Marriage of Furie

Filed 10/30/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re Marriage of KELLY and B269972
RUSSELL FURIE.
(Los Angeles County
Super. Ct. No. PD048281)

KELLY FURIE,

Respondent,

v.

RUSSELL FURIE,

Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Susan Lopez-Giss, Judge. Affirmed.
Russell Furie, in pro. per., for Appellant.
Law Offices of Rosenthal & Associates and Lisa F.
Rosenthal for Respondent.
____________________________
 This appeal centers on Russell Furie’s (father) request for
the trial court to enter an order reducing his child support
obligations and Kelly Furie’s (mother) request for an order
regarding the couple’s children’s orthodontic care and expenses. 1
The trial court denied father’s request to reduce child support,
found that father controls the Douglas Mae Trust (the Trust),
ordered father to pay the requested orthodontic expenses, and
granted mother sole authority to make decisions regarding the
children’s orthodontic care. 2 We affirm the trial court’s orders.
BACKGROUND
Mother and father married on November 2, 1996. Their
first child, K.F., was born in January 1998, and M.F. followed
three years later. Mother petitioned the trial court in August
2009 to dissolve the marriage. Six months later, the trial court

1 Father moved this court to incorporate the clerk’s and
reporter’s transcripts from his earlier appeal, No. B241754, into
the record on this appeal. We provisionally granted that motion
subject to reconsideration. The motion is granted.
Father also filed two requests for judicial notice in
December 2016, both of which we granted. Mother moved the
court in March to augment the record, and we granted her
motion.
Father filed two additional requests for judicial notice in
May 2017. Pursuant to Evidence Code section 459, we grant the
requests. No document attached to either of these requests for
judicial notice is of “substantial consequence to the determination
of the action,” as that phrase is used in Evidence Code section
459, subdivisions (c) and (d).
2The trial court made no other changes in custody rights or
parental authority or control over the children.

2
entered a stipulated judgment for legal separation incorporating
a settlement agreement. 3
A. The Stipulated Judgment
The judgment awarded father and mother joint legal
custody of the children, and ordered father to maintain health
insurance for the children and to pay $1,454 per month in child
support, half of school or child care costs, and half of uninsured
medical expenses. The judgment awarded the family home to
father, who was to continue to maintain and pay all debts
concerning the home, but also provided that mother and the
children could continue to live there with father until M.F.’s 18th
birthday. Mother and father both waived spousal support, and
the trial court retained no jurisdiction to later award spousal
support.
Mother and father were also each awarded various
community assets. Among other property, the stipulated
judgment awarded father all of KMF Investments Inc. (KMF) and
RKF Investments Inc. (RKF).
Unfortunately, the parties have a tortuous postjudgment
legal history as set forth in part below.
B. Default on the Family Home Mortgage
Within months of the stipulated judgment, father
purchased a condominium free and clear and moved out of the
family home, defaulting on the mortgage. To protect the family
home, mother requested an order in February 2011 increasing
father’s support obligations.

3In April 2012, father filed his own petition for dissolution
(L.A. Super. Ct. case No. PD053955). The trial court related the
two cases. There is nothing in the record indicating whether the
marriage has been dissolved.

3
 Both in his papers and at the hearing on mother’s motion,
father argued the parties had orally agreed to modify the terms of
the stipulated judgment by giving KMF and its assets to mother
and releasing father from his obligation to provide for the family
home. At the hearing on March 29, the trial court ordered father
to bring the mortgage current by April 29 and to begin paying
mother an additional $4,709 per month to cover the mortgage.
Father filed a motion for reconsideration under Code of
Civil Procedure section 1008. On his motion for reconsideration,
father’s arguments about KMF evolved; contrary to his earlier
arguments, father now contended that mother had converted
KMF’s assets for herself. 4 Mother opposed the motion and sought
sanctions for having to defend against the motion. The trial court
denied both the motion for reconsideration and—citing father’s in
propria persona status—the motion for sanctions in a statement
of decision and order dated June 24, 2011. 5

4 Father issued an Internal Revenue Service Form 1099 to
mother each tax year from 2012 to 2015 for $8,750 per year based
on his allegation that she had “illegally transfer[red]” KMF to
herself.
5The trial court’s order on mother’s motion to modify
support did not specify whether the additional $4,709 was child
support or spousal support. The June 24 statement of decision on
the motion for reconsideration, however, referred to that amount
as spousal support.

4
C. Father’s Request to Reduce Child Support and
Mother’s Request to Convert Spousal Support to Child
Support
In July 2011, father settled the Trust and transferred his
condominium and RKF, among other assets, into it. 6 Around the
same time, father requested an order modifying the parties’
stipulated judgment, again contending mother took KMF’s assets
and in return released him from his obligation to pay the
mortgage on the family home. (In re Marriage of Furie (Mar. 28,
2014, B241754) [nonpub. opn.] at p. 5 (Furie I).) Separately, he
sought an order modifying the custody (father later withdrew this
request) and child support orders. At a hearing on August 26,
2011, the trial court denied father’s motion to modify the
stipulated judgment without prejudice and continued the hearing
on custody and support orders. (Ibid.)
While father’s request to reduce his support obligations was
still pending, mother filed a request for an order correcting the
May 27, 2011 spousal support order to reflect that the $4,709 was
child support to maintain the family home. At the January 27,
2012 hearing on the two motions, father again raised—and the
parties exhaustively discussed—mother’s alleged conversion of
KMF’s assets.
In its statement of decision and order filed March 6, 2012,
the trial court denied mother’s request to redesignate the spousal
support award in the trial court’s May 27, 2011 order and denied
father’s request to reduce his support obligations. The trial court
vacated its order granting $4,709 in monthly spousal support,
recalculated father’s child support obligations, increased the

6Since settling the Trust, father has sought to have all of
his sources of income deposited directly into the Trust.

5
monthly child support award to a total of $2,136 per month, and
awarded mother attorney fees as sanctions.
Father moved the court to reconsider its March 6 order,
and again attempted to relitigate his KMF allegations. After the
trial court denied the motion for reconsideration and again
awarded sanctions to mother’s counsel, father appealed both the
March 6, 2012 order increasing his support obligations and the
order denying his motion for reconsideration.
D. March 18, 2013 Turnover Order
While the first appeal was pending, father, as the sole
shareholder of RKF, sold the assets of an RKF-owned business,
Check by Check, to his father, Leonard Leeds. Mother filed a
request for an order requiring father to turn over the promissory
note Leeds gave RKF to partially satisfy father’s child support
arrearages. The trial court heard mother’s motion on February 7
and filed a statement of decision on March 18, 2013 ordering
father to immediately turn over the RKF promissory note to
mother and to contribute an additional $1,000 to mother’s
attorney fees as a sanction for father’s litigation conduct.
E. Father’s Bankruptcy
On March 28, 2013, father filed a bankruptcy petition
(Bankr. C.D.Cal. case No. 2:13-bk-18101-BR). Mother filed an
adversary complaint against father alleging, among other things,
father had fraudulently induced her to waive spousal support.
The bankruptcy court entered a non-dischargeable judgment
against father on December 18, 2014, finding he had defrauded
mother and awarding her $452,064 in damages. The court also
determined father’s support obligations and attorney fees the
family court had previously awarded were non-dischargeable.

6
F. Remand After First Appeal and Father’s New
Request to Reduce Support
In March 2014, we remanded the case to the trial court to
reconsider the allocation of medical insurance expenses in its
child support calculation, but otherwise affirmed the trial court’s
March and May 2012 orders. (Furie I, supra, at p. 20.)
After we remanded, father filed another request for the
trial court to reduce his support obligation, yet again contending
mother had converted KMF. The trial court heard father’s
request in 2014 on June 3, August 7, August 11, and December
17, and in 2015 on January 29. At the December 17, 2014
hearing, the parties agreed father’s support arrearages were
$30,020.32 and the trial court ordered father to begin paying
$250 per month toward the arrearages beginning January 1,
2015. At the January 29, 2015 hearing, the trial court denied
father’s request to reduce his support obligation.
G. Proceedings At Issue in This Appeal
1. Father’s Renewed Request to Reduce Support
or Vacate or Reconsider March 18, 2013 Turnover Order
In August 2015, father filed a motion styled as a request for
an order modifying child support. Father’s papers, however,
asked the trial court to either vacate or reconsider the trial
court’s March 18, 2013 statement of decision (ordering him to
turn over an RKF promissory note to mother) based on his
perception of findings he contends the bankruptcy court made
when it issued his bankruptcy discharge in 2014. 7 Attempting to

7 Father cited In re Marriage of Oliverez (2015) 238
Cal.App.4th 1242 (Oliverez) in his papers in the trial court.
Oliverez was an appeal after a trial court reconsidered another
trial judge’s order on its own motion under Code of Civil

7
reduce his stipulated support arrearages, father again argued
that mother had converted KMF’s assets for herself.
2. Mother’s Request for Sole Legal Custody
In September 2015, mother filed a request for the trial
court to modify its child custody and visitation orders based on
father’s refusal to co-parent on orthodontic issues and for an
order reimbursing her for half of uninsured expenses she
incurred for K.F. and M.F.’s orthodontic care.
3. The Trial Court’s Orders
At a hearing on November 12, 2015, the trial court issued
an oral statement of decision. The trial court followed that with a
written order on December 30. The trial court declined to vacate
or reconsider the March 18, 2013 order, determined the parties
had stipulated to the amount of arrearages and declined to adjust
the stipulated amount, found that father controls the Trust,
ordered father to pay half of K.F. and M.F.’s expenses for
uninsured orthodontic care, gave mother sole authority over K.F.
and M.F.’s orthodontic care, and denied father’s request to reduce
his child support obligations. The trial court ordered no other
custodial modifications.
***
Father timely appealed the trial court’s December 30, 2015
order.
DISCUSSION
Father alleges five bases of trial court error. First, he
contends the trial court erred by not issuing a written statement

Procedure section 1008. (Oliverez, supra, 238 Cal.App.4th at p.
1247.) On appeal, however, father cites only Code of Civil
Procedure section 663, which governs motions to vacate
erroneous judgments.

8
of decision after the November 12, 2015 hearing, by awarding
mother sole authority over K.F. and M.F.’s orthodontic care, and
by determining that father controls the Trust. Next, he argues
the trial court erred by declining to vacate or reconsider the
March 18, 2013 statement of decision on mother’s request for a
turnover order and sanctions. Finally, he asks this court to order
the trial court to conduct a hearing regarding his allegations that
mother converted KMF and its assets for her own benefit.
Father’s in propria persona status relaxes the restrictions
neither on our discretion nor on the permissible scope of our
review. Neither may we hold litigants in propria persona to
different standards than we hold attorneys. (Cf. Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 985 [“requiring or permitting
exceptional treatment of parties who represent themselves would
lead to a quagmire in the trial courts, and would be unfair to the
other parties to litigation”].)
I. Statement of Decision
Father argued in his opening brief that although he
requested a statement of decision from the trial court pursuant to
Code of Civil Procedure section 632 and Family Code section
3654, the trial court did not issue one. Mother explained that
section 632 expressly allows the trial court to issue an oral
statement of decision, which mother contends the trial court did.
On reply, father argued Family Code section 3654 required the
trial court to issue a written statement of decision. We agree
with mother.
Father’s contentions raise questions of statutory
interpretation, which we review de novo. (Fry v. City of Los
Angeles (2016) 245 Cal.App.4th 539, 549.)

9
 Father relies on Family Code section 3654 and In re
Marriage of Sellers (2003) 110 Cal.App.4th 1007 (Sellers) to
support his argument that the trial court was required to issue a
written statement of decision. Family Code section 3654 states:
“At the request of either party, an order modifying, terminating,
or setting aside a support order shall include a statement of
decision.”
In Sellers, the trial court (a) invoked Family Code section
3654 by modifying spousal support, and (b) did not issue any
statement of decision even though a party requested one. (Id. at
pp. 1009-1010.) Here, the trial court gave an oral statement of
decision on the record in the parties’ presence and expressly
declined to either modify, terminate, or set aside a support order.
We need not decide whether section 3654 requires a written
statement of decision for orders that fall within its scope because
the order here does not. And Code of Civil Procedure section 632
required the trial court to do no more than it did. (Code Civ.
Proc., § 632; Cal. Rules of Court, rule 3.1590(n).)
II. Orthodontic Care – Costs & Authority
Father relies on Family Code sections 4062 and 4063 to
argue the trial court abused its discretion when it found that he
owes mother half of the amount of K.F. and M.F.’s orthodontic
care as uninsured medical expenses. We disagree.
We review a trial court’s order for reimbursement of
uninsured healthcare expenses for abuse of discretion. (Cf. In re
Marriage of Rothrock (2008) 159 Cal.App.4th 223, 236.) “When
two or more inferences can reasonably be deduced from the facts,
we will not substitute our deductions for those of the trial court.
[Citation.] The burden is on the complaining party to establish
abuse of discretion. [Citation.] The showing on appeal is

10
insufficient if it presents a state of facts that affords only an
opportunity for a difference of opinion. [Citation.] [¶] We limit
our review of the trial court’s findings of fact to determin[e]
whether they are supported by substantial evidence. [Citation.]
‘On review for substantial evidence, we examine the evidence in
the light most favorable to the prevailing party and give that
party the benefit of every reasonable inference. [Citation.] We
accept all evidence favorable to the prevailing party as true and
discard contrary evidence.’ ” (Id. at p. 230.)
Family Code section 4065 allows parties to agree to child
support orders in lieu of orders based on the statutory formula.
(In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1013.)
Father and mother did so here. The stipulated judgment states
that father will be responsible for half of any medical expenses
not covered by insurance. The court-approved stipulated
judgment does not invoke section 4062 or 4063, nor does it
require the trial court to consult those sections to determine
whether particular costs fall within their scope. Those sections
are inapplicable. 8
Here, the only question the stipulated judgment required
the trial court to answer was whether the medical expenses were
covered by insurance. The trial court determined they were not,
and substantial evidence supports that determination. Mother
testified about the steps she took to seek in-network orthodontic

8 The result would be no different if Family Code sections
4062 and 4063 applied. The trial court made the findings
necessary to support an award of additional child support under
sections 4062 and 4063, and substantial evidence supports those
findings.

11
care and produced documentary evidence supporting that
testimony. The trial court did not abuse its discretion.
Father also contends the trial court abused its discretion by
awarding mother sole authority over K.F. and M.F.’s orthodontic
care. We find no abuse of discretion.
The parties and the trial court have framed this issue in
terms of custody over the minors’ orthodontic care. 9 A trial
court’s order modifying custody is “appropriate only if the parent
seeking modification demonstrates ‘ “a significant change of
circumstances” indicating that a different custody arrangement
would be in the child’s best interest.’ [Citation.] But the changed
circumstance rule does not apply when a parent requests only a
change in the parenting or visitation arrangement not amounting
to a change from joint custody to sole custody, or vice versa.
Instead, the trial court considers a request to change the
parenting or visitation arrangement under the best interests of
the child standard.” (In re Marriage of Lucio (2008) 161
Cal.App.4th 1068, 1072.)
The Family Code establishes two broad categories of
custody; legal and physical. (Fam. Code, §§ 3003 et seq.) “Legal
custody,” which encompasses “the right and responsibility to
make the decisions relating to the health, education, and welfare
of a child,” obviously includes orthodontic care. (Fam. Code, §§
3003, 3006.) But the trial court’s order does not amount to a

9 Father also contends the issue amounts to a termination
of his parental rights. Even “an award of sole legal and sole
physical custody of a child to one parent does not serve to
‘terminate’ the other’s parental rights or due process interest in
parenting.” (In re Marriage of Brown and Yana (2006) 37 Cal.4th
947, 958.) The trial court’s order had no impact on father’s
parental rights.

12
change of legal custody; father continues to share joint legal
custody with mother. (See In re Marriage of Birnbaum (1989)
211 Cal.App.3d 1508, 1513.) The only change is that mother now
has sole authority concerning orthodontic care.
While this issue has more frequently arisen in the context
of physical custody and visitation, we see no reason to require a
“changed circumstances” test when a modification amounts to
something less than a change of legal custody. We hold,
therefore, that the appropriate standard for ordering a
modification in parenting authority that does not rise to the level
of a change in legal custody—as with physical custody—is the
best interests of the child standard, regardless of any alleged
change in circumstances. Orthodontic care clearly falls into the
best interests of the child standard.
“A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.” (In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133.) After the trial court issues a
statement of decision, as in this case, Code of Civil Procedure
section 634 requires a party to “state any objection [he may have]
to the statement in order to avoid an implied finding on appeal in
favor of the prevailing party. The section declares that if
omissions or ambiguities in the statement are timely brought to
the trial court’s attention, the appellate court will not imply
findings in favor of the prevailing party. The clear implication of
this provision, of course, is that if a party does not bring such
deficiencies to the trial court’s attention, he waives [his] right to
claim on appeal that the statement was deficient in these
regards, and hence the appellate court will imply findings to
support the judgment. Furthermore, section 634 clearly refers to

13
a party’s need to point out deficiencies in the trial court’s
statement of decision as a condition of avoiding such implied
findings, rather than merely to request such a statement initially
as provided in section 632.” (In re Marriage of Arceneaux, supra,
51 Cal.3d at pp. 1133-1134, fn. omitted.)
Although the trial court did not expressly find that the
modification was in K.F. and M.F.’s best interest, father did not
object or note the omission. We affirm the trial court’s order
granting mother authority over the children’s orthodontic care
and ordering father to pay half of their uninsured orthodontic
expenses.
III. Father’s Control of the Trust
Father argues the trial court abused its discretion when it
determined he was in control of the Trust. Father contends the
issue was not properly before the trial court, and that he could
not have received a discharge in his bankruptcy if he controlled
the Trust. We will affirm the trial court’s order.
Father couches some of his arguments in collateral estoppel
terms because, he explains, the bankruptcy court determined he
does not control the Trust. “Collateral estoppel precludes the
relitigation of an issue only if (1) the issue is identical to an issue
decided in a prior proceeding; (2) the issue was actually litigated;
(3) the issue was necessarily decided; (4) the decision in the prior
proceeding is final and on the merits; and (5) the party against
whom collateral estoppel is asserted was a party to the prior
proceeding or in privity with a party to the prior proceeding.”
(Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82 (Zevnik).)
Father offers no factual or legal support for his assertion
that the bankruptcy court found he was not in control of the

14
Trust. Neither has our review of the record disclosed such a
finding.
The bankruptcy trustee filed two adversary complaints
against father; one for denial of discharge under title 11 United
States Code section 727(a)(4)(A) and (a)(2)(A) and one to avoid
fraudulent transfers under sections 548 and 550. The complaints
alleged father had concealed property, including his
condominium and his interest in RKF, by transferring it to the
Trust for no consideration, fraudulently transferred his interest
in a check cashing company to his father within the year before
he filed bankruptcy, and failed to disclose the existence of the
Trust and his interest in the Trust in his bankruptcy filings. The
bankruptcy court entered judgment for father on both complaints,
finding “the trustee failed to establish the grounds asserted for
objection to the debtor’s discharge” on the section 727 complaint
and “failed to establish any claim for relief under §§ 548 and
550.” The record contains no other bankruptcy court findings.
“Section 727’s denial of discharge is construed liberally in
favor of the debtor and strictly against those objecting to
discharge.” (In re Adeeb (9th Cir. 1986) 787 F.2d 1339, 1342
(Adeeb).) To prevail on a cause of action for denial of discharge
under title 11 United States Code section 727(a)(4)(A), “a plaintiff
must show, by a preponderance of the evidence, that: ‘(1) the
debtor made a false oath in connection with the case; (2) the oath
related to a material fact; (3) the oath was made knowingly; and
(4) the oath was made fraudulently.’ ” (In re Retz (9th Cir. 2010)
606 F.3d 1189, 1197 (Retz).) In Retz, the Ninth Circuit explained
that a debtor “ ‘ “acts knowingly if he or she acts deliberately and
consciously.” ’ ” (Id. at p. 1198.) There, the debtor “deliberately
and consciously signed [bankruptcy forms] knowing that they

15
were incomplete.” (Ibid.) To prove the requisite fraudulent
intent, the plaintiff must show that the debtor made the
representations, knew they were false when he or she made
them, and made them “ ‘with the intention and purpose of
deceiving the creditors.’ ” (Id. at p. 1199, original italics.)
“Reckless indifference or disregard for the truth may be
circumstantial evidence of intent, but is not sufficient, alone, to
constitute fraudulent intent.” (Ibid.)
“Section 727(a)(2)(A) provides that a debtor shall not be
granted a discharge if within one year of the filing of a petition in
bankruptcy he ‘has transferred, removed, destroyed, mutilated,
or concealed’ his property ‘with intent to hinder, delay, or defraud
a creditor.’ ” (Adeeb, supra, 787 F.2d at p. 1342.) Under title 11
United States Code section 548, the trustee may avoid a transfer
within two years of the bankruptcy if the debtor made the
transfer to “hinder, delay, or defraud,” or, among other
circumstances that do not apply here, if the debtor “was insolvent
. . . or became insolvent” because of the transfer when it was
made, or “intended to incur . . . debts that would be beyond the
debtor’s ability to pay as such debts matured.” (11 U.S.C. §
548(a)(1)(A), (B)(i), (B)(ii)(I), (B)(ii)(III).)
These bankruptcy court cases, then, contained a number of
elements—any one of which could have derailed either of the
trustee’s complaints—that had nothing to do with whether father
controlled the Trust. And the record before us contains no
information about which elements of the trustee’s complaints the
bankruptcy court found dispositive. It was also not necessary for
the bankruptcy court to make any factual finding about control of
the Trust to grant father a discharge. (See 11 U.S.C. §§
548(a)(1)(B)(ii)(I), 727(a)(2)(A), 727(a)(4)(A).) We therefore

16
disagree with father about the effect of his discharge in
bankruptcy on the proceedings below in this matter.
Father also contends the trial court had no jurisdiction to
determine whether he controls the Trust at the hearing on his
request for a reduction in his child support obligation. We
disagree.
After father requested a child support modification alleging
changed circumstances, the trial court was required to determine
what resources were available to father to satisfy his child
support obligations. (Fam. Code, §§ 4005, 4008, 4011, 4058.)
And the trial court has discretion to enter “any . . . order as the
court in its discretion determines from time to time to be
necessary” to enforce child support obligations. (Fam. Code, §
290.) In any hearing related to father’s child support obligations
and his failure to meet them, father is on notice that his finances
are subject to the trial court’s scrutiny.
Finally, father contends the Trust’s spendthrift clause and
its purported irrevocability puts the Trust off limits to creditors,
including his children. Again, we disagree.
The trial court explained in its statement of decision that
Probate Code sections 15304 and 15305 allow the trial court to
reach the Trust to satisfy father’s child support obligations,
arrears, and attorney fee awards. Probate Code section 15304,
subdivision (a) explains that if a trust’s settlor is also a
beneficiary and if the settlor’s interest is subject to a spendthrift
clause, that clause is “invalid against [the settlor’s] transferees or
creditors . . . .” Subdivision (b) allows any transferee or creditor
to reach the maximum amount the trustee could pay for the
“education or support” of the trust’s settlor as long as the amount

17
does not exceed the settlor’s proportionate contribution to the
trust.
Father is the Trust’s settlor and sole beneficiary. He
contributed all of the Trust’s assets.
Section 15305, subdivision (c) specifically allows the trial
court to order the trustee “to satisfy all or part of [a] support
judgment out of all or part of future payments that the trustee,
pursuant to the exercise of the trustee’s discretion, determines to
make to or for the benefit of the beneficiary.” The trial court can
make that order without regard to who controls a trust and
“notwithstanding any provision in the trust instrument.” (Prob.
Code, § 15305, subds. (c) & (d); Ventura County Dept. of Child
Support Services v. Brown (2004) 117 Cal.App.4th 144, 155.)
The trial court did not abuse its discretion when it allowed
mother to reach the Trust to satisfy father’s child support
obligations and the trial court’s earlier orders.
IV. Vacatur or Reconsideration of March 18, 2013 Order
Father contends the trial court (Judge Susan Lopez-Giss)
erred by declining to vacate or reconsider the March 18, 2013
statement of decision and order on mother’s request for a
turnover order and sanctions—entered by a different trial judge
(Judge Michael Terrell) who was transferred out of the
department—because the bankruptcy court’s judgments in
father’s favor collaterally estopped the trial court from entering
the March 18, 2013 order.
In the trial court, father based his argument on Oliverez,
supra, 238 Cal.App.4th at page 1247, which dealt with a trial
court’s discretion to reconsider another judge’s ruling under Code
of Civil Procedure section 1008, a scenario “usually only
appropriate when the prior judge is unavailable.” Oliverez noted

18
that “ ‘[W]here the judge who made the initial ruling is
unavailable to reconsider the motion, a different judge may
entertain the reconsideration motion.’ ” (Id. at p. 1248
[modification in original].) In the trial court, father focused
exclusively on that language. 10
Here, however, father relies on Code of Civil Procedure
section 663, which allows the trial court on a party’s motion to
vacate a judgment or decree and enter “another and different
judgment” because either an “[i]ncorrect or erroneous legal basis
for the decision, not consistent with or . . . supported by the facts”
or “[a] judgment or decree not consistent with or . . . supported by
the special verdict” entitles the moving party to a different
judgment. (Code Civ. Proc., § 663.)
Whether the motion was to reconsider or to vacate, the
result is the same. An August 24, 2015 motion to vacate or
reconsider a statement of decision and order from 2013 would
have been untimely under Code of Civil Procedure section 663a
or 1008, subdivision (a). The trial court would have been without
jurisdiction to consider either motion.
Father’s reliance on collateral estoppel is also misplaced.
The bankruptcy court’s orders were filed on July 7, 2014, more
than a year after the order father asked the trial court to vacate
or reconsider. Collateral estoppel serves only to preclude
relitigation of an issue, not to overturn orders entered before the
relied-upon order. (Zevnik, supra, 159 Cal.App.4th at p. 82.)

10 Transfer to another department of the same superior
court does not render a judge “unavailable” for purposes of Code
of Civil Procedure section 1008. (See Oliverez, supra, 238
Cal.App.4th at p. 1249, fn. 4.)

19
V. KMF
Father contends that we should order the trial court to
conduct a hearing about whether mother converted KMF or its
assets.
Father has exhaustively presented his KMF argument to
the trial court in a variety of contexts. He raised it in response to
mother’s February 2011 request to increase child support (heard
Mar. 29, 2011), in his motion to reconsider the trial court’s ruling
on that request (heard June 24, 2011), in a July 2011 request to
modify the stipulated judgment (heard Aug. 26, 2011), in
response to mother’s request to convert a spousal support order to
child support and father’s simultaneous request to reduce his
support obligations (heard Jan. 27, 2012), in his motion to
reconsider the order on those motions (heard May 18, 2012), in a
request after our remand in father’s first appeal for the court to
reduce his support obligation (heard June 3, Aug. 7, Aug. 11, and
Dec. 17, 2014 and Jan. 29, 2015), and again in a request to reduce
his child support obligations filed in August 2015 (heard Nov. 12,
2015). Further, father briefed and we noted the status of KMF
and father’s allegations on father’s first appeal to this court.
(Furie I, supra, at p. 5 [“Father asserted that he agreed to accept
responsibility for the family home debt obligations in the
Judgment only because of the expected income from KMF
Investments as represented by Mother and that he no longer had
ownership of KMF Investments’ assets because Mother had
dissolved KMF and removed its assets”].)
Father’s request has been heard.
To modify support obligations, a movant must prove
circumstances have changed since the last order. (In re Marriage
of Stephenson (1995) 39 Cal.App.4th 71, 77.) Father’s allegations

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that mother converted KMF’s assets have not been a “changed
circumstance” since—at latest—the first time father made the
argument. The argument has been considered and rejected.
Mother’s alleged conversion of KMF is not an issue the trial court
must continue to reconsider in the context of his support
obligations. The time for father to produce evidence of the
alleged conversion and for the trial court to consider that
evidence has long passed. Even if father’s request were properly
before us, we would therefore decline to enter the requested
order.
DISPOSITION
We affirm the trial court’s orders. Mother is entitled to
costs on appeal.
CERTIFIED FOR PUBLICATION.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.

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