Filed 10/31/18 Marriage of Karuppiah and Thurairajah CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Enrique Camarena, Judge. Affirmed in part and reversed in part.

Rosalin Thurairajah, in pro. per., for Appellant.

Kristine C. Blagof for Respondent.

I

INTRODUCTION

Rosalin Thurairajah (Wife) appeals from a postjudgment order requiring her to pay Narayanan Karuppiah (Husband) attorney fees of $9,835, costs of $860.03, and sanctions of $10,000 plus an additional $150 a day for each day she failed to move out of a home the court awarded to Husband in a dissolution judgment. She also appeals from a postjudgment order determining the community property interest in multiple investment and retirement accounts, confirming the remainder of the accounts as Husband's sole and separate property, and offsetting her share of the community property interest in the accounts for debts she owed to Husband.[1]

Wife contends we must reverse the first order because the court erred in denying her request for a continuance, she did not engage in any sanctionable conduct, the $10,000 sanction was invalid, and the sanctions imposed an unreasonable financial burden on her. She contends we must reverse the second order because the court offset her share of the community property interest in Husband's accounts for debts she either did not owe or were invalid and because Code of Civil Procedure section 704.115 prohibited the court from offsetting her debts from her community property share of Husband's retirement accounts.

We conclude the court erred in imposing the $10,000 sanction because it was untethered to Husband's attorney fees and costs. We, therefore, reverse the October 2016 order imposing this sanction and the May 2017 order offsetting Wife's share of the community property interest in Husband's accounts for this sanction. In all other respects, we affirm the orders.

II

BACKGROUND

A

In March 2016 the court entered a judgment dissolving Husband and Wife's marriage. As part of the judgment, the court confirmed a home and several investment and retirement accounts as Husband's sole and separate premarital property, subject to some community property reimbursements to Wife. The court also found other investment and retirement accounts were Husband's premarital assets; however, because the parties disagreed about whether there were any community property contributions to these accounts, the court ordered the parties to meet and confer on the matter. The judgment included a provision ordering each party, "at the request of the other, to execute and deliver any instrument, furnish any information, and perform any other act reasonably necessary to carry out the provisions of this Judgment without undue delay or expense."[2]

B

In April 2016 Husband filed an ex parte application for an order appointing an elisor. The same day, Husband also filed a request for a temporary emergency order granting him exclusive use of the home as well as orders: (1) appointing an elisor, (2) requiring Wife to return money she withdrew from the accounts awarded to Husband, and (3) sanctioning Wife.

Both the application and the request stated Wife refused to comply with the dissolution judgment's requirement to transfer the home and the accounts awarded to Husband into Husband's name. In addition, the application stated Wife withdrew a total of $55,000 from two of the accounts without authorization.

After first determining Wife had notice of the hearing, the court granted the ex parte application. The court ordered Wife to return the withdrawn funds within 48 hours and appointed an elisor to transfer the home and the two accounts to Husband. The same day, the elisor transferred the home and one of the accounts to Husband.

C

The court set a hearing in May 2016 to review the matter and to consider the sanctions portion of the request. About a week before the hearing, the Wife submitted a declaration stating she was unrepresented and had a medical condition rendering her physically unable to appear for any court proceedings for eight weeks. As support for her declaration she provided a doctor's note stating she had broken her upper arm on her dominant side and should be excused from any activity requiring her to use her arm or hand for the next six to eight weeks.

On the day of the May 2016 hearing, Wife appeared by telephone. She told the court she had broken her upper arm, was in pain, was taking pain medication, and was unable to move or write. She also told the court she would not be able to stop taking pain medication and begin physical therapy for at least another six to eight weeks.

The court questioned how a broken arm prevented her from complying with the dissolution judgment's requirement for her to transfer accounts to Husband. In response, Wife did not argue she was physically unable to comply with the judgment. Rather, she argued she did not believe she had to comply with the judgment because she appealed it.

Husband argued Wife did not appeal the judgment until two days after the court granted the ex parte application and appointed an elisor. Husband also argued Wife had only broken her arm two weeks earlier and had plenty of time before then to comply with the dissolution judgment, which simply required her to sign some forms. Instead of complying, she took $55,000 out of Husband's accounts. Finally, while Husband did not dispute Wife had a medical issue, he asserted there has not been a single court appearance "where she hasn't asked for a continuance, where she hasn't had some excuse, where there hasn't been a reason for delay."

After reviewing the doctor's note, the court found Wife's injury did not excuse her from transferring the accounts or signing the documents. In addition, the court found Wife was properly served with the hearing documents and her claims to the contrary were not credible. The court also implicitly found Wife's claims of being affected by pain medication were not credible, noting she was coherent, did not have disjointed speech, and was making reasonable arguments.

The court next considered the parties' evidence and arguments regarding the remaining issues before the court, including the appointment of an elisor to transfer the second account to Husband's name, an order requiring Wife to move out of the home, and an order imposing sanctions against Wife to be satisfied from community property awarded to her. The court decided to appoint an elisor and ordered Wife to vacate the home by the end of the month and to return the withdrawn funds within two days.

The court reserved jurisdiction over the issue of whether to impose sanctions and set a hearing in June 2016 to further review the matter. The court also ordered Wife to personally appear at the June 2016 hearing and, if she could not be at the hearing, to provide a specific doctor's note beforehand stating she was physically unable to appear.

D

Near the end of May 2016, Wife filed an ex parte application for an order continuing the June 2016 hearing. The application was supported by an electronically signed note from a nurse practitioner. The note was dated a few days earlier, placed Wife off activity for one day only—the day of the hearing—and stated without any explanation Wife was unable to appear in person for the hearing. The court denied the application.

A few days before the June 2016 hearing, Wife filed a declaration stating she had not been properly served with the ex parte application or the hearing documents, and there had not been any meeting and conferring by the parties as required by the dissolution judgment. She also stated she took out $53,335 from two investment accounts to reimburse herself $15,355 for child support, $5,000 for attorney fees, and $9,727 for community funds used to pay the mortgage on the home awarded to Husband. She used the remaining $23,273 to pay the expenses of the trust which held the investment accounts.

On the day of the June 2016 hearing, Husband informed the court Wife refused to move out of the home unless Husband went through formal eviction proceedings. He requested a temporary restraining order with a move-out order. He also reiterated his requests for attorney fees, costs, and sanctions.

Wife filed another declaration on the day of the hearing but did not appear for the hearing. The declaration reiterated some of the claims in her prior declaration and challenged the amount and necessity of the attorney fees and costs Husband incurred to obtain the elisor and prepare for the June 2016 hearing.

Regarding Wife's objection to Husband's claimed attorney fees and costs, the court found most of the challenged charges arose out of Wife's efforts to delay the proceedings and her failure to follow court orders or the judgment.

Regarding Wife's absence from the hearing, the court stated it had previously heard Wife's explanations about her limitations due to her upper arm injury and did not find her credible. The court also stated it had reviewed the nurse practitioner's note supplied by Wife and did not find the note credible because it "conveniently only places [Wife] off activity for [the day of the June 2016 hearing]. Knowing that ... we were going to discuss sanctions and revisit whether or not she had moved out of the home."

In October 2016 the court issued an order requiring Wife to pay Husband's attorney fees of $9,835 and costs of $860.03 for failing to abide by the dissolution judgment and to transfer to Husband the property the court awarded to Husband. In addition, the court imposed sanctions of $10,000 against Wife under Family Code section 271 for the delays she caused. The court also granted a temporary restraining order with a move-out order and imposed a sanction of $150 a day against her until she vacated the home.

E

In January 2017 Husband requested an order enforcing the judgment, including orders related to equalization payments, retirement, repayment of stolen funds, sanctions, and attorney fees. Essentially, Husband sought to resolve the issues left open in the dissolution judgment regarding the amount of the community property interest in several of Husband's investment and retirement accounts. Husband also sought to offset debts Wife owed to Husband against her share of the community property interest and to obtain attorney fees and sanctions against her for her conduct.

Before the February 2017 hearing on the request, Wife submitted a declaration stating she was unable to appear at the hearing for medical reasons and requested a continuance until May 2017. Appended to the declaration was an unsworn doctor's note stating, "[Wife] is currently undergoing medical testing for her recent symptoms. Please excuse her from court hearings in the next 3 months."

Wife did not appear at the February 2017 hearing. The court sustained Husband's hearsay objection to the doctor's note and implicitly denied her request for a continuance. The court then conducted the hearing at which Husband testified and presented documentary evidence and arguments.

In May 2017 the court issued an order resolving the open issues from the dissolution judgment by determining the amount of the community property interest in Husband's investment and retirement accounts and confirming the remainder of the accounts as Husband's sole and separate property. The court also determined the amount Wife owed Husband for unauthorized withdrawals from Husband's investment and retirement accounts as well as for attorney fees, costs, and sanctions. The court then offset Wife's share of the community property interest by Wife's debts to Husband, resulting in a balance owed by Wife of $12.35.

III

DISCUSSION

A

Preliminarily, Husband requests we dismiss Wife's appeal under the disentitlement doctrine. "The disentitlement doctrine was codified in the context of dissolution of marriage proceedings in Code of Civil Procedure section 1218, subdivision (b), which provides: 'Any party, who is in contempt of a court order or judgment in a dissolution of marriage, dissolution of domestic partnership, or legal separation action, shall not be permitted to enforce such an order or judgment, by way of execution or otherwise, either in the same action or by way of a separate action, against the other party.' " (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 216, fn. 6.) The doctrine does not apply to this appeal because Wife is not attempting in this appeal to enforce an order or judgment against Husband. (Ibid.)

B

Wife contends we must reverse the October 2016 order because the court erred in denying her request to continue the June 2016 hearing. We review an order denying a continuance for abuse of discretion. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)

A court abuses its discretion when, considering all circumstances before it, its decision exceeds the bounds of reason. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1154.) In determining whether an abuse of discretion occurred, we presume the court's decision is correct, we indulge all intendments and presumptions in support of the decision, we resolve all evidentiary conflicts in favor of the prevailing party, and we defer to the court's resolution of any factual disputes. (Ibid.)

A court may grant a continuance if the requesting party affirmatively shows good cause for the continuance. (Cal. Rules of Court, rule 3.1332(c); In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 405-406 (Teegarden).) Wife sought a continuance of the June 2016 hearing on the ground she was unable to participate in the hearing because she had broken her upper arm on her dominant side and was taking pain medication. A party's illness may constitute good cause for a continuance. (Cal. Rules of Court, rule 3.1332(c)(2).)

In determining whether to grant a continuance because of the requesting party's illness, the court may consider the legal sufficiency of the requesting party's showing and the requesting party's good faith. (Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 414, disapproved on another point in Hudson v. Hudson (1959) 52 Cal.2d 735, 739.) The requesting party should, whenever possible, support the request with "an appropriate declaration of a medical doctor, stating the nature of the illness and the anticipated period of any incapacity." (Teegarden, supra, 181 Cal.App.3d at p. 406.) A party's illness does not mandate the continuance of a hearing where the court concludes the party is able to attend. (Lewis v. Neptune Society Corp. (1987) 195 Cal.App.3d 427, 430.)

Here, Wife supported her request for a continuance with a note from a nurse practitioner. The note was dated approximately two weeks before the June 2016 hearing and placed Wife off activity for a single day—the day of the hearing. The note did not state the nature of Wife's medical condition or why it precluded her from activity only on that particular day. After considering the note along with Wife's history of seeking continuances and delays in complying with court orders, the court determined Wife's claim of being unable to attend the hearing was not credible. Given the standards which govern our review of the court's determination, we are unable to conclude the determination exceeds the bounds of reason. Accordingly, we conclude Wife has not established the court abused its discretion in denying her request to continue the June 2016 hearing.

C

Wife next contends we must reverse the October 2016 order because the court erred in imposing sanctions under Family Code section 271. More particularly, she contends she did not engage in any sanctionable conduct, the $10,000 sanction was invalid because it was untethered to Husband's attorney fees and costs, and the sanctions imposed an unreasonable financial burden on her.

Family Code section 271 provides in part: "(a) Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or 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. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award. [¶] ... [¶]

"(c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property."

"Sanctions under section 271 are committed to the discretion of the trial court, and will be reversed on appeal only on a showing of abuse of that discretion, that is 'only if, considering all of the evidence viewed more favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.' " (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.)

Regarding Wife's claim she did not engage in any sanctionable conduct, the court found based on undisputed evidence Wife did not promptly transfer Husband's accounts to his name as required by the dissolution judgment and she withdrew large sums of money from two of Husband's accounts without authorization. While Wife offered varied explanations for her actions, including that Husband had not attempted to meet and confer with her, Husband had not properly served her with court papers, and she was owed the money she took, the court did not find her explanations factually supported or credible. We must defer to these factual and credibility findings unless Wife establishes they were not supported by substantial evidence, which Wife has failed to do.

Regarding Wife's claim the $10,000 sanction was invalid because it was untethered to Husband's attorney fees and costs, we agree. "The plain language of section 271 authorizes the court to impose 'attorney's fees and costs' as a sanction for conduct frustrating settlement or increasing the cost of the litigation. ' "The statute's plain meaning controls the court's interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court ... should, go beyond that pure expression of legislative intent." ' [Citation.] Here, the words 'attorney fees and costs' are not ambiguous ... . Section 271 'means what it says'—sanctions available under the statute are limited to 'attorney fees and costs.' " (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1153.) While Husband contends there were attorney fees and costs to which the court could have tethered the $10,000 sanction, nothing in the record indicates the $10,000 sanction was so tethered. Therefore, the $10,000 sanction was invalid.

Finally, regarding Wife's claim the sanctions imposed an unreasonable hardship on her, the record shows Wife had earning capacity and a community property interest in some of Husband's retirement and investment accounts. The record further shows Wife knew of Husband's plan to offset the sanctions from Wife's community property interest in the retirement and investment accounts and this interest was more than sufficient to pay the portion of the sanction tethered to Husband's attorney fees and costs. She, therefore, has not established the sanctions caused her an unreasonable hardship.

D

Wife contends we must reverse the May 2017 order for a variety of reasons. These reasons include, but are not limited to: (1) the court erred in sanctioning Wife $300 ($150 day for two days) for failing to vacate the home because Wife moved out the same day she was served with the court's move-out order; (2) the court erred by incorporating a $1,500 sanction from a hearing in March 2015 into the October 2016 and May 2017 orders because the sanction was not validly imposed; and (3) the court violated Code of Civil Procedure section 704.115 when it offset Wife's debts to Husband from Wife's community property share of Husband's accounts.

We conclude Wife forfeited the first and third contentions by failing to raise them at the February 2017 hearing. We further conclude the second contention appears to be an improper collateral attack on a final order. (See In re Marriage of Davenport, supra, 194 Cal.App.4th at pp. 1528–1529 [a litigant forfeits issues raised for the first time on appeal]; Estate of Buck (1994) 29 Cal.App.4th 1846, 1854 [a litigant "may not collaterally attack a final judgment for nonjurisdictional errors"].) To the extent the parties dispute whether the order from March 2015 is final, we do not have an adequate record to resolve the dispute and the order is not directly before us in this appeal.

E

Given our preceding substantive conclusions, we need not decide the ancillary procedural issues raised by Husband. In addition, we decline Husband's and Wife's invitations to sanction the other on our own motion for any extraneous documents they may have included in their appendices.

IV

DISPOSITION

The order of October 2016 is reversed to the extent it imposes a $10,000 sanction untethered to Husband's attorney fees and costs and the order of May 2017 is reversed to the extent it offsets Wife's share of the community property interest in Husband's retirement and investment accounts for this sanction. The orders are affirmed in all other respects. The parties are to bear their own appeal costs.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

GUERRERO, J.