Presti v. Janey Chu (In re Marriage of Presti)

• Docket Number: B309231,B317198
• Decision Date: 28 August 2023
• Parties: In re the Marriage of MATTHEW PRESTI and JANEY CHU. v. JANEY CHU, Respondent. MATTHEW PRESTI, Appellant,
• Court: California Court of Appeals Court of Appeals

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In re the Marriage of MATTHEW PRESTI and JANEY CHU.

MATTHEW PRESTI, Appellant, v. JANEY CHU, Respondent.

B309231, B317198

California Court of Appeals, Second District, Eighth Division

August 28, 2023

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County.No. 20PDFL00918 Amy M. Pellman and Sarah J. Heidel Judges. Case No. B309231 is affirmed. Case No. B317198 is reversed in part and remanded for further proceedings.

Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Appellant.

James Karagianides; McAlarnen &Sun and Julie McAlarnen for Respondent.

GRIMES, Acting P. J.

These are consolidated appeals from orders of the Los Angeles Superior Court in the parties' dissolution proceeding. At issue is whether the trial court erred in (1) denying appellant Matthew Presti's request for modification of a March 2019 stipulated child support order (case No. B309231) and (2) granting respondent Janey Chu's request for sanctions against Matthew and denying Matthew's request for sanctions against Janey (case No. B317198).^[1] We answer the first issue in the negative because Matthew failed to timely raise below the grounds he now urges for reversal. As to the second issue, we conclude the court failed to properly exercise its discretion in awarding fees against Matthew because it relied on findings unsupported by the record and considered inappropriate factors, but we find no abuse of discretion in its denial of Matthew's request for sanctions against Janey.

We therefore affirm the trial court's denial of Matthew's request to modify the March 2019 order, reverse its sanctions order as against Matthew, and affirm its denial of Matthew's request for sanctions against Janey. We remand for reconsideration of Janey's request for sanctions subject to the limitations imposed by this opinion.

BACKGROUND

Matthew and Janey wed in July 2009. In March 2011, they had a daughter, K.P. In January 2012, the couple separated. For the duration of their marriage, they lived in Orange County where Matthew held an information technology position with Citigroup. Following their separation, Janey moved to Los Angeles County.

Court proceedings in Orange County followed. In November 2012 the Orange County Superior Court entered a status only dissolution judgment, reserving other issues for later resolution. In July 2013, it entered a judgment on child custody issues, which provided K.P. would spend the substantial majority of her time with Janey. In March 2015 the court entered a stipulated judgment on child support issues, which required Matthew to pay Janey child support of $1,123 per month. The judgment described this rate as "guideline"-a reference to the statewide uniform guideline for child support payment amounts adopted pursuant to Family Code^[2] division 9, part 2, chapter 2, article 2. (§§ 4050-4105.)

Matthew lost his job at Citigroup in September 2017. A few months later, in June 2018, he moved to Los Angeles County, near where Janey and K.P. lived.

With the parties living closer together, they agreed to revisit their custody and support arrangements. In March 2019, they stipulated to an order whereby K.P. would stay with each parent approximately half the time and neither would pay the other child support.

The March 2019 stipulation and order was prepared on an Orange County Superior Court form that made no mention of whether the "$0" support payment was above, below, or at the guideline amount. It did, however, contain the five statements section 4065, subdivision (a) makes mandatory for the court to approve a below-guideline support stipulation.^[3] Despite containing the statements required for a below-guideline support stipulation, Janey claims,^[4] and Matthew does not dispute, that the Orange County Superior Court entered the March 2019 order without making the findings it would have been required to make under section 4056 to issue a child support order that was below guideline.^[5]

1. Matthew's Efforts to Modify the March 2019 Order

Just a few months after agreeing to the March 2019 child support order, Matthew decided he wanted child support payments from Janey. In August 2019, he filed a request for modification with the Los Angeles Child Support Services Department. A few months later, the Los Angeles Child Support Services Department advised Matthew it was unable to assist him because the parties' dissolution proceeding was still pending in Orange County. Matthew then filed a request to modify the March 2019 child support order in Orange County Superior Court, but failed to properly serve Janey, thereby delaying its hearing. Before the Orange County Superior Court was able to hear the matter, Janey moved to transfer venue to Los Angeles County. The Orange County Superior Court granted Janey's motion. Following the transfer, in July 2020, Matthew renewed his request for modification in the Los Angeles Superior Court.

Matthew's request stated he sought "[child] support [payments] within guidelines." He did not assert that the March 2019 order was below guideline when entered. This is important because, as discussed further below, a party seeking to modify a child support order ordinarily must show circumstances have changed since the previous order. But section 4065, subdivision (d) does not require a party to show changed circumstances to request modification of a below-guideline child support order.

Instead of asserting he did not have to show changed circumstances, Matthew supported his request with a discussion of his circumstances. He explained he had been laid off from his job at Citigroup in 2017; that he had thereafter moved to Los Angeles; and that since moving to Los Angeles the parties had agreed to split time with K.P. equally. He continued that, since obtaining equal time with K.P., he had been "aggressively looking for [jobs]" but "having a difficult time finding employment." The job market in Los Angeles proved weaker for his skillset than the market in Orange County. This brought Matthew "to the realization that the cost of living [in Los Angeles] is much more expensive than it is in Orange County and [he] [wa]s burning through [his] savings quickly as a result."

Janey opposed Matthew's request. She argued that, to obtain a modification of the March 2019 order, Matthew was required, but failed, to show a material change in his circumstances. Circumstances had not changed because, when Matthew and Janey entered into the March 2019 stipulation, Matthew was already unemployed, had already moved to Los Angeles, and had already obtained a 50-50 timeshare of physical responsibility for K.P.

The trial court, Judge Amy Pellman presiding, heard Matthew's modification request in August 2020. At the hearing, the court pressed Matthew, who was representing himself, to articulate changed circumstances. Matthew expressed "concern[] that we're even questioning the fact there's no change in circumstance," but never took the position that no such showing was required under section 4065, subdivision (d). Janey's counsel argued there was no evidence the March 2019 stipulated order was below guideline, and further asserted it was "presumptively a guideline support" because it was, according to Janey, unaccompanied by findings that the court is required to make under section 4056, subdivision (a) to support below-guideline orders. The court was receptive to this argument, calling the "point that this was a guideline support . . . well taken." It denied Matthew's request for modification. It explained on the record that Matthew failed to demonstrate changed circumstances. The minute order that followed stated, "The Court finds that there is a lack of change in circumstances."

Several months later, the trial court entered formal findings that echoed the minute order: "The Court finds that [Matthew] did not meet his burden of proof to show any change of circumstances warranting a modification of the March 13, 2019 Order." The court did not address whether the March 2019 order was either guideline or below guideline.

2. Matthew's Request to Vacate

Two weeks after the hearing on his modification motion, Matthew filed a notice of intention to move to vacate pursuant to Code of Civil Procedure section 663. For the first time, he asserted the March 2019 support order was below guideline, and he invoked section 4065, subdivision (d) to excuse a showing of changed circumstances. When he filed his motion to vacate, Matthew also filed a request that it be heard before November 18, 2020. This date was significant, he explained, because it was the statutory deadline for the court to decide his motion to vacate under Code of Civil Procedure section 663a, subdivision (b). The trial court granted Matthew's scheduling request, setting the hearing for October 22, 2020.

Janey opposed Matthew's motion to vacate on multiple grounds. These included that Matthew could not raise the benefit of section 4065, subdivision (d) on a motion to vacate because he had not established in the modification proceeding that the March 2019 order was below guideline.

At the October 22, 2020 hearing, the trial court (Judge Pellman again presiding) considered Matthew's arguments and expressed an inclination to "revisit" denial of Matthew's request to modify the March 2019 order. The court felt a full hearing was the "fairest" way to address his points, but Janey's counsel steadfastly argued such a hearing was pointless under Code of Civil Procedure section 663 given the lack of evidence the March 2019 order was below guideline. Despite agreeing with Janey's counsel that "that's actually true under the 663," the court stated: "What I can . . . do, if parties don't agree, is set the matter for a...