Tsatryan v. Tsatryan (In re Tsatryan)

• Decision Date: 14 January 2019
• Docket Number: B276299,B270784
• Parties: In re the Marriage of ARTHUR and POLINA TSATRYAN. ARTHUR TSATRYAN, Appellant, v. POLINA TSATRYAN, Respondent.
• Court: California Court of Appeals Court of Appeals

In re the Marriage of ARTHUR and POLINA TSATRYAN.ARTHUR TSATRYAN, Appellant, v. POLINA TSATRYAN, Respondent.

B270784

B276299

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 14, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BD512645)

APPEALS from orders of the Superior Court of Los Angeles County, Mark A. Juhas and Shelley Kaufman, Judges. Affirmed.

Arthur Tsatryan, in pro. per., for Appellant.

No appearance for Respondent.

____________________

INTRODUCTION

These are the seventh and eighth appeals by Arthur Tsatryan¹ in this marital dissolution action. On May 21, 2015 the trial court entered a judgment of dissolution of Arthur and Polina's marriage. In the judgment, the trial court found the parties' former residence, known as the Santa Clarita property, was community property. The judgment provided that the property was to be sold and the proceeds divided evenly, subject to the equalization payments set forth elsewhere in the judgment. We affirmed the judgment. (In re Marriage of Tsatryan (Feb. 13, 2018, B265467) [nonpub. opn.].)

Arthur now appeals from two postjudgment orders. The first is an order awarding the Santa Clarita property to Polina and ordering Arthur to pay attorney's fees based on his breach of fiduciary duty and failure to disclose his encumbrances on the property (B270784). The second is an order denying his request to quash a writ of possession (B276299).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

A. Background

Arthur and Polina were married on August 5, 1987. They separated on August 3, 2009, and Arthur filed a petition for dissolution of marriage on September 23, 2009. (In re Marriage of Tsatryan, supra, B265467.)

Following a February 2, 2015 trial on custody issues, the trial court granted Polina sole legal and physical custody of the parties' minor son, Alexander, with a visitation schedule for Arthur. (In re Marriage of Tsatryan, supra, B262680.) The trial continued on April 2 and 3, 2015 with respect to division of the parties' property, child and spousal support, and other reserved issues. On May 21, 2015 the trial court issued its ruling and entered a judgment of dissolution. The trial court ordered Arthur to pay child support and denied Arthur's request for spousal support. The trial court found the parties' Santa Clarita property was community property and ordered the property be sold and the proceeds divided evenly, subject to equalization payments. The trial court also awarded Polina attorney's fees. Arthur again appealed, and we affirmed. (In re Marriage of Tsatryan, supra, B265467.)

B. The Trial Court's Order Awarding the Santa Clarita Property to Polina and Ordering Arthur To Pay Attorney's Fees (B270784)

1. Polina's ex parte request for an order

On August 26, 2015 Polina filed an ex parte request for an order shortening time on her request to have the court clerk execute on behalf of Arthur the listing agreement documents required for sale of the Santa Clarita property. As part of the requested relief, Polina sought an order requiring Arthur to vacate the property and give her exclusive possession so she could prepare the property for sale, as well as an order that Arthur pay $15,000 in attorney's fees to be paid from the proceeds of the sale due to his refusal to sign the listing agreement documents.

In support of her request, Polina submitted declarations of court-appointed real estate agent Brian Melville and her attorney, Steven Fernandez, documenting Arthur's interference with Melville's efforts to sell the property.

The trial court denied Polina's request for an ex parte order, but later ruled it would consider the request in conjunction with her request for an order partially vacating the judgment.

2. Polina's request for order partially vacating the judgment

On September 24, 2015 Polina filed a request for an order partially vacating the judgment of dissolution as to equal division of the equity in the Santa Clarita property. Polina also requested the trial court order Arthur to pay $50,000 in attorney's fees and costs as sanctions pursuant to Family Code sections 271,subdivision (a), and 2107, subdivision (c).³ The trial court set the hearing for November 3, 2015.

In support of her request, Polina submitted Fernandez's declaration documenting Arthur's "secret[]" encumbrances on the Santa Clarita property in the amount of $583,000. Fernandez listed seven liens placed on the property on February 11 and 12, 2015, during the trial about division of the Santa Clarita property, and attached copies of the deeds of trust. Fernandez asserted Arthur violated the automatic temporary restraining order by failing to obtain approval from the court or Polina for the encumbrances, and failed to disclose the encumbrances on his final declaration of disclosure or other disclosures filed with the court.

Arthur filed a notice of intent to take oral testimony at the November 3, 2015 hearing. He sought to present testimony from Melville, Fernandez, Polina, and himself. Arthur also filed a responsive declaration, in which he disputed he secretly encumbered the Santa Clarita property.

3. The November 3, 2015 hearing

At the November 3, 2015 hearing on Polina's requests,⁴ including her ex parte request and her request for an order partially vacating the judgment, Arthur questioned Melville regarding the statement in his declaration that Arthur had interfered with the sale of the property. Melville testified Arthur was initially cooperative in setting up an inspection of the house,but only "up until the time [Melville] got to the house." Specifically, Arthur would not allow Melville's female business partner into the home for the inspection. Sometime after the inspection, Arthur came to the lobby of Melville's office and videotaped Melville while Arthur stated he was suing him for defamation. Melville never received a signed copy of the listing agreement.

Arthur then called Fernandez as a witness. However, the trial court sustained objections to questions about extraneous matters for the sole purpose of impeaching Fernandez's credibility. The trial court denied Arthur's request to examine Polina, finding she had no information or knowledge that would be useful to the court.

Fernandez noted the property was appraised at the time of trial at $695,000, but it now was encumbered with $650,000 in liens.⁵ In addition, $130,000 was owed on the note secured by the first trust deed. In response to the trial court's inquiry as to Arthur's disclosure of the liens, Arthur directed the court to his income and expense declaration showing "loans from family and friends, [in the amount of] $650,000." Arthur stated this was his only disclosure of the liens.

At the conclusion of the hearing, the trial court explained that the family law restraining orders precluded Arthur from "[t]ransferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate[,] without the writtenconsent of the other party or an order of the court, except in the usual course of business or for the necessities of life." The court found that "[e]ncumbering the principal residence in the amount of, roughly, $600,000 is not in the normal course of his business . . . [nor] for necessities of life." Rather, it "seems a lot like he's simply siphoning off what equity is in the house" in "clear violation" of the restraining orders.

The trial court further noted that although it did not have Arthur's income and expense declaration in front of it, even if Arthur disclosed the loans on his declaration, he did not disclose the liens. The court explained it was Arthur's burden to show the liens were disclosed on the declaration, which he had not met. Further, Arthur failed to provide a copy of a note supporting the loans, a loan repayment plan, or any evidence he received the money.

The trial court found, "[T]his is a pretty egregious breach of fiduciary duty. During the trial, to go out and encumber the primary asset, which is being discussed and disputed, and encumber it virtually . . . the entire equity in the property, and not disclose that, . . . [¶] . . . not advise the other side what you're doing, not seek court permission, [and] not file the documents in a timely way."

The trial court concluded Arthur's encumbrance of the Santa Clarita property was "malicious. It was intended to harm [Polina]. It was despicable, because it was carried on with [a] willful and conscious disregard of her rights. It was oppressive, because it subjects her to an unjust hardship in conscious disregard [of] her rights, and it's a fraud. . . . [¶] Without disclosing, he intentionally encumbered this house knowingthat . . . if he would not prevail, then he would find himself in a position where he made this asset virtually worthless."

The trial court awarded 100 percent of the Santa Clarita property to Polina, with exclusive use and possession, plus "the sum of $65,000, $50,000 of which is Feldman-type sanctions,⁶ because of the egregious nature of the breach [of fiduciary duty]." The trial court found clear and convincing evidence supported the award of attorney's fees as a form of punitive damages under Civil Code section 3294, finding "this is going to be an expensive trail to untangle and is going to require further litigation and may, indeed require . . . bringing these people in as parties." In order to effectuate its order, the trial court ordered Arthur to execute an interspousal transfer deed. In response to Arthur's stated objection that Polina never requested he execute a transfer deed, the trial...