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Grinberg v. Phillips
Grinberg v. Phillips
10/24/07



Grinberg v. Phillips



Filed 10/18/07 Grinberg v. Phillips CA1/1



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION ONE



JESSICA GRINBERG,



Plaintiff and Appellant,



v.



VAN PHILLIPS,



Defendant and Respondent.



A112560 & A113771



(Mendocino County



Super. Ct. No. SCUK-CVSP-01-85190)



In these consolidated appeals, appellant Jessica Grinberg appeals the trial courts award to her of $4,000 in monthly child support from respondent Van Phillips for their daughter Olivia. Jessica also appeals the courts denial of a portion of her attorney fees.[1] We affirm the trial courts orders with respect to both appeals.



FACTUAL BACKGROUND AND PROCEDURAL HISTORY



Olivia was born in May 2000. Shortly thereafter, Van and Jessica moved from San Diego County to Mendocino County, anticipating that they would marry.[2] Jessica also brought her three older children from her prior marriage. At trial, she and her four children were living together in the same household.



Van and Jessica did not get married and their relationship ended. In April 2001, Jessica filed a petition to establish Vans paternity and set child support.



On September 14, 2001, the trial court ordered Van to pay $3,500 per month in child support. Van had indicated to the court that he had a high income and that he could pay whatever amount in child support the court deemed appropriate. Jessica also receives child and spousal support from her former husband.



On August 12, 2003, Jessica filed a motion for modification of child support. She indicated that Van had never divulged his financial status and that she suspected the current child support award was well below the level set by California guidelines. She requested that Van be ordered to pay guideline child support as well as one-half of certain other expenses, including uninsured medical expenses, expenses for certain extracurricular activities, and work-related daycare expenses. She also requested an order for Van to pay her attorney fees.



On July 20, 2004, Van submitted an income and expense declaration. Van disclosed that he earns over $1.9 million per year. Van also submitted a detailed budget wherein he estimated the amount of money necessary to meet Olivias needs. The budget breaks out several categories of expenses, including food, shelter, entertainment, furniture, etc.



Jessica submitted two income and expense declarations. In January 2005, she submitted a declaration claiming $9,848 in actual household monthly expenses. This declaration did not break out the costs attributable to Olivia. In February 2005, she submitted an estimated expense declaration, stating her monthly expenses at over $27,000 for just her and Olivia. Jessica did not submit a detailed budget comparable to the one prepared by Van, instead relying at trial largely on the total amounts stated for each category of expenditures in her February 2005 income and expense declaration.



The trial court filed its tentative decision on September 6, 2005. The court determined Vans monthly income to be $163,987. The court found Jessicas income to be $3,516 per month. Vans visitation timeshare was determined to be 14 percent. The court found guideline support would be $12,811 per month. The court concluded that this amount exceeded Olivias needs, and awarded Jessica $4,000 in child support.



On September 16, 2005, Jessica filed a request to modify the tentative decision and a request for statement of decision, including 13 points upon which she sought clarification. Jessica filed further objections to a proposed statement of decision on October 12, 2005. The court adopted the proposed statement of decision on October 13, 2005. The proposed decision is consistent with the courts initial statement of decision in all material respects.



On January 17, 2006, the court declined to award attorney fees to Jessica in excess of the $250,000 that had already been advanced to her by Van, determining that the amount advanced was sufficient to litigate all issues leading to the present appeals as well as to an earlier proceeding regarding visitation.



On December 12, 2005, Jessica filed an appeal of the child support order and on April 17, 2006, she filed an additional appeal regarding the order pertaining to attorney fees. We consolidated both appeals.



DISCUSSION



I. Standards of Review



The standards of review that we must use in resolving the multiple issues before us are well settled. [C]hild support awards are reviewed for abuse of discretion. [Citations.] We observe, however, that the trial court has a duty to exercise an informed and considered discretion with respect to the [parents child] support obligation . . . . [Citation.] Furthermore, in reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.] [Citation.] In short, the trial courts discretion is not so broad that it may ignore or contravene the purposes of the law regarding . . . child support. [Citations.] [Citation.] (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282283.) (Cheriton.)



Our review is limited to determining whether the courts factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion. [Citation.] We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1360.) Under the substantial evidence test, we view the evidence in the light most favorable to the respondent, giving him the benefit of every reasonable inference and resolving all conflicts in his favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Moreover, the contention that a finding is not supported by substantial evidence may be deemed to be waived if an appellant does not attempt to fairly state all of the evidence and not just the evidence favorable to her. (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832.)



We review awards of attorney fees for abuse of discretion. (See In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 279280.)



II. Child Support and the Exception for High-Earner Parents



We begin by reviewing considerations pertaining to child support awards. California has a strong public policy in favor of adequate child support. [Citations.] That policy is expressed in statutes embodying the statewide uniform child support guideline. [Citation.][] The guideline seeks to place the interests of children as the states top priority. [Citation.] In setting guideline support, the courts are required to adhere to certain principles, including these: A parents first and principal obligation is to support his or her minor children according to the parents circumstances and station in life. [Citation.] Each parent should pay for the support of the children according to his or her ability. [Citation.] Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. [Citation.] (Cheriton, supra, 92 Cal.App.4th 269, 283, fn. omitted.)



To implement these policies, courts are required to calculate child support in accordance with the mathematical formula set forth in the statute. [Citations.] Determining child support under the guidelines has been criticized as a complex and unduly costly process which requires the use of a computer and which is not understood by anyone, least of all the affected parties. [Citation.][] Nevertheless, adherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes. [Citations.] Those special circumstances include a parents extraordinarily high income. (Cheriton, supra, 92 Cal.App.4th 269, 284, fn. omitted.)



Family Code section 4057, subdivision (b), provides that guideline formula support may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . because . . . [] . . . [] (3) [t]he parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.[3]



[B]efore a court may exercise its discretion to determine that a deviation from the guideline is warranted under the circumstances, it must first calculate the amount of support required by strict adherence to the guideline. In other words, only after the guideline formula is computed on a legitimate evidentiary basis as to the supporting parents income may a court conclude that the guideline amount exceeds the childs reasonable needs. (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 184.)



A. Burden of Proof



The supporting parent who seeks to rebut the statutory formula and gain protection from disclosure of detailed financial information as an extraordinarily high earner must show: (1) he or she has an extraordinarily high income, and (2) the guideline support amount exceeds the childs needs. When the extraordinarily high earning supporting parent seeks a downward departure from a presumptively correct guideline amount, it is that parents burden to establish application of the formula would be unjust or inappropriate, and the lower award would be consistent with the childs best interests. (In re Marriage of Hubner, supra, 94 Cal.App.4th 175, 183.) If the trial court agrees that guideline support would be excessive, it must articulate either in writing or on the record of the guideline amount, the reasons for a deviation and how the deviation is consistent with the childrens best interest. (In re Marriage of de Guigne, supra, 97 Cal.App.4th 1353, 1364; 4056, subds. (a)(1), (2), (3).)



B. Best Interests of the Child



Children are entitled to share in the standard of living of both parents and the court is obligated to fix support according to the circumstances and station in life of the parents. (Fam. Code,  4053, subds. (a), (f); (Cheriton, supra, 92 Cal.App.4th 269, 292.) A childs needs vary according to the parents circumstances, as when a parent is a high earner, the childs needs are measured by the standard of living attainable by that parents actual income. (In re Marriage of Hubner, supra, 94 Cal.App.4th 175, 178.) When the lifestyle of the supporting parent far exceeds that of the custodial parent, the child is entitled to share in the higher standard of living. As a practical matter, the payment of child support in such cases will often increase the custodial parents standard of living. (Fam. Code,  4053, subd. (f); In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556.) This may be especially true when it comes to housing. (In re Marriage of Hubner (1988) 205 Cal.App.3d 660, 668.) However, because the definition of extraordinarily high income is tied to the childrens needs . . . , the evidentiary focus must be on the childrens needs and not on the absolute amount of the parents income. (Cheriton, supra, at p. 297, italics added.) Section 4053 makes clear that the courts paramount concern in adhering to or departing from the guideline amount must be the interests of the children . . . . (In re Marriage of de Guigne, supra, 97 Cal.App.4th 1353, 13591360.)



III. Claims of Error



Preliminarily, we note that neither party contests the finding that Van has an extraordinarily high income.



As noted above, the trial court found that guideline support would be $12,811 per month. The court found, however, that the imposition of guideline support would be unjust and inappropriate and would exceed the proven needs of the child. The court also found, based on the testimony of Dr. Matthew Sullivan, that a dramatic increase in the child support award would potentially have negative effects on Olivias psychological well-being and her relationships with peers.



Van had requested child support be maintained at $3,500, which was the amount he had been paying up until trial. After hearing all the evidence, the court determined that a reasonable amount would range between $3,155 (the total budget as set forth by Van) and $3,800 per month. The court accepted the higher end of this estimate and built in a buffer of an extra $200, setting the total amount at $4,000 per month.



A. Is an Award of Less Than One-Third of Guideline Support Improper?



Citing to In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 129 (Chandler), Jessica contends that awards of less than one-third of guideline support are highly suspect and often justify reversal. We agree with Van that case law does not suggest a blanket rule applies to the percentage of guideline support to be awarded in high-earner cases.



In Chandler, the trial court determined the fathers monthly income was $117,000 and that the mother had $10,000 in reasonable monthly expenses. The guideline support figure was $9,197. The court awarded $3,000 in support, with an additional $4,000 per month to be deposited in a trust. (Chandler, supra, 60 Cal.App.4th 124, 126, 127.) The court of appeal held that the trust was improper, noting in dicta that it would have no difficulty finding a monthly child support order of $3,000, standing alone, constitutes an abuse of discretion under the facts of this case. Given fathers monthly income, plus the findings on mothers reasonable monthly expenses and the fact [that minor] spends 90 percent of the time with her, an award of less than one-third the guideline figure, is erroneous. (Id. at p. 129.)



As the quoted statement from the Chandler opinion is dicta, we question whether it sets forth an immutable principle. In any event, as will be discussed further below, we believe substantial evidence supports the trial courts award of $4,000 per month.



B. The Courts Reliance on Vans Budget



When deviating from the guidelines, the trial court must make accurate calculations and may not make estimations to arrive at a support amount. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144145.) Jessica devotes much of her briefs on appeal to arguing that various aspects of Vans proposed budget are inadequate. Overall, we find her arguments unpersuasive.



Based on the evidence presented by the parties, the trial court found that Van had provided more accurate and reliable cost estimates of providing for Olivias needs than Jessica. The court observed that Jessicas evidence was focused on Vans income and her wish list of things that she would like to provide for Olivia, as opposed to the childs actual needs. We believe the courts conclusions in this regard are reasonable.



Jessicas evidence consisted primarily of two income and expense declarations. The first declaration, dated January 7, 2005, stated the monthly expenses for the entire household, including her three other children, at $9,848. Jessica also indicated that she received $2,500 monthly in child support for the three children and spousal support in excess of $1,600 per month, in addition to the $3,500 that Van provided. She admitted that some of her expenses were double-counted because she claimed living expenses and credit card payments as separate items, even though she had used credit cards to pay for some of her living expenses. As to estimates of current expenses pertaining to Olivia only, Jessica was largely unable to substantiate any amounts when questioned.



Jessicas February 2005 expense declaration estimated her monthly expenses at $27,037 for just her and Olivia. The differences between the two declarations are striking. While the January 2005 declaration (for a family of five) set costs for food and household supplies at $2,551, the February 2005 declaration (for Jessica and Olivia only) set the same costs at $2,500. Similarly, the January clothing expenses are $288, while the February expenses are $750. Many other costs were increased in Jessicas February 2005 expense declaration, including costs for education, travel, and entertainment. Notably, the mortgage cost increases from $1,250 to $8,000 per month, based on Jessicas proposal that she would purchase a new home valued at $1.25 million. She also attached a wish list identifying more proposed expenditures for Olivia, including $20,000 for a bedroom set, $20,000 for a horse, and $4,000 for a computer.



Arguing that the court improperly based its award on Vans $3,155 estimated budget, Jessica attacks his calculations with respect to several separate budget categories. For example, she attacks aspects of Vans cost estimates of food and household supplies as being unduly small. Jessica also faults Vans travel allowance of only two vacations per year, as well as the $18 total monthly allowance for entertainment costs in the form of a Netflix subscription. Jessica also attacks Vans failure to allocate a portion of his proposed budget for toys and books.[4]



But other than her projected total estimates, she did not offer specific breakdowns of Olivias expenses. For example, she offered no itemized alternative to Vans food budget of $236 per month, yet claims that no reasonable judge could use this calculation as a basis for determining the needs of a high earners child.[5] She also ignores other aspects of Vans budget that are arguably more generous, including $574 per month budgeted for clothing and $382 for a new Honda Pilot vehicle, including insurance.



Jessica also faults the court for relying on Vans allocation of 20 percent of the housing and utility expenses to Olivia on the assumption that they are shared expenses that benefit the entire five-member household. She claims that this allocation violates Chandler and Cheriton. She notes that her oldest son was soon to be leaving and that her other children are with their father 35 percent of the time, suggesting that the 20 percent allocation is too low.



The court agreed with Vans allocation of one-fifth of certain living expenses for the household to Olivia, noting that Jessica had provided no other evidence on this issue. The court found that Van had complied with Chandlerby building a proposed budget around his daughter, rather than by merely subtracting the expenses attributable to the rest of the family from Jessicas estimate of total household expenses. We find no error.



In her reply brief, Jessica argues that rather than using Vans proposed budget as its starting point, the court should have required the parties to furnish additional evidence, appointed a courts expert, or taken other appropriate measure[s] to assure that Olivia receives appropriate support. We disagree.



The record in this case is voluminous, containing a six-volume clerks transcript and 14 volumes of reporters transcripts that include 13 days of trial testimony. Jessica had ample opportunity to furnish additional evidence during the trial, to seek the assistance of experts in this area, and to petition the court early on regarding other appropriate measure[s].



The trial courts determination must be based on the evidence presented. As Jessica presented minimal evidence of Olivias reasonable needs, instead relying largely on her wish list to inflate her monthly expenses from around $10,000 to about $27,000 per month, she is in a poor position to assert that the court erred in relying on Vans more specific estimates. In fact, Jessicas estimate of Olivias expenses appear to be somewhat of a moving target.[6]



Jessica also faults Vans budget for its failure to include education and extracurricular activities. Van requested that these expenses as well as health care be split between the parties as add-on expenses. Jessica claims that Van still had the burden to show that Olivias reasonable needs were less than the guideline figure, and that these add-on expenses should have been included in Vans budget.



It would appear that including such add-on expenses in the calculation of Olivias needs under the circumstances involved in this case, would involve double counting these expenses. In any event, Jessicas estimates of educational expenses, healthcare, and daycare as stated in her closing trial brief amounted to less than $2,000, which, combined with the courts award of $4,000 still falls below the $12,811 guideline support calculation.[7]



Additionally, she faults the court for rejecting her request for a new home. She notes that when they were still together and planning on marriage, Van had planned on building a large home on one of his Mendocino County properties. She claims that comparable housing should still be considered appropriate as it is attainable based on Vans wealth. While appearing to concede that Jessicas present home is similar to the home that Van currently rents, she claims that she should be able to choose to provide housing more reflective of Olivias station in life. This argument raises the issue of whether Jessica is seeking to obtain disguised spousal support through the child support award, which would be improper given that the parties never married.



Evidence offered at trial showed that Jessicas present home (which she owned) could list for between $695,000 to $895,000. It had five bedrooms and bathrooms and was located on an acre of land. The trial court reasonably concluded that Olivias current housing situation was meeting her needs. The court also found that Van and Jessica currently live comparable lifestyles, notwithstanding Vans greater wealth. The rental home that he was living in was comparable to Jessicas home and Van testified to living a relatively modest lifestyle consistent with the rural environment of Mendocino County, abstaining from hiring household staff or taking lavish vacations.



Fundamentally, what is missing from Jessicas arguments is any indication as to why, under the circumstances of this case, Olivias needs, in the aggregate, are not fully provided for by the $4,000-per-month award. The court found Jessicas estimates of Olivias needs to be substantially overstated and overestimated. Under the circumstances, we do not find this conclusion to be unreasonable.



While Olivia was entitled to continue to share in Vans lifestyle  to some degree  (Johnson v. Superior Court (1998) 66 Cal.App.4th 68, 71[8]), the trial court was not required to make a child support award that would be sufficient for Jessica to fulfill a complete wish list of amenities for Jessica attainable by Vans income. Section 4057, subdivision (b)(3), itself contemplates that situations may arise where the income of an extraordinarily high income earner results in a guideline amount that exceeds a childs needs and best interests even though such needs are viewed in the context of the high earners current station in life and available income.



In her reply brief, Jessica relies on Vans considerable wealth, including his impressive real estate holdings, in arguing that the $4,000 award is inadequate. We question Jessicas repeated emphasis on Vans finances, especially given that the parties agree that he has an extraordinarily high income and that she does not challenge the courts finding that $12,811 represents the amount of support that would be payable under the California guidelines. Rather than focusing on Vans income, the focus is properly placed on the amount of money that is appropriate to meet Olivias needs.



While Van bore the burden of proof to show that guideline support would be excessive, Jessica had the opportunity to counter Vans estimates at trial. To the extent she failed to do so, the court was not obliged to set the appropriate amount of support drastically higher than reasonably shown by the evidence Van presented. Van also observes that the previous award of $3,500 per month appeared to have adequately provided for Olivias needs for the prior two years and the court may have considered that fact in determining that $4,000 per month would be sufficient.



We believe a court could reasonably conclude that Vans estimate of Olivias needs was more accurate than the extraordinary $27,037-per-month figure advocated by Jessica in her declaration or the $14,689 figure found in her closing trial brief. Jessica can not seriously contend that $4,000 is grossly inadequate to meet the needs of a five-year-old child. The amount awarded exceeds Vans proposed budget of $3,155 by more than $800. Moreover, as the custodial parent, Jessica will have discretion as to how to best allocate the money. (Chandler, supra, 60 Cal.App.4th 124, 128.) Thus, she will not be forced to restrict her spending on any particular item to the amount allotted for it in Vans budget. In sum, substantial evidence supports the trial courts award and we are persuaded that the court acted reasonably after carefully considering all the evidence presented.[9]



We do not mean to suggest that a reasonable judge could not have awarded more than $4,000 per month in this case. We do find, however, that the trial court in this case fully considered all the evidence in light of applicable law and arrived at a reasonable result. We therefore perceive no abuse of discretion.



C. Legal Standards for Award



Jessica also claims that the child support award must be reversed because it is based on erroneous legal standards. She faults the court on three grounds: its failure to consider Vans attainable lifestyle, its deference to Vans preferences for Olivias lifestyle, and its reliance on psychological evidence presented by Vans expert witness.



1. Attainable Lifestyle



Jessica argues that the court erred in failing to measure child support by the standard of living attainable by Vans income, as opposed to the relatively modest lifestyle that he has chosen to live. Citing to Cheriton, she argues that child support  should be evaluated based on the financial resources available to the payor parent, not whether he or she lives in a manner consistent with extravagance or with frugality.  (Cheriton, supra, 92 Cal.App.4th 269, 292, fn. 13, citing Johnson v. Superior Court, supra, 66 Cal.App.4th 68, 76.) We believe her reliance on Cheriton is misplaced.



In Cheriton, the fathers wealth had greatly increased after separation from the mother. By the time of trial, the father had received stock options valued at more than $45 million and had sold vested stock options for nearly $10 million. (Cheriton, supra, 92 Cal.App.4th 269, 280 & fn. 2.) Moreover, despite his significant increase in wealth, the father continued to live very modestly, maintaining a standard far below his means. (Id. at p. 292, fn. 13.) In setting the amount of child support in these circumstances, the court of appeal determined that the trial court had erred in assuming the childrens needs were defined by their historic expenses. (Id. at p. 293.)



In contrast, Vans income had not experienced a recent increase. And while he does maintain a relatively modest lifestyle, the record demonstrates that the court did consider Vans financial circumstances. The court found that the $4,000 award would allow Olivia to experience multiple luxury vacations, an extensive wardrobe, organic food, pets, a personal high-end computer, and high-quality items such as a bedroom set, play structure, and camping and sports equipment. The court concluded that the award was thus appropriate given that only a wealthy five-year-old child could afford the foregoing luxuries. Accordingly, we believe the court did not use Vans lifestyle to discount his considerable wealth or to minimize his support obligation.



2. Vans Preferences



With respect to Vans stated preferences, such as his desire to instill in Olivia the values of his middle-class upbringing, including learning the value of money and having to earn things, Jessica argues that no reasonable judge would place Vans frugal lifestyle values over the childs right to share her high-earner parents station in life. We disagree.



This argument is similar to the previous argument in that it is premised on the notion that a child must always be supported at the highest level attainable by the wealthy parent. The flaw in both of these arguments is that, taken to their logical extreme, they effectively write the high-earner exception out of the Family Code, as presumably the wealthier parent would always be able to afford to pay guideline support.[10] Indeed, based on Vans monthly income, we perceive that he would have no great difficulty in paying guideline support in this case. The lifestyle for Olivia that would be achieved with guideline support is thus attainable, yet the Legislature has seen fit to carve out an exception based on the premise that, in certain cases, high awards are not always in the childs best interests. We fail to see how a trial court can be faulted for properly implementing this legislative policy. Moreover, we do not agree that courts are foreclosed from considering the child-rearing values expressed by the noncustodial parent.



3. Psychological Evidence



Jessica also claims that the court erred in attempting to justify its award based on the expert testimony of Dr. Matthew Sullivan. She claims his testimony on the negative effects of wealth on children is improper evidence. She also claims that his testimony is inadmissible under Evidence Code section 801[11] and that the courts reliance on that testimony was reversible error.



The admissibility of expert testimony is a matter resting in the sound discretion of the trial court. (Schauf v. Southern Cal. Edison Co. (1966) 243 Cal.App.2d 450, 456.)



Jessica objected to the admission of Dr. Sullivans testimony at trial on the basis that he was not qualified to offer expert testimony. The trial court disagreed. The court also noted that it was not bound to accept any expert opinion and that if any hypothetical presented was not supported by the evidence the court would weigh the opinion of the expert accordingly.



We note that Jessica was given the opportunity to cross examine Dr. Sullivan. We also note that Jessicas own expert witness Margaret Lee offered rebuttal testimony regarding the effects of wealth on children.



Under the circumstances, we do not see any need to question the trial courts assessment or use of Dr. Sullivans testimony. The court was well equipped to evaluate the soundness of Dr. Sullivans opinions and determine their evidentiary weight. Jessica also had ample opportunity to challenge the factual bases of these opinions. We find no error.



D. Calculation of Jessicas Income



Jessica claims the court abused its discretion in failing to correct its finding that she had monthly wages and salary of $1,757, which, along with her self-employment income and spousal support resulted in a total income of $3,516. She claims the total income figure was excessively high, because she had erroneously doubled her gross income when she filled out her income and expense form. She claims the court refused to correct the finding after the error was brought to its attention.



Van concedes that the error, if any, was not corrected but concludes that Jessica was not prejudiced thereby. When this issue was raised with the trial court, Van argued that even if the income figure was wrong, the error was harmless because there was a corresponding error in computing his wage and salary income. Jessica appears to agree that Vans income was also overstated, and concedes that the error would be harmless if this were strictly a guideline-support case because the errors would offset. However, she claims that the error was prejudicial because the court was necessarily taking into account Jessicas resources in determining how much child support was needed from Van to support Olivia, while leaving sufficient funds for Jessica to appropriately support herself and her other children.



We are not persuaded that the court took Jessicas income into account for any purpose other than to determine the guideline support figure. The courts statement of decision states: For purposes of determining guideline support, JESSICAs income is reasonably determined at $3,516 a month. (Italics added.) In reviewing the balance of the courts decision, we find no indication that it factored Jessicas income into the support award itself. In fact, it noted that Jessica admitted she had only worked from zero to 20 hours per week since she had filed the motion for increased support in 2003. Thus, we find no indication that anything less than 100 percent of Olivias needs were taken into account in computing the $4,000 monthly payment. In other words, we see no evidence that the court used any of Jessicas income to offset the amount Van is required to pay to meet all of Olivias needs during the time she is residing with Jessica.



Finally, to the extent the court considered the needs of Jessicas other children, we note that the court observed that she was not entitled to any special hardship deduction because she has the ability to seek an increase in child support from her former husband . . . . In sum, we agree with Van that Jessicas erroneous income estimates did not have an effect on the award in this case. Accordingly, Jessica suffered no prejudice as it does not appear that the court would have reached a different result even if the court adopted Jessicas revised income figures.



E. Courts Failure to Cite McGinley v. Herman (1996) 50 Cal.App.4th 936 (McGinley)



Jessica claims the award must be reversed because the court failed to comply with McGinley because it did not calculate threshold high-earner support. She claims that McGinley requires trial courts to determine the level at which the payors income becomes extraordinarily high and perform a guideline-support calculation using that figure in order to set the floor for a below-guideline-support order.



We have reviewed McGinley and believe that the passages cited to by Jessica are not intended to set a blanket requirement for trial courts. The courts statements were limited to the facts of that case, and while the opinion may provide guidance to trial courts operating under similar factual circumstances, we do not believe that the opinion creates any specific requirements that trial courts are mandated to follow in all cases.



IV. Attorney Fees



Jessica claims the court erred in failing to award $165,000 in attorney fees without identifying which fees were unreasonably incurred. Jessica had already received advances from Van for about $90,000 in fees and $60,000 in expert witness fees and other costs. She also had previously been awarded $100,000 in fees and costs in connection with an earlier trial regarding visitation. After hearing the parties arguments, the court awarded Jessica an additional $7,779 for expert witness fees.



Section 7640 provides, in relevant part: The court may order reasonable fees of counsel, experts, . . . to be paid by the parties . . . in proportions and at times determined by the court. (Italics added.) [S]ection 7640 gives the trial court discretion to award attorney fees for proceedings on the issues of custody, visitation, and support that occur after paternity has been established and/or after judgment. (Robert J. v. Catherine D. (2005) 134 Cal.App.4th 1392, 1395.)



[T]he statutory scheme, by allowing the trial court the discretion whether to order fees and by allowing only reasonable attorneys fees, allows a parent to argue, and the trial court to find, that fees should not be awarded in a particular case if the attorneys services were not for the benefit of the child. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 452.) And finally, while a needs-based award is not a sanction as would be an award under section 271,[12] the trial court may still consider the opposing partys litigation tactics and whether a party has caused unnecessary legal work in determining whether to award fees. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167168.)



The trial courts order denying additional attorney fees found that Jessica had incurred unreasonable attorney fees by over-litigating this matter. The court also noted that Jessica had unreasonably refused to stipulate to certain facts and had made excessive use of expert witness trial preparation and testimony. Significantly, the court found that much of the excessive litigation was a thinly-veiled attempt to seek spousal support . . . couched as a request for increased child support. The court also found Jessicas resources to be sufficient to pay any reasonable amount of attorney fees incurred over the amount advanced by Van.



Jessica admits that some of her litigation expenses may have been unwisely incurred. She argues that the courts refusal to make specific findings as to which fees were unreasonable deprives her of meaningful appellate review and requires reversal. She also claims that expecting her to bear the entire outstanding $165,000 in fees and costs out of her homes equity and potential employment income is impossible to justify given Vans substantial assets and $1.9 million in annual income.



We find no basis in this record upon which to say that the fee award made to Jessica was unreasonable, or that no judge could reasonably have made it. Jessica did receive approximately $150,000 from Van towards her attorney fees and costs in this matter. The trial court made the requisite findings and its order is supported by substantial evidence. Jessica having failed to show an abuse of discretion, we will not substitute our own judgment for that of the trial court.



DISPOSITION



The orders are affirmed.




__________________________________



Swager, J.



We concur:



__________________________________



Marchiano, P. J.



__________________________________



Margulies, J.



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Grinberg v. Phillips, A112560 & A113771







[1] Another appeal (A111817) was dismissed by this court pursuant to the parties stipulation.



[2] We use the first names of the parties for the sake of clarity.



[3] All subsequent statutory references are to the Family Code unless specified otherwise.



[4] The explanation offered by Van is that Olivia already has plenty of books and currently is not very interested in toys.



[5] We note that Van testified at trial that if his food budget were deemed deficient he was not opposed to increasing the amount by $100 or $200 per month.



[6] In her closing trial brief, Jessica stated that Olivias needs could be met at $14,689 per month.



[7] Jessica set forth the following in her closing trial brief: healthcare costs at $317, childcare costs at $138.50, and education costs at $1,265.



[8] Citing In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 552.



[9] While the circumstances regarding the father of her other three children are not strictly relevant to the determination of this matter, Jessica was apparently able to meet their needs with the $2,500 per month that he provided in child support.



[10] A leading practice guide observes: Arguably, the process of determining that formula support yielded by extraordinarily high income exceeds the childs needs can be viewed as circular: Since a childs need for support is supposed to be measured by the parents standard of living . . . , it is unclear how courts should determine that formula support in an extraordinarily high income case in fact exceeds a childs needs. However, case law confirms that the current guideline does not change prior law under which the support order, though bound to reflect the parents standard of living, must be suitable to the childs circumstances. [Citations.] (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) 6:259c, p. 6115, italics omitted.)



[11] Evidence Code section 801 provides: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:



(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and



(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.



[12] Section 271, subdivision (a) provides in part: Notwithstanding any other provision of this code, the court may base an award of attorneys fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorneys fees and costs pursuant to this section is in the nature of a sanction.

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