Thursday, January 5, 2017
C.A. Imposes $15,000 Sanction for Frivolous Appeal
By a MetNews Staff Writer
The First District Court of Appeal yesterday imposed a $15,000 sanction on a man for filing a “frivolous appeal” of a 2012 order denying modification of a 2005 spousal and child support order.
In the unpublished decision, Justice Sandra L. Margulies of Div. One wrote:
“It strains credulity to suggest the trial court retained jurisdiction to retroactively modify the 2005 order for seven years, especially after Husband appeared to abandon his efforts to modify the order and stipulated to drop the matter from the court’s calendar.”
In January 2004, Daisy Parimoo filed for divorce from Asheet Awasthi, a partner in Pumposh, Inc., doing business as Wazwan, which owned East Indian fast food restaurants in Portland, San Francisco, and Los Angeles. In her subsequently filed Order to Show Cause seeking child and spousal support, Parimoo claimed that Awasthi earned significant undeclared cash income in addition to his declared yearly income of $60,000.
At the initial hearing on her OSC in December 2004, at which Awasthi did not appear, the trial court adopted the $5,000 declared income “without prejudice,” while allowing the parties to present further evidence at a continued hearing date in February 2005. At the February hearing, also held without Awasthi’s appearance, his income was modified up to $8,621 per month, based on his stated income on a loan application completed in June 2004.
Awasthi personally appeared at a subsequent hearing in September 2005 on the issue of attorney fees in favor of the wife based on his failure to appear at the prior hearings on child and spousal support, during which trial court minutes indicate both parties agreed the matter could “be dropped from the calendar.”
In April 2012, Parimoo opened a case with the Department of Child Support Services to enforce the 2005 support order. She also filed an OSC for contempt for Awasthi’s failure to comply with various court orders, including payment of child and spousal support.
In response, Awasthi moved the court to set aside and modify the 2005 support orders, which was denied.
Margulies declared that the trial court correctly determined that it lacked jurisdiction to modify the 2005 support orders, relying on In re Marriage of Gruen (2011) 191 Cal. App. 627, which holds that courts lack jurisdiction to retroactively modify temporary spousal support orders.
In awarding $15,000 in monetary sanctions against Awashti, Justice Margulies said:
“The only rational inference that can be drawn from the record is that Husband filed this appeal solely to delay the effect of the trial court’s order.”
The case is In re Marriage of Parimoo and Awasthi, A144325.
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