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In Re the Marriage of William R. Fry and Laurie E. Fry. v. Laurie E. Fry

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 14, 2010

IN RE THE MARRIAGE OF WILLIAM R. FRY AND LAURIE E. FRY. WILLIAM R. FRY, APPELLANT,
v.
LAURIE E. FRY, RESPONDENT.

(Santa Clara County Super. Ct. No. FL116319)

The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.

Marriage of Fry

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

Appellant William R. Fry (Randy) and respondent Laurie E. Fry (Laurie) were married for over 18 years and had three children.*fn1 In 2003, the parties separated and Randy filed a petition for dissolution of marriage. A status-only judgment of dissolution was entered in 2005. Laurie sought temporary child support and spousal support by filing a motion in 2004. After a four-day hearing, the trial court issued its December 5, 2008 statement of decision and order on support issues.

The December 5, 2008 statement of decision and order directed the parties to meet and confer for the purpose of computing Randy's temporary spousal support obligation and required Randy to pay, by December 31, 2008, an unspecified amount of temporary spousal support that the parties were to calculate on the basis of "the common undisputed inputs." The trial court reserved jurisdiction to resolve any remaining disputes regarding the amount of temporary spousal support.

On appeal, Randy seeks reversal of the portion of the December 5, 2008 statement of decision and order that concerns temporary spousal support and a remand "for determination of proper temporary spousal support awards, not to exceed the sum necessary for Laurie to meet her financial needs based upon the pre-separation marital lifestyle." For reasons that we will explain, we determine that Randy seeks review of a non-appealable order, and therefore we will dismiss the appeal.

II. FACTUAL AND PROCEDURAL BACKGROUND

Randy and Laurie were married on May 11, 1985, and had three children, including Erica, born in 1986; William, born in 1988; and Jacob, born in 1989. On October 10, 2003, Randy filed a petition for dissolution of marriage. The petition states that the date of separation was the same date, October 10, 2003. A status-only judgment of dissolution was entered on May 19, 2005.

Laurie filed a motion seeking guideline*fn2 child support and spousal support and attorneys fees on December 20, 2004. At that time, William and Jacob were the only minor children. Laurie specifically sought a support award, including an award retroactive to the date the petition for dissolution of marriage was filed, that was "based upon all aspects of [Randy's] income, including all perquisites of his employment and his separate property . . . ." She also sought "consideration of the disparities in the parties' current lifestyles so that she and the minor children can share [Randy's] standard of living. Laurie filed an amended motion on January 26, 2005, that made the same support request. The record does not indicate whether Randy filed opposition to Laurie's motion for child and spousal support.

On June 14, 2006, Laurie filed a trial brief re temporary spousal and child support. She asserted that Randy, the president of the retail chain Fry's Electronics, Inc. (Fry's) and his two brothers "have complete control and the management of vast wealth, as well as of the money they choose to disburse as their income." In addition, according to Laurie, "the Fry brothers have acquired assets, which include but are not limited to, the real estate and buildings from which the Fry's Electronics stores operate, a sheep ranch in New Zealand, a fleet of aircraft that they enjoy for their personal pleasure, an island in the Bahamas, a tract of land in Morgan Hill which they developed as a private golf course with single family homes available for personal or business use, a sports team franchise, a bank in Utah, and a company in the Cayman [I]slands."

In her trial brief, Laurie described herself as a homemaker who lacked both a college education and marketable skills, and who had not worked outside the home since 1985 except for being "a very part-time school aid." During the marriage, she "devoted herself to the rearing of the parties' children" and to maintaining their home. Laurie further asserted that her standard of living had been severely reduced since the parties separated. She claimed that Randy continued to have an extremely luxurious lifestyle while she shopped at Target, and she was unable to provide their children with the lifestyle they had during the marriage and that their father currently enjoyed. Accordingly, she sought temporary child and spousal support based on consideration of Randy's assets as well as his earnings.

The record does not include Randy's trial brief. In her trial brief, Laurie stated that Randy's position was that any monthly support award should be limited to "the $12,000 non-taxable support that he . . . believes meets her needs and those of the children since separation."

A four-day evidentiary hearing on Laurie's motion for temporary spousal and child support was held on June 16, 2006; December 15, 2006; November 9, 2007; and November 30, 2007. In addition to the parties, the witnesses included the parties' accounting experts and John Fry, the chief executive officer of Fry's. After the conclusion of the hearing, the parties submitted written closing arguments and proposed statements of decision. On July 3, 2008, the trial court issued a proposed statement of decision, followed by the parties' submission of objections and further briefing.

On December 5, 2008, the trial court issued its 25-page statement of decision and order on temporary child support and spousal support. Only that portion of the statement of decision and order concerning temporary spousal support is at issue in the present appeal. The trial court made several findings with respect to temporary spousal support, including (1) Randy had paid Laurie $12,000 per month in "non-characterized support" from June 15, 2004, to the time of the hearing; (2) Laurie had failed to prove that Randy suppressed his income in order to reduce his support obligations; (3) the court would apply Randy's actual salary and employment income in calculating support; (4) income would be added to Randy's actual salary to account for his personal use of corporate aircraft; (5) Randy was not entitled to an offset for payment of joint taxes in 2004; (6) temporary spousal support would not be reduced due to Laurie's use of the marital residence after separation; (7) Laurie did not enjoy the standard of living that she had before the parties' separation; (8) Randy's proposed cap of $22,000 for temporary spousal support was rejected; (9) temporary spousal support for the years 2004 and 2005 should be based on the guidelines; (10) temporary spousal support for the years 2006, 2007, and 2008 would be based on the guidelines, using the parties' 2005 income distributions from the partnership known as "the TAW" since the post-separation distributions were much greater than those parties had received during the marriage; and (11) Laurie may use Randy's proposed methodology for considering inflation in computing guideline temporary spousal support.

In its December 5, 2008 statement of decision and order, the trial court did not specify either the amount of temporary spousal support that Randy was to pay or the amount of retroactive temporary spousal support that he owed. Instead, the court ordered the parties "to meet and confer within fifteen days of the date of this statement of decision and order to compute the temporary child and spousal support due through December 2008, net of Randy's earlier payments, consistent with this statement of decision and order. In accordance with the evidence and the Court's understanding of the proper tax treatment of spousal support, the amounts of guideline spousal support must be computed on a non-taxable basis through December 31, 2007. The guideline spousal support for 2008 shall be computed on a taxable basis. Randy is then ordered to make any net payment by December 31, 2008. The parties are also ordered to compute the monthly temporary spousal support that will be due beginning January 1, 2009, consistent with this statement of decision and order."

The December 5, 2008 statement of decision and order further stated that the parties and their experts had "agreed on the inputs to be to be used in computing guideline child and spousal support, with the exception of certain issues discussed in this statement of decision. Based on the Court's resolution of those disputed issues, the parties and their experts should therefore agree on the resulting computations. The Court reserves jurisdiction to resolve any remaining disputes over the computed amounts of temporary child and spousal support, consistent with this statement of decision and order. To the extent there is any dispute, payment shall be made by December 31, 2008 for all support periods, with the support computed based on the common undisputed inputs (in other words, excluding only the incremental impact of the dispute). Of course, the Court also reserves jurisdiction under Family Code section 271 and other appropriate sections to award sanctions for any failure to cooperate in meeting and conferring in accordance with this statement of decision and order [Fn. omitted.]"

Subsequently, Randy filed a motion for new trial on December 31, 2008, in which he argued that the evidence of Laurie's 2007 income, which had not been presented at the time of the hearing on temporary spousal support, showed that an award of temporary spousal support would exceed her needs and constitute a windfall. In her opposition, Laurie responded that Randy had failed to make the requisite showing that the evidence of her 2007 income constituted newly discovered evidence. The trial court agreed, and denied the motion on that ground in its order of March 19, 2009.

In the meantime, on February 3, 2009, Randy filed a notice of appeal from the December 5, 2008 statement of decision and order regarding temporary child and spousal support, which he stated was appealable as a judgment. He later filed an amended notice of appeal that expressly stated that December 5, 2008, was the date of the judgment. On March 3, 2010, this court denied the parties' request to file a "Stipulation re facts to be utilized in connection with the appeal," and extended the time for the filing of the opening brief.

III. DISCUSSION

On appeal, Randy's chief argument is that the trial court abused its discretion because the December 5, 2008 statement of decision and order directs the calculation of guideline temporary spousal support, which will result in an award of temporary spousal support that exceeds Laurie's needs. Randy asks that the matter be "remanded to the trial court for determination of proper temporary spousal support awards, not to exceed the sum necessary for Laurie to meet her financial needs based upon the pre-separation marital lifestyle."

Laurie contends that the appeal should be dismissed because the December 5, 2008 statement of decision and order is not appealable. She asserts that the order does not require Randy to pay a specific amount of temporary spousal support, and therefore the order is preliminary and not does not constitute an appealable final collateral order.

We will begin by addressing the threshold issue of appealability. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. Thus, this court is obligated to review the question of appealability. [Citations.]" (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) Our determination of appealability is guided by California Supreme Court authority.

"[A]n order made after an appealable judgment is itself appealable." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin), fn. omitted; [construing former Code Civ. Proc., § 904.1, subd. (b), now Code Civ. Proc., § 904.1, subd. (a)(2)].) However, "not every postjudgment order that follows a final appealable judgment is appealable." (Ibid.) Non-appealable postjudgment orders include those that "although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for an appeal." (Id. at p. 652.) In other words, " 'where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory' " and not appealable. (Olson v. Cory (1983) 35 Cal.3d 390, 399.)

Several appellate decisions involving marital dissolution actions illustrate the application of the rules governing appealability. For example, a postjudgment order in a marital dissolution action finding that the trial court had the authority to approve the sale of certain assets and resolve any sale-related issues was determined not to be an appealable order. (In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589.) The appellate court ruled that "[s]uch an order is one which is 'preliminary to later proceedings' within the meaning of [Lakin], supra, 6 Cal.4th at pages 654, 656." (Ibid.) Moreover, the court found that because the order was "not sufficiently final, it was not appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2) as a[n] order made after the judgment . . . ." (Ibid.)

In In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1218, an order confirming an arbitrator's award and appointing a retired superior court judge to select a forensic accountant to perform the accounting required by the award was also found to be non-appealable "[b]ecause the order is preliminary to further proceedings and interlocutory under Lakin's principles . . . ."

An order finding a community interest in the husband's health insurance subsidy benefits and the authority to divide that asset was similarly deemed a non-appealable order. (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 402-403.) The appellate court reasoned that "the order determines that the trial court has authority to evaluate and divide the medical subsidy, but it is only preliminary to actually doing so." (Id. at p. 403.) Further, "[t]he order could be reviewed upon appeal from the subsequent final judgment on reserved issue that actually divides the asset." (Ibid.) "In other words, this purported appeal is an 'interlocutory' appeal, which normally is not permitted." (Ibid.)

An order denying a motion to correct a minute order is also a non-appealable order. (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.) The order was determined to be interlocutory because issues of spousal support and other property issues remained to be tried and further judicial action was essential to a final determination of the parties' rights. (Ibid.) The appeal was dismissed because the appellate court concluded that "[t]he issues raised can be resolved, if necessary, following the entry of final judgment." (Ibid.)

On the other hand, "[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Thus, an order directing payment of a specific amount of temporary spousal support is an appealable order. (Id. at pp 368-369.)

In the present case, we find that the December 5, 2008 statement of decision and order is preliminary to later proceedings and therefore interlocutory and non-appealable. It is undisputed that the trial court did not order Randy to pay any specific amount of temporary spousal support. Instead, the trial court ordered the parties to meet and confer regarding the calculation of the amount of Randy's temporary spousal support obligation through December 31, 2008, and the amount of monthly temporary spousal support for the period beginning January 1, 2009. The trial court also ordered Randy is to make the payments of temporary spousal support to the extent agreed upon by the parties, and reserved jurisdiction "to resolve any remaining disputes over the computed amounts of temporary child and spousal support, consistent with this statement of decision and order."

Thus, under the December 5, 2008 statement of decision and order further judicial action is necessary to a final determination of the rights of the parties with respect to temporary spousal support. As Laurie points out, the order in this case is similar to the non-appealable order discussed in Free Gold Mining Co. v. Spiers (1901) 135 Cal. 130, 132, because "[i]t is an order made in the progress of the action, tending to facilitate the final adjudication of the controversy between the parties, and, . . . any error that may have been committed by the court in making it must be reviewed upon an appeal from the judgment."

Randy argues that the December 5, 2008 statement of decision and order is appealable because he was ordered "to make payment of an amount of money (to be calculated by his own accountants based on the trial court's finding) by December 31, 2008." Randy also claims that the trial court "made clear that sanctions were an option" if he failed to make the required payment by the due date, based on the court's statement in the December 5, 2008 statement of decision and order that "the Court reserves jurisdiction under Family Code section 271 and other appropriate sections to award sanctions for any failure to cooperate in meeting and conferring in accordance with this statement of decision and order." Randy also refers to the trial court's statements in a hearing held on January 30, 2009, over one month after the December 5, 2008 statement of decision and order.

We are not convinced by Randy's arguments regarding appealability. First, as we have discussed, Randy was not ordered to make payment of any specific amount of temporary spousal support, and therefore the December 5, 2008 statement of decision and order does not constitute a final determination of the parties' rights with regard to that support obligation.

Second, sanctions may be awarded under Family Code section 271 for failure to cooperate whether or not the potential for sanctions is mentioned in an order. Section 271 advances the policy of the law " 'to promote settlement and to encourage cooperation which will reduce the cost of litigation.' " (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) Thus, in any case "[f]amily law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction. [Citations.]" (Ibid.)

Finally, since the proceedings of January 9, 2009, occurred after entry of the December 5, 2008 statement of decision and order, we may not consider those subsequent proceedings in determining the present appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appellate court normally considers only matters that were part of the record at the time the judgment was entered].)

For these reasons, we conclude that the December 5, 2008 statement of decision and order is non-appealable.*fn3 In the absence of an appealable order, we lack jurisdiction (Doran v. Magan, supra, 76 Cal.App.4th at pp. 1292-1294) and therefore we will dismiss Randy's appeal.

IV. DISPOSITION

The appeal is dismissed.

WE CONCUR: MIHARA, J. duffy, J.


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