Ippolito v. Ippolito (In re Ippolito)

In re the Marriage of LISA and JOSEPH W. IPPOLITO.

LISA IPPOLITO, Respondent, v. JOSEPH W. IPPOLITO, Appellant.

D073093

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

September 26, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. D556082)

APPEAL from an order of the Superior Court of San Diego County, Enrique Camarena, Judge. Affirmed.

Joseph W. Ippolito, in pro. per., for Appellant.

Law Offices of Quirk & Quirk and Suzanne M. Quirk for Respondent.

INTRODUCTION

This is the third appeal arising from the dissolution of the marriage of Joseph W. and Lisa Ippolito.¹ Joseph appeals an order issued October 25, 2017, which (1) denied Joseph's request for bifurcation and dissolution of marital status and (2) modified child and spousal support orders. We conclude the order denying his request for a bifurcated trial of the marital status is not appealable. We further conclude Joseph has not met his burden on appeal to show the court abused its discretion in modifying child and spousal support orders. We, therefore, affirm the order.

BACKGROUND

A

Joseph and Lisa were married on May 10, 2003. They have two minor children. The parties physically separated in December 2015.

In Joseph's first appeal, we affirmed in an unpublished opinion orders issued on January 29, 2016, modifying child and spousal support and ordering Joseph to pay a prior attorney fee order from his half of the community assets. (In re Marriage of Ippolito (June 26, 2017, D070888).) Joseph abandoned his second appeal before the record was filed. (In re Marriage of Ippolito (Aug. 15, 2017, D072117).)

B

Joseph requested a bifurcated trial regarding dissolution of the marital status. He stated delays in resolving the issue of dissolution were caused by disagreements regarding settlement, custody, parenting time, and allegations of assault. He also stated the delays in resolving the issue of dissolution were "draining funds from ... the marital estate" and causing him to incur debt. He expressed concern Lisa's "deteriorating" financial condition could affect his financial condition without bifurcation. Joseph also stated the contentious nature of the case was affecting the mental health of the children and causing him anxiety.

During the first hearing on the bifurcation issue, the court recalled Joseph previously requested bifurcation, but withdrew the request after discussing the need to research the cost to maintain Lisa's health insurance under COBRA.² The court questioned why it should grant a bifurcated dissolution, which would require Joseph to pay additional premiums to maintain Lisa's medical coverage, if Joseph was concerned about running out of money. Lisa's counsel raised additional concerns about Joseph'spension plans, which required qualified domestic relations orders (QDRO) to protect Lisa's interest in Joseph's retirement benefit plans before marital status was bifurcated.³

At a second hearing on bifurcation, Lisa's counsel again objected to bifurcation without interim orders, including resolution of the QDRO and health insurance issues. Lisa's counsel noted there was prejudice to dissolving the marriage because Joseph would be required to pay more for COBRA coverage. She noted Joseph was not paying the attorney fees the court ordered him to pay her for sanctions. Lisa's counsel objected to Joseph's proposed QDROs as defective. The court stated it would not deny the bifurcation motion for any factual reason other than preserving Lisa's rights. The court continued the hearing to allow Joseph to provide further documentation showing approval of the QDROs by the plan.

Joseph did not provide a record of the oral proceedings for the third hearing on October 25, 2017. However, the court's order stated the court denied the request for bifurcation of the marital status issue based on the court's "concerns regarding tax ramifications, [Joseph's] ability to pay COBRA health insurance at a comparable level and [Joseph's] previous violation of the ATROs [automatic temporary restraining orders] by withdrawing from a 401k."

C

Joseph filed a request to terminate the July 29, 2016, child support orders and requested support be ordered based upon the child support guidelines. He also sought termination of the spousal support order. Joseph complained about the amount of income attributed to Lisa and asked the court to impute income to Lisa of $18 per hour working full time as of the end of May 2017.

The court denied Joseph's request to impute income to Lisa because it found imputation was not in the best interests of the children. It modified the child and temporary spousal support orders for two retroactive periods and from October 2017 going forward. For the period of March to May 2017, the court attributed wages and salary to Joseph of $12,252 and to Lisa of $715. The court ordered Joseph to pay basic child support of $1,821 and spousal support of $2,001 per month. For the period of June to September 2017, the court attributed wages and salary to Joseph of $12,557 and to Lisa of $715. The court ordered Joseph to pay basic child support of $1,848 and spousal support of $2,091 per month. Going forward from October 2017 the court attributed wages and salary to Joseph of $13,370 and to Lisa of $2,600. The court ordered Joseph to pay basic child support of $1,546 and spousal support of $2,004 per month.

DISCUSSION

IBifurcation of Marital Status

Bifurcated judgments dissolving the marriage status of the parties are appealable. (In re Marriage of Fink (1976) 54 Cal.App.3d 357, 362; see In re Marriage of Lafkas(2007) 153 Cal.App.4th 1429, 1433.) However, the order Joseph appeals, denying his request to bifurcate and try the marital status issue separately, was an interlocutory order that is not appealable until there is a resolution of the issue. (See In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.)

Gionis v. Superior Court (1988) 202 Cal.App.3d 786, cited by Joseph, was decided by way of a petition for writ of mandate, not by appeal. In that case, the court determined the husband provided sufficient reasons to support his motion to bifurcate and the wife offered only procedural objections without showing bifurcation would prejudice her interests. (Id. at pp. 789-790.) Under those circumstances, the court abused its discretion in refusing to grant a bifurcated dissolution. The appellate court issued a peremptory writ of mandate directing the court to vacate its prior order and issue a new order granting bifurcation and dissolving the parties' marital status. (Id. at p. 790.)

In contrast, the court here did not find Joseph's showing for dissolution insufficient. It found he had not yet met the conditions necessary to protect Lisa's interests for an early and separate trial on the dissolution of the status of the marriage. (See Fam. Code, § 2337, subds. (c)(2), (c)(5), (d).) Joseph did not file a petition for writ of mandate and we will not exercise our discretion to treat this appeal as such a petition. An appellate court will exercise discretion to treat a purported appeal as a petition for writ of mandate only in unusual circumstances, which are not present here. (In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1639, citing Olson v. Cory (1983) 35 Cal.3d 390, 401.) The appeal as to the portion of the order denying a bifurcated determination of the parties' marital status is dismissed.

IISpousal Support Order

Joseph challenges the court's order to the extent it increased spousal support. A pendente lite support order is appealable. (Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1234, fn. 1, citing In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.)

We review orders imposing or modifying temporary spousal support for abuse of discretion. (In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 773; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 [modification of spousal support order].) "In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir, supra, at p. 47, fn. omitted.) " ' "Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders." ' " (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 269.)

Joseph's opening brief generally complains about Lisa's alleged underemployment and asserts the court's "abuse of discretion" has "saddled" him with "an unreasonable level of [s]pousal [s]upport." With no citations to the record, Joseph admits Lisa declared she began a full-time job earning $15 per hour, but he complains this was less than what she could earn according to a vocational evaluation. Joseph refers to Family Code section 4320, which lists circumstances the court must consider in ordering spousal support, and claims the spousal support order is an unreasonable financial burden alongwith litigation expenses. However, other than complaining about the increase in spousal support, he does not develop an argument with citations to the record or authority to show how the court abused its discretion.

The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C); ...