Marriage of Furie Appellate Decision

Marriage of Furie Appellate Decision

Marriage of Furie is an appellate decision from October 30, 2017. The 2nd District, Division 1, in Los Angeles handled the appeal. The parties were Russell Furie and Kelly Furie. The following is a brief summary that explains what we consider to be the more important issues on appeal and the appellate court’s ruling.

Marriage of Furie’s brief summary of facts

The parties entered into a stipulated judgment with the following provisions:

  • Joint legal custody,
  • Russell Furie to maintain health insurance of the minor children,
  • Russell Furie to pay $1,454 per month in child support,
  • Russell Furie to pay half of uninsured medical cost,
  • Russell Furie was awarded the family home and was to continue paying the mortgage allowing Kelly Furie and children to continue living there until the youngest child was eighteen.

There were two businesses both awarded to Russell Furie. Russell Furie transferred one of the businesses to a trust prior to filing for bankruptcy. The Trust had a spendthrift clause. While the business was in a Trust, the trial court ordered child support to be paid out of the Trust. Russell Furie then sold the business that was in the trust to his Russell Furie via a promissory note.

Marriage of Furie’s trial court ruling

The trial court filed a statement of decision on March 18, 2013, ordering Russell Furie to immediately turn over a promissory note for the sale of a business to Kelly Furie and to contribute an additional $1,000 to Kelly Furie’s attorney’s fees.

Trial court granted Kelly Furie sole authority over the children’s orthodontic care and Russell Furie to pay half of uninsured medical expenses.

The trial court determined Russell Furie controlled the trust and allow payment of child support from the trust.

Marriage of Furie’s issue on appeal

  • Russell Furie’s renewed request to reduce support or vacate or reconsider March 18, 2013, turnover order which ordered him to turn over a promissory note to Kelly Furie.
  • Kelly Furie’s request for sole legal custody. Kelly Furie filed a request for the trial court to modify the child custody and visitation orders based on Russell Furie’s refusal to co-parent on orthodontic issues and for reimbursement of uninsured orthodontic expenses.
  • Whether the trial court have the authority to determine Russell Furie controlled the Trust.

Marriage of Furie’s appellate holding

The trial court correctly denied the request to reconsider or vacate the March 18, 2013, order because the request was untimely.

The trial court did not abuse its discretion when it found Russell Furie owes Kelly Furie half of the amount of orthodontic expense which were uninsured medical expense. Further, the trial court properly awarded Kelly Furie sole authority regarding orthodontic issues.

Trial court had jurisdiction to determine Russell Furie controlled the trust at his hearing to reduce his child support obligations.

Reason for appellate holding

Untimely request pursuant to Code of Civil Procedure 663a an 1008(a)

The request to reconsider or vacate the 2013 order, was brought before the court on August 24, 2015. Under Code of Civil Procedure 663a or 1008(a) the trial court was without jurisdiction to consider either motion because the request was untimely.

The uninsured medical expenses

The stipulated judgment stated Russell Furie would pay half of uninsured medical expenses. The stipulated judgment did not invoke section 4062 or 4063, so the trial court was not required to consult those sections to determine if particular cost falls within their scope. The trial court was only required to answer the question if the cost was an uninsured medical expense. There was substantial evidence presented that the cost were uninsured.

Sole legal authority over orthodontic care

There was no abuse of discretion awarding Kelly Furie sole authority over the minor children’s orthodontic care because a request to change parenting or visitation arrangements is viewed under the best interest of the child standard not significant change of circumstance. Orthodontic care falls within the best interest of the child standard.

Failure to object at the trial court means a waiver of the right to claim a statement was deficient

However, the trial court did not find the modification was in the best interest of the children, and Russell Furie did not object or note the omission of the trial court. After a trial court issues a statement of decision, Code of Civil Procedure section 634 requires a party to state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. CCP §634 states if an omission or an ambiguity are timely brought to the trial court’s attention, the appellate court will not imply findings in favor of the prevailing party. If a party does not bring deficiencies to the trial court’s attention, he waives his right to claim on appeal that the statement was deficient, and the appellate court will imply the findings to support the judgment.

Russell Furie did not object or note the omission of the trial court and therefore Russell Furie waived his rights. It was proper the trial court granted Kelly Furie authority over the children’s orthodontic care and Russell Furie was to pay half of uninsured orthodontic expenses.

Modification of child support

Russell Furie requested a modification to his child support stating a change in circumstance. The trial court was then required to determine what resources were available to Russell Furie to satisfy his child support obligations. (Family code §§ 4005, 4008, 4011, 4058). “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.” (Family code §290).

The Russell Furie had a Trust that the trial court ordered child support payments to be paid from. Probate Code §15304 and 15305 allows a court to reach a trust to satisfy child support obligations, arrears, and attorney fee awards. Probate Code § 15304, subdivision (a) states if the trust settlor is also the trust beneficiary and if the settlor’s interest is subject to a spendthrift clause, that clause is invalid against transferee and creditors. Subdivision (b) allows any transferee or creditor to reach the maximum amount the trustee could pay for education and support expense as long as the amount does not exceed the settlor’s proportionate contribution to the trust.

Russell Furie is the Trust settlor, sole beneficiary and he contributed all the Trust’s assets and therefore the Russell Furie’s interest in the Trust is not subject to the spendthrift clause. The trial court did not abuse its discretion when Kelly Furie was allowed to reach the Trust assets to satisfy Russell Furie’s child support obligations.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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