In re the Marriage of DAVID and MONICA PERKAL. DAVID PERKAL, Respondent, v. MONICA PERKAL, Appellant.
B319411
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 7/6/23
Los Angeles County Super. Ct. No. BD630924. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
Fernandez & Karney, Mark H. Karney; Law Offices of Ben Gharagozli and Ben Gharagozli for Appellant.
Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Respondent.
Monica Perkal1 appeals from the February 10, 2022 order denying in part her request for orders (RFOs). Specifically, she challenges the trial court‘s denial of her request for: (1) gains, losses, or interest earned on $168,000 that allegedly became her separate property in March 2018 or January 2019; (2) attorney‘s fees under
FACTS AND PROCEDURAL BACKGROUND
Although the appellate record presented by Monica is incomplete, it is voluminous. The facts and procedural background necessary to our opinion, however, are straightforward.
1. Background
Monica and David married in 2000 and have two children, Nikolas and Natasha. Nikolas was born in 2003; Natasha was born in 2006. In 2015, David filed a petition for dissolution of
On May 6, 2016, Monica requested and obtained a domestic violence temporary restraining order (TRO) against David. At the time, she was represented by counsel from Feinberg Mindel Brandt & Klein (FMBK). The TRO was reissued and the hearing on her request for a restraining order was continued to July 1, 2016. David filed his own request for a TRO against Monica on June 22, 2016. His request was opposed by FMBK on Monica‘s behalf. The court denied David‘s TRO request until the continued hearing on Monica‘s request was conducted.
Meanwhile, on May 19, 2016, Monica filed RFOs for child support, spousal support, accounting fees, and attorney‘s fees of no less than $75,000 payable to FMBK. The RFOs, also filed by FMBK on Monica‘s behalf, stated that the request for attorney‘s fees was based in part on Monica having been “forced to seek domestic violence restraining orders against [David] in May 2016.” In June 2016, however, the parties entered into a written stipulation taking the RFOs off calendar and agreeing to resolve all outstanding issues at a voluntary settlement conference with a retired judge. Per the stipulation, the parties also agreed to distribute $35,000 to FMBK from proceeds from the sale of the family home.
On July 1, 2016, the court granted Monica‘s request for a three-year restraining order and denied David‘s request for a restraining order. Although both parties were represented by counsel at the hearing, the court did not award attorney‘s fees.
On October 11, 2016, Monica, through her counsel at FMBK, filed an order to show cause for contempt (OSC) based on David‘s purported violations of the July 1, 2016 restraining order.
On February 6, 2017, the parties filed a judgment resolving issues regarding child custody, and Monica represented that attorneys from FMBK were involved in the negotiations and preparation of that judgment. A day later, FMBK substituted out of the case and Monica agreed to represent herself in the litigation. In May 2018, FMBK filed a notice of lien in the amount of $48,101.90 for outstanding fees.
On August 1, 2017, David‘s employee benefit plan, Motion Picture Retirement, was joined as a party to the proceedings.
In October 2017, Monica, though her newly obtained attorney (William W. Oxley), filed RFOs for financial support and for $71,179 in attorney‘s fees and costs. On December 7, 2017, the court ordered David to provide Monica with $30,000 as “an uncharacterized sum.”
The parties reached a settlement of reserved issues on March 21, 2018 (Settlement Agreement) with the assistance of a private mediator. The Settlement Agreement was incorporated into a judgment entered on January 19, 2019 (2019 Judgment).
The Settlement Agreement provides for the division of the parties’ assets including, as relevant here, two of David‘s retirement accounts. Specifically, paragraph 1.C states that the “community portion” of his “Motion Picture Industry Pension Plan (accrued benefits) xx4739 [MPI plan]” “shall be equally
The Settlement Agreement also provides for the sale of certain motion picture camera lenses with the net proceeds to be divided equally between Monica and David4. If the parties “are unable to agree upon a third party broker to list” the lenses for sale, the private mediator “shall select the broker as a binding arbitrator.” The private mediator was also to resolve any dispute
In addition, the Settlement Agreement provides for the payment of the parties’ attorney‘s fees and costs. David‘s attorney and Monica‘s attorney (William Oxley) would each receive one-half of the proceeds from an account held at First Republic Bank. Aside from the distributions from this account, each party “shall pay his/her own attorneys’ fees through the entry of Judgment.” Nevertheless, each party reserves his or her “rights, claims, and defenses with respect to attorneys’ fees and sanctions” for “the pending domestic violence restraining order actions, the pending appeal, and the fees and costs and sanctions incurred after April 1, 2018 for the pending RFO for child and spousal support.”
On April 26, 2018, Nikolas, as a self-represented party, obtained a one-year restraining order against David. On August 7, 2019, Nikolas, represented by attorney John Glantz, obtained another restraining order against David and he was ordered to pay Glantz $10,000 in fees and costs by September 24, 2019.
On October 9, 2019, Monica obtained an order renewing her restraining order against David. She was represented by Glantz in that proceeding. The following month, the court awarded Monica $8,500 in fees in connection with the renewal request and ordered David to pay those fees directly to Glantz within 60 days.
On March 18, 2021, the court ordered Monica to pay David $20,000 in sanctions under
2. Monica‘s March 29, 2021 RFOs (March 2021 RFOS)
On March 29, 2021, Monica filed RFOs regarding the following: $448,000 for the “converted community property” camera lenses and as “reimbursement” owed by David for income derived from the lenses, plus $80,946.63 in attorney‘s fees under
David opposed the RFOs. He argued, among other things, that Monica failed to contact Louise Nixon to prepare a QDRO and Monica was not entitled to interest for the amount to be disbursed to her from his retirement account.
3. Scheduling Conferences
The hearing on Monica‘s March 2021 RFOs was scheduled for November 4, 2021. On that date, however, the court stated that Monica had not complied with a prior order which required her to pay David $10,408.40 for child support overpaid by him. Under the disentitlement doctrine, the court refused to proceed
On December 21, 2021, after confirming that Monica had paid David the amount previously ordered, the court rescheduled the hearing for February 9 and 10, 2022.
4. Monica‘s Trial Brief
Monica filed a trial brief on February 8, 2022. She contended the court would have to resolve issues regarding the QDRO, child support, lenses, reimbursements (medical expenses for minor child), attorney‘s fees and costs, and sanctions. Relevant here, Monica argued that David refused to sign the QDRO, $168,000 and the community portion from the MPI pension were Monica‘s sole and separate property as of the date the Settlement Agreement was signed, and she was entitled to interest on the $168,000 in the amount of $68,216.46. Regarding attorney‘s fees, Monica sought a total of $200,000, including $50,000 for fees incurred by her under
In February 2022, the court conducted a two-day evidentiary hearing to address Monica‘s March 2021 RFOs. Monica, David, and Wayne Loucks testified. Monica was represented by counsel. David was self-represented. Loucks was hired by Monica to provide a market value estimate of five camera lenses and testified they were worth between $85,000 and $92,000.
Numerous exhibits were marked and admitted in evidence during the hearing. Based on the reporter‘s transcript, some of those exhibits addressed issues raised by Monica in this appeal. For example, Exhibit 3, pages 15-16, were emails between David and QDRO counsel. And, according to David, Exhibit 3, pages 17-18, show he is “pleading with [Monica] and [her] counsel to contact Miss Nixon‘s firm within five days, by July 26th, and engage them in creating a QDRO as per the court order on January 18, 2019.” Further, Exhibit 27, an email with the subject heading “Language Approved for QDRO (Perkal),” was used by David during the hearing to challenge Monica‘s attempt to include language regarding gains and losses in a QDRO. As for any delay in dividing the camera lenses, exhibit 5 contains 56 pages relating to attempts by David “to confer about the lens selection” process.
Monica‘s attorney also marked but never requested admission of certain exhibits supporting her claim for attorney‘s fees. By way of example, Exhibit X appeared to be 30 pages of bills from FMBK, some of which related to Monica‘s request for fees under
During David‘s examination, Monica‘s attorney marked Exhibit VV for identification and sought its admission in evidence. According to counsel, Exhibit VV would allow the court to make a ruling regarding
6. February 10, 2022 Order and Findings; the Appeal
After the matter was submitted on February 10, 2022, the court issued an oral ruling on Monica‘s March 2021 RFOs. Later that day, the court issued a four-page written order with an attached dissomaster report. Neither party requested a statement of decision.
Based on the language in paragraph 1.D of the Settlement Agreement, the court found that, unlike the MPI plan, the parties did not agree to divide David‘s IAP plan by a QDRO. “The IAP defined contribution plan was simply a source of funds to pay Monica a negotiated amount” and included, “in unknown amounts, equalization payments and reimbursements to Monica.” The court denied Monica‘s request for gains or interest as of the date the Settlement Agreement or the 2019 Judgment was signed because, among other things, Monica never designated an account to receive the $168,000 from David‘s IAP plan. Nevertheless, within five days after Monica designates such an account in writing, the court ordered David to execute all necessary documents for effectuating the rollover of $168,000 into
As for David‘s MPI plan, the court ordered both parties to comply with the Settlement Agreement by paying and cooperating with QDRO counsel for preparation of a QDRO. The court found that both parties were to blame for delaying resolution of the QDRO issue: “At times, Dave was unreasonably recalcitrant. At times, it appears that Monica or her counsel was unresponsive.”
Although it found that Monica was a prevailing party because she had obtained and extended a domestic violence restraining order against David, it denied her request for attorney‘s fees under
Monica appeals from the February 10, 2022 order.
Monica argues the clear intention of the parties was for the $168,000 from the IAP plan to be paid “immediately“—i.e., in March 2018—or no later than when the 2019 Judgment was entered.7 Thus, contrary to the court‘s order, she was entitled to the gains and losses in the IAP plan as of 2018 or 2019 even if the $168,000 was an equalization payment. Monica also argues she was not required to identify an account to receive those proceeds “until MPI was served with a QDRO.” In her view, the Settlement Agreement‘s language requiring her to designate an account as a condition precedent to receiving the funds was “drafted incorrectly.” Monica also argues the court erred in not awarding her attorney‘s fees under
1. The incomplete record is fatal to Monica‘s appeal.
It is well-settled that “[a]ppealed judgments and orders are presumed correct, and error must be affirmatively shown.” (Hernandez v. California Hospital Medical Center (2000) 78
A party who contends that a particular finding is not supported by substantial evidence is obligated to set forth in his or her brief all the material evidence on the point, not merely the party‘s own evidence. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1657–1659.) Facts must be presented in the light most favorable to the judgment (id. at pp. 1657–1658), and the burden on appellant to provide a fair summary of the evidence “‘grows with the complexity of the record. [Citation.]‘” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739; see
Finally, an appellant has the burden not only to show error but prejudice from that error. (
In this appeal, Monica elected to proceed by appendix pursuant to
To the extent Monica challenges the court‘s refusal to consider or admit exhibits establishing the amount or reasonableness of her attorney‘s fees under
By failing to provide an adequate record, Monica cannot meet her burden to show error and we must resolve any challenge to the order against her. (See Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at p. 502.)
Even if we were to consider the merits of Monica‘s claims, we would conclude that, based on the record before us, she has failed to demonstrate reversible error.
2.1. Characterization of the $168,000 distribution from the IAP plan
“Characterization of property, for the purpose of community property law, refers to the process of classifying property as separate, community, or quasi-community. Characterization must take place in order to determine the rights and liabilities of the parties with respect to a particular asset or obligation and is an integral part of the division of property on marital dissolution.” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291.) The most basic characterization factor determinative of whether property is separate or community is the time when property is acquired in relation to the parties’ marital status. (Ibid.) “Appellate review of a trial court‘s finding that a particular item is separate or community property is limited to a determination of whether any substantial evidence supports the finding.” (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849.) “But de novo review is appropriate where resolution of ‘the issue of the characterization to be given (as separate or community property) ... requires a critical consideration, in a factual context, of legal principles and their underlying values, the determination in question amounts to the resolution of a mixed question of law and fact that is predominantly one of law.’ [Citations.]” (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734.)
We also agree with the trial court that In re Marriage of Janes (2017) 11 Cal.App.5th 1043 is distinguishable. In Janes, the parties executed a marital settlement agreement, which was attached to a judgment of dissolution, that awarded the wife
In any event, Monica cites no evidence showing she was prejudiced by any delay in the designation of the $168,000 as her separate property. (See In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519, 524 [although a rule of court phrased in mandatory language is generally binding on the courts, departure from a rule of court is not reversible error unless prejudice is shown].) Although David‘s employee retirement plan was joined as a party in 2017, no evidence was
For the first time in her reply brief, Monica argues that David could have distributed the funds from his IAP plan into one of the “three separate retirement-based accounts” identified in the Settlement Agreement. We disregard this argument because it was not raised below or in her opening brief. For the same reason, we will not address Monica‘s argument that the court had a sua sponte obligation to correct its erroneous February 10, 2022 order after it received a February 24, 2022 letter regarding preparation of a QDRO.
In her reply brief, Monica also contends that “as drafted[,]” paragraph 1.D of the Settlement Agreement “did not comport with the Plan Administrator‘s QDRO requirement.” Thus, “funds could not simply be rolled out of the IAP [plan] and paid to Monica.” In support of this argument, Monica relies on a January 20, 2022 email bearing no exhibit designation and the February 24, 2022 letter written to the parties after the court issued its decision. These record citations, however, don‘t establish that she could not designate an account to receive the funds until after a QDRO was filed and served on the IAP plan. And even if a QDRO needed to be prepared and served before the $168,000 was transferred into an account designated by Monica—to “avoid taxes and penalties” per the February 24, 2022 letter—the exhibits admitted in evidence at the hearing, and which are not in the record, suggest Monica was partially responsible for the parties’ failure to complete the QDRO.
Monica failed to establish any abuse of discretion in the court‘s denial of her fee request. As we noted before, in her opening brief Monica does not state the amount sought by her, or how we can determine whether the fees were actually incurred by her, and not previously paid by David, under former subdivisions (a) and (b) of
In sum, the record supports the court‘s finding that Monica did not prove “the fees that were reasonable and necessary for her domestic violence claim.” Accordingly, she has not met her burden to establish that the court abused its discretion in denying her fee request under
2.3. Sanctions under section 271
Finally, we turn to Monica‘s request for sanctions under
Monica contends the court abused its discretion in not awarding fees as a sanction under
In short, the court did not abuse its discretion in denying Monica‘s request for sanctions.
The order is affirmed. David Perkal shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.