Jimenez v. Fiore (In re Marriage of Fiore)

• Decision Date: 20 December 2019
• Docket Number: D073228
• Court: California Court of Appeals
• Parties: In re the Marriage of ARCANGELO FIORE and MARCIA JIMENEZ. MARCIA JIMENEZ, Petitioner and Appellant, v. ARCANGELO FIORE, Appellant.

In re the Marriage of ARCANGELO FIORE and MARCIA JIMENEZ.

MARCIA JIMENEZ, Petitioner and Appellant, v. ARCANGELO FIORE, Appellant.

D073228

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

December 20, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DS38156)

APPEALS from orders of the Superior Court of San Diego County, Sharon L. Kalemkiarian, Judge. Affirmed in part, reversed in part, and remanded with directions.

Fair Cadora and Kevin L. Cadora for Appellant Arcangelo Fiore.

Marcia Jimenez, in pro. per., for Appellant.

In this marital dissolution action between Arcangelo Fiore and Marcia Jimenez, both parties appeal from various postjudgment orders and rulings set forth in the trial court's "STATEMENT OF DECISION AND FINDINGS AND ORDER AFTER HEARING" (statement of decision). The court filed the statement of decision after it held a hearing on postjudgment motions and requests by Jimenez for division of certain omitted assets (i.e., property not adjudicated in prior dissolution proceedings), retroactive modification of child support, and attorney fees based on need under Family Code¹ section 2030 and as sanctions under section 271.

Fiore's appeal mainly concerns real property in Italy that the parties refer to as Via Landini or the Via Landini property. Fiore purchased Via Landini during the marriage and sold it in 2011. He argues that the net proceeds from the sale of the property to be divided as community property should be $156,932 rather than $325,600, as the trial court determined. Specifically, he contends that: (1) the court erred in failing to deduct from the Via Landini sales proceeds a tax charged against the sales price, the balance of a mortgage on the property, and $20,068 representing overpayments of child support that the court tentatively ruled would be credited to Fiore but declined to credit in its final statement of decision; (2) the statement of decision does not adequately address the evidence that the court relied on in determining Jimenez's share of the proceeds from the sale of Via Landini; (3) the court erred by not applying the equitable defenses of laches and "fairness and hardship" to Jimenez's omitted asset claim regarding Via Landini; (4) the court erred by not applying the equitable defense of unclean hands to all of Jimenez's omitted asset claims, based on Jimenez's undisclosed property interests in Mexico; and(5) the statement of decision is defective because it does not adequately address the court's consideration of these equitable principles or its ultimate decision to not credit him with $20,068 in overpayments of child support.

Jimenez contends that the trial court erred by (1) rejecting her claim that Fiore used community property funds to make the down payment on real property in Italy located at Via Sabatini (Via Sabatini or the Via Sabatini property); (2) ruling that certain items of personal property left at Via Landini (the Via Landini personal property) were not unadjudicated assets; (3) finding that Jimenez failed to present sufficient evidence that Fiore had breached his fiduciary duty as to Via Landini and failing to address whether he had also breached his fiduciary duty as to the Via Landini personal property and the Via Sabatini down payment; (4) insufficiently modifying Fiore's child support payments and denying retroactive modification under section 3653; (5) denying her an award of attorney fees and costs under section 3652 as the prevailing party on the child support litigation; (6) ignoring her request for attorney fees under section 3667, based on the inaccuracy and incompleteness of Fiore's income and expense declarations; (7) denying her request for an order augmenting the $20,000 attorney fees award that a different judge had made under sections 2030 and 2032; and (8) denying her request for sanctions under sections 271 and 1101.

We reverse the orders in the statement of decision denying Jimenez's request to adjudicate the Via Landini personal property as omitted assets and denying her request for sanctions under section 271. We remand for the court to adjudicate the Via Landini personal property as omitted assets, to rule on Jimenez's requests for attorney fees undersections 3652 and 3667, and to reconsider her request for sanctions under section 271. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jimenez and Fiore were married in Mexico on April 15, 1997, and separated 11 years and six months later, on October 22, 2008. They had two children during the marriage—twin daughters born in July 1999.

Before the marriage, Jimenez had experience working in retail and also as a radio announcer in Mexico. She did not work outside the home during the marriage. In proceedings in the trial court, Jimenez represented that, at the beginning of the marriage, Fiore worked for a multinational company that sold paper products, and that during the marriage, he owned, worked for, or provided consulting services to various companies in Italy and the United States. Fiore represented that he was "self-employed and the owner of a sales agency."

In 1999, Fiore purchased the Via Landini property in Italy and the parties moved into the home. Fiore indicated on the purchase contract that he was single. At trial, he explained that he made that representation because he had married in Mexico and it would have been a lengthy and complicated process to certify and translate into Italian the documents showing that he was married. He claimed that he had purchased the property with separate property funds and that the property was his separate property. However, on appeal he acknowledges that Via Landini was an omitted asset under section 2556 because it was purchased during the marriage and there was no evidence that rebutted the presumption that it was community property.

In 2002, the parties purchased a property on Northshore Drive in Chula Vista, California (the Northshore property). The down payment on that property was made with Jimenez's separate property funds and the mortgage payments were made with community property funds. The family moved into the Northshore property in 2005, and traveled back and forth between Via Landini and the Northshore property during the marriage.

Jimenez filed a petition for dissolution on October 27, 2008. Fiore was personally served with the petition on October 28 at the Northshore property but did not appear. On December 26, 2008, Jimenez filed a request to enter default and default was entered. Jimenez also filed a community and quasi-community property declaration in which she listed the Northshore property, but did not include Via Landini. On January 20, 2009, the trial court held a default hearing on the petition and on April 28, 2009, entered a judgment of dissolution that ended the parties' marital status. The judgment awarded physical custody of the children to Jimenez, reserved on the issues of child and spousal support, and awarded the Northshore property to Jimenez at a market value of negative $18,100. In March 2009, Fiore purchased the Via Sabatini property. He made a down payment on the property equivalent to $62,430 USD (United States dollar).

At a hearing on February 9, 2010, the court ordered Fiore to pay Jimenez child support of $1,190 per month. On March 10, 2011, the County of San Diego Department of Child Support Services (DCSS) filed a motion for judicial determination of child support arrearages, at Jimenez's request. Jimenez prepared a declaration in support of themotion indicating that Fiore had failed to make his monthly child support payment from February through July of 2010.

Fiore filed a response to the motion in which he represented that from February through July of 2010, he had paid Jimenez $12,319.82 "in lieu of child support," which amounted to an average monthly payment of $2,053.30. In a declaration he stated: "[Jimenez] herself has not accurately reflected her net worth, as she has not mentioned in her income declaration that she has ownership interests in various Mexican radio stations as noted by the exhibit attached to my response papers. It is my belief that monies are paid to [Jimenez] as a result of her ownership interests in these Mexican Radio stations that she has not included in her income and expense declaration submitted in support of her moving papers in this matter."

In June 2011, Fiore told Jimenez that he needed her cooperation to sell Via Landini because there was a judicial lien on the property and Italian law required her signature to sell it. In her trial brief, Jimenez stated that after she consulted with her attorney about the matter, she realized that Via Landini was community property. Jimenez filed an application for an order to show cause (OSC) in August 2011 to claim her interest in "undisclosed and omitted assets," including a bank account at Regents Bank in La Jolla (La Jolla bank account), Fiore's Italian businesses, and "significant real property in Italy purchased during [the] marriage[,]" one of which was Via Landini. Via Landini was sold on September 7, 2011.

Fiore filed a responsive declaration to the OSC in September 2011. He contended that Jimenez was aware of all community and separate property assets at the time that shesought a default judgment, and that all community assets had been previously divided. He averred that he was in Italy during most of the court proceedings and had not received notice of the proceedings because papers apparently had been sent to an old address. The La Jolla bank account had been "expended on [Jimenez's] separate property debts[,]" and "[t]he real property in Italy was purchased with separate property...