(Super. Ct. Nos. DN147874, DN150953) APPEAL from orders of the Superior Court of San Diego County, Jeannie Lowe, Commissioner. Reversed with directions.
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
In this dissolution action, we hold the family court exceeded its jurisdiction by modifying a pendente lite child and spousal support order in favor of the wife. The Legislature expressly intends that temporary support orders may not be modified retroactively. Further, the prospective modification of the order was improper because there was no pending order to show cause (OSC) or motion for modification as required. We reverse certain orders with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Deborah Goodman Gruen and Arthur Lawrence Gruen married in February 1989.*fn1 In August 2007 Deborah filed an action for legal separation, and for an OSC for child and spousal support. At the time, the parties' four children were between 10 and 16 years of age.*fn2
Arthur is a physician and the owner of several medical services businesses. Deborah obtained a medical degree in 1987, but she did not complete her residency. She obtained a Ph.D. in epidemiology in 1993, and she was previously employed part-time by the University of California, San Diego, as a research professor. In 2004 she became a stay-at-home mother.
The parties' had a high standard of living during the marriage. Deborah's income and expense declaration estimated Arthur's monthly income at $180,000, and her total monthly expenses at $154,600, excluding any amount for savings or investments. The mortgages on their Rancho Santa Fe estate alone were approximately $32,000 per month.
On October 15, 2007, the parties entered into a stipulation that gave Deborah primary custody of the children. As for support, the stipulation provided: "[Arthur] shall continue to make available to [Deborah] all monies previously available to [Deborah] for the last few years for any and all expenditures, and all monies reasonable or necessary for [Deborah] to pay her legal expenses and fees." The stipulation also provided: "[Arthur] shall continue to make resources available to pay any and all expenditures for living expenses of [Deborah] and/or the minor children, including but not limited to all mortgages, liens, encumbrances, and all other debts associated with the property of the parties, and all expenses for remodeling of the family residence." The parties both had legal counsel when they entered into the stipulation.
On April 30, 2008, Arthur filed for dissolution of the marriage, and for an OSC regarding child and spousal support and other matters. Arthur's income and expense statement claimed total monthly income of $58,600. On May 16 he filed an amended OSC, which superseded the April OSC. The parties stipulated to the consolidation of the cases.
In June 2008 Deborah filed an updated income and expense declaration. It again estimated Arthur's monthly income at $180,000, but reduced her monthly expenses to $86,575. Deborah filed a declaration, which stated she needed "a substantial support order to pay for the huge expenses Arthur created." (Underscoring, boldface and capitalization omitted.) The declaration explained as follows*fn3 : "Since moving in 1994 to the upscale Rancho Santa Fe neighborhood, Arthur has elevated his lifestyle and purchased larger, more expensive homes. The family residence is an 8,000 square foot home on over 4 acres, with a guest house, pool and pool house with full kitchen, tennis court, and 3 barns. In about summer of 2006, Arthur insisted on expanding the size of the home, and despite my objections, took out large loans on equity. Arthur constructed an additional 3 bedrooms, home theatre, 4-car garage, and luxurious one-bedroom guest house. I opposed this expensive addition but, . . . my objections went unheeded." The declaration went on to state the monthly "costs to maintain the residence are enormous," including about $4,000 for a groundskeeper, more than $2,000 for a housekeeper and about $2,000 for utilities, plus $9,000 per year for insurance. Further, Deborah's declaration states the parties owned four "luxurious vehicles," a motorcycle, an "ATV & dune-buggy," and a sailboat, and the family customarily took three "lavish" vacations a year. The parties' son attended private school at a cost of $25,000 a year, and the children attended summer camps and programs at a cost exceeding $10,000 a year.
Deborah's declaration also stated Arthur customarily paid many of the family's bills from his business account, to which he had sole access, and until April 2008 he had deposited $67,000 per month into a joint account for Deborah's payment of certain other bills. It also stated that monthly statements she subpoenaed showed monthly deposits into Arthur's business account from $165,000 to $532,000 between April 2007 and January 2008. Further, in a September 2006 financial statement Arthur claimed his income was $2,240,000 per year, or approximately $186,000 per month, and the parties' net worth was $24 million.
On August 1, 2008, the court held a hearing on Arthur's OSC. The court ordered Arthur to immediately "pay fully and promptly when due the monthly housing expenses, the automobiles, all automobile insurance expenses, medical/health insurance expenses, life insurance, credit card payments, and provide evidence of his payments through counsel," and also to pay Deborah $40,000 per month. The order stated it was made "on an interim, without prejudice basis, pending the next hearing." Pursuant to the parties' stipulation, the court appointed Tony Yip under Evidence Code section 730 to assist it in determining Arthur's income available for support.
The hearing on Arthur's OSC was continued to August 21, 2008. At that time, Arthur asked the court to take the matter off calendar insofar as it pertained to support, and to continue the August 1, 2008 support order pending Yip's preparation of a report. Deborah asked the court to increase support based on monthly deposits averaging $220,000 that Arthur made into his account, and on his failure to pay all the bills he was ordered to pay on August 1. The court stated, "I have concerns here of just continuing the temporary order, as [Arthur] suggested, until we get Mr. Yip's report." The court cautioned Arthur's counsel it would be in Arthur's best interest to cooperate in getting information to Yip immediately. The court confirmed that the August 1 order "is enforceable." The parties then stipulated that the "temporary support orders made at the August 1, 2008 hearing are to remain in effect pending further court order." The court also ordered Arthur to pay all the family's therapy bills, and to provide proof of payment of all bills to Deborah's counsel within four days of payment. Further, it ordered Arthur to pay the $40,000 to Deborah in two monthly installments. The court's minutes indicate the hearing on Arthur's OSC was not continued. Arthur never filed a motion or OSC for a modification of the August 1 order.
By the time of the October 21 hearing, Yip had not finalized his report. He had requested additional documents from Arthur. At a December 4 hearing on custody and visitation issues, the court again addressed the status of Yip's report. Yip had requested additional documents from Arthur. The court commented, "this is a temporary order that I'm looking at at this point. I'm continuing to reserve jurisdiction on setting temporary orders." The court added, "Any order that I would make on Mr. Yip's report is going to be an interim order only, and pending final settlement at time of trial." The court also stated, "With respect to the current order, interim order on support, that remains in effect."
At a December 19, 2008 hearing on other matters, the status of the Yip report was again discussed. Yip still needed additional documents. The court scheduled a case management conference for February 17, 2009.
On January 16, 2009, Yip issued an unsigned draft report that showed Arthur had $49,000 in monthly cash flow available for support. On February 4, Arthur filed a motion for "[r]etroactive reimbursement," in which he sought a reduction in his support obligation, retroactive to August 1, 2008, and "credits and reimbursements" for alleged "overpayments of support," based on Yip's draft report. A hearing was set for February 17, 2009, in conjunction with the case management conference.
In mid-December 2008 Arthur had begun drastically reducing the $40,000 monthly payments due Deborah under the August 1, 2008 order. In January 2009 Deborah retained new counsel*fn4 because she could no longer afford her original attorney. On February 10 she moved ex parte for a continuance of the February 17 hearing, to give her new attorney additional time to review and respond to Yip's draft report. Arthur offered to stipulate to a pendente lite order based on Yip's draft report, pending the court's entry of a "permanent order," but Deborah declined. The court denied a continuance. It commented, "I can always reserve jurisdiction to retroactively modify ...