Filed 3/5/14 Marriage of Akhavain 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 O. and
CAROLINE M. AKHAVAIN.

MARK O. AKHAVAIN,
                                                                       G047772
     Appellant,
                                                                       (Super. Ct. No. 11D008828)
           v.
                                                                       OPINION
CAROLINE M. AKHAVAIN,

     Respondent.


                   Appeal from an order of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
                   Law Offices of Burch & Coulston, Robert Burch and Courtney L. Shepard
for Appellant.
                   Phillips Whisnant Gazin Gorczyca & Curtin and J. Benedict Phillips for
Respondent.


                                             *               *               *
              Mark O. Akhavain (husband) appeals from an order awarding Caroline M.
Akhavain (wife) $3,368 per month in temporary child support and $10,222 per month in
temporary spousal support, both retroactive to October 2011. Husband contends the
court lacked jurisdiction to issue that order. We disagree and affirm the order.


                                         FACTS


              The parties married in June 2002 and have one minor child over 11 years
old. In September 2011, wife petitioned to dissolve the marriage and filed an order to
show cause (OSC) requesting, among other things, temporary child and spousal support.
The trial court signed and filed a stipulation and order on temporary orders executed by
the parties five days earlier, which provided, inter alia, that husband would pay $3,000
per month to wife and that custody, support, and other financial issues would be heard on
an expedited basis.
              In support of wife’s OSC, she filed an income and expense declaration
stating the parties’ marital standard of living was characterized by spending over $24,000
a month. Husband’s responsive declaration, filed on September 20 averred he had a
negative gross income of over $300,000, increasing each year between 2006 and 2009.
His concurrently filed income and expense declaration stated he had negative income,
“deminimis” funds in bank accounts, “[u]nknown” “[s]tocks, bonds and other assets,”
and real and personal property in an amount “TBD.”
              The OSC hearing took place over several days. At its conclusion on
October 27, the court agreed with wife that “[d]ue to [husband’s] numerous business
investments and interests, and an utter lack of documentation presented at this
hearing[,] . . . a forensic accountant is necessary to determine [husband’s] true month
cash flow available for support.” It then ordered husband “to continue paying [wife]
$3,000 per month as pendente lite family support for both [wife] and the minor child”

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“[u]ntil [it] has more evidence of [husband’s] true monthly income” and “until further
order of the [c]ourt.” It expressly “reserve[d] the right to recalculate pendente lite
support to the date of filing,” and set a review hearing for January 25, 2012 for “a review
of visitation.”
                  At the review hearing, the court declined to grant husband’s request for
additional visitation because the purpose of the “hearing was simply to see how well the
visitation was going,” but invited either party to “file a new [OSC] or a modification of
the court’s pendente lite order” if they desired. Following a discussion of selecting a
forensic accounting expert, the court appointed Dennis Sperry. When wife asked for a
hearing date “to determine [husband’s] cash flow,” husband suggested wife file a new
OSC for support. The court stated that was unnecessary “because it was part of the
original [OSC] filed by [wife],” and that the $3,000 amount to be paid by husband for
family support “was not . . . [its] own ruling” nor “based on any evidence presented” to it
but rather “was pursuant to the parties[’] stipulation and order entered into by the
parties.” A hearing on support issues was set for May.
                  Subsequently, husband filed an OSC to modify the child custody and
visitation orders. He also submitted an income and expense declaration that he “[j]ust
starting working January 1, 2012,” made $9,200 last month and that his average monthly
was $2,300. He left blank the amount of funds on deposit in bank accounts, “zero” for
“[s]tocks, bonds, and other assets [he] could easily sell,” and “TBD” for all other real and
personal property.
                  At the May hearing, the court indicated it was “both an [OSC] for
modification filed by [husband] for additional visitation and custody” “[a]s well as a
review hearing on the custody and visitation, [and] . . . support issues.” Sperry had not
completed his report because he still needed information from husband. Husband
disagreed the hearing was for anything other than his OSC for more visitation because
“[t]here’s no OSC before the court on support.” Wife argued, and the court agreed, they

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were still dealing with her “initial” OSC but husband maintained the court already
resolved the support issues and attorney fees and that wife needed to file a new OSC. At
the end of the hearing, the court reiterated that it was unnecessary for wife to bring
another OSC, stating, “I was anticipating that that issue would come up and that I would
be hearing it again without any further OSC being filed.” The court continued the matter
to July 13.
               At the July 13 hearing “on the continued issue of support,” husband again
claimed it was not a continuation of wife’s OSC filed on September 20 because the
October 27 minute order “indicated that there was no continuance of that [OSC]. There
was a ruling on that [OSC]. There was a review hearing set on custody and visitation
only on January 25th.” He acknowledged that “on January 25th, the court said it was
going to have a review hearing on spousal support pending the receipt of” information
from a forensic accountant but insisted the October 27th ruling was “as to support as well
[as custody and visitation]” and that “[t]he order was $3,000.” The court disagreed,
stating “[t]he order was made pursuant to the stipulation by the parties that was originally
entered into on September 20th” and that it was simply continuing the stipulation pending
an evaluation by the forensic accountant.
               Husband maintained In re Marriage of Gruen (2011) 191 Cal.App.4th 627
(Gruen) required the court to dismiss the hearing until wife filed an OSC to modify. The
court indicated it was aware of the case and ruled it “has jurisdiction to decide [the]
issues [of temporary support and fees] today and that those issues were continued by the
court on October 27th . . . because . . . [it had] . . . declined to calculate support at that
time based on the insufficient financial information presented at that hearing. It was the
court’s intention at that time, as well as in May . . . and . . . January of this year, that the
court was going to decide the issue of support once the court receives the report
from . . . Sperry and once . . . Sperry was ready to testify.” The court thus denied
husband’s motion to dismiss and invited husband to file an appeal.

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              The court thereafter commenced the hearing, then continued it several times
before concluding it on September 11, 2012. Before rendering its ruling, the court
reiterated the reasons it believed it had jurisdiction to consider wife’s request for
temporary support and fees and went through each of the hearings in detail. Once that
was done, the court ordered husband to pay monthly child and spousal support in the
amounts of $3,368 and $10,222, both retroactive to October 1, 2011, and found husband
owed $105,900 in child and spousal support arrears.


                                       DISCUSSION


              Husband contends the court lacked jurisdiction to issue retroactive support
orders because (1) the October 27, 2011 order was “operative from the time of
pronouncement, and is directly appealable”; (2) the law precludes retroactive orders; and
(3) there was no pending motion or OSC to modify the original order. We agree with
husband that a de novo standard of review is applied because he raises purely legal issues
relating to jurisdiction. (Burke v. California Coastal Com. (2008) 168 Cal.App.4th 1098,
1106; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 485-486.) Under that
standard, husband’s claims fail.
              First, although a temporary support order generally is in the nature of a
final judgment and is directly appealable (In re Marriage of Skelley (1976) 18 Cal.3d
365, 368-369), an exception exists if the order is interim or a preliminary ruling; such
orders are not final or appealable even if affecting severable and collateral matters
arising in a dissolution proceeding (In re Marriage of Levine (1994) 28 Cal.App.4th 585,
589 -590 [order stating “issues concerning attorney fees and costs would be reserved” “is
one which is ‘preliminary to later proceedings’” and not appealable because it is not
sufficiently final]; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 737 [if court
reserves “jurisdiction to decide a severable, collateral matter . . . at a time subsequent to

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the entry of the interlocutory judgment dissolving the marriage, no appeal may be taken
from any interim or preliminary ruling or decision the court may make as to that
collateral matter even though the ruling or decision is embodied in the interlocutory
judgment of dissolution of marriage”].) Here, the court’s October 27, 2011 minute order
specifically “reserves the right to recalculate pendente lite support to the date of filing”
because it did not have sufficient evidence of husband’s “true monthly income.” Thus,
because the order was “‘preliminary to later proceedings’” (In re Marriage of Levine, at
p. 589), it was not sufficiently final to be appealed.
              Second, husband argues Family Code sections 3603 [an order awarding
temporary spousal and child support “may be modified or terminated at any time except
as to an amount that accrued before the date of the filing of the notice of motion or order
to show cause to modify or terminate”] and 3651, subdivision (c)(1) [“a support order
may not be modified or terminated as to an amount that accrued before the date of the
filing of the notice of motion or order to show cause to modify or terminate”] preclude
the court “from retroactively modifying a support order so as to create support arrearages
which accrued before the date of filing of a motion or RFO [sic] for modification.” But
the court did not do that as its October 27, 2011 minute order expressly reserved the right
to recalculate the pendente lite in ruling on wife’s original OSC filed September 20,
2011. Nor does Family Code section 3692 [prohibiting support orders from being “set
aside, simply because the court finds that it was inequitable when made or . . . subsequent
circumstances caused the support order to become excessive or inadequate”] apply since
the record contains no evidence the court made its final ruling on the basis it believed its
October 27, 2011 order was inequitable.
              Finally, we reject husband’s claim that Gruen, supra, 191 Cal.App.4th 627,
precludes the court’s final order. Gruen held that a trial court lacks jurisdiction to
retroactively modify a temporary support order to a date earlier than the one on which a
proper pleading seeking modification of such order is filed. (Id. at p. 631.) But when a

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court specifically reserves jurisdiction to redistribute temporary support payments, it may
direct an award apply before it is issued because the temporary award was not final or
dispositive. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074-1075
[“court’s original child and spousal support awards in this case were not fully dispositive
of the rights of the parties with respect to the amount of support to be awarded . . . and
therefore did not constitute final support orders as to those months”].) “[N]either Gruen,
nor the authority upon which Gruen is based, precludes a trial court from reserving
jurisdiction to amend a nonfinal order based on the anticipated presentation of additional
evidence.” (Id. at p. 1075.) That is what occurred here.


                                      DISPOSITION


              The order is affirmed. Wife shall recover her costs on appeal.




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.




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