D'Souza v. D'Souza (In re Marriage of D'Souza)

• Decision Date: 26 August 2020
• Docket Number: D072564
• Parties: In re the Marriage of DINESH and DIXIE D'SOUZA. DINESH D'SOUZA, Appellant, v. DIXIE D'SOUZA, Appellant.
• Court: California Court of Appeals Court of Appeals

In re the Marriage of DINESH and DIXIE D'SOUZA.DINESH D'SOUZA, Appellant, v. DIXIE D'SOUZA, Appellant.

D072564

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

August 26, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. DN171984)

APPEAL from judgments of the Superior Court of San Diego County, Thomas Ashworth, III, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Law Offices of Stephen Temko and Stephen Temko for Appellant Dixie D'Souza.

Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall, Lionel P. Hernholm, Jr., and David M. Zachry for Appellant Dinesh D'Souza.

Dinesh and Dixie D'Souza were married for over 20 years, during which time they accumulated a substantial marital estate. In this dissolution proceeding, Dixie appeals from judgments entered on reserved issues, including division of property, spousal support, and sanctions.¹ On these issues, she contends the trial court made numerous and varied errors. The issues were decided by an agreed upon privately compensated temporary judge and then incorporated in judgments signed by the family court. Litigation spanned five years and proceeded in three phases, with Dixie represented by counsel throughout (by at least seven different law firms). For reasons we explain, we conclude there is no reversible error and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Dixie and Dinesh married in May 1992 and began primarily living apart in August 2010. Each began romantic affairs with other people between 2010 and 2012. In October 2012, or over 20 years after they married, Dinesh filed for divorce. October 2012 was later adjudicated as their legal date of separation.

The couple had one daughter (Daughter) during marriage, who was 16 years old in 2012 and an adult attending college when judgment was entered.

Dixie and Dinesh are both college graduates. Dinesh attended Dartmouth College, and prior to marriage, was a published New York Times best-selling author. He continued to publish books during marriage and after the couple separated. A few of the books became films. Dinesh's works typically had a conservative political or religious theme. During the marriage, he gained notoriety and media attention for his works and generated income primarily as an author, lecturer, and film producer. His income from 2007 through 2012 averaged about $75,000 per month.

For her part, Dixie stopped working prior to marriage and was a homemaker and primary caretaker for Daughter.

During their marriage, the couple acquired and lived in a 7,300 square foot home in the gated, affluent community of Fairbanks Ranch in Rancho Santa Fe. Preseparation, they completely paid off the mortgage. Depending on the appraiser, the home was worth about $3.2 or $3.7 million in 2015. The home's furnishings, comprised of at least 139 collections of items, were valued at approximately $193,850.²

Historically, Dinesh handled the couple's finances, investments, and bills. The D'Souzas had numerous bank and investment accounts. Dinesh did not habitually consult with Dixie prior to making an investment or financial decision. According to him, Dixie was not "remotely interested" in their investments and was simply happy to know that they were "making money." Their discussions about finances were typically limited to her asking him whether they could afford to purchase something, to which he would respond. Dixie admitted she did not know details of the couple's investments because she "didn't understand a lot of these financial things."

Beginning in the 1990s, Dinesh maintained bank accounts in India (in the currency of rupees) for the family's expenditures when they traveled to India. He gradually increased the amounts in these accounts over time because they generated higher interest rates than the couple's other bank accounts. In 2011, Dinesh transferred money (community property) into the Indian bank accounts to purchase a one-half or one-third interest in five properties located in India—three in Goa and two in Mumbai—because he thought it would be a good investment. The properties in fact maintained or appreciated in value. Dinesh did not concurrently tell Dixie about the investment but made full disclosure by April 2012 when she questioned him about it. According to Dinesh's appraiser, the properties collectively had an estimated fair market value of $1.2 million (100 percent interest) in October 2015.

In 2012, Dixie invested $38,000 of the couple's cash (two withdrawals of $15,000 from their joint bank account and $8,000 accumulated in her desk drawer) in a company called Players Road, LLC. Dinesh did not consent to this investment. It was a total loss.

In October 2012, Dinesh filed a petition for dissolution in San Diego Superior Court. The ensuing litigation was protracted and bitter, with Dixie utilizing at least seven different law firms from beginning to end and incurring over $2.5 million in attorney fees and costs. Dinesh incurred approximately $1.4 million in attorney fees and costs. The parties agreed early on to have their case decided by a privately compensated temporary judge, Honorable Thomas Ashworth, III (ret.).³ The parties further agreed the case would proceed in three phases: (1) a trial on the issues of temporary spousal support and date of separation, which concluded in a final statement of decision in January 2015; (2) a trial on reserved issues including permanent spousal support and property division, which concluded in a 21- page, final statement of decision in September 2016;⁴ and (3) a document trial on attorney fees, costs, and sanctions, which concluded in an 11-page final statement of decision in December 2016. The latter two final statements of decision⁵ were incorporated in 2017 judgments, which are the subject of this appeal.

After the first, seven-day trial in 2014, the court (Judge Ashworth) found the parties' legal date of separation was October 3, 2012, or the date Dinesh filed his petition for dissolution, even though the court acknowledged that evidence could have supported an earlier date of separation. Further, the court ordered temporary spousal support to Dixie in the amount of $25,000 per month, reduced from a prior, interim support order of $50,000 per month. The rulings from the first trial are unchallenged on appeal but provide context to the court's later, challenged decisions.

After the second, seven-day trial in 2016, the court found the appropriate amount of permanent spousal support to Dixie was $35,000 per month, considering all the factors under Family Code section 4320.⁶ The court then engaged in dividing the couple's substantial estate, including determining Dinesh's and Dixie's separate property as opposed to community property. In this regard, the final statement of decision categorically discussed numerous assets and liabilities. Notably, the court awarded Dixie the couple's largest single asset, the unencumbered Rancho Santa Fe home, as well as the home furnishings, and declined to impose a Watts⁷ charge of nearly $250,000 on her, representing her share of the fair rental value of the home.

The court accepted Dinesh's evidence on the value of the community's five properties in India, noting that his team of appraisers was "well qualified and believable" and provided the "only reliable values" of the foreign properties. In contrast, Dixie was "given every opportunity to obtain her own appraisals and failed to do so."

The court made a number of findings relating to other investments, claims for reimbursement, and claims of breach of fiduciary duty.

Finally, in the third phase of the case, the court rendered its decision on the parties' requests for attorney fees, costs, and sanctions, after thoroughly reviewing their postseparation behavior and litigation conduct. The court discussed the complications and problems the case had encountered, over which Judge Ashworth presided for four years. Ultimately, with certain specified exceptions, the court denied each side's request for additional sanctions based on claimed nondisclosures of information, finding that "neither party's . . . conduct was exemplary but is deemed understandable and offsetting considering all of the above circumstances."

This appeal followed. We discuss each issue below in the order presented by Dixie, providing further background as needed.

DISCUSSION

I. Standards of Review

It is undisputed many of the disputed trial court rulings in this case are reviewed under a deferential standard. (E.g., In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443 ["As a general rule, we review spousal support orders under the deferential abuse of discretion standard"]; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 (Corona) [reviewing Family Code sanctions order for abuse of discretion].) We review the court's factual findings for substantial evidence. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734 (Rossin) ["factual findings that underpin the characterization [of property] determination are reviewed for substantial evidence"]; In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931 [breach of fiduciary duty finding reviewed for substantial evidence].) De novo review is appropriate when the resolution of an issue turns on a critical legal consideration. (Rossin, at p. 734.)

II. No Reversible Error in Admitting the Appraisal Expert's Testimony

Dixie's first claim of error is the trial court abused its discretion in admitting the expert testimony of Evan Ranes, an appraiser, over her hearsay objection. Ranes opined at trial on the value of the couple's five Indian properties. Dinesh responds that Dixie did not...