Marriage of Drake, In re

• Decision Date: 27 March 1997
• Docket Number: No. B099548,B099548
• Citation: 53 Cal.App.4th 1139,62 Cal.Rptr.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2282, 97 Daily Journal D.A.R. 4113 In re the Marriage of Miriam J. and James Hughes DRAKE. James R. ADAMOLI et al., Respondents, v. James Hughes DRAKE, Appellant.

Page 466

62 Cal.Rptr.2d 466

53 Cal.App.4th 1139, 97 Cal. Daily Op. Serv. 2282,

97 Daily Journal D.A.R. 4113

In re the Marriage of Miriam J. and James Hughes DRAKE.

James R. ADAMOLI et al., Respondents, v. James Hughes DRAKE, Appellant.

No. B099548.

Court of Appeal, Second District, Division 4, California.

March 27, 1997.

As Modified April 18, 1997.

Review Denied June 11, 1997.

[53 Cal.App.4th 1147] Jeffrey W. Doeringer, Huntington Beach, for Appellant.

Trope and Trope, Thomas Paine Dunlap and Bruce E. Cooperman, Los Angeles, for Respondents.

BARON, Associate Justice.

The record in this case depicts a millionaire father's resolute opposition to his former wife's petition for increased child support for their disabled adult son. Appellant James Hughes Drake challenges orders of the family court awarding child support, attorney fees, and sanctions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant James Hughes Drake (hereafter "James") and Miriam J. Drake (hereafter "Miriam") were married on November 6, 1945. ¹ Their son, David James Drake (hereafter "David"), was born on November 8, 1950.

On March 23, 1960, an interlocutory judgment of divorce concerning James and Miriam's marriage was filed in Los Angeles Superior Court (No. D566797). The final decree of divorce was entered on April 13, 1961.

In 1971, David was diagnosed as suffering from chronic schizophrenia, paranoid type. James retired in 1980 and remarried. Beginning in 1983, David lived with Miriam in Houston, Texas.

In 1983, Miriam created the David J. Drake 1983 Trust (hereafter "the trust") to provide for David after her death. The residual beneficiaries of the trust were Miriam's nephews, James R. Adamoli and Mark A. Adamoli, who were also designated the trustees.

In 1988, David, through Miriam, his conservator, entered into a stipulated judgment with James in a civil case (Los Angeles Super. Ct., No. C644371). Under the terms of the judgment, James agreed to pay no less than $1,350 per month in child support and also to apply for Social Security retirement benefits, thereby enabling Miriam to seek federal disability benefits for David.

On April 28, 1995, Miriam filed an application for an order to show cause for modification of child support and for attorney fees and costs in their divorce case (No. D566797). Miriam's application sought guideline child support with "add-ons" pursuant to Family Code sections 4055, 4061, and 4062.

The application contained the following allegations: After the 1988 stipulated judgment, David continued to suffer from progressive schizophrenia that rendered him unable to care for himself, but Miriam had implemented a beneficial and cost-effective treatment program for David. In 1991, on the advice of David's psychiatrist, Miriam had moved out of the Houston townhouse owned by James Adamoli that Miriam and David had shared. Due to Miriam's worsening health, she could no longer tend David, and she had hired a live-in cook and housekeeper to replace her. In addition, James Adamoli, who had lived with Miriam and David, had moved out of the Houston townhouse and could no longer offer cost-free residence there to Miriam and David. These changes had increased the costs of David's care to $5,584 per month. In 1994, Miriam had paid 68 percent of these costs and James had paid 24 percent, although James's income was approximately twice as large as Miriam's income. Miriam requested that the court increase James's monthly child support payments to between $3,200 and $3,400, and require that James pay her attorney fees and costs.

On September 18, 1995, Miriam executed a will containing a "pour over" provision giving the substance of her estate to the trust. James and Mark Adamoli are the will's executors.

On October 23, 1995, Miriam filed an amended request for relief seeking, inter alia, a security order, and a separate hearing on the issue of attorney fees and costs.

On November 8, 1995, Miriam died. On November 21, 1995, James and Mark Adamoli applied for an order declaring them to be Miriam's successors in interest to her action for a modification of the child support order. James filed motions seeking to terminate the governing child support order and the proceedings to modify this order.

At hearings in December 1995, the trial court substituted James and Mark Adamoli as Miriam's successors in interest, denied James's motion to terminate Miriam's action, ruled that the Family Code guidelines apply in cases involving adult children, and bifurcated the issue of attorney fees. The trial court made findings based on the guidelines, ² but reserved certain issues for later determination, including whether changes in James's child support obligations should be effective as of the date Miriam filed her application for a modification of the obligation. Finally, the trial court ordered James to pay a total of $3,715 in child support per month on an interim basis pending an assessment of the trust estate, as well as a $30,000 interim award of attorney fees. James appealed from the written orders following these rulings.

On April 5, 1996, the reserved issues concerning Miriam's petition came on for hearing. The trial court made findings pertinent to the guidelines, ³ and ordered James to pay a total of $3,670 per month in child support plus an arrearage for the period following May 1, 1995. The trial court also granted a James filed a motion for reconsideration of the security order. The Adamolis opposed this motion and requested $4,620 in sanctions.

security order requiring James to pledge securities worth $300,000 for David's benefit, and placing a lien on a parcel of real property owned by James. Finally, the trial court awarded the Adamolis another $10,000 in attorney fees.

On May 1, 1996, the trial court denied James's motion for reconsideration and sanctioned James. James appealed from these rulings and the written orders following the April 5 and May 1 hearings. James's two appeals were subsequently consolidated.

DISCUSSION

James contends that (1) the Adamolis were improperly deemed Miriam's successors in interest, (2) he has no obligation to support David, (3) the Family Code guidelines are inapplicable to cases involving adult children, (4) the trial court erred in calculating James's child support obligation under the guidelines, (5) the security order was an abuse of discretion, (6) the trial court improperly awarded attorney fees against James, (7) the trial court improperly awarded sanctions against James, (8) the retroactivity order was an abuse of discretion, and (9) the trial court improperly filed written orders prepared by the Adamolis that differed from its oral rulings. ⁴

"[T]he trial court's determination to grant or deny a modification of a support order will ordinarily be upheld on appeal unless an abuse of discretion is demonstrated.' [Citation.] Reversal will be ordered only if prejudicial error is found after examining the record of the proceedings below. [Citation.] However, questions relating to the interpretation of statutes are matters of law for the reviewing court. [Citation.]" (County of Tulare v. Campbell (1996) 50 Cal.App.4th 847, 850, 57 Cal.Rptr.2d 902.)

To the extent James challenges the trial court's factual findings, our review follows established principles concerning the existence of substantial evidence in support of the findings. On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548, 251 Cal.Rptr. 370.) We accept all evidence favorable to the prevailing party as true and discard contrary evidence. (Ibid.)

A. Successors In Interest

The threshold issues concern whether Miriam's action against James to modify the support order abated with her death, and if not, whether the Adamolis were appropriately deemed her successors in interest. Absent certain exceptions, the only parties to a family law action are the husband and wife. (Cal. Rules of Court, rule 1211.) Nonetheless, in suitable circumstances, the court may substitute in place of a deceased spouse an appropriate representative of the deceased's estate. (In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1227-1228, 10 Cal.Rptr.2d 916; Kinsler v. Superior Court (1981) 121 Cal.App.3d 808, 812, 175 Cal.Rptr. 564.)

When the family court expressly reserves jurisdiction over collateral issues such as property rights, spousal support, costs, and attorney fees after rendering judgment dissolving a marriage, the death of a spouse does not abate the action or remove the family court's jurisdiction to resolve these issues. (See In re Marriage of Allen, supra, 8 Cal.App.4th at pp. 1231-1235, 10 Cal.Rptr.2d 916; see also In re Marriage of Hilke (1992) 4 Cal.4th 215, 220, 14 Cal.Rptr.2d 371, 841 P.2d 891.) In such cases, "the proper procedure is to substitute the No California court has addressed whether a successor in interest may step into the shoes of a custodial spouse when the custodial spouse seeks postjudgment modification of a child support order but dies prior to resolution of the matter. We begin by noting that the 1960 interlocutory judgment of divorce includes a term requiring James to pay $100 per month in child support throughout David's minority, and that the family court retains jurisdiction to modify such child support orders after entry of a marital status judgment. (See Hogoboom & King, supra, p 17:2.) Furthermore, "[a] pending action or proceeding does not abate by the death of a party if the cause of action survives" (Code Civ. Proc., § 377.21), and "[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death...." (Code Civ. Proc., § 377.20.)

personal representative of the deceased spouse's estate (or, if none, the spouse's successor in interest) as a...