Filed 4/7/22 Marriage of Cora CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Is the trial court’s order denying a motion to modify spousal and child support meaningless? Appellant thinks it is. Four months after the trial court denied appellant’s motion to modify support, appellant filed a new motion to modify support. Her evidence covered the same period as the motion the court denied. The court denied the new motion on the ground appellant failed to show a change of circumstances since the last motion. Appellant believes she need only show a change of circumstances since the original support order. She is wrong. We affirm.

FACTS

Catherine Cora is a celebrity chef with an interest in a number of businesses. She was married to Jennifer Cora until their marriage was dissolved in February 2017. They had four children of the marriage, all of whom were minors at the time of the dissolution. While Catherine worked outside of the home, Jennifer stayed home with the children.

At the time of the dissolution, Catherine had a monthly gross income of $52,305. Jennifer has serious physical and emotional limitations and had been out of the workforce for a long time. The trial court declined to impute income to her.

The trial court ordered Catherine to pay $8,118 monthly child support and $9,500 monthly spousal support. The court also ordered Catherine to pay Jennifer’s attorney $440,000.

Catherine’s First Motion to Modify Support

In March 2020, Catherine made a motion to modify both child and spousal support. By then Catherine had unilaterally reduced her $8,118 monthly child support payment to $4,000 per month and stopped paying spousal support. She claimed that financial losses in the restaurant business due to the Covid-19 pandemic made it impossible for her to meet her support obligations.

Catherine refused to provide the documents Jennifer’s accountant needed to make an analysis of Catherine’s finances. On June 6, 2020, the trial court denied the motion, finding that Catherine significantly failed to carry her burden of proof.

Catherine’s Second Motion to Modify Support

Four months after the trial court’s June 6, 2020, order denying Catherine’s March 2020 motion to modify support, Catherine made the instant motion to modify support. She did not present any evidence of a change of circumstances since the March 2020 motion. Instead, she attempted to relitigate her claim of a change of circumstances occurring between the original judgment and the March 2020 motion to modify.

Catherine claimed her total monthly income was $2,425 per month and that her monthly expenses were $1,783, thus leaving only $620 per month available for support. But from March 26, 2020, to September 29, 2020, she paid her attorneys and accountants $176,075. The court stated: “[T]he fact that she has paid so many so much and, at the same time unilaterally modified her support order in March 2020 and litigates with alacrity and repeatedly, is very detrimental to her credibility”

In denying Catherine’s motion, the trial court stated:

“There is not even an excusable attempt to establish a change of circumstances since the last order. Instead, the litigation is another attempt by [Catherine] to evade her support obligations. The Court does not embrace the strategy or the tactics of this motion.

“[Catherine’s] motion for modification absent a change of circumstances is a collateral attack on the June 6, 2020, order. Apparently, that order is already on appeal. This request only reiterates, revisits and seeks reconsideration of the prior ruling; there is no compliance with meeting the procedural rules; the unrelenting prosecution of a meritless motion directly impacts fees and costs; contributes to contentious and acrimonious interchange between lawyers, experts and clients; supports [Catherine’s] efforts to evade compliance with the Court’s support orders.” (Italics omitted.)

The trial court concluded that Catherine could comply with the support order, but that she willfully refuses to do so. The court found that Catherine made the motion in bad faith.

DISCUSSION

Standard for Motion to Modify Support

Catherine contends the trial court applied the wrong legal standard in determining whether to reduce support.

Catherine argues the trial court erred in only considering whether there has been a change of circumstances since the last order of June 6, 2020. She claims the court must consider whether there has been a change of circumstances since the original spousal support order contained in the judgment. She does not contest the court’s finding that there had been no change of circumstances since the last spousal support order.

Catherine relies on In re Marriage of West (2007) 152 Cal.App.4th 240, 246, for the proper legal standard to be applied by the trial court in considering motions for modification of support. She claims West requires a showing of “a material change of circumstance since the underlying order was issued.” But that is not what West says. Instead, West says a modification requires a showing of “a material change of circumstances since the last order.” (Ibid., italics added.) The last order here was the order denying modification, not the original judgment. Even the principal case on which Catherine relies betrays her.

Other cases on which Catherine relies are equally unavailing. In Levitt v. Levitt (1965) 62 Cal.2d 477, the parties’ original marital settlement agreement in 1954 provided for spousal support to wife of $400 per month. By stipulation, in 1956, the amount was modified to $500 per month. In 1962, husband sought modification of the $500 per month support on the ground that their child was older and wife was now able to work. The trial court modified support from $500 per month to $1 a year. Our Supreme Court affirmed, stating, “The trial court has jurisdiction to modify orders for support where the conditions of the parties have changed subsequent to entry of the prior order.” (Id. at p. 483.) The court pointed out that in 1956, when the support stipulation was made, the parties’ child was only five years old, thus requiring wife’s constant care. (Id. at p. 484.) By 1962, when the court reduced the $500 per month support, the child was 11 years old and more self-sufficient, thus freeing wife to work. (Ibid.)

Contrary to Catherine’s assertion, in Levitt, the trial court did not use the final judgment of divorce as its starting point. Instead it used the 1956 stipulation. That was the last prior order.

In Triest v. Triest (1944) 67 Cal.App.2d 320, the determinative period was from the final decree of divorce because that was the only support order in existence prior to the motion for modification. Similarly, in Marshall v. Marshall (1925) 196 Cal. 761, the determinative period was from the final divorce decree because that was the most recent support order.

No authority supports Catherine’s novel contention that the trial court ignore its prior order denying modification and proceed as if it never happened. It is one thing to appeal a decision, but quite another to simply file another motion for modification. There would be no limit to the expense and harassment one can cause to the opposing party.

At a prior hearing, Catherine’s counsel expressed dismay that the trial court found Catherine not to be credible. A frivolous motion to reduce support payments and this frivolous appeal do nothing to enhance Catherine’s credibility. This appeal barely escape sanctions.

The order is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

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Law Offices of Donald L. Briggs, Donald L. Briggs and Amy Shiffman Hendel for Appellant.

Law Office of Stephanie J. Finelli, Stephanie J. Finelli; Drury Pullen and Susanna V. Pullen for Respondent.