Spector v. Spector (In re Spector)
233 Cal. Rptr. 3d 855
Cal. Ct. App. 5th2018Background
- Parties divorced; after a Feb 17, 2017 hearing the court issued a Feb 21, 2017 temporary order requiring husband to pay pendente lite spousal support (first payment due Mar 1, 2017).
- Husband emailed the judge pointing out alleged arithmetic/amount issue; the judge and both counsel exchanged emails and the judge said she would reconsider the order sua sponte and invited up to 5‑page written briefs from each side.
- Wife objected, argued reconsideration must proceed under CCP §1008 and that retroactive modification of temporary support is barred by Family Code §§3603, 3651(c), 3653(a); she also contended the communications were ex parte and that due process required formal motion/hearing.
- Both parties submitted briefs; no new evidence was presented and the hearing transcript was provided to the court.
- On Mar 23, 2017 the court issued a reconsidered order lowering the temporary support amount and made the modification retroactive to Mar 1, 2017; wife appealed.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband/Court) | Held |
|---|---|---|---|
| Whether a trial court may sua sponte reconsider and modify a temporary spousal support order | Le Francois does not permit sua sponte reconsideration of a final temporary support order; Gruen/Freitas control and bar such action absent reservation of jurisdiction | Le Francois and subsequent cases allow a court to reconsider its prior orders on its own motion to correct errors | Court: Trial judge had inherent authority under Le Francois (and Barthold/Herr) to reconsider the 2‑21 order sua sponte |
| Whether the court could make a retroactive modification of temporary support despite Family Code limits ( §§3603, 3651(c), 3653(a) ) | Statutes bar retroactive modification of temporary support to dates before a proper motion/OSC filing; Gruen shows parties rely on finality of such awards | Reading Le Francois to restrict the court would raise separation‑of‑powers problems; statutes do not strip court of power to correct its own erroneous orders | Court: Statutes do not bar the court from retroactively correcting its own erroneous temporary support order when acting sua sponte; retroactive effective date to Mar 1, 2017 permissible |
| Whether the email contacts were improper ex parte communications and infected reconsideration | Emails from husband to judge were ex parte and denied wife fair process | Wife’s counsel was copied on emails and participated; communications were not ex parte; court solicited briefing | Court: Communications were not ex parte; no ex parte violation |
| Whether wife's due process rights were violated because court didn’t follow formal motion/hearing procedures | Le Francois requires notice, solicitation of briefing, and a hearing; court failed to follow required procedure and deprived wife of hearing | Court provided prompt notice, solicited and received written briefing, invited argument/hearing (wife did not request oral argument), and wife was not prejudiced | Court: No due process violation; procedures provided were adequate and no prejudice shown |
Key Cases Cited
- Le Francois v. Goel, 35 Cal.4th 1094 (Cal. 2005) (trial court may, on its own motion, reconsider interim orders to correct errors; statutory limits on repetitive party motions do not bar court action)
- In re Marriage of Gruen, 191 Cal.App.4th 627 (Cal. Ct. App. 2011) (temporary support order is final and parties may rely on it; retroactive modification limited absent proper pleading)
- In re Marriage of Freitas, 209 Cal.App.4th 1059 (Cal. Ct. App. 2012) (distinguishing Gruen where trial court expressly reserved jurisdiction such that original order was nonfinal)
- In re Marriage of Barthold, 158 Cal.App.4th 1301 (Cal. Ct. App. 2008) (court may reconsider final as well as interim orders on its own motion if based on original record)
- In re Marriage of Herr, 174 Cal.App.4th 1463 (Cal. Ct. App. 2009) (reaffirming limits: sua sponte reconsideration is proper when based on the original evidence; court may not use inherent authority to order a new trial)