Marriage of Cohen CA4/3

Filed 2/16/23 Marriage of Cohen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of LAURALIN
ANDERSON COHEN and RICHARD
COHEN.

LAURALIN ANDERSON COHEN,
G060697
Respondent,
(Super. Ct. No. 06D009414)
v.
OPINION
RICHARD COHEN,

Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County,
Donald F. Gaffney, Judge. Affirmed in part and reversed in part.
John R. Schilling for Appellant.
Law Offices of Marjorie G. Fuller and Majorie G. Fuller for Respondent.
 After Richard Cohen (Richard) filed a request to modify his child support
and spousal support obligations, Lauralin Anderson Cohen (Lauralin) moved to dismiss
Richard’s motion under the disentitlement doctrine as Richard was delinquent on his
support obligations. The trial court granted Lauralin’s motion and on its own,
conditioned the filing of any future modification requests on Richard being current on his
support obligations. As discussed below, we conclude the court did not abuse its
discretion in granting Lauralin’s motion to dismiss, but erred in conditioning the filing of
future modification requests on Richard being current on his support obligations.
Accordingly, we affirm in part, and reverse in part.

I
FACTUAL AND PROCEDURAL BACKGROUND
Richard and Lauralin were married in 1990 and separated in 2006. They
have four children, all of whom suffer from significant disabilities. In 2011, they entered
into a stipulated judgment of dissolution of marriage, which provided that Richard would
pay $15,000 monthly in spousal support and $13,200 in child support. In 2014, Richard
filed a request for order (RFO) seeking, among other things, a reduction in his child
support obligations and termination of spousal support. The trial court declined the
request, and this court affirmed. (In re Marriage of Cohen (2016) 3 Cal.App.5th 1014.)
In November 2018, the parties entered into a stipulation to resolve certain
spousal and child support issues, including Richard being in arrears on his support
obligations. The parties agreed Richard would pay Lauralin $524,400 to satisfy all
arrearages. They further agreed that Richard’s future child support obligations would be
reduced to $10,500 monthly. Finally, the parties agreed a trial would be held before
Commissioner Richard G. Vogl, retired, sitting on assignment as a private judge on
Richard’s request to modify future spousal support.

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 At the February 11, 2019 hearing, Commissioner Vogl issued a tentative
decision reducing spousal support to $10,125 per month. Before Commissioner Vogl
issued his final ruling on March 4, 2019, Richard filed an RFO to modify his support
obligations under the November 2018 stipulation, based on the ground his income would
be greatly reduced because of job loss. He requested spousal support be terminated, and
child support reduced to guideline. In a supporting declaration, Richard stated that while
he had $66,646 in monthly income available for support in November 2018, his
employment would be terminated on March 15, 2019, leaving him with only $18,000 in
monthly income.
Lauralin filed a motion to dismiss Richard’s RFO. She argued it should be
dismissed under the disentitlement doctrine because Richard had not paid any spousal
support since October 1, 2018, was late in paying his February 2019 child support, and
did not pay the March or April 2019 child support. Richard opposed the motion to
dismiss based on his inability to pay. He asserted he had to borrow $500,000 to pay his
arrearages, and he paid child support until March 2019 when he lost his job.
On April 3, 2019, Commissioner Vogl issued his Final Statement of
Decision reducing Richard’s spousal support to $8,311 per month and confirming child
support would be $10,500 monthly. He determined spousal arrearages as of February 15,
2019, were $38,801, for the period of October 1, 2018 through February 1, 2019. On
May 30, 2019, Commissioner Vogl ruled on Lauralin’s motion to dismiss as follows:
“Without prejudice, this court declines to dismiss . . . based upon the Disentitlement
Doctrine.” He granted the parties’ request to release the case back to the public court
system. Commissioner Vogl did not rule on the March 4, 2019 RFO. The RFO was set
for a hearing in superior court on February 5, 2021.
In late April 2019, Richard filed an income and expense form (INE) stating,
under penalty of perjury, that he began working for DJD & S Corporation March 1, 2019,
with a monthly gross income of $20,500. His average monthly income for the past 12

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months, however, was $66,546. His estimated monthly expenses were $35,600. In
March 2020, in a New York legal matter involving the parties, Richard filed a sworn
statement claiming his income was “approximately $300,000 annually.” Three months
later, in June 2020, his lawyer sent a letter stating that Richard’s monthly income was
$16,665, or approximately $200,000 annually. In October 2020, Richard filed an INE,
indicating he continued to work for DJD & S, but his gross monthly income had
decreased to $15,000, and his estimated monthly expenses had increased to $40,350.
On January 13, 2021, Lauralin again moved to dismiss the RFO under the
disentitlement doctrine. In a supporting declaration, Lauralin set forth the case history.
She noted that, although Commissioner Vogl ordered Richard to pay spousal arrears of
$38,801 in April 2019, he failed to do so. On October 3, 2019, Lauralin filed an Order to
Show Cause (OSC) and an Affidavit for Contempt against Richard for his failure to pay
the spousal support arrearages. The matter was continued until October 23, 2020, and
immediately prior to the hearing, Richard paid the spousal support arrearages. Lauralin
also stated that Richard had not made any spousal support payments under the new
support order since March 1, 2019. As to child support, Richard only made three
monthly payments (for February, March and April 2019), and Lauralin was able to
recover $2,332.69 through a wage garnishment or bank levy in September 2019, and an
additional $7,011.42 in February 2020 through a wage garnishment or bank levy.
After the matter was continued several times, on May 3, 2021, Richard
filed his objection to the January 13, 2021, motion to dismiss. He argued that willful
disobedience of the support obligations is a prerequisite to application of the
disentitlement doctrine. In his declaration, Richard asserted his non-payment of support
obligations was “not caused by willful disobedience but simply my inability to comply
due to my lack of income.”
At the May 14, 2021 hearing on Lauralin’s motion to dismiss, the trial court
asked Lauralin’s counsel whether the motion to dismiss was based on the “unclean hands

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doctrine,” and counsel agreed. The court then provided its tentative ruling—granting the
motion to dismiss without prejudice to Richard filing a future RFO that would be
retroactive to the date of the new RFO—before hearing oral arguments on the motion. In
response to the tentative ruling, Richard’s counsel argued it would be a “complete
injustice to [his] client” because Richard had lost his job in March 2019. Counsel
requested an evidentiary hearing to present evidence that Richard’s monthly income over
the past two years had been $10,000 or less, and that he has no assets to pay the support
obligations. The court confirmed with Richard’s counsel that Richard had filed two
INE’s in the matter. On April 24, 2019, Richard indicated his average monthly income
was $66,546. “That’s after Commissioner Vogl’s order was made. The next INE filed
by [Richard] is filed on October the 20th of 2020, a year and a half later, showing
$15,000 per month. There is no INE filed by [Richard] in between those two.”
After additional arguments by both parties, Richard’s counsel reiterated his
request for a full evidentiary hearing. The court then issued its final ruling. It rejected
the request for a full evidentiary hearing because the request “is essentially, from this
court’s perspective, a request that I hear the RFO to modify support.” The court
indicated that the “record itself contains sufficient information from which the court can
rule on the motion to dismiss.”
The trial court stated its reasons for granting Lauralin’s motion to dismiss
as follows:
“Commissioner Vogl’s ruling was made on April the 3rd of 2019. It was
the OSC re: contempt that finally prompted the respondent to pay arrearages that were
ordered by Commissioner Vogl back on April the 3rd of 2019. That OSC re: contempt
was, I believe, filed in October of 2019. Short of that, he wouldn’t have paid it. It’s just
plainly obvious he wouldn’t have. It’s also plainly obvious he has the ability to pay it.
Because once he was facing the OSC re: contempt, he came up with the money.

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 “The court is looking at his filed income and expense declaration[s] after
the order from Commissioner Vogl was made. He filed an income and expense
declaration later in that same month showing income of $66,000 a month. The next
income and expense declaration that he filed . . . October 20th of 2020 showing $15,000 a
month. And whatever happened in between, there’s no income and expense declaration
showing that he couldn’t afford to pay it. Certainly as of the end of the month in April of
2019, he could have been making payments towards the court’s orders and he chose not
to. Even with regards to the INE filed in October of 2020 there was income that he was
receiving. That he chose to pay other things is not an explanation that’s acceptable with
regards to an unclean hands doctrine.”
On July 3, 2021, the trial court entered its order dismissing, without
prejudice, the March 4, 2019 RFO “with leave . . . to file a future [RFO] for modification
of the support orders with retroactive effect preserved only back to the date of such future
filing and provided that, at the time of such future filing, [Richard] is current in the
payment of his child and spousal support obligations.”

II
DISCUSSION
A. This Court Declines to Dismiss the Appeal Under the Disentitlement Doctrine
At the outset, Lauralin argues this appeal should be dismissed under the
disentitlement doctrine because of Richard’s repeated failures to comply with his court-
ordered support obligations. “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.” (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th
1225, 1229 (Stoltenberg).) As our Supreme Court has said, “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.”

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(MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277.) “‘Appellate disentitlement “is
not a jurisdictional doctrine, but a discretionary tool that may be applied when the
balance of the equitable concerns make it a proper sanction . . . .” [Citation.]’ [Citation.]
No formal judgment of contempt is required; an appellate court ‘may dismiss an appeal
where there has been willful disobedience or obstructive tactics. [Citation.]’ [Citation,
italics added.] The doctrine ‘is based upon fundamental equity and is not to be frustrated
by technicalities.’” (Stoltenberg, supra, 215 Cal.App.4th at p. 1230.) The
“disentitlement doctrine ‘is particularly likely to be invoked where the appeal arises out
of the very order (or orders) the party has disobeyed.’” (Ironridge Global IV, Ltd. v.
ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265.) “[T]he merits of the appeal are
irrelevant to the application of the doctrine.” (Ibid.) Finally, “[c]ourts do not lightly
apply the disentitlement doctrine.” (Findleton v. Coyote Valley Band of Pomo Indians
(2021) 69 Cal.App.5th 736, 756 (Findleton).) It should “be applied in a manner that
takes into account the equities of the individual case.” (People v. Puluc-Sique (2010)
182 Cal.App.4th 894, 901.)
Here, Richard is appealing from an order granting Lauralin’s motion to
dismiss his RFO under the disentitlement doctrine and conditioning any future RFO on
his being current with support obligations. There is no evidence that while this appeal
has been pending, Richard has disobeyed the challenged order by filing RFO’s without
being current on his obligations. As for his repeated failures to comply with court-
ordered obligations, we note this is the first time Richard has been denied his right to
judicial assistance based on those acts. We find his failure insufficient to deprive Richard
of his right to seek judicial review for the first time of the trial court’s dismissal order
based on disentitlement. Thus, we decline to dismiss the appeal under the disentitlement
doctrine.

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 B. The Trial Court Did Not Err Dismissing March 4, 2019 RFO
Turning to the appeal, Richard argues that under res judicata principles the
trial court erred in hearing Lauralin’s second motion to dismiss because Commissioner
Vogl had already heard her first motion to dismiss and denied it. He further argues the
court’s couching its ruling based on the unclean hands doctrine rather than the
disentitlement doctrine does not save the second motion because the rationale underlying
two doctrines is the same: “one who seeks equity must do equity.” (Gwartz v. Weilert
(2014) 231 Cal.App.4th 750, 757, fn. 5.) We disagree that the court could not hear a
second motion to dismiss. Commissioner Vogl declined to grant the first motion to
dismiss “without prejudice.” “The term ‘without prejudice,‘ in its general adaptation,
means that there is no decision of the controversy on its merits, and leaves the whole
subject in litigation as much open to another application as if no suit had ever been
brought.” (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718.) Thus,
Commissioner Vogl’s ruling did not bar Lauralin from bringing a second motion to
dismiss on the same theory, and the court from hearing and granting the motion under the
disentitlement doctrine.
Richard next argues the trial court erred in denying his request for a full
evidentiary hearing to present evidence that his nonpayment of support obligations was
based on inability to pay. He notes that Family Code section 217 requires the court
receive “any live, competent testimony that is relevant and within the scope of the
hearing,” subject to a finding of good cause to refuse based on reasons stated in the
record. Reasons for refusing live testimony include whether material facts are in
controversy and whether live testimony is necessary for the court to assess credibility.
(Cal. Rules of Court, rule 5.113(b)(2)-(3).) The court was not required to set forth its
conclusion as to each of the factors listed in rule 5.113(b); it was “required to state only
those facts upon which the finding of good cause was based.” (Cal. Rules of Court, rule
5.113(c).)

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 At the outset, we note that the right to live testimony under Family Code
section 217 may be forfeited. (In re Marriage of Binette (2018) 24 Cal.App.5th 1119,
1127.) The record arguably shows Richard forfeited his right to live testimony. In his
written opposition, Richard did not request the right to testify or cross-examine Lauralin.
The record does not indicate a witness list was submitted. At the hearing, counsel neither
referenced Family Code section 217 nor requested that Richard be allowed to testify.
Rather, counsel made a general request to present evidence about Richard’s inability to
pay.
Assuming that counsel’s request for a full evidentiary hearing properly
invoked his right to live testimony, we find the trial court made a sufficient finding of
good cause to refuse live testimony. As set forth above, the court determined that there
was sufficient evidence in the record for it to rule on the motion to dismiss. “Implicit in
the court’s words is a determination that the material facts were not in controversy (rule
5.113(b)(2)), and that live testimony was not necessary for the court to assess the parties’
credibility (rule 5.113(b)(3)).” (In re Marriage of Binette, supra, 24 Cal.App.5th at
p. 1132.) The court thus satisfied its obligations under Family Code section 217 and
California Rules of Court, rule 5.113.
In any event, any error in refusing live testimony was harmless. The trial
court’s ruling was based on Lauralin’s declaration, Richard’s INE’s and reasonable
inferences drawn from those filings. As set forth above, the court concluded that the
court filings show Richard could have, even partially, paid his support obligations but
intentionally failed to do so until he faced contempt charges or sought the court’s
assistance. It is not reasonably probable that live testimony from Richard about his
inability to pay would undermine the court’s conclusions based on the declaration and
documentary evidence. (In re Marriage of George & Deamon (2019) 35 Cal.App.5th
476, 484 [finding any error in complying with Family Code section 217 harmless where
live testimony would not affect any of the issues on which the court based its ruling].)

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 In his appellate reply brief, Richard argues for the first time that the trial
court improperly relied on Lauralin’s declaration and his INE’s because those documents
were never expressly admitted. “We will not ordinarily consider issues raised for the first
time in a reply brief. [Citation.]” (American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 275.) Even were we to consider this argument,
we would find it forfeited because Richard failed to object below. As set forth above, the
court stated that its ruling on the motion to dismiss was based on statements in Lauralin’s
declaration and Richard’s INE’s. Although Richard’s counsel argued about the
interpretation of the income statements in the INE’s and sought to explain Richard’s
nonpayment, he never objected to the admission of the declaration and INE’s.
Accordingly, because he failed to make evidentiary objections below, he waived his right
to raise evidentiary objections to those documents on appeal.
We reject Richard’s general claim that the trial court’s ruling was erroneous
because there was insufficient evidence to show he willfully disobeyed the court orders
on support. We review the court’s application of the disentitlement doctrine for an abuse
of discretion. (Ho v. Hsieh (2010) 181 Cal.App.4th 337, 345.) “‘An abuse of discretion
occurs when, in light of applicable law and considering all relevant circumstances, the
court’s ruling exceeds the bounds of reason. [Citations.]’ [Citation.]” (Ibid.)
As discussed, the case history shows Richard had substantial arrearages
which he paid to receive a trial before Commissioner Vogl. As set forth in Lauralin’s
declaration, after Commissioner Vogl ordered lower support payments, Richard was
immediately delinquent and did not pay the obligations in full until immediately before a
contempt hearing. While Richard disputes how the income statements in the INE’s
should be interpreted, the INE’s show Richard had income to make at least partial
payments on his support obligations. In sum, the evidence supports an inference that
Richard intentionally did not comply with his support obligations unless forced to do so
by contempt hearings or when he sought judicial aid and assistance to reduce the support

10
obligations. The court did not abuse its discretion in reaching that conclusion and
dismissing the RFO under the disentitlement doctrine.
C. The Trial Court Abused Its Discretion in Conditioning All Future RFO’s to
Modify Support on Richard Being Current With His Obligations
Finally, we turn to the trial court’s order conditioning the filing of future
RFO’s to modify support obligations on Richard being current with his obligations. We
conclude the court abused its discretion in setting this condition. We are unable to locate
– and Lauralin does not cite – any case supporting conditioning future RFO’s on
payments of support obligations. Lauralin’s reliance on In re Marriage of Fink (1979) 25
Cal.3d 877, is misplaced because that case involved the conditioning of a new trial on
payment of attorney fees. However, the power of a court “to impose terms as a condition
of making an order for a new trial is too well settled to need argument in its support.”
(Brooks v. San Francisco & N.P. Ry. Co. (1895) 110 Cal. 173, 174.) There is no such
similar precedent for RFO’s to modify support obligations.
The disentitlement doctrine does not support the trial court’s order. As
noted, the disentitlement doctrine should not be applied lightly, but must be based on the
equities of the individual case. (Findleton, supra, 69 Cal.App.5th at pp. 756-757.) A
blanket dismissal of an RFO before considering any changes in circumstances, such as
substantial compliance with support obligations, would be inequitable, even with the
record showing a history of Richard being in arrears. Stated differently, a court may,
after considering the equities, dismiss future RFO’s on the basis that Richard is not
current with his obligations. But such dismissal must be on an individual motion-by-
motion basis. Accordingly, the court erred in conditioning the filing of future RFO’s on
Richard being current with his support obligations.

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 III
DISPOSITION
The postjudgment order dismissing the March 4, 2019 RFO is affirmed, but
the conditioning of future RFO’s on Richard being current with support obligations is
reversed. The parties are to bear their own costs on appeal.

DELANEY, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

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