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In re Marriage of Zimmerman

April 8, 2010

IN RE THE MARRIAGE OF RUTH AND PAUL ZIMMERMAN.
RUTH ZIMMERMAN, APPELLANT,
v.
PAUL ZIMMERMAN, RESPONDENT;
Z&Z COMMERCIAL PARTNERS, LLC, ET. AL., RESPONDENTS.



APPEAL from a judgment of the Superior Court of the County of Los Angeles, Mark A. Juhas, Judge. Orders affirmed. (Los Angeles County Super. Ct. No. LD019554).

The opinion of the court was delivered by: Mosk, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

Petitioner and appellant Ruth Zimmerman (petitioner) sought to set aside prior child support orders against her former husband, respondent Paul Zimmerman (respondent) concerning their three children, because of the respondent's alleged fraud. The trial court ruled against Petitioner on the ground that her claims were barred by the limitations provision of Family Code section 3691, subdivision (a),*fn1 which provides for the grounds and time limits for an action or motion to set aside a support order. Petitioner appeals from that order and an order for discovery sanctions against her. We affirm the orders.

BACKGROUND

Judgment for dissolution of the marriage between petitioner and respondent was entered in 1997. There have been a number of hearings and orders concerning the relationship between the parties. We only set forth the relevant ones.*fn2

In 2003, pursuant to respondent's request for an order to show cause to modify child support and establish child support arrearages, the trial court ordered child support for the three children in the amount of $1,211 per month, plus certain child care expenses, and ordered respondent to pay $14,499 in arrearages at the rate of $500 per month. There were other proceedings dealing with visitation and health insurance.

Petitioner filed an application for an order to show cause in February 2006 requesting, inter alia, the modification of a prior child support order. This resulted in "a review hearing process." In January 2007, a review hearing concluded with child support orders. Respondent had requested a reduction in child support, in part because he had another child of his second marriage. The trial court reduced child support to $643 per month, plus child care expenses of $250 per month. Any arrearages were to be paid at the rate of $100 per month. The trial court provided that child support might be retroactively modifiable to June 1, 2006, depending on financial statements to be provided by respondent. The January 30, 2007, review hearing resulted in child support orders that were memorialized in a May 16, 2007, order. The trial court in July 2007 noted, the trial court (a different judge) "seemingly made certain orders that are not reflected in the minute order and the parties did not provide a transcript. As a result, if the court made child support orders, this court is not aware of them."

The trial court stated, "In the May 16, 2007 order, the court set a child support modification review hearing for June 21, 2007. From the file, it appears that the review hearing was ultimately continued several times to November 5, 2007." Meanwhile, the parties engaged in extensive discovery requiring court orders and sanctions. Petitioner sought discovery of information concerning respondent's family and family businesses, including about Z&Z Commercial Partners, LLC, Capital Management, Inc., and Uzi Zimmerman (respondent's brother). These businesses and Uzi Zimmerman resisted that discovery.

In connection with a November 5, 2007, review hearing and order to show cause regarding, inter alia, child support (which hearing was a continuation of prior hearings), petitioner filed with the trial court declarations with many exhibits for the purpose of showing that respondent had provided petitioner and the court with fraudulent information under oath since 2002 concerning respondent's income and financial status. Petitioner stated in her points and authorities she learned about respondent's concealment in October 2007. In her submission, she expressed the desire to obtain a new child support order retroactive to 2002. The trial court had retained jurisdiction to make child support orders retroactive to June 1, 2006. The trial court did not review the petitioner's filing, as it was filed late (Code of Civ. Proc. § 1005, subdivision (b)), and respondent raised evidentiary issues as to petitioner's material. Although petitioner's material was discussed, the trial court said, "What is this whole thing that I just had presented to me? . . . I can't consider this because I don't have time to read it."

At a February 20, 2008, hearing, in response to a trial court question, counsel for petitioner conceded that petitioner had not filed a motion to set aside a child support order. The trial court suggested that is what she should do, and if she did want to file a motion she should do so "quickly" because of time limitations.

On April 3, 2008, petitioner filed an order to show cause re modification of child support based on a change in petitioner's job status. She did not seek to set aside any prior orders on the basis of fraud. On April 29, 2008, the trial court ordered respondent to pay petitioner child support in the amount of $1,387 per month and requested that a formal order be submitted for signature by the trial court. This formal order was not signed until October 2008.

On June 10, 2008, petitioner moved to set aside the child support order and retroactively modify child support. She alleged that respondent had committed fraud and perjury with respect to prior orders. On July 22, 2008, the trial court in a tentative decision noted that petitioner filed in November 2007 a declaration concerning respondent's alleged fraud, but petitioner did not file her motion to set aside the child support order until June 20, 2008. Thus, the trial court stated that the six months limitation period of section 3691 barred her claim. (The trial court observed that the motion was not filed on the mandatory form FL-360, but nevertheless allowed the hearing on the motion.) The trial court also tentatively ruled on various discovery motions and indicated it would consider awarding sanctions against petitioner. The trial court requested transcripts of certain prior proceedings.

On August 11, 2008, the trial court incorporated into a minute order the tentative rulings on the statute of limitations and discovery issues and ordered respondent to prepare a formal order. On September 11, 2008, the trial court ordered discovery sanctions against petitioner consisting of $3,591.81 payable to respondent at rate of $360 per month and $7,500 payable to Z & Z Commercial Partners, LLC, UZ Capital Managements, Inc. and Uzi Zimmerman at the rate of $250 per month. The trial court said that because respondent had not filed a "current FL- 150," the trial court could not award sanctions under sections 2030 and 2032, but it did so under Code of Civil Procedure sections 2023.010 and 2023.030. The trial court stated in this connection, "petitioner filed a confusing pleading early in the process and did not until much later file an appropriate motion to set the prior order aside. This is not substantial justification, as the other parties to the discovery were forced to expend fees in fighting the matter."

On October 8, 2008, petitioner filed a notice of appeal from the August 11, 2008, order (that incorporated the tentative decisions of July 22, 2008) and the September 11, 2008, order. The trial ...


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