Filed 8/29/18 Marriage of Von Hurst CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of RICHARD and LINDA ELIZABETH VON HURST.

RICHARD HUGHES VON HURST,

Respondent,

v.

LINDA ELIZABETH VON HURST,

Appellant.

E067485

(Super.Ct.No. SWD1200551)

OPINION

APPEAL from the Superior Court of Riverside County. Mickie Elaine Reed, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Iris Joan Finsilver for Appellant.

Law Offices of Keith M. Velleca and Keith M. Velleca for Respondent.

The family court entered a judgment of dissolution of the marriage of Richard Von Hurst (Husband) and Linda Von Hurst (Wife). The family court ordered that Husband did not have to pay spousal support to Wife until Wife moved to her own residence and became self-supporting; when those conditions were met, Husband would be required to pay $389 per month in spousal support.

Prior to trial, Wife subpoenaed Irene Cheung, who was Husband’s girlfriend, to attend a deposition. Wife requested Cheung produce any and all documents relating to money Cheung loaned or gave to Husband. After the deposition, Wife served a deposition subpoena seeking production of Cheung’s American Express credit card statements. (Code Civ. Proc., § 2020.010.) The American Express statements were not produced and Wife brought a motion to compel. The family court denied Wife’s motion to compel.

Wife raises four issues on appeal. First, Wife contends the family court abused its discretion by denying her motion to compel. Second, Wife contends the family court erred in calculating spousal support. Third, Wife contends the family court erred by delegating the obligation to pay spousal support. Fourth, Wife contends the family court violated her right of equal protection. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND

Husband and Wife were married for 27 years 10 months. In 2016, Husband was 65 years old; Wife was 62 years old. Husband and Wife shared an adult son. The family court made the following findings: “[T]he parties had an artificially high standard of living as they lived beyond their means during marriage, having two bankruptcies during marriage, using up their retirement plans, borrowing money from other people and living on credit and living on credit lines. The parties had an unreasonable standard of living even though they lived a great lifestyle, because it was not a real one, which was going to crash and it did. . . . [T]hough the parties lived at a country club, went on vacations and drove fancy cars, . . . their standard of living was false.” Husband petitioned for dissolution of the marriage in March 2012.

B. 2013 REQUEST

In May 2013, Wife filed a request for an order increasing her temporary spousal support. Wife requested the spousal support be based upon Husband’s earning capacity or the amount of gifts he received each month from Cheung. Wife explained that, during most of the marriage, Husband was employed as a financial advisor. One day, Wife arrived home to find Husband moved out of the home; Husband took everything of value, including their cash. Husband moved to San Francisco to live with Cheung, who was a “multimillionaire.” Rather than work, Husband was supported by Cheung. Wife asserted that Husband was “living a lavish lifestyle of travel, entertainment, and socializing in New York and San Francisco.”

Wife contended she had no money other than the $326 in monthly spousal support. Wife asserted she was unable to work due to depression, an inability to stand for long periods, a 2009 thyroid cancer diagnosis, and not having been employed since 1983. On July 3, Husband submitted an income and expense declaration. Husband declared he was a self-employed financial advisor with no income. Husband estimated his monthly expenses were $565. On July 16, the family court, in particular Commissioner Olson, imputed an income of $5,000 to Husband, and ordered Husband to pay $1,752 per month in temporary spousal support.

C. CONTEMPT

In September 2013, Wife filed an order to show cause re: contempt, due to Husband not paying spousal support. Husband requested the spousal support order be terminated or modified. Husband explained that he had been unemployed since December 2012. Husband’s employment was terminated and his clients taken from him after Wife reported to police that Husband stole their son’s identity to obtain credit cards. In September 2013, Husband was living in the home of a friend who was abroad, and who was not charging Husband rent. Husband was living on money borrowed from friends. Husband had taken two trips. The flights were paid for with frequent flier miles and friends paid for his other expenses.

In October 2013, Husband filed an income and expense declaration. Husband declared he was self-employed with no income, and his estimated monthly expenses were $1,496 if spousal support were $326. The family court denied Husband’s request to modify or terminate spousal support.

In February 2014, Wife again filed an order to show cause re: contempt due to Husband not paying the required spousal support. Husband paid $326, rather than $1,752 each month. The family court found Husband to be in contempt. The court sentenced Husband to 100 hours of community service, and suspended a sentence of 216 hours in the county jail.

D. DISCOVERY

Cheung was served with a deposition subpoena. Cheung was asked to produce any and all documents concerning money Cheung paid for Husband’s living expenses and vacation expenses. Cheung objected to the requests for the production of documents. Cheung was deposed on March 7, 2016. Cheung testified that Husband had not paid any travel expenses for the trips he took with Cheung from December 2011 through March 7, 2016. Cheung explained, “He doesn’t have any money.”

Cheung said Husband had been permitted to occasionally use her credit card, but “that completely stopped.” When asked for an example of the expenses charged to Cheung’s credit card, Cheung said Husband’s cosmetic hair expenses were the only charges on the credit card. Cheung loaned money to Husband for his legal fees related to this case in late 2012 or early 2013. When asked why she loaned money to Husband, Cheung said, “He doesn’t have any money, and he couldn’t work, and he needed help because [Wife] is trying to put him in jail.”

Wife served American Express card services with a deposition subpoena for Cheung’s credit card statements. Cheung objected to the disclosure of her financial information. Due to the objections, American Express refused to produce the documents. On May 6, Wife filed a motion to compel Cheung to withdraw her objections and compel American Express to produce the documents. Wife asserted the documents were needed to show the amount of money Husband received from Cheung.

Husband responded to Wife’s motion to compel. Husband explained that he had been unable to work since Wife contacted his employer and clients about the fraud charges she made against him. Husband asserted Wife was living in a home purchased by Wife’s sister’s ex-husband. Husband contended Wife worked during their marriage at a property management company, a day care, and Husband and Wife’s pizza business.

Cheung opposed Wife’s motion to compel. Cheung asserted her American Express card was used for personal and business expenses. Cheung had an interior design business and furniture store. The disclosure of her credit card statement would reveal her vendors and suppliers, which was proprietary information. Additionally, details of Cheung’s personal life would be revealed. Cheung was concerned that Wife would use the information on the credit card statements to disparage Cheung or somehow harm Cheung’s personal and/or business relationships.

Cheung declared that Husband accompanied her on trips that she paid for with her American Express credit card. Husband’s airfare was paid with miles or with a two-for-one offer, the hotel room cost the same with or without Husband, some dining charges with Husband were made on the American Express card. Cheung did not provide cash gifts to Husband.

Wife filed a response. Wife asserted the American Express statements were relevant to proving Cheung made recurring gifts to Husband. Wife contended Cheung implicitly waived her right to privacy by paying for Husband’s legal fees. Wife filed an income and expense declaration. Wife declared she was unemployed with no income, and the amount of her proposed monthly needs was $5,520.

On June 15, the family court, specifically Commissioner Reed, held a hearing on Wife’s motion to compel. Wife asserted the public’s interest in adequate spousal support outweighed Cheung’s privacy interest. Wife asserted recurring gifts could be counted as income when calculating spousal support. Wife asserted there was evidence of four years of recurring gifts from Cheung to Husband, in that Cheung testified she paid for Husband to travel to Hong Kong, Hungary, Rome, and Venice. Wife asserted the American Express statements would show how much money Cheung paid for Husband’s living expenses and attorney’s fees. In order to protect Cheung’s privacy and business interests, Wife recommended the court review the documents in camera or appoint a discovery referee.

Husband asserted Cheung’s American Express statements were not relevant because Cheung’s income was not relevant in determining spousal support. Additionally, Husband argued that he was now retired and most of Cheung’s American Express statements concern Husband’s preretirement finances, which was irrelevant postretirement. Further, Husband expressed concern that Wife would use Cheung’s American Express statements to harm Cheung or Cheung’s business.

In Wife’s response, she asserted that she was not concerned with Cheung’s income, rather she was trying to discover how much money Cheung gifted to Husband. Wife asserted she filed a request for retroactive spousal support based upon fraud, and therefore the American Express statements were relevant.

The family court denied Wife’s motion to compel. The family court found Cheung’s American Express statements were irrelevant. The court explained, “The American Express payments, which show what expenditures [Cheung] has or has not paid for the past few years for [Husband’s] travels with her, clothes, accessories, if [Cheung’s] income would not be considered in the calculating [of] spousal support, neither should her sporadic payments of the living expenses. [¶] Moreover, [Husband] is not the supported spouse, and therefore, a decreased need for spousal support is not at issue as to him.”

The court continued, “In this case, [Wife] seeks to discover information about supposed gifts of international travel, dining out, clothing and cosmetic purposes, which are irregular and incapable of translation into disposable income. [¶] The income of a supporting parties’ new spouse or partner may not be considered in calculating spousal support. . . . [¶] . . . [¶] Cheung’s gifts in this case . . . were not monetary cash gifts received regularly for a long period of time . . . it would be difficult to quantify how much [Cheung’s] gifts were for purposes of calculating spousal support. Moreover, there is no evidence that these gifts will continue to be made. [¶] And, lastly, as Miss Cheung pointed out, [Husband]’s pre-retirement income or earning capacity cannot be considered to determine spousal support. The gifts that [Cheung] made were pre-retirement for the most part.”

E. TRIAL

At trial, there was evidence that Wife’s expenses were paid by her sister’s ex-husband, William Levin. Wife and Levin were friends. Levin resided in San Francisco and was married. Levin owned a house in La Quinta that he and his spouse stayed in approximately 45 days per year. In 2012, Wife moved into Levin’s house in La Quinta. Wife continued to reside in the house at the time of trial in 2016.

Wife and Levin agreed that Wife would be the caretaker for the house in lieu of $1,600 per month in rent. Levin paid the utilities at the La Quinta house. Levin estimated that between the value of rent and the cost of the utilities, he paid approximately $2,300 per month for Wife’s living expenses. Levin has loaned Wife approximately $17,500 for her medical expenses; Wife has not repaid Levin. Levin paid over $75,000 of Wife’s attorney’s fees.

F. JUDGMENT

After four days of trial, the family court entered a judgment granting Husband’s petition for dissolution of the marriage. The family court found “Husband’s expenses are $645.00 per month and Wife’s expenses are pretty much provided for.” The court continued, “The Court finds that both parties receive tremendous amounts of financial support from other people but there is a difference when a supported party receives money than when the supporting party receives money.” The court wrote, “The Court finds that [H]usband received similar financial assistance as did the [W]ife, but Husband’s financial assistance is not the same because the Court cannot use the income of [Husband’s] supporting party to pay [W]ife. [¶] The Court finds that so long as [Wife] is living rent free in any of Mr. Levin’s properties, any place he owns and/or if [Wife] lives anywhere where someone else is paying her rent, spousal support shall be set at zero because the Court finds under those conditions, [Wife] has no needs.

“The Court finds [Husband’s] income is $1,978 per month from all sources, and his expenses are approximately $645 per month. [Wife] is not employed and has an income of $800 per month from Social Security. [¶] The Court further finds that in the event [Wife] moves into her own place and she becomes self-supporting, [Husband] shall pay spousal support in the amount of $389 per month which is based strictly on Social Security Income and [Wife’s] current expenses. Said support shall be due on the first of the month after [Wife] moves into her own place while not self-supporting. [Wife] shall give notice to [Husband] by personal service that she has moved into her own place.”

DISCUSSION

A. MOTION TO COMPEL

Wife contends the family court erred by denying Wife’s motion to compel production of Cheung’s American Express statements.

We review the family court’s discovery ruling under the abuse of discretion standard. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “[W]hen one spouse in a marriage dissolution proceeding seeks discovery from a third party, the court is required to balance the spouse’s need for discovery against the privacy interests of the third party. In weighing the need of the spouse, the court should consider all relevant factors, including how the requested information would help resolve the issues that remain between the spouses; any relationship between either spouse and the third party; the information that the other spouse or third party has already provided or agreed to provide; and any specific reasons to distrust the adequacy or reliability of the information already obtained or offered.” (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 714.)

The decisive factor for the family court was the lack of relevance of the requested documents, i.e., the documents would not help in resolving the issues. Accordingly, we focus on the issue of whether the American Express statements were relevant to the issue of spousal support. “The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.” (Fam. Code, § 4323, subd. (b).) Based upon this statute, Cheung’s income is not relevant to the issue of spousal support.

We now look at the gifts Cheung made to Husband. In the context of child support, caselaw provides, “‘[N]othing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional meaning of income as a recurrent monetary benefit. But while regular gifts of cash may fairly represent income, that might not always be so. Therefore, the question of whether gifts should be considered income for purposes of the child support calculation is one that must be left to the discretion of the trial court.’ ” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1314.)

The evidence reflects Cheung’s American Express card was used to pay for Husband’s cosmetic hair expenses and their joint travel expenses. This evidence does not reflect a certain amount of money given at regular intervals. For example, Cheung did not give Husband $500 every month. (See e.g., In re Marriage of Alter (2009) 171 Cal.App.4th 718, 737 [$6,000 gift given by mother to son every month was income].) Rather, the gifts were made when Husband and Cheung traveled and when Husband had hair expenses. Because the gifts were irregular, the family court could reasonably conclude they did not constitute income. Because the gifts were not income, Cheung’s American Express statements were not relevant when calculating spousal support. (See generally Fam. Code, § 4320 [factors to consider when calculating support].) Therefore, the family court did not err by denying Wife’s motion to compel.

Wife contends, “The message the trial court sent out was that any supporting party can quit work, abandon their spouse in destitution while living a life of luxury simply by running all expenses through a third party’s credit card in order to avoid his/her law imposed obligations.” Wife provides no record citations to support her assertion that all of Husband’s living expenses were charged to Cheung’s American Express credit card. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [provide record citations].) Because Wife has not supported her assertion that all of Husband’s living expenses were charged to the American Express card, so that one could infer the gifts were regular payments constituting income, she has not demonstrated that the family court erred by concluding the American Express statements were irrelevant.

Wife asserts, “[I]f [Husband] had use of such card and was spending $15,000 per month for travel, clothing, [and] entertainment expense[s], [Wife] could have argued that [Husband] received recurring gifts of his living expenses.” Wife deposed Cheung. The record on appeal includes only a few pages of the deposition transcript, and those pages reflect Cheung answered questions about her credit card charges. However, the included pages do not reflect how much money, if any, Cheung spent on Husband’s expenses each month, or whether those expenses were charged to the American Express card.

Wife’s $15,000 hypothetical is speculation that the credit card statements might contain regular payments of a certain amount related to Husband’s expenses, and, based upon that speculation, Wife is asking this court to reverse the family court’s judgment. There is no reason for Wife to speculate given that she deposed Cheung; Wife had the opportunity to question Cheung about her credit card statements. Wife should be able to provide this court with record citations to the deposition transcript wherein she asked Cheung about what, if any, amount of money was regularly spent each month on Husband, whether that money was spent via the American Express card, and Cheung’s answer to those questions. Wife’s reliance on speculation is not persuasive because she had the opportunity to provide evidence that would demonstrate the relevance of the American Express statements. Because Wife is relying on speculation, we conclude error has not been demonstrated. (People v. Gray (2005) 37 Cal.4th 168, 230 [speculation will not support reversal of a judgment].)

B. SPOUSAL SUPPORT

Wife asserts the family court erred by considering Levin’s contributions to Wife, but not Cheung’s contributions to Husband, when calculating support. Levin estimated that between the value of rent and the cost of the utilities, he pays approximately $2,300 per month for Wife’s living expenses. Thus, there is evidence reflecting Levin paid a regular amount of money at regular intervals for Wife’s expenses. Because the payments from Levin were regular in both time and amount, the family court could reasonably conclude those gifts constituted income. In contrast, the evidence of Cheung’s gifts to Husband did not reflect regular amounts at regular intervals. Therefore, the family court could reasonably conclude those gifts did not constitute income. (See In re Marriage of Williamson, supra, 226 Cal.App.4th at p. 1314 [gifts that are regular in amount and interval can constitute income].) In sum, the family court did not err.

C. DELEGATION

Wife contends the family court improperly delegated the burden of spousal support to Levin.

There are not disputed facts at issue, therefore, we apply the de novo standard of review. (In re Marriage of Janes (2017) 11 Cal.App.5th 1043, 1049.) The family court did not order Levin to pay for Wife’s support. Levin is free to stop supporting Wife at any time. Thus, the family court did not delegate the obligation of support to Levin because Levin is not required to support Wife.

D. EQUAL PROTECTION

Wife contends the family court violated her right of equal protection by requiring Levin to support Wife. Wife relies upon the following sentence from a case, “The essence of Kirchner[ } is that no person or class of persons should be charged with support where no rational basis underlies the classification.” (Department of Mental Hygiene v. O’Connor (1966) 246 Cal.App.2d 24, 26.) The family court did not order Levin to support Wife. Levin can stop supporting Wife whenever he chooses to stop. Because Levin has not been charged with supporting Wife, we do not examine if there is a rational basis for such a decision.

E. OTHER ARGUMENTS

In the conclusion section of Wife’s appellant’s opening brief, she asserts the family court denied her due process and erred by entering a prospective spousal support order. Because these issues are not supported by legal argument, we deem them forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.