Filed 4/30/14 In re Marriage of Gennaro CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Marriage of MARK A. and TANIA S.
GENNARO.

MARK A. GENNARO,
                                                                       G047294
     Appellant,
                                                                       (Super. Ct. No. 97D009606)
         v.
                                                                       OPINION
TANIA S. GENNARO,

     Respondent.



                   Appeal from an order of the Superior Court of Orange County, Paula
Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Merritt L. McKeon for Appellant.
                   Douglas S. Honig for Respondent.
                                          *                  *                  *
                                    I. INTRODUCTION
              To be as sympathetic to appellant Mark Gennaro (Mark) as the record will
allow, his appeal brings with it an air of self-inflicted wounds. Mark’s central complaint
in this multi-volume appeal is the injustice he suffered back in June, 2010, when, in
ruling on a request to increase child support, the trial court made an order imposing issue
and evidentiary sanctions on him. Those sanctions had the effect of totally defaulting
him, and imposing – at least in comparison to the existing child support order – a
draconian upward child support modification.
              That order increased child support from $350 a month to $2,986 a month,
more than a 700 percent increase. The increase was based on imputing income of $8,860
a month, which would have yielded a guideline formula award of $1,643 a month. But
on top of that, the order invoked “special circumstances” to increase the amount still
further to $2,986 a month – though it’s not exactly clear how the court supported the
extra $1,343 a month, because the court didn’t spell out the special circumstances.
Moreover, the child support award was also arrived at by a finding the actual time share
ratio for custody of the couple’s teenage son was not – as it had been going into the
modification proceeding – 50-50, but rather 75-25 in favor of Mark’s ex-wife Tania
Gennaro Grindeman (Tania). When attorney fees of about $12,000 were included, the
order created an instant liability on Mark’s part, of $94,000. And the order went out of
its way to mention the bankruptcy statute (11 U.S.C. § 523) which makes domestic
support obligations nondischargeable in bankruptcy. The trial judge had clearly thrown
the proverbial book at Mark.
              But was the order really the result of an abuse of discretion or error in law,
or both? We will never know. The order was itself a final, appealable order. And in fact
Mark did appeal it. But for some reason, he abandoned that appeal. (The reason was a
failure to designate a record.) So for purposes of this case, it’s res judicata.



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              Which brings us to this appeal. This appeal is not from that order but from
an order filed July 17, 2012, denying a motion seeking to set aside the earlier order. To
the degree this appeal attacks the merits of the earlier order, it runs into the bar of res
judicata and to the degree the motion raised its own independent reasons to set aside the
order of June 17, 2010 (arguing Tania had lied about the timeshare and about an asset),
there is substantial evidence supporting the trial court’s decision to deny the request. So
we must affirm the judgment.
                                               II. FACTS
              Mark and Tania were married in February 1988 and divorced in October
1998. Child support was fixed at $700 a month total for the couple’s two children,
Michaela (born in July 1989) and Dorian (born in October 1992).
              By January 2008, Michaela had just turned 18, so only Dorian, then 15 was
the subject of the child support order. On January 10, 2008, the Orange County
Department of Child Support Services filed a motion to revalue child support upward
based on unspecific allegations there had been a change of circumstances in the interim.1
              Almost two and a half years would pass before the family law court
entered, on June 17, 2010, an order formally modifying Mark’s support obligation
retroactive to January 2010, the essence of which we have already described. What
caused the delay? Mark had been so recalcitrant in providing information about his
landscape architect business that in April 2009, which was already 15 months into the
modification proceeding, a discovery referee was appointed. Even then, Tania spent the
next 11 months in a fruitless discovery battle to force Mark to turn over original source
documents concerning the income of his landscape architect business, including checks
written to it, corporate bank statements, and – perhaps most important – the job contracts
from which one might develop an accurate picture of the income of the business. During


       1      Why a public agency filed the motion and not Tania herself is not explained in the briefing.


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this period of time, and up through the June 17, 2010 order, Mark was representing
himself.
                  In a report filed March 4, 2010, the discovery referee documented Mark’s
failure to comply with discovery, and pointed out the discrepancies in Mark’s excuses for
not producing documents: On the one hand, Mark insisted the business’s documents
were so numerous “‘it’s going to take a truck to bring it here’” (the referee’s report,
quoting Mark directly). But, on the other hand, Mark was complaining about his lack of
business, indicating he certainly should have had the time to produce its records.
                  The referee was particularly unimpressed with Mark’s invocation of his
parenting duties as an excuse not to find the time to sit “down in front of his file drawers
and extract[] the documents he is duty bound to produce.” The referee was also
understandably irritated that Mark assumed he would be the ultimate arbiter of what
documents he would produce. Among other things, the discovery referee recommended
making Mark pay all of Tania’s costs and attorney fees, imputing income to him as an
“issue” sanction, and preventing him from contesting evidence of his income as an
“evidentiary” sanction.
                  About a month after the referee’s report Tania filed an income and expense
declaration to the effect that the custodial time share factor involving Dorian was 75
percent her, 25 percent Mark. Then, in mid-June, the matter of the January 2008 child
support modification request was finally heard, resulting in the order of June 17, 2010,
already described.
                  Mark retained counsel for a series of postorder attacks in the trial court – a
motion to vacate, a motion for new trial, and a motion to reconsider.2 These, however,
were all denied on August 23, 2010. Within the month, on September 22, with new
counsel, Mark filed a notice of appeal on September 22, 2010, from the June 17, 2010

        2        The main reason for the voluminous heft of the appellant’s appendix in this case is that these
motions included a significant number of the records of Mark’s business.


                                                         4
order. The appeal, however, was dismissed October 21, 2010, for failure to designate a
record.3
                  Almost a year went by after Mark gave up his appeal. Then, on October 4,
2011, he filed a motion in the trial court to set aside the June 17, 2010 order, for fraud.
He alleged, among other things, that Tania (1) had not been honest in listing her assets,
which included an interest in a condominium in Corona Del Mar, and (2) had lied about
the actual time share percentage concerning the teenage son Dorian; it hadn’t been 75-25
as she told the court, but 50-50 after all. Dorian himself would eventually file a
declaration (though in a response to an opposition, not part of the original motion)
supporting the 50-50 version. The set aside motion asserted it was timely because the
document evidencing the Corona Del Mar condo ownership hadn’t been recorded until
about four months previously. (Cf. Fam. Code, § 3691, subd. (b) [relief from support
order timely if brought within six months of time moving party discovered or should have
discovered perjury].)4
                  The set aside motion had originally been set for December 11, 2011, but
was finally heard May 16, 2012. There is no reporter’s transcript of the proceeding,
though the hearing did involve testimony from both Mark and Tania. The court prepared
and mailed a proposed statement of decision on May 25, 2012, denying the set aside
motion. As to the Corona Del Mar condo, the court found that (a) the existence of the

          3        The opening brief in this appeal hints that the reason the appeal was abandoned was that, at the
time, no reporter’s transcript of the hearing of July 17, 2010, was available. According to the opening brief (in a
statement made without record reference) in 2010 the particular reporter who transcribed the proceeding misplaced
his notes in a locked cabinet, and the notes were only discovered in January 2013.
                   The question arises, did Mark fail to prosecute his earlier appeal because of the unavailability of
the reporter’s notes in the fall of 2010 when his appeal was in the formation stage? If so, it is unfortunate. But we
must note two points here:
                   One, even if the notes were missing, Mark still might have prosecuted his appeal by use of a
settled or agreed statement. (See Cal. Rules of Court, rules 8.130(g); 8.134; 8.137.) That option was particularly
viable given the shortness of the actual proceedings of June 17, 2010 – which consists of literally less than six full
pages of large type transcript.
                   And second, more importantly, Mark presents no argument in this appeal that the unavailability of
reporter’s transcript notes in the fall of 2010 somehow renders the order of June 17, 2010, unenforceable.
          4        All further statutory references in this opinion are to the Family Code.


                                                          5
condo had been a subject of public record since late 2009 when Tania was listed on a
deed of trust filed with the recorder’s office, but in any event (b) the condo was her
husband’s sole and separate property, since he had acquired it in 2000, long before their
marriage, and merely putting her on the deed of trust as part of a 2009 refinancing did not
give her an interest in it. As to the timeshare, the point had actually been raised back in
the motion to reconsider the June 17, 2010 order, and so was res judicata.
              It got worse for Mark. Tania had made a request to determine Mark’s
accumulated arrearages, which were found to be, as of May 9, 2012, $110,332.72, plus
another $27,367.69, for a grand total $137,700.41. On top of that, the court found the
“vast majority” of Mark’s set aside motion was “seeking to re-litigate that which is res
judicata and basically a second motion for reconsideration.” As the trial court saw it,
Mark was gratuitously forcing Tania to “respond and incur attorney fees and related costs
in what this court finds a frivolous motion.” So the proposed order added another
$15,103.50 as sanctions under section 271. These orders were then repeated in a formal
findings and order after hearing, file July 17, 2012. This appeal was filed August 16,
2012, from the July 17, 2012 order.
                                    III. DISCUSSION
              Mark’s appeal presents three different sets of challenges to the trial court’s
various orders. First there are the arguments directly attacking the order of June 17,
2010. Then there are the arguments attacking the order of July 17, 2012, denying set
aside of the order of June 17, 2010. Finally, there is one argument challenging the new
sanctions contained in the July 17, 2012 order.
A. The Order of June 17, 2010
              The June 17, 2010 order is, as the trial court in the 2012 set aside
proceeding accurately recognized, res judicata. “If an order is appealable, . . . and no
timely appeal is taken therefrom, the issues determined by the order are res judicata.” (In
re Matthew C. (1993) 6 Cal.4th 386, 393.) And that is precisely the rule governing the

                                              6
June 17, 2010 order. Mark chose to abandon his appeal from the order of June 17, 2010,
it is res judicata. It is – unfortunately – as simple as that.5
                  There is an esoteric doctrine sometimes called the “manifest injustice
exception to res judicata.” (See Louie v. BFS Retail & Commercial Operations, LLC
(2009) 178 Cal.App.4th 1544, 1562 [“Of course, even assuming continuing viability of
the manifest injustice exception to res judicata, that exception assumes a basis for
application of res judicata exists in the first place.”].) The doctrine can be traced back to
a passage in Greenfield v. Mather (1948) 32 Cal.2d 23.6 But the Greenfield case got off
to a shaky start and has never recovered. Justice Traynor dissented, writing: “So cavalier
a departure from res judicata throws into question the finality of any judgment and thus is
bound to cause infinitely more injustice in the long run than it can conceivably avert in
this case. It is an invitation to all unsuccessful litigants to relitigate their cases, for they
commonly view judgments against them as erroneous and hereafter can contend with
justifiable cause that their cases also present an exceptional combination of circumstances
requiring a departure from the doctrine of res judicata.” (Id. at p. 36 (dis. opn. of
Traynor, J.).) Justice Traynor could have addressed the same words to Mark’s appeal
here.
                  The latest word from our Supreme Court on the injustice exception is found
in Slater v. Blackwood (1975) 15 Cal.3d 791. There the court cast serious doubt on the
viability of the exception: “There is some authority for the proposition that, in particular
circumstances, courts may refuse to apply res judicata when to do so would constitute a
manifest injustice. [Citations.]. We consider the Greenfield doctrine of doubtful validity



         5        And as noted in footnote 3 above, the absence of a reporter’s transcript for the June 17, 2010
hearing did not prevent his perfecting his appeal.
         6        Here’s the key part of that passage: “But in rare cases a judgment may not be res judicata, when
proper consideration is given to the policy underlying the doctrine, and there are rare instances in which it is not
applied. In such cases it will not be applied so rigidly as to defeat the ends of justice or important considerations of
policy.” (Greenfield, supra, 32 Cal.2d at p. 35.)


                                                           7
and it has been severely criticized. (See 4 Witkin [Cal. Procedure 2nd ed. 1971)],
Judgment, § 150, p. 3295, et seq.)” (Slater, supra, 15 Cal.3d at p. 796, italics added.)
              Even if there is, under Greenfield and despite Slater, some still viable free-
floating “injustice exception” to res judicata, we could not apply it in the appeal now
before us. We really cannot say the June 17, 2010 order is “unjust.” To do that, we
would need a complete record of the two years covered by the discovery referee’s report
of March 4, 2010. On its face that report is a compendium of how, for almost two years,
Mark virtually thumbed his nose at not only the discovery process, but the authority of
the referee and essentially refused to take the referee’s remonstrances seriously. Without
a detailed play-by-play describing exactly how the referee came to make his
recommendations – e.g., the nature of any warnings Mark may have had, and whether
there was some progression of sanctions from small to great – we could not say the
referee’s recommendations, or their adoption by the court, were excessive or an abuse of
discretion. (Cf. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 [“The penalty should
be appropriate to the dereliction, and should not exceed that which is required to protect
the interests of the party entitled to but denied discovery. Where a motion to compel has
previously been granted, the sanction should not operate in such a fashion as to put the
prevailing party in a better position than he would have had if he had obtained the
discovery sought and it had been completely favorable to his cause.”].) And that’s quite
apart from the overarching fact that Mark had his chance to demonstrate the June 17,
2010 order, was excessive, and chose not to pursue it.
              There is also a “public policy exception” to res judicata, but that requires an
issue of law, as distinct from an issue of fact. (See People v. Barragan (2004) 32 Cal.4th
236, 256 [“We have also recognized that public policy considerations may warrant an
exception to the claim preclusion aspect of res judicata, at least where the issue is a
question of law rather than of fact.”].) Here, any injustice inherent in the June 17, 2010
order, is necessarily a question of fact, as the question would turn on factual minutiae that

                                              8
could have been litigated in the now-abandoned appeal. Such factual minutiae would
include the exact nature of the warnings Mark had from the discovery referee, the exact
nature of his compliance or noncompliance with any direct orders by the discovery
referee, and the true nature of his income if he – as the discovery referee pointedly noted
he didn’t do – had supplied the original source material (the contracts) which would
allow a forensic accountant to come up with some idea of his true income. There is some
indication in this record his income and assets have been understated.7
                 That leaves only the idea the June 17, 2010 order, is somehow void, hence
liable to attack at any time. But to be so void, the court in making the order necessarily
had to lack jurisdiction “in a fundamental sense” – meaning an absence of legal authority
over the subject matter or the parties. (See People v. American Contractors Indemnity
Co. (2004) 33 Cal.4th 653, 660 [“Essentially, jurisdictional errors are of two types.
‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of
power to hear or determine the case, an absence of authority over the subject matter or
the parties.’ . . . When a court lacks jurisdiction in a fundamental sense, an ensuing
judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’”].) And
here there is no hint the family law court that made the order of June 17, 2010, didn’t
have jurisdiction over Mark to make him pay increased child support. Likewise there is
no possibility the proceeding lacked due process. Mark had plenty of notice and
opportunity to be heard.
B. The Order of July 17, 2012
                 The Family Code provides what might be called some limited statutory
exceptions to res judicata by explicitly providing for set aside orders under certain
prescribed conditions. (See § 2120, subd. (c) [“The public policy of assuring finality of


         7        There is the matter of Mark’s interest in some Alaskan property (or a combination of two
properties) which purportedly might be worth $400,000 or more, though he may have taken some measures to put
them under the control of other family members.


                                                      9
judgments must be balanced against the public interest in ensuring proper division of
marital property, in ensuring sufficient support awards, and in deterring misconduct.”].)
Section 2122 sets out grounds and time limits for certain categories of set aside motions:
Actual fraud and perjury provide one year, from date of discovery or time the aggrieved
party should have discovered, to set aside a judgment, while the period is two years for
duress or mental incapacity. (§ 2120, subds. (a), (b), (c) and (d).) So Mark’s set aside
motion was not necessarily dead on arrival as a matter of the issues having already been a
“thing judicially decided.”
                  That said, we can find no fault in the trial court’s denial of the set aside
motion qua set aside motion. As to the Corona Del Mar condo, Mark’s brief does not
present a single argument that would justify a conclusion Tania had lied about her assets
given the uncontroverted evidence that any interest in the condo is entirely her husband’s
separate property.
                  As to the time share, on the merits the evidence is mixed.8 It is true that
Dorian – having turned 18 – supplied his father with a declaration that the time share in
his last two years of his minority was 50-50, not 75-25 in favor of Tania. But we have
examined Dorian’s declaration and it is extremely general. As between it and Tania’s
declaration of July 20, 2010, a trial court could readily conclude Tania’s characterization
of time spent was the more accurate. Tania’s declaration specifically itemized the actual
days of custody each parent had custody of their son in the period August 2009 to July
2010. (E.g., “May 2010: 1st, 2nd, 5th-16th; 20th-30th (23 days out of 31) 74%.”) The
months ranged from a low of 58 percent in March 2010 to a high of 78 percent in July
2010. If our math is correct, the average was 71.16 percent as a monthly average. That is
all of 3.84 percent below 75 percent. A trial judge would hardly be required to find, as a

          8        While the trial court was certainly correct that the time share issue is res judicata because it was
litigated in the challenges to the June 17, 2010 order, that determination does not end the inquiry. Under the Family
Code set aside statutes, the question is not whether a point has been previously litigated, but whether that point was
supported by, among other things, perjury in the previous litigation.


                                                          10
matter of law, that Tania had perjured herself in coming up with the 75 percent figure.
The approximation is simply too close. We further note that Tania’s declaration was
available to Mark when Dorian prepared his, so if there were specific inaccuracies in
Tania’s declaration, Dorian could have identified them.
C. The Sanctions in the July 17, 2012 Order
              Mark’s best argument goes to the problem of sanctions, though the
argument is not wholly developed. The trial court sanctioned Mark an additional
$15,103.50 in sanctions, basically for having brought a total loser of a motion and putting
Tania to the unnecessary expense of defending against it. Mark points to the fact that
Dorian did not testify in regard to the original June 17, 2010 order, so it seems unfair that
Mark should pay sanctions when Dorian provided at least some evidence that Tania may
have been lying back in 2010 to claim a 75-25 timeshare. Moreover, Mark notes, the trial
court determined the set aside motion was entirely barred by res judicata, but Dorian’s
declaration came after the 2010 order was final, so how could the court penalize Mark for
invoking the opportunity the statute gives him, i.e., to set aside prior orders if based on
perjury.
              But the trial court was correct in determining the entire set aside motion
was barred by res judicata. The doctrine of res judicata not only includes issues that were
litigated in a prior order or judgment, but issues that could have been litigated as well.
(See Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 557 [res judicata, if
applicable, “not only precludes the relitigation of issues that were actually litigated, but
also precludes the litigation of issues that could have been litigated in the prior
proceeding.”].) In this respect we note that Dorian was almost 18 years old during the
summer of 2010 when Mark was offering varying declarations in an attempt to challenge
the June 17, 2010 order. Mark has offered no excuse why Dorian’s declaration could not




                                              11
have been offered then, particularly if Tania had so overstated the timeshare as to commit
perjury. Whether he litigated the issue or not, he clearly could have.9
                  The order of July 17, 2012, is affirmed. Appellate costs must go to Tania.




                                                                BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




         9        Mark says he didn’t call Dorian because he feared his 17-year-old son would be emotionally
devastated by testifying he stayed with his father 50 percent of the time. Even if that were his reasoning, the law
does not allow a party to choose what witnesses to call and then ask for a do-over if things don’t go well.


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