Mhanna v. Hage (In re Marriage of Mhanna)

• Decision Date: 24 September 2021
• Docket Number: H045078,H045423,H046384
• Court: California Court of Appeals Court of Appeals
• Parties: In re the Marriage of FIDA MHANNA and GHASSAN HAGE. v. GHASSAN HAGE, Appellant. FIDA MHANNA, Respondent, v.

In re the Marriage of FIDA MHANNA and GHASSAN HAGE.

FIDA MHANNA, Respondent, v. GHASSAN HAGE, Appellant.

H045078, H045423, H046384

California Court of Appeals, Sixth District

September 24, 2021

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 6-13-FL010520

BAMATTRE-MANOUKIAN, J.

On October 23, 2014, a judgment of dissolution was entered involving the marriage of appellant Ghassan Hage and respondent Fida Mhanna, who have two daughters. There have been extensive postjudgment proceedings. These three appeals involve challenges by Hage to six postjudgment orders.^[1]

In the first appeal, case No. H045078, Hage challenges two orders (1) an order of July 6, 2017, determining that Hage owed child support arrearages totaling $6, 048.72, and attorney fee award arrearages totaling $6, 241.09 (hereafter, the arrearages order); and (2) a subsequent August 21, 2017 order denying Hage's motion to reconsider the arrearages order. In the second appeal, case No. H045423, Hage challenges the court's December 20, 2017 order granting a writ of execution to enforce past-ordered child support and attorney fees awards (hereafter, the execution order). And in the third appeal, case No. H046384, Hage challenges three orders (1) an April 6, 2018 order requiring Hage to pay Mhanna a total of $80, 000 in attorney fees, pursuant to Family Code sections 271 and 2030^[2] (hereafter, the attorney fees order) (2) an order of October 29, 2018, denying Hage's request to set aside or vacate the attorney fees order; and (3) a minute order of November 6, 2018, purportedly granting Mhanna's request to enforce a prior court order for attorney fees through a Qualified Domestic Relations Order (QDRO; hereafter, the QDRO minute order).

Hage contends the trial court erred in making the six orders from which appeals have been taken. We conclude that the appeal as to the attorney fees order (April 6, 2018 order in case No H046384) is untimely, and we will accordingly dismiss that appeal. As to the remaining five orders, we conclude there is no error, and we will therefore affirm the orders.

I. PROCEDURAL HISTORY^[3]

A. Appeal No. H045078

On July 6, 2017, the court filed an order after a hearing occurring on the same date on Mhanna's “order to show cause, notice of motion or request for order filed 12//16/15 & 1/13/16.” The court found that as of July 6, 2017, Hage owed child support and accrued interest in the amount of $6, 048.72, and Hage was ordered to make installment payments of $500 per month from September 1, 2017, until paid in full. The court found further that as of July 6, 2017, Hage owed previously-ordered attorney fees to Mhanna's counsel, David Yomtov, with accrued interest, in the total amount of $6, 241.09, and Hage was ordered to pay $500 per month commencing August 1, 2017, until the amount was fully paid.

On July 11, 2017, Hage filed a request for order asking the court to “reconsider and correct” its arrearages order of July 6, 2017. (Capitalization omitted.) On August 21, 2017, the court denied Hage's motion to reconsider the arrearages order.

Hage filed a notice of appeal in which he challenged the two orders.

B. Appeal No. H045423

On September 25, 2017, Mhanna filed a request for order seeking a writ of execution. On December 20, 2017, the court granted Mhanna's request for issuance of a writ of execution to enforce past-ordered child support and attorney fees awards. Hage filed a notice of appeal in which he challenged the December 20, 2017 execution order.

C. Appeal No. H046384

On August 4, 2017, Mhanna filed a request for order in which she requested attorney fees and costs including sanctions against Hage pursuant to section 271 and Code of Civil Procedure section 128.5. On April 6, 2018, after a hearing, the court ordered Hage to pay Mhanna $70, 000 in sanctions pursuant to section 271, of which $50, 000 of the amount awarded was also awardable as attorney fees under section 2030. The court also ordered Hage to pay Mhanna $10, 000 in attorney fees pursuant to section 2030 for the cost of defending Hage's appeal of a child custody order. (This child custody order was later affirmed by this court in Mhanna I, supra, H044493 [nonpub. opn.].)

On October 29, 2018, the court denied Hage's request to set aside, vacate, or reconsider the April 6, 2018 attorney fees order.

On November 6, 2018, the court issued a minute order purportedly granting Mhanna's request to enforce a prior court order for attorney fees through a QDRO. As discussed, post, in a formal order filed November 21, 2018, the court denied Mhanna's request for issuance of a QDRO.

On November 9, 2018, Hage filed a notice of appeal in which he challenged the attorney fees order, the order denying his request to set aside or vacate the attorney fees order, and the QDRO minute order.

II. DISCUSSION

A. Standard of Review

As the California Supreme Court has recently reiterated, “it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) “ ‘All intendments and presumptions are indulged to support [the lower court's judgment or order] on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Any ambiguities in the record are resolved in favor of affirmance of the judgment or order. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) Furthermore, an appellate court, “[a]s an aspect of the presumption that judicial duty is properly performed, ... presume[s]... that the [trial] court knows and applies the correct statutory and case law.” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

It is the appellant's burden to overcome the presumption of correctness by demonstrating, through an adequate record, error requiring reversal. (Jameson, supra, 5 Cal.5th at p. 609.) This burden exists, regardless of whether the respondent has submitted argument in support of the appealed judgment or order. (See Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226 [appellant required to demonstrate error even if respondent did not file appellate brief].)

The parties do not address, with citations to legal authority, the standard(s) of appellate review that apply to the six orders challenged in these three appeals. (See Tosi v. County of Fresno (2008) 161 Cal.App.4th 799, 803 [criticizing appellants for including no discussion of applicable standard of review in either opening or reply briefs].) Because the standard of review “is the compass that guides the appellate court to its decision” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018), we will discus the appropriate standard(s) here before proceeding with our review of the merits of the appeals.

An order awarding statutory, need-based attorney fees under section 2030 is reviewed for abuse of discretion. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) Likewise, an order imposing attorney fees as sanctions under section 271 is reviewed for abuse of discretion. (Parker v. Harbert (2013) 212 Cal.App.4th 1172, 1177.) Such a sanctions order “ ‘ “ ‘will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order.' ”' [Citation.]” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)

An order granting or denying a request to set aside a judgment or order under Code of Civil Procedure section 473, subdivision (b), ^[4] is also reviewed for abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).) “ ‘A ruling on a motion for discretionary relief under [Code of Civil Procedure] section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]” (Ibid.)^[5]

Child support orders are also reviewed for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) “Our review is limited to determining whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion. [Citation.] We do not substitute our judgment for that of the trial court; we confine ourselves to determining whether any judge could have reasonably made the challenged order.” (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.)

The appellant bears the burden of demonstrating that the trial court abused its discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.) And an “order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)

B. Orders in Appeal No. H045078

Hage challenges the arrearages order of July 6, 2017, and the order of August 21, 2017, denying Hage's motion to reconsider the arrearages order. We address these two orders separately below.

1. Arrearages Order (July 6. 2017)

a. Background

The court conducted a lengthy hearing on July 6, 2017. At its commencement, Mhanna's counsel, David Yomtov, identified that the purpose of the hearing was to obtain an accounting of Hage's underpayments of child support for 2015 and early 2016, as well as an accounting of unpaid attorney fees that the court had previously ordered to be paid by Hage.

Yomtov made an offer of proof as to matters to which Mhanna would testify that consisted of, inter alia, the following: (1) the October 23,...