Filed 9/12/19 Marriage of Bustillo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of KARI and TODD C. BUSTILLO.

KARI BUSTILLO,

Respondent,

v.

TODD C. BUSTILLO,

Appellant.

D075369

(Super. Ct. No. 09D010394)

APPEAL from a judgment and an order of the Superior Court of Orange County, Michael J. Naughton and Lon F. Hurwitz, Judges. Affirmed in part, reversed in part.

Todd C. Bustillo, in pro per., for Appellant.

Michel & Rhyne and Karen A. Rhyne for Respondent.

Todd C. Bustillo (Todd), appearing in propria persona, appeals from a judgment and an order after hearing, both entered on January 10, 2017, made by the family law court on the issue of allocation of spousal and child support, and the retroactivity thereof, and from a $10,000 award of attorney fees to Kari Bustillo (Kari). As we explain, we affirm the judgment and order after hearing, but reverse the award of attorney fees.

FACTUAL AND PROCEDURAL OVERVIEW

Kari and Todd married in October 2004 and separated on October 1, 2009. They had one son, born in May 2007 (hereinafter, minor). Kari filed for dissolution of marriage on November 12, 2009. She remarried on December 27, 2013.

As we discuss in detail in Bustillo II, as part of their dissolution of marriage the parties negotiated and entered into a stipulation on April 8, 2011, in which they agreed to divide their property without regard to its character (i.e., separate or community) or its valuation, and in which they agreed that spousal support would automatically terminate on August 31, 2011 (hereinafter, Stipulated Judgment). With respect to the latter issue, the Stipulated Judgment tracked in part the language of a January 24, 2011 stipulation and order, in which the parties had agreed that Todd would pay “unallocated support” to Kari of $2,000 per month until August 31, 2011, at which time the “issue of spousal support . . . shall absolutely terminate . . . and no court shall have the jurisdiction to award spousal support payable by either party, regardless of the circumstances which may arise.”

As we also discuss in Bustillo II, the Stipulated Judgment included broad waiver provisions including waiver of the Final Declaration of Disclosure pursuant to Family Code section 2105 and of “[a]ll financial information addressing the extent, nature and value of the community estate, including assets and liabilities, obligations and debts, and each party’s separate estates as provided solely by the parties.” The parties also agreed in the Stipulated Judgment to abstain from “engaging in any investigation, discovery, appraisals, due diligence, accounting or financial analysis and/or evaluation of any kind” with respect to their assets and liabilities.

As further discussed in Bustillo II, during the negotiation and execution of the Stipulated Judgment, Kari was self-represented, while Todd was represented by counsel. Shortly after they entered into the Stipulated Judgment, Kari rehired legal counsel (who are the same attorneys of record in this appeal and in Bustillo II). On July 15, 2011, Kari filed a motion to set aside the Stipulated Judgment pursuant to Code of Civil Procedure section 473 and section 2122 (Set-Aside Motion).

As discussed in Bustillo II, the trial court denied Kari’s Set-Aside Motion with respect to the division of property, finding in its February 6, 2012 order (sometimes, Set-Aside Order) that “people have a right to make a bad decision,” and that “[s]imply because they make a bad decision does not mean that every time they do, the Court should correct it for them.” However, the court granted Kari’s Set-Aside Motion with respect to the issue of spousal support, “including, but not limited to, amount, duration and termination of jurisdiction thereof.”

With respect to this latter issue, the court ruled as follows:

“This case was originally filed on November 12, 2009. Then [Kari] filed an Order to Show Cause for spousal support, child support, and child custody on May 3, 2010. On June 21, 2010, the parties entered into a Stipulation on the Order to Show Cause[,] which resulted in a Findings and Order After Hearing filed July 28, 2010, signed by Commissioner Posey. The Findings and Order After Hearing indicated by Stipulation of the parties, [¶] ‘The Court orders the following without prejudice: under support, as and for unallocated support, [Todd] shall pay to [Kari] $2,000 a month, a thousand on the 1st, a thousand on the 15th, commencing June 1st. The Court reserves jurisdiction to allocate the above support to child support and spousal support, if any. In the event that after the Court has determined support, [Todd] has overpaid or underpaid, then said overpayments or underpayments shall be characterized as a distribution of the community estate or subject to reimbursement or payment. The Court reserves jurisdiction to order support retroactive to May 3, 2010.’

“[¶] . . . [¶]

” [‘]The parties stipulate and the Court orders that the Court’s jurisdiction over the issue of spousal support payable to either party shall absolutely terminate on August 31st and not [sic] court shall have the jurisdiction to award spousal support payable by either party regardless of the circumstances which may arise. The Order to Show Cause currently set for January 10th shall be taken off calendar.’

The court in its February 6 order denying in part and granting in part Kari’s Set-Aside Motion noted that the parties in their June 21, 2010 Stipulation and Order never addressed child custody or child support. The Stipulated Judgment was also referenced by the court in its February 6 order, which noted as follows: “[U]nder paragraph 3 [of the Stipulated Judgment], it reiterates the Stipulation and Order of January 24[, 2011. ] Paragraph 4 reiterates the Stipulation regarding termination of jurisdiction, and Paragraph 5, interlineates the payment of spousal support from January through May of 2010 in the amount of $10,171.90. Nowhere [in] the Judgment is the issue of child custody or child support issue. So as we sit here today, there has never been a trial on custody or visitation or child support.

“Every dollar that [Todd] has paid to [Kari] has been allocated to spousal support without a determination as to custody or visitation and with a reservation of retroactively back to May 3rd, 2010. This is void as against public policy. You cannot allocate all dollars to spousal support when the issue of custody and visitation and child support is open with no even pendente lite orders on those issues.”

Kari in April 2012 appealed the denial of the Set-Aside Motion with respect to the division of property, which was the subject of Bustillo I, and which opinion is summarized in more detail in Bustillo II (filed concurrently herewith, as noted). Briefly, Division 3 of this court in Bustillo I found that it was Kari who “pressure[d] Todd to resolve their property division” as quickly as possible, and not vice-versa (Bustillo I, supra, 2013 WL 1850769, at p. *2); that Kari chose to be unrepresented shortly before the parties entered into the Stipulated Judgment because she did not want to incur additional attorney fees; that Kari had the right to enter into the agreement regarding property division, even if it turned out that agreement was a ” ‘bad deal’ ” for her, because a ” ‘deal is a deal’ ” (id. at

p. *5); that the court never found it was a “bad deal” for her, despite Kari’s argument to the contrary; and that Todd, in any event, “presented detailed records showing Kari knew of the accounts and transactions she claimed he hid” (ibid.). Bustillo I thus affirmed the denial of Kari’s Set-Aside Motion with respect to the division of property.

The Bustillo I court did not, however, address the portion of the Set-Aside Order granted by the trial court, which is the subject of the instant appeal, as Todd did not appeal the ruling on the support issue.

While Kari’s appeal was pending, the family law court on October 17, 2012, entered judgment covering custody and visitation of minor. The issue of support was next heard on November 7, 2012. The court at that hearing ordered Todd to pay Kari temporary child support of $692, temporary spousal support of $1,418, beginning on November 30, 2012 (emphasis omitted), and ordered the support hearing continued to April 2013. In mid-December 2012, Todd became self-represented.

On January 8, 2014, the court terminated the order of monthly spousal support of $1,418 as a result of Kari’s remarriage the previous month. The record shows the hearing on the support issue was thereafter repeatedly continued, sometimes as a result of the court’s unavailability. Finally, in October 2016 retired judge Michael J. Naughton heard and decided the support issue only, which hearing took place over several days.

We have carefully reviewed the transcript of this multiday hearing and it shows that the court interpreted the nearly five-year-old February 6, 2012 Set-Aside Order (made by Judge Lon Hurwitz) only to set aside the issue of allocation of spousal and child support between January 1, 2010 and December 31, 2013, in light of the fact that Kari had remarried in December 2013. (See § 4337. ) Specifically, the court reasoned as follows in limiting the scope of the Set-Aside Order:

“Now, my ruling is this: there was a judgment that was filed [in this case] in April 2011. That judgment was partially set aside. The motion to set aside was heard by Judge Hurwitz. In his ruling, he denied it in part and granted it in part. He denied the set aside for everything except the question of the allocation of the $2,000 a month that was agreed on by the parties as unallocated support. His ruling essentially says given the fact there was no child support order made it is necessary to allocate something for child support and spousal support during that period of time . . . . So that’s where we are at.

“Now, the further ruling is that I am not going to allow inquiry as to the source of the payments by [Todd] to [Kari]. That all has—either has been completed or should have been completed in the judgment of dissolution of marriage which was filed on April the 8th, 2011, which was appealed by [Kari] and affirmed by [Division 3] of the [Fourth] District Court of Appeal.

“Any claims for double dipping or for loss of community property or any of the above could have been and should have been taken care of in the judgment of April 8, 2011.” (Italics added.)

As noted ante, the court on January 10, 2017, issued an order after hearing and a judgment on the issue of allocation of support (collectively, Support Judgment) based on payments Todd already had made. (See fn. 3, ante.) The Support Judgment allocated spousal support between January 1, 2010 and December 2013. It did the same for child support, then retroactively set such support at $869 per month beginning on January 1, 2014 and “continuing until further order of the court, or until [minor] marries, dies, is emancipated, reaches age 19, or reaches age 18 and is not a full-time high school student, whichever occurs first. . . .”

The Support Judgment also required Todd and Kari to split equally “[r]easonable uninsured health-care costs” for minor, and for them to provide minor with “[h]ealth insurance coverage.” Finally, the Support Judgment required Todd to pay Kari $10,000 for “attorney fees and costs for this hearing only.”

DISCUSSION

A. Support

Todd argues the court erred when it granted in part Kari’s Set-Aside Motion on the issue of support. As noted, the court in its Set-Aside Order found the parties’ January 24, 2011 stipulation and order and their separate Stipulated Judgment “void as against public policy” based on their decision to allocate all money to spousal support, “when the issue of custody and visitation and child support [was] open with no even pendente lite orders on those issues.” We reject this claim of error.

Issue preclusion, historically known as collateral estoppel (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN)), applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at p. 825.) Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. (Id. at p. 824.) Whether issue preclusion applies is a question of law we review de novo. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 618 (Jenkins).)

As summarized ante, the court in its Set-Aside Order found the court had reserved jurisdiction to allocate the $2,000 monthly payment between spousal and child support; and that, because the parties’ various agreements, culminating with the Stipulated Judgment, allocated all paid money to spousal support without a “determination as to custody or visitation,” the Stipulated Judgment with respect to this issue was void. The court in this Order thus set aside the portion of the Stipulated Judgment related to spousal support, “including but not limited to, amount, duration and termination of jurisdiction thereof.”

As discussed in detail in Bustillo II, Division 3 of this court in Bustillo I addressed only the division of property in the Stipulated Judgment, which issue Kari had appealed. As noted, Todd did not appeal the portion of the Set-Aside Order finding the Stipulated Judgment, as it pertained to spousal support, void.

Because the issue of the validity of the parties’ agreement in the Stipulated Judgment regarding support was “actually litigated and necessarily decided” by the court in its Set-Aside Order, and because Todd did not raise any of those issues in Bustillo I, we independently conclude issue preclusion bars him as a matter of law from relitigating in the instant case those same issues. (See DKN, supra, 61 Cal.4th at p. 825; Jenkins, supra, 138 Cal.App.4th at p. 618.)

Our conclusion that issue preclusion bars Todd from relitigating in the instant case the validity of the court’s February 6 Set-Aside Order with respect to spousal support disposes of his main argument on appeal. However, one issue that was not decided by the Set-Aside Motion, and thus not barred by issue preclusion, is whether the court erred in refusing to consider the factors set forth in former section 4320 in deciding support, as Todd argues, including the allocation and retroactivity thereof.

As we have noted, the record shows the court interpreted the February 6, 2012 Set-Aside Order as setting aside only the issue of allocation of spousal and child support already paid by Todd, inasmuch as Kari had remarried in December 2013. As further noted, the court refused to relitigate whether Kari was entitled to additional support (before she remarried), or whether Todd was entitled to a refund of a portion of support he already had paid her (up to that point).

Based on the court’s interpretation of the February 6 order, and the fact that Kari had remarried in 2013, almost three years before the multiday support hearing finally took place, we agree with the court’s tacit finding that it was unnecessary to determine whether the spousal support that already had been paid was temporary or permanent. (See In re Marriage of Tong and Samson (2011) 197 Cal.App.4th 23, 29 [noting a ” ‘court is

not restricted by any set of statutory guidelines in fixing a temporary spousal support amount’ “]; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159 [noting an award of temporary spousal support rests within the broad discretion of the family law court and may be ordered in “any amount” (§ 3600) subject only to the moving party’s needs and the other party’s ability to pay]; compare In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312 [noting the setting of permanent support, in contrast to temporary support, is constrained by the numerous statutory factors set out in (former) section 4320].) As such, we conclude that the court properly refused to apply section 4320 retroactively to the monthly payments of about $2,000 Todd already had made to Kari during the allocation period.

Todd also argues that the court erred in not refunding a portion of the spousal support he paid Kari in 2013 because she began cohabitating with her then boyfriend in May 2013, ultimately marrying him seven months later. (See § 4323, subd. (a)(1). ) While this claim also is not barred by issue preclusion, we conclude it is nonetheless unavailing.

First, our own independent review of the record suggests there is no substantial evidence to support the finding that in 2013 Kari’s seven-month cohabitation with her boyfriend was a change of circumstance for purposes of section 4323, subdivision (a)(1). Indeed, the record supports the opposite finding, as Kari testified during the support hearing that she was not receiving child or spousal support in about May 2013; and that as a result, she was forced to cohabitate with her then-boyfriend because she could not afford to support herself. Because the ” ‘burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham).) We thus conclude substantial evidence supports the court’s tacit finding there was no change in circumstance for purposes of section 4323, subdivision (a)(1).

Second, the record shows throughout the multiday support hearing that Todd and Kari both sought to expand the issues being decided by the court, as we have noted, in what the court found was a “confusing” marital dissolution case—a finding we agree with. The record shows the court’s decision to limit the issues being decided “cut both ways.” That is, although the court did not make any adjustment to support as a result of Kari’s seven-month cohabitation with her then boyfriend, the court also refused Kari’s request to revisit the issue of the source (i.e., whether separate or community) of the $10,171.90 payments Todd had made to her between January and May 2010, as referenced in the Stipulated Judgment.

We conclude under the facts of this case that the court thus properly refused to relitigate the issue of whether more or less spousal support was owed by Todd in making the allocations set forth in the Support Judgment. (See Denham, supra, 2 Cal.3d at p. 566.) For these same reasons, we also reject Todd’s argument that the court erred when it refused to make an adjustment for, and refund to him a portion of, minor’s childcare costs that were paid from the unallocated payments.

B. Attorney Fees Award

Todd next argues the court erred in awarding Kari $10,000 in attorney fees for the multiday support hearing only. Specifically, he argues that the court’s failure to consider the “factors” in sections 2030 and 2032, and its failure to state on the record “it factored in anything, let alone income and expenses, nor that it even considered the current income and expense declarations of the parties,” rendered the attorney fees award null and void. We find this argument has merit.

The decision in In re Marriage of Morton (2018) 27 Cal.App.5th 1025 (Morton) informs our analysis on this issue. In Morton, the court analyzed sections 2030 and 2032 among other provisions of the Family Code. After reviewing the history of these two statutes, the court found as follows:

“As a general principle, when new legislation amends statutory text by substituting the word ‘shall’ for ‘may,’ the new legislation has restricted the discretionary authority previously granted under the statute. (See § 12 [‘ “Shall” is mandatory and “may” is permissive’].) The version of section 2030 enacted in 1993 stated the trial court ‘may . . . order’ attorney fees in certain circumstances. (Stats. 1993, ch. 219, § 106.1, pp. 1607–1608.) The 2004 amendment deleted the word ‘may’ and inserted text that used the word ‘shall’ four times. (Stats. 2004, ch. 472, § 1, p. 3931.) The 2010 amendment modified section 2030, subdivision (b) to include text stating ‘the court shall make findings’ and stating ‘the court shall make an order awarding attorney fees and costs’ if the findings demonstrated certain conditions. (Stats. 2010, ch. 352, § 4.) The textual changes made by the 2004 and 2010 legislation demonstrate that the discretionary authority granted to trial courts is not as broad as it once was and, currently, trial courts must comply with certain mandatory provisions. (See Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th [633,] 639–640 [2004 amendment restricted trial court’s discretion].)

“Accordingly, we conclude the ‘broad discretion’ referred to in judicial decisions discussing the version of 2030 predating the 2004 and 2010 amendments no longer exists. (See e.g., Cheriton [v. Fraser (2001)] 92 Cal.App.4th [269,] 314 [‘trial courts enjoy broad discretion in awarding attorneys’ fees in marital proceedings’].) The Legislature has imposed limitations on that discretion and it is no longer accurate to refer to a trial court’s ‘broad discretion’ when describing a trial court’s responsibilities under section 2030 as currently in effect.” (Morton, supra, 27 Cal.App.5th at p. 1049.)

The Morton court next reviewed the language of section 2030, set forth ante, and in particular, subdivision (a)(1) and (2) of this statute, which as noted used the word “shall” multiple times. (Morton, supra, 27 Cal.App.5th at p. 1050.) Based on this mandatory language, the court in Morton interpreted section 2030 to require the trial court to make findings on “specific questions” raised by the statute and concluded these findings “must be explicit (i.e., written or oral)” and not “implicit.” (Morton, at p. 1050.)

In support of its conclusion, the Morton court relied on an interpretation of former Civil Code section 4600, a “provision in the Family Law Act relating to an award of custody of a child to a nonparent. The provision stated the court ‘ “must make a finding that an award of custody to a parent would be detrimental to the child.” ‘ (In re B.G. (1974) 11 Cal.3d 679, 695.) Our Supreme Court determined this statutory text required an express finding. (Id. at p. 683.) The phrase ‘shall make findings’ [in subdivision (a)(2) of section 2030] is similar to the phrase ‘must make a finding’ because ‘shall’ and ‘must’ are routinely construed as mandatory. (Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307.) Therefore, we conclude the phrase ‘the court shall make findings’ requires the court to make express findings—that is, findings stated in words, either in writing or orally on the record. (§ 2030, subd. (a)(2).)” (Morton, supra, 27 Cal.App.5th at p. 1050.)

The Morton court next analyzed whether the failure of a trial court to make explicit findings as set forth in subdivision (a) of section 2030 “warrant[ed] automatic reversal or, alternatively, whether the appellant must establish the error was prejudicial. We conclude California’s constitutional doctrine of reversible error applies and requires the appellant to establish prejudice. (Cal. Const., art. VI, § 13.) An appellant in a civil case establishes an error was prejudicial by showing there is ‘a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.’ (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)” (Morton, supra, 27 Cal.App.5th at p. 1051.) Because the Morton court found the trial court had failed to analyze the “needs of the parties and their ability to pay” and ” ‘whether there is a disparity in access to funds to retain counsel,’ ” it further concluded the trial court “committed legal error” under section 2030, subdivision (a)(2). (Morton, at pp. 1052–1053.)

Based on its independent review of the record, the Morton court analyzed whether to remand “with directions for the trial court to make those findings” (Morton, supra, 27 Cal.App.4th at p. 1053), or “to conclude the evidence in the record establishes the facts that render an award of attorney fees mandatory and, as a result, limit the further proceedings on remand to a determination of the amount of those additional attorney fees.” (Ibid.) The court chose the latter, noting the record before it showed a ” ‘disparity in access to funds to retain counsel’ ” as set forth in subdivision (a)(2) of section 2030. (Morton, at p. 1053.)

Finally, the Morton court also addressed the issue of attorney fees on and after appeal. (See Morton, supra, 27 Cal.App.5th at p. 1054.) It found “[s]ubdivision (c) of section 2030 states the trial court ‘shall augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution . . . of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.’ [Appellant] Launa’s appeal was reasonably necessary for the prosecution of the proceeding, but the amount reasonably necessary for her pursuit of this appeal and the further proceedings on remand is a matter to be resolved by the trial court in the first instance. (See In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140–141.)” (Morton, at p. 1054.)

Turning to the instant case, we agree with the reasoning in Morton and thus conclude the court erred when it failed to make any of the mandatory findings required by subdivision (a)(1) and (2) of section 2030 in awarding Kari $10,000 in attorney fees under this statute. (See Morton, supra, 27 Cal.App.5th at pp. 1049–1054.) Accordingly, we remand for the trial court to make such findings and based thereon, determine whether such a fee award, if any, is appropriate under section 2030 for purposes of the multiday support hearing only.

DISPOSITION

The Support Judgment is affirmed. The award of attorney fees for the multiday hearing leading up to that judgment is reversed based on the court’s failure to make any of the mandatory statutory findings under section 2030, subdivision (a). In the interests of justice, the parties will bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.