Filed 4/21/20 Marriage of Goldberg and Faulk CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re Marriage of JOHN GOLDBERG and DAWN LINN FAULK

___________________________________

DAWN LINN FAULK,

Plaintiff and Respondent,

v.

JOHN GOLDBERG,

Defendant and Appellant.

B292771

(Los Angeles County

Super. Ct. No. ND041151)

APPEAL from an order of the Superior Court of Los Angeles County. Dean H. Hansell, Judge. Affirmed.

Law Offices of Jeffrey C. Bogert and Jeffrey Bogert for Defendant and Appellant.

Tredway, Lumsdaine & Doyle and Brandon L. Fieldsted for Plaintiff and Respondent.

_______________________

Defendant and appellant John Goldberg (Goldberg) challenges a trial court order awarding spousal support arrearages of $29,829.76 to plaintiff and respondent Dawn Linn Faulk (Faulk).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Judgment of Dissolution

On October 26, 2000, Faulk filed a petition for dissolution against Goldberg.

On September 29, 2011, a judgment of dissolution was entered pursuant to a written stipulation for judgment between the parties (the judgment). As is relevant to the issues raised in this appeal, the judgment requires Goldberg to pay all of the expenses for two community properties, known as the Neapolitan and Via Di Roma, and to pay spousal support of $5,000 per month to Faulk if he did not timely pay all of the expenses of the two properties. Specifically, paragraphs 3(G) and 4(G) of the judgment provide that until both the Neapolitan and Via Di Roma are sold, Goldberg “shall pay all expenses relating to [each property], including but not limited to mortgage, insurance, property tax, and maintenance and repair of the property.” Those same paragraphs further provide that Goldberg “waives the right to receive reimbursement for any such payments for any expense relating to the [properties], through the date of sale or final division of the [properties].”

On the issue on spousal support, the judgment requires Goldberg to pay monthly spousal support of $5,000 commencing May 1, 2011, “and continuing until the death of either party, the remarriage of [Faulk], or further order of the Court, whichever first occurs.”

In addition, the judgment provides: “In lieu of making payments directly to [Faulk], [Goldberg] has the option of using the spousal support due [Faulk] for payment on the monthly expenses relating to [the Neapolitan] and [Via Di Roma], including but not limited to mortgage, property tax, insurance and repairs and maintenance.” “Said payments for expenses on the real properties shall be made timely by [Goldberg] and he shall remain current on these payments. If [Goldberg] fails to make any payment timely (within 5 days past the due date), or [Goldberg] stops making the above payments toward the real property expenses altogether, he shall then be required to resume spousal support payments of $5,000 per month payable directly to [Faulk], commencing on the 1st of the month following [Goldberg’s] default on making timely payments on the real property expenses.”

Via Di Roma

In July 2011, Goldberg rented out Via Di Roma to third parties. He collected all of the rent, but never shared any of the rent money with Faulk, even though she was a 50 percent owner of the property pursuant to the judgment. Instead of paying Faulk her 50 percent share of the rents, Goldberg presumably used those monies to pay his obligation under the judgment to pay all of the expenses of Via Di Roma.

There is no evidence that Goldberg made mortgage payments for Via Di Roma after October 2017. It seems that the last and only expense payment he made on Via Di Roma was a $160.24 utility bill in November 2017. Via Di Roma was eventually sold in a private sale on February 9, 2018.

The Neapolitan

At the time the judgment was finalized, Faulk resided in the Neapolitan. Even though Goldberg was required to pay all of the expenses for that property pursuant to the terms of the judgment, beginning in June 2011, Faulk began paying between $1,500 and $1,600 per month towards the mortgage and other expenses. Faulk made these payments through March 2017 because Goldberg told her that he would not pay all of the expenses of the Neapolitan and that he would allow the mortgage to go into default if she did not do so.

Towards the end of 2016, Goldberg stopped making any payments of any expenses of the Neapolitan, including the mortgage.

Faulk’s Request for Order

On February 22, 2017, Faulk filed a request for order (RFO) against Goldberg, seeking to compel the sale of the Neapolitan and Via Di Roma and determine the amount of spousal support arrearages. Faulk’s RFO requested arrearages of $444,618.87.

Initial Hearing on RFO (Apr. 19, 2017)

At the initial hearing on Faulk’s RFO, the trial court ordered the sale of both properties. All other issues were continued.

Continued Hearing on RFO (Oct. 3, 2017)

At the continued hearing, it was brought to the trial court’s attention that the Neapolitan was in escrow and set to close on October 31, 2017. Unfortunately, Goldberg had stopped paying the mortgage on that property in January 2017; thus foreclosure was imminent (set for October 11, 2017). Given that the judgment required Goldberg to pay all expenses of the property, the trial court ordered Goldberg to pay the loan reinstatement amount ($36,716.94) or any other amounts required by the lender to postpone the foreclosure sale. All other issues, including Faulk’s request for a determination of spousal support arrearages, were continued.

Foreclosure Sale of the Neapolitan

Because Goldberg did not comply with the trial court’s order, on October 11, 2017, the Neapolitan was sold at foreclosure auction.

Continued Hearing on RFO (Jan. 24, 2018); Supplemental Briefs

At the continued hearing, the trial court ordered the parties to submit supplemental briefs on the issue of arrearages and continued the matter.

Faulk’s supplemental declaration

Faulk submitted a supplemental declaration regarding the issue of spousal support arrearages. She stated that because she had “paid a portion of the expenses for both [the] Neapolitan . . . and Via Di Roma since June 2011, [Goldberg] did not comply with this obligation under the Judgment to pay all of the expenses of both properties in lieu of paying $5,000 per month in spousal support.” She further attested: “I started paying a portion of the mortgage for [the] Neapolitan . . . in June 2011, and [Goldberg] started renting out Via Di Roma and using my portion of the rents to pay the expenses in July 2011.” Thus, Goldberg “first defaulted in paying all of the property expenses in June 2011, and he defaulted every month thereafter.” Given his default, Faulk maintained that Goldberg was required to pay her monthly spousal support of $5,000 commencing the following month (July 2011). But, he had not paid her any support. Accordingly, she requested an order that Goldberg owed her spousal support arrearages of $550,544.

Goldberg’s response

Goldberg admitted that he had stopped making payments on the Neapolitan and that the Neapolitan was sold on October 11, 2017. He also admitted that Via Di Roma was sold on February 9, 2018. While Goldberg did not specifically address the issue of arrearages, Goldberg asserted that he had paid all of the expenses of the two properties until they were sold.

Continued Hearing on the RFO (Apr. 27, 2018); Supplemental Briefs

At the continued hearing, the trial court reviewed the judgment and made findings on spousal support for the time period of November 1, 2016, through March 31, 2018, only. It found that Goldberg had stopped making payments on the Neapolitan in November 2016, resulting in the foreclosure of that property. Thus, it found that Goldberg was required to pay spousal support of $5,000 per month to Faulk from November 1, 2016; it found spousal support arrearages of $85,000 for the period of November 1, 2016, through March 31, 2018, subject to a credit if Goldberg could prove at the next hearing that those amounts had actually been paid. The issue of the amount of spousal support arrearages for July 1, 2011, through October 31, 2016, was continued. Again, the trial court authorized the parties to file supplemental briefs.

Faulk’s supplemental declaration

On May 29, 2018, Faulk filed a supplemental declaration, again asking for spousal support arrearages of $550,544 for the period of July 2011 through April 2018, plus interest from April 27, 2018, through the June 21, 2018, hearing. Faulk testified that she had paid almost half of the expenses for both properties from June 2011 until both properties had sold. Thus, according to Faulk, Goldberg “was in default in making timely payments commencing in June 2011.”

Goldberg’s declaration

On June 13, 2018, Goldberg filed his supplemental declaration, which intended to serve as his supplemental brief on the issue of spousal support arrearages. His declaration, however, did not contain any proof of expenses that he allegedly paid for either property.

Continued Hearing on the RFO (Jun. 21, 2018)

The trial court decided not to make any findings on the issue of spousal support arrearages at that time. Instead, it set another briefing schedule and indicated that it would issue a written ruling after further briefing.

Goldberg’s Final Brief on Spousal Support Arrearages

On June 29, 2018, Goldberg submitted his final brief on the issue of spousal support arrearages. He argued that no arrearages were owed because the total amount of expenses paid towards the two properties exceeded the amount of spousal support payable during that time period. Thus, he asserted that he should receive a credit towards spousal support for each dollar paid towards property expenses, regardless of who paid it.

In support, Goldberg submitted a declaration. Attached to his declaration was a summary of all expenses he allegedly paid for the two properties from May 2011 through April 27, 2018.

Faulk’s Final Brief on Spousal Support Arrearages

In her July 19, 2018, brief, Faulk reiterated her contention that the judgment required Goldberg to pay every single property expense for both properties in a timely manner and that if any expense was not paid in full and on time, then Goldberg was required to start paying her $5,000 in monthly spousal support, plus all of the expenses for the properties the following month. Despite this requirement in the judgment, beginning in June 2011, she had paid almost half of the expenses for both properties; in other words, Goldberg did not timely pay all of the expenses for both properties. Thus, according to Faulk, commencing in July 2011, Goldberg was required to pay her $5,000 per month in spousal support, which he never did. Accordingly, she requested total arrearages of $425,000, plus interest, for the period of July 1, 2011, through July 20, 2018.

Faulk further argued that Goldberg was not entitled to any credits towards spousal support for the payment of property expenses. After all paragraphs 3(G) and 4(G) of the judgment specifically required Goldberg to pay all property expenses independent of his obligation to pay spousal support and also provided a waiver of his right to reimbursement for any such payments.

Proposed Order on Spousal Support Arrearages (July 30, 2018)

The trial court found that Goldberg was obligated, under the terms of the judgment, to pay all of the expenses of both properties until their sale. The trial court also found that, under the terms of the judgment, so long as Goldberg paid a minimum of $5,000 towards property expenses in a given month, he would not owe spousal support for that month.

The trial court then considered Goldberg’s evidence on expenses paid for the properties and found that “it appears that through October of 2017 he paid each month a minimum of $5,000 towards the house expenses for the two properties.” It also found that the only expenses paid for the properties after October 2017 was a Via Di Roma utility bill in the amount of $160.24. Thus, the trial court determined that Goldberg owed Faulk $30,000 in spousal support for the six months of November 2017 through April 2018, less the $160.24 utility payment, for a total arrearages amount of $29,829.76.

The proposed order authorized the parties to submit any comments on the proposed order by August 17, 2018.

Goldberg’s Comments to the Proposed Order

On August 20, 2018, Goldberg filed comments on the proposed order. Notably, he did not challenge the trial court’s determination on the issue of arrearages.

Final Order on Spousal Support Arrearages (Aug. 29, 2018)

On August 29, 2018, the trial court issued an order that adopted, without modification, the proposed order on spousal support arrearages. After further briefing on an unrelated issue, on November 7, 2018, the trial court issued its final order on the issue of spousal support arrearages, which adopted, without modification, the same ruling as previously made. Specifically, the trial court determined that Goldberg owed Faulk $29,829.76 in spousal support arrearages. And, it found that Goldberg was not entitled to any sort of carry forward credit because such a credit would violate the terms of the parties’ stipulation for judgment and well-settled case law, including In re Marriage of Jeffries (1991) 228 Cal.App.3d 548.

Goldberg’s Appeal

Goldberg’s timely appeal ensued.

DISCUSSION

I. Forfeiture

“As a general rule, failure to raise a point in the trial court constitutes . . . waiver and appellant is estopped to raise that objection on appeal.” (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.) “And whether the general rule shall be applied is largely a question of the appellate court’s discretion.” (Ibid.)

Following the trial court’s issuance of the proposed order on Faulk’s RFO, the trial court authorized the parties to submit any comments on the proposed order by August 17, 2018. While Goldberg did file comments (albeit belatedly) on some issues, he did not make any comments, objections, or proposed changes on the issue of spousal support arrearages. Any purported error could have been brought to the trial court’s attention but was not. Under these circumstances, we conclude that Goldberg has forfeited any objection on appeal. Our analysis could stop here.

For the sake of completeness, we turn to the merits of Goldberg’s argument.

II. Standards of review

The general rules governing contract interpretation apply to the interpretation of the judgment here. (In re Marriage of Schu (2014) 231 Cal.App.4th 394, 399.) “Where no extrinsic evidence is introduced, or the extrinsic evidence is not in conflict,” we independently construe the judgment. (Ibid.) “Where competent extrinsic evidence is in conflict,” we must uphold any reasonable construction by the trial court, so long as it is supported by substantial evidence. (Ibid.; see also In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747.)

Challenges to the sufficiency of the evidence are governed by the substantial evidence standard of review. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.) “If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)

III. The trial court properly awarded spousal support arrearages of $29,829.76

Goldberg argues that the trial court erred in finding spousal support arrearages. We disagree. As set forth above, pursuant to the terms of the judgment, Goldberg was required to pay all expenses for both properties. Ample evidence supports the trial court’s finding that that did not happen—Goldberg did not pay what he was required to pay. After all, the Neapolitan was sold at foreclosure auction, and there was evidence that Goldberg stopped making mortgage payments for Via Di Roma in October 2017. Because he did not make the timely payments for the two properties, Goldberg was then obligated to pay Faulk $5,000 per month in spousal support. But he did not do that either. Thus, the trial court rightly found that Goldberg owed Faulk spousal support arrearages.

In urging us to reverse, Goldberg seems to argue that the trial court erred in interpreting the judgment as requiring “‘full’ payment” of all property expenses to avoid the $5,000 monthly spousal support obligation. But that is not what the trial court found; the trial court did not find that Goldberg had to pay all property expenses to avoid the $5,000 monthly spousal support obligation. Rather, the trial court found that Goldberg only had to pay at least $5,000 a month in total property expenses to avoid the monthly spousal support obligation. Given this finding, the trial court found that Goldberg was not in arrears through October 2017 because he had paid a minimum of $5,000 per month towards property expenses.

Goldberg further asserts, without any citation to the record that “[t]here was never a month where [he failed] to make a payment.” Aside from the fact that he fails to provide us with any evidentiary support for this statement (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record]), his contention is belied by the appellate record. His own declaration is not supported by evidence that he paid the requisite minimum of $5,000 towards property expenses. And, notably, after October 2017, the only expense he paid for either the Neapolitan or Via Di Roma was a $160.24 utility bill in November 2017. Furthermore, Faulk provided uncontroverted evidence that Goldberg had never given her any money for spousal support. Thus, the trial court had ample reason to find that Goldberg did not pay any spousal support from November 2017 through April 27, 2018. It follows that the trial court’s order of spousal support arrearages of $29,829.76 (six months x $5,000 = $30,000, less $160.24 for the utility bill) is supported by substantial evidence.

Finally, in one sentence, Goldberg contends that he “should have received full credit from the $236,430 actual overpayment towards any spousal support.” He theorizes as follows: He provided evidence that he paid $651,430 in expenses for both properties. Because that amount is $236,430 more than he would have paid had he just paid Faulk $5,000 per month in spousal support, he is entitled to a credit for that amount.

There are at least two problems with this argument. First, the evidence does not support Goldberg’s assertion. While Goldberg contends that he paid $336,225 on the Neapolitan prior to foreclosure and $315,205 on Via Di Roma prior to sale, Faulk presented evidence that he did not pay those expenses; rather, she paid almost half of these expenses. Applying the substantial evidence rule, we must affirm the trial court’s assessment of the evidence and determination that Goldberg did not make those payments.

Second, the terms of the judgment do not support Goldberg’s contention. Paragraphs 3(G) and 4(G) provide that until both properties are sold Goldberg “shall pay all expenses relating to [each property], including but not limited to mortgage, insurance, property tax, and maintenance and repair of the property.” Those same paragraphs provide that Goldberg “waives the right to receive reimbursement for any such payments for any expense relating to the [properties], through the date of sale or final division of the [properties].”

As the trial court correctly found, Goldberg was not entitled to a carry-forward credit because “[t]he obligation to pay monthly spousal support and the obligation to pay all of the expenses on the two properties are independent obligations.” Thus, “[a]llowing a carry forward credit would . . . run afoul of the dictates of Paragraphs 3(G) and 4(G) that [Goldberg] waived the right for reimbursement of any such payments for any expense related to the properties. To allow a carry forward credit would [improperly] be allowing a reimbursement.”

DISPOSITION

The order is affirmed. Faulk is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

ASHMANN-GERST

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ