Filed 10/1/24 Marriage of O’Hill CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of ANDREA and 

ROBERT O’HILL.

ANDREA RAE O’HILL,

 Respondent,

v.

ROBERT O’HILL,

 Appellant.

 G062146

 (Super. Ct. No. 17D003156)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, 

James L. Waltz, Judge. Dismissed.

The Law Offices of Saylin & Swisher, Brian G. Saylin and 

Lindsay L. Swisher for Appellant Robert O’Hill.

Phillips Whisnant Gazin Gorczyca & Curtin, Gary S. Gorczyca 

and Megan I. Martinez for Respondent Andrea Rae O’Hill. 

* * *
2

This is an appeal by Robert O’Hill (Robert) from an order in a 

family law dissolution proceeding awarding Andrea Rae O’Hill (Andi)

temporary attorney fees and expert costs.

1 Midway through the trial on 

support issues, the court encountered a lengthy delay due to Covid-19 

illnesses befalling the parties, counsel, and staff. At that point, Robert was 

approximately $900,000 in arrears on temporary support and Andi’s 

attorneys were owed hundreds of thousands of dollars. The court found that a 

pendente lite order of attorney fees was essential to ensure an even playing 

field. However, the court deferred any finding on the reasonableness of the 

fees owed to Andi’s attorneys to a later time, with the idea that any 

retroactive modification to attorney fees could be accomplished at a later 

date. 

Robert contends the court erred. He emphasizes that at the time 

the court made its order, due to the order of evidence at trial, it had only 

heard Andi’s evidence of his (and her) finances. The court had not yet heard 

Robert’s evidence. Robert also contends that in delaying the assessment of 

reasonableness, the court relied on a stipulation that did not exist. Robert 

claims it was error to order (even pendente lite) attorney fees without 

assessing the reasonableness of those fees.

We grant Andi’s motion to dismiss the appeal as being from a 

non-final order. While pendente lite support orders are generally appealable, 

the rationale for allowing such piecemeal appeals is that a temporary support 

order is a collateral order that is final as to the subject matter of the order. 

However, that rationale does not hold here, where the court expressly 

1 We refer to the parties by their first name to avoid confusion 

and not out of disrespect. 
3

reserved findings on the reasonableness of the fees and expressly made the 

fees subject to revision at a later date. We acknowledge Robert’s objection to 

that procedure. But regardless of why the court did it, the fact is that the 

order is not final. Because it is not final, it is not yet appealable. Robert will 

be free to file a later appeal when a final order is issued. Accordingly, we 

dismiss the appeal.

STATEMENT OF FACTS

Andi filed the present dissolution proceeding in April 2017. At 

that time, the parties had three minor children (one of whom is now an 

adult).

On February 18, 2018, Andi filed a request for order (“RFO”) for 

child support, spousal support, and an award of attorney fees and forensic 

accountant costs. The hearing on Andi’s RFO commenced on June 12, 2018, 

and continued on portions of seven court days scattered over thirteen months.

The hearing featured extensive evidence of the parties’ finances and 

testimony from both sides’ forensic accountants.

On July 11, 2019, the trial court issued a detailed ruling on 

submitted matter. The court made the following factual findings: “[Robert], 

age 73 years, is a high earner business man/investor; in 1984, [Robert] 

founded O’Hill Capital and serves as its General Partner; [Robert]

(individually) has a 30% percent ownership interest. [Robert] and O’Hill 

Capital own fractional interests in a vast number of investments, including 

golf courses, strip malls, and many other improved and unimproved 

properties. O’Hill Capital’s investments are numerous and diverse, and O’Hill

Capital has many business partners. See trial exhibit 505, 506,519, and 520.

Given the complexities of this unique case, Andi retained CPA Drew Hunt 

and [Robert] retained CPA Glen Mehner. Meanwhile, during the marital 
4

years (disputed; 10+/- years) Andi did not work and stayed focused on 

domestic duties and ‘primary parent’ to the party’s three children, . . . age 

14, . . . , and . . . age 7. The marital standard of living (“MSOL”) was very 

high; during the entire marriage, the parties resided within the exclusive 

enclave known as Emerald Bay, located in North Laguna Beach, a guard 

gated beach side community. The former family residence was at 95 Emerald 

Bay, a stunning, three story single family residence, 4,436 square feet, 4, 

bedroom, 5 baths, and a 180+ view of Emerald Bay cove, the home’s value 

was estimated at 8+ million. Today, [Robert] lives at 95 Emerald Bay, alone, 

the home owned by an entity [Robert] controls, and the home free of debt. 

Meanwhile, Andi lives down the same street at 150 Emerald Bay, a one story

rented home (2,156 square feet); 3-bedroom, 3 baths. Without quantifying the 

MSOL by monthly spending, the MSOL included frequent air travel by 

private/charter jet, a residential chef, private schools, high end vacations, 

domestic help, expensive cars, and expensive extracurricular actives, such as 

equestrian activities (two horses, stabled; average monthly expense = $5,000) 

and private golf lessons.”

Throughout the hearing, Robert took the position that he no 

longer had the ability to borrow from his various entities in order to support 

that lifestyle. However, the court disbelieved Robert, concluding that Robert 

still had access to his past pattern and practice of “borrowing amongst the 

mosaic of entities . . . .” The court’s conclusion was based on specific 

examples. For instance, Robert’s forensic accountant testified that in 2017 his 

income was approximately $43,000 per month, yet his lifestyle involved 

spending around $72,000 per month. Also, during the same time, Robert 

purchased a yacht with a $200,000 down payment. The court awarded to 

Andi $40,000 per month in “family support” (pursuant to the parties’
5

stipulation, this was combined spousal and child support). The court also 

ordered that Robert pay Andi $130,000 in past attorney fees and $10,000 per 

month for prospective attorney fees. 

On July 26, 2019, Robert filed a motion for reconsideration, 

asserting the court had made certain mistakes, including that the court 

mistakenly used a “monthly” calculation rather than a “yearly” calculation in 

the Dissomaster report, with the result that the $40,000 support order should 

be reduced to approximately $27,000 per month. The court denied the motion, 

concluding that any upward adjustment from the Dissomaster report was 

justified based on Robert’s ability to pay and the MSOL. 

On November 26, 2019, Andi filed an ex parte application to 

determine the support arrearage then owing by Robert and to obtain a 

charging order against Robert’s interest in O Hill Capital. 

At a February 3, 2020, hearing on Andi’s RFO, the trial court 

found Robert owed Andi $136,000 in past due and unpaid family support, 

plus interest. The arrearage was undisputed. The court granted the charging 

order.

On August 14, 2020, Robert filed a Request for Order to modify 

the July 11, 2019 family support order. Robert alleged that his income had 

been reduced. The hearing on his request was originally calendared for 

September 29, 2020, continued multiple times, and ultimately vacated on the 

trial court’s own motion and consolidated with the trial on bifurcated issues.

The consolidated hearing was scheduled for October 2021. However, in 

October 2021 the entire litigation was stayed as a result of a motion filed by

Robert to disqualify the trial judge.

On March 14, 2022, the court set a trial setting conference for 

April 7, 2022, in which, among other things, the parties were invited to 
6

present arguments on “the court’s own motion” to establish an attorney fee 

shifting order. The proposed fee shifting order had been telegraphed in an 

earlier minute order and provided that any moneys Robert paid to his 

attorney would be split 50/50 with Andi’s attorney. It would also have 

directed $50,000 in payments on specified dates to Andi’s attorney for past 

fees. The hearing on that motion was continued to May 2022, and trial on 

bifurcated issues was scheduled for July 2022. 

On May 24, 2022, the parties entered into a Stipulation and 

Order wherein Robert was ordered to pay Andi $160,000 toward any amount 

owed on the existing July 11, 2019 fee order on or before May 28, 2022 as well 

as $10,000 on June 1, 2022 and July 1, 2022.

Trial on bifurcated issues commenced on July 12, 2022. The court 

first heard from Andy’s forensic accountant, Drew Hunt. Over the ensuing 13 

days of trial, various witnesses were called by Andi to testify, with Hunt 

taking up the lion’s share of the time.

After the hearing on August 24, 2022, the hearing was “paused 

due to Covid-19 illnesses befalling parties, attorneys and court staff and CPA 

scheduling conflicts.” The attorneys estimated that they would need an 

additional 13 days of trial time to finish the trial. The court scheduled 

resumed trial hearings for January 30, 2023.

In the meantime, on November 7, 2022, the court ruled on what it 

described as Andi’s pendente lite motion for supplemental attorney fees and 

costs, which is the subject of this appeal. Beginning in December 2022, the 

court vacated its prior award of $10,000 per month. Instead, it ordered 

Robert to pay $530,630 for past attorney fees and $240,996 for outstanding 

forensic accounting fees by January 24, 2023. It further ordered Robert to pay 

$150,000 for future fees by February 17, 2023. 
7

The court included an extensive set of findings and analysis to 

support the ruling. The court found that there was a gross disparity between 

the parties in access to funds to maintain counsel and experts. Andi was 

wholly dependent on Robert. Robert’s income, “while disputed and not yet 

determined,” was substantial. His separate property net worth, “while 

disputed and not yet determined,” is very substantial. The court quoted 

Hunt’s report from trial that Robert’s net worth was approximately $32 

million. The court further noted that all of Robert’s fees were paid by O’Hill 

Capital, of which Robert was the managing partner. The court found that, 

“[b]ased on the totality of circumstances so far known to the court,” Robert 

had the ability to pay Andi’s attorney fees. The court cited trial exhibits and 

Hunt’s testimony for that finding, though it noted that the evidence was 

“disputed” and that Robert’s CPA “has not yet testified.” It went on, “From 

the evidence so far presented, and while disputed by [Robert], the court (so 

far) has drawn a reasonable inference [Robert] has access to funding vis-à-vis 

[O’Hill Capital] . . . .”

Critically, the court stated that any objection as to the 

reasonableness of Andi’s fees would be decided at a later time: “[Robert] 

forcefully contends Andi has unwisely incurred . . . huge amounts of attorney 

fees and costs pursuing meritless claims . . . .” “Maybe and maybe not. To be 

determined, as agreed, during a bifurcated trial withing these bifurcated 

proceedings.” “Long ago, the attorneys agreed to litigate any [Family Code 
8

section] 2032 issue after trial on support issues now on-going.”

2 The court 

found that any further delay in awarding Andi pendente lite attorney fees 

would infuse the proceedings with “gross unfairness that if allowed, renders 

the ongoing trial presumptively . . . not a fair proceeding . . . .” The court 

observed that the parties’ disparity in resources was exacerbated by the fact 

that Robert was approximately $900,000 in arrears on family support 

payments. 

In discussing these findings, the court observed: “[Robert] 

reminds the court Andi’s [motion] must under law . . . not be considered in a 

vacuum but instead, considered in the context of BOTH [sections] 2030 and 

2032, a ‘packaged’ set of statutes requiring scrutiny of both ‘need’ and 

scrutiny as and for the necessity and reasonableness of historic fees. [Robert] 

is correct on the law, but not correct in the instant application of law to the 

on-going process. [¶] First, long ago the parties agreed any challenge as and 

for attorney fees and costs will follow trial now solely focused on support; the 

fee dispute staged for later debate and consideration following the support 

trial.” (Italics added.) “[Robert’s] strong objections have been heard, however 

any [section] 2032 analysis is not now ‘at-issue’ but instead, and by 

agreement, reserved for another time.” The court went on, “adjudication of 

any defense to fees under [section] 2032 is nuanced, detailed and the debate 

over fees reserved (at this time) by agreement, the process will play out 

following a (reliable) ruling on retroactive and prospective support.” At the 

2

Family Code section 2032, subdivision (a), provides, “The court 

may make an award of attorney’s fees and costs under Section 2030 or 2031 

where the making of the award, and the amount of the award, are just and 

reasonable under the relative circumstances of the respective parties.” 

(Italics added.)
9

end of the court’s order, in a section entitled “RESERVATION,” the court 

stated, “1. The court reserves over assessing the reasonableness and 

necessity of Andi’s attorney fees and costs paid by [Robert] and reallocation 

between the parties.” (Italics added.) “The reasonableness and necessity of 

attorney fees and costs ([§ 2032]) paid by [Robert] and paid to Andi’s 

counsel . . . remains a trial issue, to be resolved at a future date.”

The court then concluded by stating that if Robert failed to pay 

the fees on the schedule it ordered, the court would consider ordering a 

mistrial or denying Robert’s motion seeking modification of temporary family 

support.

On December 22, 2022, Robert filed a notice of appeal from the 

pendente lite attorney fee order of November 7, 2022. 

After the notice of appeal was filed, the trial on spousal and child 

support, which had been paused, was completed, and the court issued a final 

statement of decision. On our own motion, we take judicial notice of the final 

statement of decision.3In that statement of decision, the court made strong 

findings against Robert, concluding that he has engaged in a consistent 

scheme to hide his income and assets from tax authorities and the court. “The 

court formed the opinion that [Robert] minimizes or shelters income to reduce 

taxes owing and now, in this setting, shelters income in an effort to minimize 

or avoid his support obligation.” “In this case, and over many years, [Robert] 

engaged in business practices designed to shelter income available for 

support by characterizing personal expenses as business expenses.” The court 

concluded Robert has substantial wealth: “[Robert] has indirect ownership 

3 Our judicial notice is limited to the fact that the court has made 

certain findings. We express no opinion on the validity of those findings.
10

interests in assets conservatively valued at $93 million, yet he professes to 

own nothing.” The court found Robert had personal assets and wealth 

amounting to approximately $32 million. The court specifically found that 

Andi’s CPA Hunt was credible and that Robert’s CPA was not credible 

because Robert’s CPA relied on unreliable ledgers doctored by Robert.

The court set a hearing for June 20, 2024, to determine attorney 

fee arrearages. 

DISCUSSION

One of the fundamental tenets of appellate practice is the one

final judgment rule. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) 

That rule holds that an appeal may not be taken from interlocutory rulings, 

but instead any error during litigation must be raised in an appeal from the 

final judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 

697.) “‘The theory [behind the rule] is that piecemeal disposition and multiple 

appeals in a single action would be oppressive and costly, and that a review of 

intermediate rulings should await the final disposition of the case.’” (Ibid.) 

Courts have carved out an exception to this rule for collateral 

rulings that are final as to the subject matter of the ruling. (In re Marriage of 

Skelley (1976) 18 Cal.3d 365, 368 (Skelley).) Under this exception, it has 

routinely been held that pendente lite orders of support are immediately 

appealable. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637.) The 

rationale is that the order is final as to the temporary support and will have 

no effect on the remainder of the proceedings. (Skelley, at pp. 368-369.)

However, that rationale does not hold here. The court expressly 

reserved additional relevant findings for a future date and reserved the 
11

authority to reallocate attorney fees in light of subsequent findings.4 By 

contrast, in In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311, the 

court found a pendente lite order of attorney fees was final, stating, “Here, 

the family court clearly indicated its intent to render an order that was 

dispositive of the issue of future attorney fees; nowhere in the order was there 

any reservation of jurisdiction to revisit the issue. As such, the order is 

appealable under Code of Civil Procedure section 904.1.” (Italics added.) We 

face precisely the opposite situation here: the court expressly reserved 

jurisdiction to revisit its pendente lite attorney fee order. Because this was 

not a final order, it is subject to the one final judgment rule and is not 

appealable. “An appeal from a judgment or order that is not appealable must 

be dismissed.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 

360, 384.)

Robert has requested that, if we find the order to be 

nonappealable, we instead exercise our discretion to treat his appeal as a writ 

petition. “We have discretion to treat a purported appeal as a petition for writ 

of mandate.” (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515.) 

However, “that power should be exercised only in unusual circumstances” 

that are “ ‘ “compelling enough to indicate the propriety of a petition for 

writ . . . in the first instance . . . .” ’ ” (H.D. Arnaiz, Ltd. v. County of San 

Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) “Because writ review is an 

extraordinary remedy, courts generally do not grant writ relief absent 

extraordinary circumstances. [Citation.] Pertinent factors include whether (1) 

‘the party seeking the writ lacks an adequate means, such as direct appeal, to 

obtain relief,’ (2) ‘the petitioner will suffer harm or prejudice which cannot be 

4 We express no opinion on the propriety of this procedure.
12

corrected on appeal,’ or (3) ‘the petition presents an issue of first impression 

that is of general interest to the bench and bar.’” (Department of Corrections 

& Rehabilitation v. Superior Court (2023) 94 Cal.App.5th 1025, 1037.)

We decline to exercise that discretion here because there is no 

irreparable harm in waiting for a final order, and because any order we issue 

could effectively become moot. 

As to irreparable harm, the payment deadlines could have been 

challenged by writ initially. When the court set a specific schedule and 

threatened to declare a mistrial if Robert failed to meet the schedule, that 

may have been a sufficiently extraordinary circumstance to justify writ relief.

However, by now, the deadlines have long since passed. At this point, the 

money is either paid or not and the only relief we could provide would be to 

reverse the monetary award. Absent some unusual circumstance, we 

generally do not address money damages through extraordinary writ relief. 

An appeal is sufficient. 

As to mootness, suppose we were to, as Robert urges, issue a 

reversal requiring the court to vacate its award because it did not consider 

Robert’s evidence of financial circumstances. We know that by now the court 

has considered all the evidence, and by the time our disposition reaches the 

court, it may have already reaffirmed its original order based on all of the 

evidence, or it may have changed it entirely. In either case, our disposition 

would be an exercise in futility. We would be directing the court to do 

something it has already done, or to modify an order it already modified. This 

problem exists precisely because the court’s pendente lite fee award was not 

final. Rather than potentially waste this court’s resources, we will dismiss 

this appeal and consider any challenge to the pendente lite attorney fees in a 

future appeal (if any) from a final order.
13

DISPOSITION

The appeal is dismissed. Andrea shall recover her costs incurred 

on appeal.5

SANCHEZ, ACTING P. J.

WE CONCUR:

MOTOIKE, J.

GOODING, J.

5 Robert filed a motion to augment the record to include certain 

reporter’s transcripts that were unavailable when he designated the record 

on appeal. We deny that motion as the transcripts are not relevant to our 

determination that the appeal was from a nonappealable order.

Andi filed a request for judicial notice of a Ruling on Submitted 

Matter that sets forth Robert’s support obligations. She also requested 

judicial notice of a minute order setting the trial on all remaining issues for 

April 21, 2024. These documents are consistent with the Final Statement of 

Decision that we took judicial notice of on our own motion, and thus we grant 

her request for judicial notice.

At the time that we sent out our notice of intent to take judicial 

notice of the Final Statement of Decision, Andi filed a request that we 

alternatively take judicial notice of an updated Final Statement of Decision 

filed on June 7, 2024, which is identical to the document we took judicial 

notice of, but it includes certain exhibits to support the court’s findings. We 

deny the alternative request for judicial notice, as we are not taking judicial 

notice of the truth or validity of any proposition in the Final Statement of 

Decision, and thus we have no need of the exhibits.