of litigation, and they all fit in the pattern that unfolded over the next fifteen years.
An analysis of Child Support portion of Judge Davila’s 2008 Judgment clearly shows that the entire Judgment is void ab initio, as a matter of law, for lack of subject matter jurisdiction, and for fraud upon the Court. But even in the remote chance that it could be deemed enforceable, it again fails on Spousal Support law. Davila’s Judgment of 2008 states:
“Petitioner shall pay Respondent Spousal Support as follows:
- Commencing on June 1, 2007 Petitioner shall pay Respondent Two Thousand Six Hundred Fifty Dollars ($2650) per month as and for Spousal Support through May 31, 2008
- Commencing on June 1, 2008 Petitioner shall pay Respondent Two Thousands One Hundred and Fifty Dollars ($2,150) per month as and for Spousal Support through May 31, 2009.
- Commencing on June 1, 2009, Petitioner shall pay Respondent one Thousand and Six Hundred dollars ($1,650) per month as and for Spousal Support through May 31, 2010.
- On June 1, 2010, Spousal Support will be reduced to zero unless before that date Respondent files a motion to have Spousal Support continued and shows good cause as to why the Court should order Spousal Support to be continued.
- Notwithstanding any other provisions of this Judgment, Petitioner’s Spousal Support Payments shall caese upon the first to occur of the following: a) Petitioner dies b) Respondent dies c) Respondent remarries or enters into a registered domestic partnership d) further Order of this Court.
“Parties each waive and mutually release each other from any and all actions, liabilities, claims, demands, and obligations of any kind or character, both in and in equity; that either of them ever now has, or may have against the other upon or by reason of any and all . . .(b)support arrears that accrued prior to June 1,2007(including, but not limited to, child support, spousal support, and child care expenses);..
Spousal support (also known as alimony) is a court ordered payment from one spouse to help cover the other’s monthly expenses. In California, spousal support may be paid for up to half the length of a marriage that lasts 10 years or less. Unions that lasted longer than 10 years are considered ‘long term,’ and no specific duration will apply, the support continuing for life if there is a difference in standard of living. The purpose of alimony is to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. Part of the justification is that an ex-spouse may have chosen to forego a career to support the family and needs time to develop job skills to support themselves. Another purpose of alimony, especially in higher-income families, may be to help a spouse continue the standard of living they had during the marriage.
Davila set my Spousal Support at $2,600 for the year 2008, $2,100 for the year 2009, and $1,600 for the year 2010. The spousal support was terminated after three years. He insisted that I waive all spousal support arrears accrued from non payment of support from 2003 – May 2007.
We had been married in Jan 1986. Through most of our marriage, Sameer worked in small jobs as a hardware engineer, or customer support person until 2002 when he was promoted into a Director’s position in Cisco Systems. On the other hand, I worked as an Asst Divisional Manager at Minerals and Metals Trading Corporation in India until 1987, then as a Head of the Information Services Division at Sharjah Airport until 1995 in United Arab Emirates, and subsequently in the capacity of a Director of Consulting Services in a Qantas Subsidiary until 1998.
During this period, I had twice attempted to complete my MBA/XMBA. In 1987, MMTC in India had sponsored me and paid for an MBA at IIT,Delhi. In 1997, Qadrant, a Qantas subsidiary where I worked as a Director of Consulting Service, had sponsored me, and paid for the two years that I spent at an ivy league school, the Australian Graduate School of management, University of New South Wales. On both occasions, Sameer had intervened to pull me out of school, deciding to relocate to a new country.
After his admission to Dr Fanibanda in 2003, where he admitted that he had intentionally sabotaged my career to prevent me from leaving, it became crystal clear that even though he admitted it in 2002, his goal had always been to disrupt my career and my education. Like a loving wife, I had willingly sacrificed my own progress to support his, giving up each one of my high profile executive management jobs to relocate to a new country and start all over again. In each country, he would continue to struggle, but I would find success. When I established myself in a new country of his choice, he would relocate again, against disrupting my career and education. The patterns of his behavior became clear after he admitted his motive to Dr Fanibanda. All through those 18 years he had been presenting roadblocks after roadblocks to sabotage my career. And yet, despite all he had done to stunt my growth, I had succeeded, every time, in spite of him. My success continued to fuel his desperation, and his jealousy, and his actions became more and more punitive. So, as per the family laws, I had sacrificed my career to the marriage.
We were married in Jan 1986, on a date in the third week of January. The exact date had long slipped from my memory even before we separated on June 2, 2003. We had been married for almost 18 years. During this period, we earned a lot. A lot. Tax returns would show that our annual income had averaged to over $548326.67 per annum, or $45,693.98 per month between 1998 – 2003. We separated in 2003, so this, $45,693.98 per month had been our marital standard of living.
In 1995, I had separated from Sameer but had been forced to return when he called me to his house on the pretext of meeting a dear friend, and then raped me there. I had become pregnant and was forced to return to him in 1998, just a few months before our son Kabir was born. In the traditional Indian culture I came from, I could not have dared to bring an illegitimate child into the world. Sameer had threatened that if I did not return, he would deny that the child was his. I had been so innocent, so naïve, so protected all my life – I hadn’t known about DNA paternity tests. In 1999, I was raped into having one more child – Utsav. Given that I had already separated in 1997, and had initiated divorce proceedings in Australia, and given the state of our marriage in 1998 and thereafter, I had desperately not wanted any of the two children after Urvashe. In addition to this, there were many other recorded incidents of domestic violence.
In 2003, Sameer admitted to my psychologist, Dr Darius Fanibanda, that he had intentionally raped me into having more children, he had intentionally moved me from Australia where I was in the final year of my three year Executive MBA program from an Ivy League School – Australian Graduate School of Management at University of New South Wales. He had forced me to move to USA because he knew the power of the XMBA from UNSW on my career. His goal in moving us to USA had been to disrupt XMBA, and destroy my career. He admitted that he had transferred all my money into accounts held in his name to render me penniless. He admitted having done all this “so she would remain dependant on me and never leave me again. Despite all my efforts, she’s leaving me now,” he had wept inconsolably, without an iota of remorse at what he had done to me over the past twenty five years.
Domestic violence had followed my decision of leaving the marriage again in 1998. I had been raped into having one more child after Kabir. Between 2000 and 2002, he first attempted to stop me from leaving by any means whatsoever. He isolated me from my family and friends. He vilified me to everyone who would listen. He threatened, intimidated me, cut off money except for basic necessities, made me work more than 15 hours per day, almost like a slave, while I also took care of two babies who were merely a year apart – more like twins. He vilified me in front of my daughter, making up tales of my alleged extra marital affair. When all that failed, he brought his parents to US. His mother, thru her threats, intimidation, verbal violence, added tons of trauma to my already traumatic life. By 2002 I had turned suicidal, and he had declared me a “mental health case” whose existence he was “tolerating”. He presented himself as an angel who wanted to remain married to me despite my mental health issues because he cared for me, thus making friends and family coerce me into staying, but I still wanted a divorce.
So, eventually in 2002, he showered me with sleeping tablets that he procured from some unknown source, and repeatedly told me that I should kill myself because everyone, including the children, would be better off without me. During this period, he had already begun dating Snehal Devani on the side.
I managed to find strength, and moved to Fresno County, the children visited with him. Between 2003 – 2008, he molested them at every opportunity he got, until I found out and put a stop to it in 2008. CPS complaints were filed in 2008, by me and also by my psychologist Dr Shaffer, but no action was taken against him.
At least two cases of domestic violence were registered against him, for threats – including murder threats, intimidation, harassment, stalking, trespassing. The judges dismissed them without issuing a protective order. Several more incidents of threats and harassment were registered with the police, but given the history of judicial prejudice, I felt that it would be futile to seek protective orders again. If the Judges justified sexual abuse and rape, they could justify murder threats, harassment, and stalking in a heartbeat.
Several CPS reports had been pending against him. In 2003, the 5 yr old Kabir had told teh Social worker how his father threw things and got violent when he was angry. A complaint on Child molestation was filed in 2008 by my psychologist, which prompted the CPS social worker to record that the mother had been careless in not pursuing the matter. Emergency Screening, and two other Custody evaluations between 2010 – 2014 had found Sameer had in fact molested the children. He was given supervised visitation twice a month. Davila knew all this.
In context of the above, Edward Davila’s spousal support award was outrageous to say the least. The readers are required to familiarise themselves with the Spousal Support laws codified under Californian Family Code Sections 4250 et seq.
Married couples in United States do not possess a constitutional or legal right to divorce. Individual states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a “cooling-off period,” which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings.
The Uniform Marriage and Divorce Act, UMDA, a 1970 model federal statute defines marriage and divorce in United States. The provisions of UMDA are adopted in California under Fam 3600 et seq and 4320 et seq. Spousal Support, or alimony refers to payments from one spouse to the other. Courts allocate alimony, or permanent support, with the intention of permitting a spouse to maintain the standard of living to which the spouse has become accustomed.
They recommend that courts consider various factors when arriving at a decision about alimony awards. These factor include, but are not limited to the age, physical condition, emotional state, and financial condition of the former spouses, the length of time the recipient would need for education or training to become self-sufficient, the couple’s standard of living during the marriage, the length of the marriage, the ability of the payer spouse to support the recipient and still support himself or herself.
Legislation further expands on the definition of a long term marriage, and the obligations of the Court in setting Spousal Support in a long term marriage:
(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
(b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.
A court can order one spouse to pay different types of alimony – permanent alimony, temporary alimony, rehabilitative alimony, or compensatory alimony.
Permanent alimony, codified under Fam 4320 et seq, requires the payer to continue paying either for the rest of the payer’s life or until the spouse receiving payments remarries. Factors affecting whether the court awards permanent alimony include the marriage’s length, the length of separation before divorce, the parties’ ages, the parties’ respective incomes, the parties’ future financial prospects, the health of the parties, and the parties’ respective faults in causing the marriage’s demise. Permanent Alimony is based on Fam 4320, which enhance the UMDA requirements.
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) All documented evidence of any history of domestic violence, as defined in Section 6211 , between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340 .
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200 ), that the spouse has committed domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336 , a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336 , and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325 .
(n) Any other factors the court determines are just and equitable.(Fam 4320)
Temporary alimony is codified under Fam 3600 et seq.
During the pendency of any proceeding for dissolution of marriage or for legal separation of the parties or under Division 8 (commencing with Section 3000 ) (custody of children) or in any proceeding where there is at issue the support of a minor child or a child for whom support is authorized under Section 3901 or 3910 , the court may order (a) either spouse to pay any amount that is necessary for the support of the other spouse, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325 , or (b) either or both parents to pay any amount necessary for the support of the child, as the case may be. (Fam 3600)
Fam 3600 requires payments over a short interval of time so that the payment recipient can stand alone once again. The period of time covers the length of the property division litigation. Just like Child Support, the Temporary Spousal Support is also computed by a software program called the Dissomaster, which takes in the income details of both the parents, the visitation schedule for the children, and other factors that may be used to determine the lifestyle that a spouse would be entitled to under the state and federal laws, and provides computed figures that determine Guideline spousal support payments. This temporary support continues until the end of the proceedings, at which time the Permanent Spousal Support is ascertained.
Similar to temporary alimony, rehabilitative alimony requires the payer to give the recipient short-term alimony after the property division proceedings have concluded. Rehabilitative alimony endeavors to help a spouse with lesser employability or earning capacity become adjusted to a new post-marital life.
In between and in addition to these, the Courts may order Reimbursement support as a compensation for a spouse who sacrificed education, training, or career advancement during the marriage by taking any old job that would support the family while the other spouse trained for a lucrative professional career. Generally both spouses expected that once the professional spouse was established and earning the anticipated higher salary, the sacrificing spouse would benefit from the higher standard of living and be free to pursue a desirable career. If the marriage ends before that spouse gets any of the expected benefits, reimbursement support rebalances the scales by making the professional spouse return some of what was given during the marriage. The termination of a reimbursement support generally isn’t tied to an event like the supported spouse getting work or remarrying.
The Court may also order a Lump-sum alimony in lieu of a property settlement. For example, if one spouse does not want any property or items of value from the marriage, the judge may order the other spouse to provide a one-time, lump-sum payment in lieu of marital assets.
Section 291 of the California Family Code states that alimony, “is enforceable until paid in full or otherwise satisfied.” This means that there is no statute of limitations on requesting and receiving alimony payments so long as the payment is stipulated in the divorce decree or by judgment. Spousal Support, then, is not subject to latches.
Spousal support may terminate upon the payer’s death, although in cases where the recipient spouse is unlikely to obtain gainful employment due to age, or health considerations, to maintain a standard of living while they enjoyed during their marriage, the court may order support from the payer’s estate or life insurance proceeds.
Of the five types of Spousal Supports, Davila did not order any. He did not order rehabilitative support, he did not order compensatory support, he did not order permanent support. He did not order a lump sum payment. Instead, to deprive me of Spousal Support, he created a new law that stated that even a long term marriage, with as excessive income equality as ours, where my career had repeatedly and intentionally been sacrificed and then sabotaged, where domestic violence and sex abuse was documented with CPS, where he was ultimately ordered supervised visitations for molesting the children between 2003 – 2008, Davila posited that such a case was not deserving of permanent spousal support.
Our Tax Returns from 1998 – 2003 showed an average income of $548326 or $45,693.00 per month. Our taxable income for 1998 was approx $500,000 or 41,666 per month, our taxable income for 1999 was approx $800,000 or $66,666, our taxable income for 2000 was $793,206 or $66,100 per month, our taxable income for 2001 was $149,682 or 12,473 per month due to stock options losses, 2002 was approx $832,428, or $69,369. Sameer never declared his income for 2003, as he filed a document with IRS seeking extension of time to file taxes, in which he provided partial income as $214,644, or $17,887 per month. The actual tax returns for year 2003 were never disclosed.
Despite such income, Davila posited that Sameer’s income was only $3,680 per month, or $44,160 per annum, and that I had the ability to earn $37,000 per annum which would gradually increase to $70,000 per annum within two years. The spousal support of $2650, $2,100, $1,650, terminating after three years, was therefore an appropriate and sufficient support entitlement, he claimed.
Because my career had intentionally been sabotaged, I had to start all over again in US. I had to go back to school and get a new degree, in a different field. Therefore, in addition to a Permanent Support, a Rehabilitative Support should have been ordered. Because I had sacrificed my career to support his, and had moved from city to city, country to country to support his growth, and his success had been contingent on my efforts, a Compensatory Support should have been ordered. Because he had taken all my inheritance, my earnings, and had forced me to pay his debts to his parents, a lump sum support also should have been ordered – in addition to other forms of support. Instead, Davila rewarded him by awarding him all of the property, and other assets, and by almost eliminating his child and spousal support obligations.
At the time Davila made these arguments, he was aware that Sameer’s average income per year exceeded $600,000. He was also made aware that our three children attended private schools, Ojai Valley School, Harker Academy, and Cisco Family Connection. The total amount that we spent on their private school education was in excess of $5000 per month, approx $50,000 – $60,000 per annum. Davila was well aware that we had accumulated eight real estate properties in the past 10 years, including two houses purchased between 1998-1999 valued at over $600,000 each, or $1.2million in total. Each of these, except the family residence, had been purchased cash down. The family residence had a mortgage only because it served to mitigate our tax obligations, else that would have been paid off as well. Given these facts that are recorded in the Court documents, a finding that Sameer’s total income was $44,160 per annum could not have been an act of mere negligence. Even an idiot with a rudimentary knowledge of addition and subtraction could have figured out that a person earning $44,160 could not have been able to afford to pay $1.2 million within two years, and could not afford to live in Sunnyvale, could not afford a mortgage payment of $2,500plus, could not afford to send their children to two of the most expensive schools in Santa Clara County, costing over $5000 per month.
Judge James Cox’s Additional Orders of 2005, parties had agreed, among other things, that Sameer would provide statements for all his income, in US, and internationally, he would provide end of year statement by Jan 10 the following year and tax statements within 10 days of filing of tax statements, that he would provide me of any change in income within 10 days, failure to provide this would make the increase of support retrospective.
Judge Kleinberg’s Temporary Support Orders stated that in addition to a monthly payment of $1,500, Sameer was to also pay on any additional income that he received. This referred to any income, as defined under Fam 4058.
“Immediately upon learning what his bonus is for any period, he shall notify counsel and parties shall meet and confer with respect to additional support payable from that bonus. If they are unable to stipulate, they shall agree upon a hearing date for the court to hear that issue. . .”
I did seek a hearing, as ordered by Judge Kleinberg, but for the past 5 years, Susan Benett, Lewis Becker and Sameer Khera had obstructed a hearing date. A new Motion had also been filed in April 2005, seeking revision of Temporary Support – it was also put on hold and Davila had told me it would all be heard together, at the trial. The trial, then, was a hearing date for the Court to hear that issues as posited by Judge Kleinberg. By depriving me of a trial, and forcing me to stipulate to a waiver of Spousal Support Arrears, Davila effectively overturned Judge Kleinberg’s Orders, and James Cox’s Additional Orders of 2005 that persevered my right to spousal support (and child support) arrears.
In addition to waiver of Spousal Support Arrears, Davila also ordered the waiver of Spousal Support arrears. Like Child Support, Spousal Support Arrears cannot be waived retrospectively. In Sabine v Toshio (2007) the Court declared:
Several Courts of Appeal have held that Section 3651(c)(1)precludes a trial court from modifying or forgiving accrued support payments-arrearages. (See County of Santa Clara v.Wilson(2003)111 Cal.App.4th 1324,1327,4 Cal.Rptr.3d 653[“retroactive modification of accrued child support arrearages is statutorily barred”]; In re Marriage of Cordero(2002)95 Cal.App.4th 653,667-668&fn.21,115 Cal.Rptr.2d 787[trial courts lack authority to waive or forgive interest on past due child and spousal support for same reason courts cannot retroactively modify or terminate arrearages themselves]; . . . One Court of Appeal has concluded that,just as a trial court cannot modify or forgive arrearages,the parties cannot waive arrearages by agreement or other conduct. (See In re Marriage of Hamer(2000)81 Cal.App.4th 712,718-722,97 Cal.Rptr.2d 195.)
As our Supreme Court made clear long before any state statute addressed the subject: “[A]decree for alimony may be modified as to installments to become due in the future. As to accrued installments it is final. [Citations.]
“A subsequent order which relieves the husband from paying accrued alimony ․,and discharges said alimony by offsetting it against an indebtedness of the wife to the husband existing at the time of entry of the divorce decree is a modification as to past due installments,․ as is an order requiring the wife to accept in full settlement of accrued alimony less than the full amount due.
“․ To hold that alimony decrees may be modified retroactively in the manner contended for herein would be contrary to the rule of finality as to past due installments․”(Keck v.Keck(1933)219 Cal.316,320-321,26P.2d300,italics added.)
More recently,another court has explained: “[T]he current state of the law is that a judgment for child or spousal support,once entered,is per se enforceable until paid in full,and is not retroactively modifiable either as to accrued arrearages or any interest due thereon.” (In re Marriage of Hamer,supra,81 Cal.App.4th at p.722,97 Cal.Rptr.2d 195.) And according to a leading treatise: “The[trial]court,in its discretion,may craft a schedule or plan for payment of support arrearages,but it has no discretion to waive or forgive any part of a support arrearages debt. Support orders are not retroactively modifiable as to accrued arrearages․[¶]This rule also applies to accrued interest on unpaid support arrearages. [A]ny forgiveness of accrued interest would ․ be an impermissible retroactive modification.” (Hogoboom&King,Cal.Practice Guide: Family Law(The Rutter Group 2007)¶ 18:13,pp.18-6 to 18-7.)
“. . .conceptually,it seems difficult to reconcile an implied waiver rule with the statutes making support orders enforceable until paid in full(Fam.C.§§ 291(a),17400(e))and barring retroactive modification of arrearages and interest thereon(Fam.C.§ 3651(c)).” (Hogoboom&King,Cal.Practice Guide: Family Law,supra,¶ 6:739.10,pp.6-293 to 6-294.) The same is true for spousal support arrearages. (See id.,¶ 6:1126,p.6-412.8.) 1
Quite simply,Toshio offered Sabine less than one-third of the arrearages in exchange for a release as to the rest. We fail to see how this resolved a bona fide dispute. “[A]n agreement for payment of a part of the amount due is without consideration.” (Occidental Life Ins.Co.v.McCracken(1937)19 Cal.ApP.2d239,241,65P.2d130; accord,Grant v.AerodraulicsCo.(1949)91 Cal.ApP.2d68,75,204P.2d683.) Put another way,a “legal obligation to perform an act may not constitute consideration for a contract.” (O’Byrne v.Santa Monica-UCLA Medical Center(2001)94 Cal.App.4th 797,808,114 Cal.Rptr.2d 575; accord,Alhino v.Starr(1980)112 Cal.App.3d 158,168,169 Cal.Rptr.136; Watkins v.Clemmer(1933)129 Cal.App.567,577-578,19P.2d303; see generally 1 Witkin,Summary of Cal.Law(10th ed.2005)Contracts,§ 218,pp.251-252.) “Performance of a legal duty to a promisor which is neither doubtful nor the subject of honest dispute is not consideration․”(Rest.2d Contracts,§ 73,p.179; see Civ.Code,§ 1605[no contract is formed where promisor receives that to which she is lawfully entitled or where promisee consents to provide what he is lawfully bound to provide].)
The doctrines of waiver and estoppel have their place in support proceedings. (See In re Marriage of Damico,supra,7 Cal.4th at p.681,29 Cal.Rptr.2d 787,872P.2d126.) But,in general,arrearages-support payments that are past due-cannot be forgiven. Courts previously recognized an exception to the general rule,applying the doctrine of laches to bar the recovery of arrearages. (See In re Marriage of Fellows(2006)39 Cal.4th 179,184-185,46 Cal.Rptr.3d 49,138 P.3d 200[discussing cases].) In 2002,however,the Legislature enacted section 4502,subdivision(c)(now§ 291,subd.(d)),limiting the defense of laches to “any portion of the judgment owed to the state.” (Stats.2002,ch.304,§ 1,italics added; see Stats.2006,ch.86,§ 4.)This statute is retroactive. (See In re Marriage of Fellows,at pp.186-188,46 Cal.Rptr.3d 49,138 P.3d 200.)
[Toshio]argues that the Agreement extinguished more than two-thirds of the support and medical expense payments that became due during that time. By way of the Agreement,he sought a retroactive reduction in nearly eight years of missed payments. In the trial court,he sought an order modifying the amount that accrued before the Agreement. The law does not countenance such a result. (See Section 3651(c); County of Santa Clara v.Wilson,supra,111 Cal.App.4th at pp.1326-1327,4 Cal.Rptr.3d 653; In re Marriage of Cordero,supra,95 Cal.App.4th at pp.667,668,fn.21,115 Cal.Rptr.2d 787; In re Marriage of Hamer,supra,81 Cal.App.4th at pp.718,722,97 Cal.Rptr.2d 195.) Equity does not permit it either. (See County of Santa Clara v.Wilson,supra,111 Cal.App.4th at pp.1325-1327,4 Cal.Rptr.3d 653,distinguishing In re Marriage of Dancy(2000)82 Cal.App.4th 1142,1148-1149,98 Cal.Rptr.2d 775; In re Marriage of Everett(1990)220 Cal.App.3d 846,854-856,269 Cal.Rptr.917; Hogoboom&King,Cal.Practice Guide: Family Law,supra,¶ 6:1094.1,p.6-407.) To avoid the arrearages,Toshio could have requested that the trial court modify his support and medical expense obligations before the payments became due. (See In re Marriage of Hamer,supra,81 Cal.App.4th at p.723,97 Cal.Rptr.2d 195; In re Marriage of Perez,supra,35 Cal.App.4th at pp.80-81,41 Cal.Rptr.2d 377.) He made no such effort.
Under section 3651(c)(1),the trial court had no authority in these circumstances to enter “an order requiring[Sabine]to accept in full settlement of accrued[support]less than the full amount due.” (Keck v.Keck,supra,219 Cal.at p.321,26P.2d300.) Accordingly ,the trial court properly concluded that Toshio was liable for the arrearages that accrued before May 2003.
Contrary to the established caselaws [also see In Re Marriage of Cheritan (2001)], Davila unilaterally ordered that all spousal (and child support) arrears, reimbursement claims, interests outstanding, an amount of over $4 million, were to be waived:
“Parties each waive and mutually release each other from any and all actions, liabilities, claims, demands, and obligations of any kind or character, both in and in equity; that either of them ever now has, or may have against the other upon or by reason of any and all(a)Watts,Épstein,52640 Fam.C., and other reimbursement claims;(b)support arrears that accrued prior to June 1,2007(including, but not limited to, child support, spousal support, and child care expenses);…(e)prior sales of ESPP stock;(f)prior sales of stock options…(h)COBRA coverage and medical expenses(insured and uninsured);(i)education expenses…(k)taxes.
Everything that the litigation of over five years had achieved at the cost of over $200,000 in legal fee, was unilaterally turned into a nullity by Davila’s orders. A valid question that arose from these illegal orders, and Judge Davila’s efforts to obstruct the trial at all costs, then, in 2007, and subsequently, since then. The answers unravelled over a period of twenty years, as I went deep into the rabbit hole. Because it took me twenty years to understand the motive behind such blatant violations of state and federal laws, I prefer to defer the revelations till a later date.
In 2011, Department of Social Services denied my application for Social Worker, citing the felony conviction of 2005 as a reason. The conviction created an automatic lifelong ban from being employed as a Social Worker under Health & Safety Codes, a ban that could only be overturned by the President of United States. Slowly, a pattern that disclosed the bribes paid to Sandra Schuster by Susan Benett, Lewis Becker emerged.
In 2005, Benett & Becker had filed a Motion to compel me to attend a Vocational Assessment to determine what I could earn to support myself. The matter was presented to Judge Poche, who cited the felony conviction and therefore refused to compel assessment. I, being ignorant of laws generally, had not understood why. The very next day, after Judge Poche denied his motion for Vocational Assessment, Lewis Becker had approached a Civil Court Judge in downtown San Jose, and had secured an alternate order for Vocational Assessment. The Judge had no subject matter jurisdiction to make a Family Court orders, but that did not stop him from making it. It was similar to getting the order from a Traffic Court, and just as ridiculous, and unenforceable.
Becker then bribed Sandra Schuster, a Vocational Assessor to prepare a fraudulent Assessment Report. Schuster concealed the fact that I would be barred from being employed as a social worker under Health & Safety Code Sections 1522(g), 1558, and several more. Based on Schuster’s fraudulent report, Benett, Becker, and Davila insisted that I could earn $37,000 immediately, before I graduated from Fresno University with an MSW, and that income that could increase to $72,000 within the next 2 years of graduation. This was false, not just by statistics, but by common sense as well. Most Social Workers start at minimum wages, and rise to $37,000 only after decades of employment. Only a couple of them make it to the top management in the County – working as Directors, where incomes are approx. $60,000.
Schuster also stated that LCSW license can be acquired within 2 years. This too was false. The Behavior Science website states that the LCSW can take between 4 – 6 years. The registration for LCSW internship takes around 6 mos, the licensing requirement is $3,400 hours of face to face time as a therapist, and registering for exams, preparing for exams, appearing for scheduled exams, and waiting for results can take almost a year.
SCHUSTER also stated that I could begin my internship immediately after I completed my thesis, before I graduated from the University. It is common sense that regardless of when I completed my thesis, the graduation degree would be granted at the end of the semester, and the certificate takes about a month to be released. The process of registration requires the MSW certificate, which, in this case, not arrive until February 2008. It is illegal to work as an LCSW intern, or a Social Worker intern without a formal degree certificate. I did not have a Social Work undergrad degree. I could not have worked as a Social Worker until a certificate was awarded to me. Her statements in her report were intentionally false.
Over the years I was able to apply for interviews and secured over 40 jobs which Judge ALLEN HILL notes in her Child Support order of 2014 based on the list which was submitted to her Court. But the moment I accepted any job, as I did in 2010, I was fingerprinted, and they – and I – found out that I was barred from working as a Social Worker. Under Health & Safety Codes, there is no exemption from a felony conviction. Ironically, the conviction was based on Sameer and his attorney’s testimony that in 2003, when I had the auto accident, I had actually been trying to commit suicide and kill the children. The children’s evaluation had not been completed at the time. I was charged with the crime of cruelty to children. It is common sense that I would not be employed in any govt facility where I was going to interact with any vulnerable population. I doubt even Home Depot would have employed me.
In 2011, Department of Social Services made an order formally barring me from being employed as a Social Worker. Although the order was made in 2011, the bar was effective from the date of my conviction, even though I did not know it . Upon appealing the order, the document issued by Department of Social Work clearly states:
“On January 25, 2005, in Santa Clara Superior Court, Case # FF30356S, respondent, upon a plea of no contest, was convicted of violating Penal Code Section 273a subdivision (a), wilful injury or harm to a child, with an enhancement pursuant to Penal Code Sections 12022.7, subdivision (a) and 1203, subdivision (e )(3), a felony and Vehicle Code Section 23104, subdivision (a) reckless driving causing bodily injury to the person other than the driver, a misdemeanor. Imposition of sentence was suspended and respondent was placed on 5 year formal probation. The Court placed respondent on house arrest and ordered her to complete a parenting class, and pay $870 in fines and fee, and $315,615.32 in restitution.
Respondent’s conviction arose from her conduct on July 25, 2003, when she drove her vehicle into oncoming traffic on a two lane highway while her two minor children were in the vehicle.Respondent’s vehicle collided head on with an oncoming vehicle” (9,109-118).
The appellate decision goes onto state:
“California Code of Regulations, title 22, section 80019.1, subdivision (m), provides that “[t]he Department shall not grant an exemption if the individual has a conviction for any offense specified in Section 1522(g)(l) of the Health and Safety Code.”
Health and Safety Code section 1558, subdivision (a)(3), provides, in pertinent part, that the department may prohibit any person from being a member of the board or directors, an executive director, or an officer of a licensee, or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client who has• . . .been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime as defined in Section 1522″
Ms Schuster had been informed about the accident in 2006, the conviction, the police reports, and Court orders of Case # FF30356S. She had been made aware that I was unable to find a job as a Social Worker with the County. She concealed the fact that I would be statutorily barred.
Later, I found that the CPA Sally White, and Vocational Assessor Sandra Schuster had an ongoing arrangement with Benett & Becker and the two routinely accepted bribes of $30,000 -$40,000 for each assessment they did for Susan Benett. And this quid pro quo arrangement – that they would be favored professionals with ongoing business from Benett & Becker, and would be paid more than their regular rates – was a racket that was brought to Davila’s notice repeatedly. He ignored it, along with other matters of corruption brought to his notice because such reports allowed him to legitimize his casefixing activities.
The language of the Judgment shows that the Court retained jurisdiction on spousal support:
Notwithstanding any other provisions of this Judgment, Petitioner’s Spousal Support Payments shall caese upon the first to occur of the following: a) Petitioner dies b) Respondent dies c) Respondent remarries or enters into a registered domestic partnership d) further order of this Court.
And so, even if the Judgment were to be deemed enforceable, the Court did retain the authority to modify the matters related to spousal support. As of Feb 2022, total spousal support, with interest outstanding from 2003, as computed for the Appeal H046694 filed on Feb 25, 2022 in the Sixth Appellate District, is well over $4.5 million, yet despite repeated requests/motions/complaints, Davila, and a succession of Judges that followed him, have refused to provide any relief. One wonders exactly what it is that prevents a Judge from taking action in furtherance of justice – a question that also arises when one examines child support, and property related fraud.
Various theories were put forward by different people at different stages of litigation, and they all fit in the pattern that unfolded over the next fifteen years.