espinoza v. Calva (2008) 169
Cal. App. 4th 1393, 1397-1398; Sellers, supra, 110 Cal.App.4th at p. 1010 [“a trial court’s
failure to render a statement of decision is reversible error”]; In re Marriage of Ananeh–
Firempong (1990) 219 Cal. App. 3d 272, 282-284; Social Service Union v. County of
Monterey (1989) 208 Cal. App. 3d 676, 681; Miramar Hotel Corp. v. Frank B. Hall & Co.
(1985) 163 Cal. App. 3d 1126, 1127-1130.) The issue is currently pending before the
Supreme Court. (See F.P. v. Monier, 222 Cal. App. 4th 1087, review granted April 16,
2014, S216566 [granting review on “whether a trial court’s error in failing to issue a
statement of decision upon a timely request is reversible per se”].)
27
that husband had overstated her income by attributing $4,000 a month in income from an
“equalization payment” that husband routinely failed to pay in full. The court also did
not address why the spousal support payment was included in her income, which (as
discussed above) was clearly error.
We remand for the trial court to issue a statement of decision on the issues wife
has requested.
DISPOSITION
The order modifying the child support payment is reversed and remanded for a
rendering of the statement of decision and a recalculation of the child support payment.
The order denying Christine Reed’s motion to quash the writs of execution is
reversed and the trial court is directed to enter a new order granting the motion. The
order granting Martin Reed’s request for the return of property removed from the Thayer
residence is affirmed. The parties shall bear their own costs and attorneys fees on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
BECKLOFF, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
28