Filed 10/31/13 Marriage of Andreiu CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re the Marriage of JEAN and PATRICE
DE SAINT ANDRIEU.

JEAN DE SAINT ANDRIEU,
          Appellant,                                                 A137006
v.
                                                                     (San Mateo County
PATRICE DEPAOLA,                                                     Super. Ct. No. FAM 090749)
          Respondent.


          Facing incarceration for failure to comply with child and spousal support orders,
Jean de Saint Andrieu (Husband) moved to set aside all current and prior support orders
on the ground that his former wife, Patrice de Paola (Wife), had not fully disclosed her
income. The court denied Husband’s first motion to set aside the orders based on
information contained in Wife’s 2010 tax return, and Husband moved for
reconsideration. The denial of Husband’s motion for reconsideration is not appealable,
and we therefore dismiss his appeal from that order. Husband also separately moved to
set aside the support orders based on information contained in Wife’s 2007–2009 tax
returns. He appeals denial of this motion. We address this appeal on the merits and
affirm.




                                                             1
                                    I.     BACKGROUND
       In this marital dissolution action, the trial court entered temporary child and
spousal support orders in October 2007, and “permanent” child and spousal support
orders in November 2008.1
       In March 2009, the court found Husband in contempt for failing to comply with
the support orders and sentenced him to 140 days in jail, with 110 days suspended on the
condition that he comply with the support orders and make payments toward the
arrearage. In July 2010, Husband sought modification of these orders and, in
August 2010, the court agreed to suspend and purge the contempt sentence if he complied
with certain conditions, including payment of arrearages.
       In October 2010, Wife agreed to participate in mediation to help Husband avoid
incarceration. The parties agreed to a new set of conditions to purge the contempt, which
reduced Husband’s debt by more than half and terminated his obligation to pay spousal
support. Husband signed a stipulated order incorporating the revised conditions and new
support obligations.
       In October 2011, Husband again sought modification of the support orders, and
the court modified the orders at a February 2012 hearing.
       In April 2012, Husband moved to set aside October 2010 and February 2012
support orders pursuant to Family Code, section 3691, subdivisions (a) and (b).2
(Hereafter the section 3691 motion.) He averred that, in January 2012, Wife provided
him with a copy of her 2010 federal tax return,3 which he had not previously seen and
which reported interest and dividend income that she had not disclosed on her income
and expense declarations. He asked that the 2010 and 2012 orders be set aside and that
“new support payments be correctly calculated retroactively to include all of [Wife’s]

       1
       According to Wife, marital status was terminated in December 2007, and a final
judgment on reserved issues was entered in May 2008.
       2
           All statutory references are to the Family Code unless otherwise indicated.
       3
        As to all of the tax returns mentioned in this opinion, the record includes only a
copy of the first page of each return.


                                               2
true and total income . . . from 2007–2012.” Husband also filed a motion to modify the
October 2010 and February 2012 child support orders based on a reduction in his income.
       On June 5, 2012, the court denied Husband’s motions. As to the motion to modify
the support orders, the court denied relief because Husband was still in contempt for
violating the orders. As to the section 3691 motion, the court found the allegation of
fraud meritless, based in part on a finding that Wife provided an income and expense
declaration to Husband during the October 2010 mediation that reflected trust and
partnership distributions.4 Husband promptly filed a motion for reconsideration of the
denial of his section 3691 motion,5 claiming he had never seen the October 2010 income
and expense declaration until Wife presented it at the June 5 hearing. (Hereafter the
section 3691 reconsideration.)
       On June 19, 2012, the court ordered Husband to surrender on July 21 to serve the
remaining 100 days of his contempt sentence. In August and again in October, Husband
told the court he was serving the sentence through the sheriff’s work program.
       On July 6, 2012, Husband filed a motion to set aside judgments pursuant to
section 2122.6 He averred that, in March 2012, Wife showed him copies of her federal
tax returns for 2007 to 2009, each of which reported tens of thousands of interest and
dividend income that she had not previously disclosed. He requested that “all the
judgments against me that were materially affected by the fraud, perjury, and failure to

       4
         The copy of the October 2010 income and expense declaration in the record is
not file-stamped. Wife produced this declaration at the June 5 hearing in opposition to
Husband’s section 3691 motion to rebut the claim that he first learned of the distributions
in January 2012. She claimed Husband had been given the declaration during the
October 2010 mediation and said that it had not been filed because the parties reached an
agreement.
       5
        Although the motion is file-stamped June 28, 2012, the court found that it was
delivered to the court on June 18 and was thus timely filed.
       6
         We refer to the motion filed on July 6, 2012 as the “section 2122 motion” to
distinguish it from the section 3691 motion and the section 3691 reconsideration.
However, as we discuss post, to the extent the section 2122 motion seeks relief that is not
unavailable under section 2122, we construe the motion as seeking relief under
section 3691.


                                             3
comply with disclosure requirements . . . be immediately set aside for the years [2007 to
2012].”
       Wife opposed the section 3691 reconsideration and the section 2122 motion and
asked the court to declare Husband a vexatious litigant. At an October 2, 2012 hearing,
the court denied both of Husband’s motions and ordered Husband not to file any future
motions without leave of the court. On November 1, Husband appealed the orders
denying the section 3691 reconsideration and section 2122 motion.
                                     II.     DISCUSSION
A.     Appeal from the Order Denying Section 3691 Reconsideration
       Wife argues the appeal from the order denying Husband’s motion for
reconsideration must be dismissed. We agree.
       “An order denying a motion for reconsideration made pursuant to [section 1008,]
subdivision (a) is not separately appealable. However, if the order that was the subject of
a motion for reconsideration is appealable, the denial of the motion for reconsideration is
reviewable as part of an appeal from that order.” (Code Civ. Proc., § 1008, subd. (g).)
Husband appealed only from the order denying the section 3691 reconsideration, not the
underlying June 2012 order denying the section 3691 motion. Because the order denying
the section 3691 reconsideration is not appealable, this part of Husband’s appeal must be
dismissed.
       Even if we were to construe Husband’s November 1, 2012 notice of appeal as an
appeal from the underlying order denying the section 3691 motion, the appeal would
have to be dismissed as untimely. The clerk of the court mailed Husband a file-stamped
copy of the underlying order on June 6. Ordinarily, an appeal must be filed within
60 days of such a mailing, which in this case fell on August 6. (Cal. Rules of Court,
rule 8.104(a)(1).) Although a timely filed motion for reconsideration extends the appeal
period, the extended period expires on the earliest of “(1) 30 days after the superior court
clerk mails, or a party serves, an order denying the motion or a notice of entry of that
order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after
entry of the appealable order.” (Cal. Rules of Court, rule 8.108(e).) Here, the earliest of


                                               4
those dates was 90 days after the motion to reconsider was filed in June, which fell in
September. The notice of appeal was not filed until November 1 and thus was untimely.
       Accordingly, Husband’s appeal from the order denying the section 3691
reconsideration must be dismissed.
B.     Appeal from Order Denying Section 2122 Motion
       1.     Dismissal
       Wife argues that Husband’s appeal from the order denying his section 2122
motion must be dismissed because it was not properly brought under the cited statute and
because Husband forfeited his right to appeal under the disentitlement doctrine. We
disagree.
       Wife first argues that the appeal of the order denying the section 2122 motion
must be dismissed because the motion was brought under the wrong statute.
Section 2121 authorizes a trial court to relieve a spouse from “a judgment, or any part or
parts thereof, adjudicating support or division of property, after the six-month time limit
of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within
the time limits, provided in this chapter.” Section 3690 authorizes similar relief from “a
support order, or any part or parts thereof.” (See also §§ 2122, 3691 [setting forth
available grounds for the respective motions].) Wife identifies the “judgment” in this
action as the December 2007 judgment dissolving the marriage, and she argues that,
because Husband sought to set aside support orders rather than this judgment in his
section 2122 motion, the motion was improper. Husband’s motion sought relief from “all
judgments” and specifically referenced the calendar years from 2007 through 2012. As
noted ante, however, the May 2008 judgment on reserved issues and November 2008
“permanent” support orders, are also arguably a part of the “judgment.”
       Even if we were to agree that Husband’s section 2122 motion sought relief not
available under that statute, we would still conclude that dismissal of the appeal is not
required. Wife does not cite authority for dismissal in such circumstances; she simply
argues, “[Husband’s] motion to the trial court for relief under . . . § 2122 was improper
and his petition to this court for reversal of the trial court’s denial of [the motion] is


                                               5
similarly improper.” Citing the wrong statute in a trial court motion, however, is not a
jurisdictional defect. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280,
288 [lack of jurisdiction means an entire absence of power to hear or determine the case
or action in excess of the court’s authority].) Wife perhaps suggests that the appeal
should be dismissed as frivolous. (See Agricultural Labor Relations Bd. v. Tex-Cal Land
Management, Inc. (1987) 43 Cal.3d 696, 706 [“[w]hen a Court of Appeal determines that
an appeal is frivolous, it may exercise its power to dismiss the appeal”].) However, Wife
did not raise, and the trial court did not consider, the argument that the motion may have
been brought brought under the wrong statute. Instead, the motion was decided on its
merits. If construed as brought under section 3691, the motion was timely filed. (Cf. In
re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910–911 [affirming denial of a
§ 2122 motion because it sought relief only available under § 3691 and it was untimely
filed under § 3691].) Further, the trial court specifically held that the section 2122
motion was not frivolous. We therefore conclude that dismissal is not warranted simply
because Husband may have relied on the wrong statute in support of his motion.
       Wife next invokes the disentitlement doctrine as a ground for dismissal. “An
appellate court has the inherent power, under the ‘disentitlement doctrine,’ to dismiss an
appeal by a party that refuses to comply with a lower court order. [Citations.] As the
Supreme Court observed in MacPherson v. MacPherson[ (1939)] 13 Cal.2d [271,] 277,
‘A party to an action cannot, with right or reason, ask the aid and assistance of a court in
hearing his demands while he stands in an attitude of contempt to legal orders and
processes of the courts of this state. [Citations.]’ [¶] . . . [An] equitable rationale
underl[ies] the doctrine. ‘ “Dismissal is not ‘ “a penalty imposed as a punishment for
criminal contempt. It is an exercise of a state court’s inherent power to use its processes
to induce compliance” ’ with a presumptively valid order. [Citation.]” [Citation.]’ ”
(Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1230.)
       Wife argues the disentitlement doctrine should be applied here because in
March 2009 Husband “was found guilty of 28 counts of contempt and sentenced to
140 days in county jail for failure to comply with numerous court orders. [Citation.] It is


                                               6
clear that despite the egregious extent of his violation and utter disregard of the trial
court’s orders from the inception of this case, [Husband] continues to avail himself of the
Court’s time and attention. He filed motion after motion to modify, set aside and
reconsider orders (the majority of which resulted from the trial court adopting voluntary
stipulations entered into by [Husband] with the advice of counsel). All of [Husband’s]
requests, which were arguably filed with the sole intention of harassing and punishing
[Wife], were denied.”
       We are unpersuaded. As noted, on June 19, 2012, the court ordered Husband to
serve the 100 days remaining in his contempt sentence and stated, “[A]fter serving that,
his contempt will be deemed purged.” The court ordered him to surrender on July 21 to
serve the remaining time under whatever arrangement he could make with the sheriff’s
department. In August and October, the court found that Husband was then serving his
sentence, apparently through a work furlough program. We cannot conclude on this
record that Husband remains in contempt. Moreover, the March 2009 contempt order did
not arise from the same controversy that gave rise to the instant appeal, which was Wife’s
allegedly fraudulent nondisclosure of income first discovered in 2012 (or 2010 at the
earliest). At the June 5, 2012 hearing, the trial court itself drew a similar distinction.
Two motions were before the court: Husband’s section 3691 motion to set aside support
orders based on Wife’s alleged fraud, and Husband’s motion to modify the support orders
based on a reduction in his income. Although Wife argued that both motions should be
denied because Husband filed them solely for purposes of delay and harassment, the
court treated them differently. The court denied Husband’s motion to modify the support
orders “because [Husband] is still adjudged in contempt and he has not purged himself of
that contempt at this time.” However, the court denied section 3691 motion on the
merits. We similarly conclude that the disentitlement doctrine should not bar Husband’s
appeal of the section 2122 motion, which arises from alleged recently-discovered fraud
committed by Wife.
       Wife’s cited cases on application of the disentitlement doctrine are
distinguishable. In each of those cases, the doctrine supported dismissal because the


                                               7
appellant was in contempt at the time of appeal, usually on directly related matters. (See,
e.g., In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 456–459 [appeal of order to
pay legal fees on basis of insufficient evidence dismissed where appellant had refused to
comply with discovery orders]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293,
1296 [grandparents’ appeal of custody order dismissed where they facilitated 16-year-old
granddaughter’s marriage in the Bahamas in violation of that order]; Kottemann v.
Kottemann (1957) 150 Cal.App.2d 483, 484–488 [appeal of interlocutory judgment of
divorce dismissed where, during pendancy of appeal, appellant stopped paying support,
failed to pay a fee order, went into hiding, and did not respond to court notices].) Wife
has not shown here that Husband is currently in contempt of court or that the contempt
arose from the controversy that gave rise to the appeal. Therefore, we decline to apply
the disentitlement doctrine to bar this appeal.
       Wife further suggests that we should apply the disentitlement doctrine because of
Husband’s alleged course of delaying and harassing litigation conduct throughout the
divorce proceedings. The appropriate remedy for such behavior, however, is provided in
the vexatious litigant statute, which triggers requirements for prefiling orders and posting
of bonds for pro se litigants. (See Code Civ. Proc., § 391 et seq.) Wife made such a
request in the trial court and the court ordered Husband to submit all future motions for
review before filing. However, the court made a point of stating that the motions that are
the subjects of this appeal were not frivolous: “[H]e was wrong but he had a reason for
doing those.” We find no authority for the proposition that a vexatious litigant finding
would in turn require application of the disentitlement doctrine, and we decline to apply
the doctrine in the context of this appeal.
       In sum, we deny Wife’s request that we dismiss Husband’s appeal from the denial
of his section 2122 motion.
       2.     Merits
              a.       Scope of Review
       We first consider whether our dismissal of Husband’s appeal from the denial of
the section 3691 reconsideration affects the scope his appeal from denial of the


                                              8
section 2122 motion. The original section 3691 motion and the later section 2122 motion
sought overlapping relief: both sought recalculation of support orders throughout the
history of the action. The section 3691 motion relied on the 2010 tax return and the
section 2122 motion relied on the 2007–2009 tax returns. We conclude that, with respect
to the October 2010 and February 2012 support orders, the section 2122 motion was an
improper (or duplicative) motion for reconsideration of the court’s denial of the earlier
section 3691 motion. The section 2122 motion, therefore, was cognizable only with
respect to support orders issued before October 2010 and Husband’s appeal from the
denial of the motion is similarly limited.
              b.     Standard of Review
       We review a court’s ruling under section 2122 or 3691 for abuse of discretion. (In
re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682 [§ 2122]; In re Marriage of
Zimmerman, supra, 183 Cal.App.4th at p. 906 [§ 3691].) Both statutes provide that the
court “may, on any terms that may be just,” relieve a party from a support order or a
judgment adjudicating support if it “find[s] that the facts alleged as the grounds for relief
materially affected the original outcome [or order] and that the moving party would
materially benefit from the granting of the relief.” (§§ 2121, subds. (a), (b); 3690,
subds. (a), (b).) The moving party bears the burden of proving the material effect and
material benefit. (In re Marriage of Rosevear, at pp. 684–685.)
              c.     Evidence Presented
       In his section 2122 motion, Husband alleged that Wife committed fraud and
perjury when she failed to disclose her full income in her income and expense
declarations (which we limit here to the pre-October 2010 declarations) and her undated
“Summary of Petitioner’s Separate Property,” which stated that she received no income
from her interest in a family partnership, DFP Associates.
       Wife’s July 2007 income and expense declaration reported about $1,060 in
monthly salary or wage income ($12,720 annually) and $200 in monthly dividend or
interest income ($2,400 annually). A “DissoMaster Data Screen” printout in the record
indicates that these income figures were used to calculate Husband’s support obligations


                                              9
in October 2007. Wife’s 2007 federal income tax return reported $13,536 in salary or
wage income, $3,853 in taxable interest, $30,394 in nontaxable interest ($34,247 total
interest), $10,326 in ordinary dividends, and $8,956 in qualified dividends ($19,282 total
dividends).7
       Three 2008 income and expense declarations (filed by Wife in February, May and
September 2008) reported an average of $1,194 in monthly salary and wage income
($14,328 annually) and $0 in monthly dividend and interest income. A DissoMaster Data
Screen printout in the record indicates that the court estimated Wife’s monthly income at
$1,379 when it calculated Husband’s “permanent” support obligations in
November 2008.8 Wife’s 2008 federal income tax return reported income of $13,338 in
salary and wages, $23,123 in taxable interest, $56,286 in nontaxable interest ($79,409
total interest), $23,361 in ordinary dividends, and $14,522 in qualified dividends
($37,883 total dividends).
       Wife’s 2009 federal tax return reported $14,115 in salary and wages, $1,815 in
taxable interest, $14,748 in tax-exempt interest ($16,563 total interest), $11,848 in
ordinary dividends, and $663 in qualified dividends ($12,511 in total dividends). Wife’s
October 2010 income and expense declaration (apparently the first declaration completed
after the September 2008 declaration) reported “a one-time distribution of $27,000 from
DDJK Partnership[9] and also . . . a one-time distribution from my Grandfather’s Trust in
the sum of $100,000.” The declaration reported $740.31 in average monthly income
($8,883.72 annually) and no interest and dividend income. Wife’s 2010 federal tax return


       7
        Although the 2007 federal income tax return is an attachment to Husband’s post-
appeal November 30, 2012 ex parte application for automatic stay of enforcement of the
orders on appeal, the record demonstrates that the tax returns were before the court at the
October 2, 2012 hearing.
       8
        In the November 2008 order, the court also specifically found that Wife
“receives no income from her interest in her Family Limited Partnership.”
       9
         “DDJK” is identified on Wife’s income and expense declarations as a home loan
creditor who was owed $145,000 in July 2007, about $160,000 in February 2008, and
about $168,000 later in 2008.


                                             10
reported $11,412 in salary and wages, $6,705 in taxable interest, $14,990 in tax-exempt
interest ($21,695 in total interest), $30,072 in ordinary dividends, and $13,254 in
qualified dividends ($43,326 in total dividends).
       In opposition to the section 2122 motion, Wife filed a declaration by Charles
Feuerstein, the secretary treasurer of DFP Corporation, which was the sole general
partner of the family limited partnership.10 Feuerstein averred that DFP Associates “is an
investment partnership formed in 1992 by [Wife’s] grandfather . . . [¶] . . . After [his]
death in 2007, his four children . . . became the sole stockholders and sole directors of
DFP Corp., the sole general partner of DFP. . . . [T]he Board of Directors have from time
to time authorized distributions. . . . Part of the distribution is reserved for the tax liability
associated with each individual’s share of the partnership income. [¶] . . . To date [Wife]
has received the following distributions: [¶] a. 2008: $26,975.34 [¶] b. 2009:
$27,001.22. [¶] c. 2010: $30,279.59 [¶] d. 2011: $30,380.87.”11
       At the October 2, 2012 hearing on the motion, Wife’s counsel denied that she
failed to disclose her full income. She argued that the 2007 and 2008 income and
expense declarations did not disclose partnership distributions because she first received
distributions in late 2008, after the last (September) 2008 declaration was filed; she
disclosed the distributions in her October 2010 and January 2012 declarations and also
filed a copy of the partnership agreement with the court. She argued, “In terms of the
interest [and] dividend income those were not funds that were ever actualized by my
client. [Husband] is well aware of this because . . . when tax returns were filed jointly,
those funds were still noted in the tax returns but it was never money that was actualized
by the parties because those funds are . . . taken directly and put back through the
partnership to pay for the partnership taxes. So those are not funds that are received. It is


       10
        Wife also filed a personal declaration that provided little information responsive
to Husband’s allegations of fraud and perjury.
       11
         Wife’s January 2012 income and expense declaration reported $426 in monthly
salary and wage income ($5,112 annually) and $2,531.67 in monthly interest and
dividend income ($30,380.04 annually).


                                               11
clearly stated in [the Feuerstein] declaration.” Email correspondence attached to
Husband’s motion confirms that Husband was aware of Wife’s position regarding the
interest and dividend income long before the October 2012 hearing.
              d.     Trial Court Ruling
       The court ruled, “[T]he moving party has not met its burden to show there was
actual fraud or perjury going all the way back to every order basically that has been
entered in this case.”
              e.     Discussion
       The trial court did not abuse its discretion in denying the motion. Substantial
evidence in the record supported a finding that Wife disclosed the distributions she
received from the family partnership in October 2010 and January 2012. Those
distributions presumably accounted for some of the dividends reported on Wife’s tax
returns. Regarding the remaining interest and dividend income reported on the tax
returns and missing from the declarations, Wife’s counsel provided a plausible
explanation at the October 2, 2012 hearing (that the income was redirected to the
partnership and thus did not materially benefit Wife) and Husband, who had been
informed of Wife’s position long before the hearing and who had access to the
partnership agreement, offered no rebuttal. The court could therefore reasonably find that
Husband failed to prove fraud with respect to that income. Finally, the parties stipulated
to a mediated support order in October 2010 that substantially reduced Husband’s support
obligations from the levels justified by Wife’s income and expense declarations.
Therefore, Husband failed to establish that setting aside the 2007–2009 support orders
would materially benefit him by leading to a reduction to or a credit against the support
payments he was obligated to make under the October 2010 or February 2012 orders.
(See In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 685 [wife failed to show




                                            12
that setting aside support judgment would lead to more beneficial division of property
from agreement reached during settlement conference].)12
                                  III.   DISPOSITION
      Appeal from the trial court’s denial of Husband’s June 2012 motion to reconsider
(the section 3691 reconsideration) is dismissed. The trial court order denying Husband’s
July 2012 motion to set aside the support orders (the section 2122 motion) is affirmed.
Husband shall pay Wife’s costs on appeal.




                                                 _________________________
                                                 Bruiniers, J.


We concur:


_________________________
Simons, Acting P. J.


_________________________
Needham, J.




      12
         We deny Wife’s motion to impose monetary sanctions on Husband for filing a
frivolous appeal. The appeal was not frivolous.


                                            13
