In re Marriage of Fry



















Filed 4/11/13 In re Marriage of Fry CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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In re the Marriage of WILLIAM R. FRY and LAURIE E. FRY.	H037328 (Santa Clara County Super. Ct. No. FL116319)
WILLIAM R. FRY, Appellant, v. LAURIE E. FRY, Respondent.

I. INTRODUCTION

In this marital dissolution action,
appellant William R. Fry (Randy) challenges the trial court’s July 18,
2011 order directing
him to pay temporary spousal support arrearages to respondent Laurie E. Fry
(Laurie)href="#_ftn1" name="_ftnref1" title="">[1]
for the period of 2004 through 2008.
Randy contends that the trial court erred in (1) awarding temporary
spousal support in an amount that exceeds Laurie’s needs; (2) ordering that
interest on the award of temporary spousal support run from December
31, 2008; and (3)
awarding Laurie sanctions in the amount of $5,000 under Family Code section
271.href="#_ftn2" name="_ftnref2" title="">[2] For the reasons stated below, we conclude
that the trial court did not abuse its discretion and therefore we will affirm
the order.

II. FACTUAL AND PROCEDURAL BACKGROUND

Randy and Laurie were married in
1985 and had three children.href="#_ftn3"
name="_ftnref3" title="">[3] In 2003 the parties separated and Randy filed
a petition for dissolution of marriage. A status-only judgment of dissolution was
entered in May 2005, followed by a
January 2010 judgment of dissolution on reserved issues.

A. Laurie’s
Motion for Support

Laurie filed a motion for guideline
child support and spousal support and attorney’s fees on December
20, 2004. Only two children were minors at that
time. Laurie sought a support award
retroactive to the filing date for the petition for dissolution of marriage
that was “based upon all aspects of [Randy’s] income, including all perquisites
of his employment and his separate property . . . .” She also sought “consideration of the
disparities in the parties’ current lifestyles so that she and the minor
children can share [Randy’s] standard of living.” Laurie filed an amended motion on January
26, 2005, that made
the same support request.

B. Evidentiary
Hearing On Support Issues

On June 14, 2006, Laurie filed a trial brief regarding her
request for temporary child and spousal support. She asserted that Randy, the president of the
retail chain Fry’s Electronics, Inc. (Fry’s) and his two brothers “have
complete control and the management of vast wealth, as well as of the money
they choose to disburse as their income.”
In addition, according to Laurie, “the Fry brothers have acquired
assets, which include but are not limited to, the real estate and buildings
from which the Fry’s Electronics stores operate, a sheep ranch in New Zealand, a
fleet of aircraft that they enjoy for their personal pleasure, an island in the
Bahamas, a tract of land in Morgan Hill which they developed as a private golf
course with single family homes available for personal or business use, a
sports team franchise, a bank in Utah, and a company in the Cayman [I]slands.”

In her trial brief, Laurie described
herself as a homemaker who lacked both a college education and marketable
skills, and who had not worked outside the home since 1985 except as a
part-time school aid. During the
marriage, she “devoted herself to the rearing of the parties’ children” and to
maintaining their home. Laurie further
asserted that her standard of living had been severely reduced since the
parties separated. She claimed that she
was unable to provide their children with the lifestyle they had during the
marriage and that their father currently enjoyed. She therefore requested temporary child and
spousal support based on consideration of Randy’s assets as well as his
earnings.

A four-day evidentiary hearing on
Laurie’s motion for temporary child and spousal support was held on June 16,
2006; December
15, 2006; November
9, 2007; and November
30, 2007. In addition to the parties, the witnesses
included the parties’ accounting experts, Sally White and David Blumenthal, and
John Fry, the chief executive officer of Fry’s.

After the conclusion of the hearing,
the parties submitted written closing arguments and proposed statements of
decision. In his closing argument, Randy
stated that the parties had agreed that any order for temporary spousal support
would be retroactive to June 15, 2004.
However, Randy argued that an award of guideline temporary spousal
support was inappropriate because it would exceed Laurie’s needs, which the
evidence showed could not exceed $25,000 per month. Laurie responded in her closing argument that
she should receive a guideline award of temporary spousal support based on
imputing reasonable compensation to Randy as the president of Fry’s.

On July 3, 2008, the trial court issued a proposed statement
of decision, followed by the parties’ submission of objections and further
briefing. In his further briefing, Randy
argued that if the trial court decided that Laurie was entitled to temporary
spousal support, the court should calculate the award for 2006 and 2007 on the
basis of the parties’ 2005 income, because using the parties’ income in 2006
and 2007 would result in an award that exceeded the pre-separation marital
living standard. He also argued that the
distributions that Laurie received as a shareholder in the limited partnership
holding Fry’s stock, known as “the Taw,” should be treated as income for
purposes of calculating support.

C. Statement
of Decision

On December 5, 2008, the trial court issued its 25-page
statement of decision and order on temporary child support and spousal
support. Only that portion of the
statement of decision and order concerning temporary spousal support is at
issue in the present appeal.

The trial court made several findings
and rulings with respect to temporary spousal support in the statement of
decision, as follows: (1) Randy had paid
Laurie $12,000 per month in “non-characterized support” from June 15, 2004, to
the time of the evidentiary hearing; (2) Laurie had not provided adequate
support for her claim that reasonable compensation should be imputed to Randy;
(3) Laurie had failed to prove that Randy suppressed his income in order to
reduce his support obligations; (4) the court would apply Randy’s actual salary
and employment income in calculating support; (5) income would be added to
Randy’s actual salary to account for his personal use of corporate aircraft,
based on the computation offered by Randy’s accounting expert, David
Blumenthal; (6) Randy was not entitled to an offset for payment of joint taxes
in 2004, since that was a reimbursement issue to be decided with other issues
reserved for trial; (7) temporary spousal support would not be reduced due
to Laurie’s use of the marital residence after separation, since that was also
a reimbursement issue to be decided with other reserved issues and it would be
inappropriate to impute additional income to Laurie for “non-employment-related
free housing”; (8) Laurie did not enjoy the standard of living that she had
before the parties’ separation; (9) Randy’s proposed cap of $22,000 per month
for temporary child and spousal support was rejected because the cap was based
on the family’s expenses for the atypical year of 2002 and failed to include
all expenses (including housing expenses, annual contributions to a retirement
plan, the lease value of a newer automobile for Laurie, country club fees,
vacation property rentals, and an adjustment for inflation); (10) temporary
spousal support for the years 2004 and 2005 would be based on Randy’s salary
and distributions from the Taw for those years and calculated under the
guidelines; (11) temporary spousal support for the years 2006, 2007, and 2008
would also be based on the guidelines, using the parties’ 2005 income
distributions from the partnership known as the Taw since the post-separation
Taw distributions were much greater than those parties had received during the
marriage; and (12) Laurie may use Randy’s proposed methodology for considering
inflation in computing guideline temporary spousal support.

In its statement of decision and
order, the trial court did not specify the amount of temporary spousal support
that Randy owed. Instead, the court
ordered the parties “to meet and confer within fifteen days of the date of this
statement of decision and order to compute the temporary child and spousal
support due through December 2008, net of Randy’s earlier payments, consistent
with this statement of decision and order.
In accordance with the evidence and the Court’s understanding of the
proper tax treatment of spousal support, the amounts of guideline spousal
support must be computed on a non-taxable basis through December 31, 2007. The guideline spousal support for 2008 shall
be computed on a taxable basis. Randy is
then ordered to make any net payment by December 31, 2008. The parties are also ordered to compute the
monthly temporary spousal support that will be due beginning January 1, 2009,
consistent with this statement of decision and order.”

The statement of decision and order
further stated that the parties and their experts had “agreed on the inputs to
be used in computing guideline child and spousal support, with the exception of
certain issues discussed in this statement of decision. Based on the Court’s resolution of those
disputed issues, the parties and their experts should therefore agree on the
resulting computations. The Court
reserves jurisdiction to resolve any remaining disputes over the computed
amounts of temporary child and spousal support, consistent with this statement
of decision and order. To the extent
there is any dispute, payment shall still be made by December 31, 2008 for all
support periods, with the support computed based on the common undisputed inputs
(in other words, excluding only the incremental impact of the dispute). Of course, the Court also reserves
jurisdiction under Family Code section 271 and other appropriate sections to
award sanctions for any failure to cooperate in meeting and conferring in
accordance with this statement of decision and order.” (Fn. omitted.)

D. Fry I

On February 3, 2009, Randy filed a
notice of appeal from the December 5, 2008 statement of decision and order
regarding temporary child and spousal support, which he stated was appealable
as a judgment. On March 3, 2010, this
court denied the parties’ request to file a “Stipulation re facts to be
utilized in connection with the appeal.”
We subsequently dismissed the appeal because the December 5, 2008
statement of decision and order is not an appealable order. (Fry I,
supra, H033828.)

E. Laurie’s
First Motion to Quantify Arrearages

In June 2009, while Randy’s
appeal in Fry I was pending, Laurie
filed her first motion to “Quantify Arrearages.” She sought an order specifying the amount of
temporary child and spousal support that Randy owed under the December 5, 2008
statement of decision and order, stating that Randy had refused to make the
calculation on the ground that his appeal stayed all trial court proceedings.

In her
motion, Laurie argued that the trial court sitting in equity had jurisdiction
to enter an order quantifying the amounts of temporary child and spousal
support owed by Randy under the prior statement of decision and order. She advised the court that she was willing to
agree to the calculation of guideline temporary support performed by Randy’s
accounting expert on either a taxable or nontaxable basis. The exhibits to Laurie’s motion included a
letter from her accounting expert, Sally White, enclosing the schedules that
Randy’s expert had prepared to show the amounts (taxable and nontaxable) of
guideline temporary child and spousal support that he owed under the December
5, 2008 statement of decision and order.
Laurie’s attorney, Michael G. Ackerman, submitted a supporting
declaration in which he stated, among other things, that it was his “belief
that [Randy] refuses to quantify the amount of temporary child and spousal
support so as to avoid having to pay any interest on the monetary award during
the pendency of the appeal.”

In his points
and authorities in opposition to the motion to quantify arrearages, Randy
argued that the trial court lacked jurisdiction to enter the order requested by
Laurie because he had perfected his appeal of the December 5, 2008 statement of
decision and order. Responding to the
contention that he had filed the appeal to prevent interest from running on the
support award, Randy stated, “Absent a reversal on appeal, Randy assumes that
interest is in fact running from December 31, 2008. That is why, in compliance with [Code of
Civil Procedure section] 917.1, the bond posted was in the amount of 1.5 times
the undisputed sum. The extra 50%
provided for by statute is intended to cover anticipated interest.”>

A hearing on the motion to quantify
arrearages was held in June 2009. The
trial court did not rule on the motion, apparently accepting Randy’s contention
that the pending appeal deprived the court of jurisdiction.

F. Laurie’s
Second Motion to Quantify Arrearages

In March 2011 Laurie filed a second motion to
quantify arrearages owed by Randy for temporary child and spousal support. She asserted that the parties had previously
entered into a stipulation regarding the amount of guideline temporary child
and spousal support that was to be made the order of the court under the
December 5, 2008 statement of decision, which was the amount calculated by
Randy’s accountants, but Randy now refused to abide by the stipulation. In his supporting declaration, attorney
Ackerman stated that Randy’s accountants had calculated that he owed $873,186
in temporary child and spousal support arrearages under the December 5, 2008,
statement of decision. Ackerman also
stated that Randy’s attorneys had refused to agree that his accountants’ calculations
were correct. Laurie requested an order
that Randy pay temporary child and spousal support arrearages in the amount of
$873,186 plus interest at the rate of 10% per annum running from December 31,
2008, through the date of payment.

Laurie also requested an award of
monetary sanctions under section 271 on the ground that Randy had “refused to
cooperate in reaching a computation of the agreed amount of temporary child and
spousal support,” which had forced her to file a second motion to quantify
arrearages and thereby incur additional attorney’s fees and costs.

In his opposition to the motion to
quantify arrearages, Randy stated, “[t]here is no dispute that utilizing the
court’s methodology as outlined in the December 5, 2008 court order for
determining temporary spousal and child support, results in calculations
showing that [he] owes [Laurie] $873,186.”
He requested “that the court enter said sum as its order effective the
date of the hearing on this motion. By
agreeing that the amount of temporary child and spousal support as calculated
in [Laurie’s] motion is correct, [Randy] does not waive his right to argue
later that the underlying methodology outlined in the December 5, 2008 order is
erroneous.”

However, Randy disagreed that
interest on the order for temporary child and spousal support should run from
December 31, 2008. He argued that
interest could not accrue until such time as a money judgment was entered and
denied that he had previously stipulated that interest would run from December
31, 2008. Randy also opposed Laurie’s
request for an award of monetary sanctions under section 271.

In reply, Laurie asserted that
Randy’s attorney had agreed in open court on June 26, 2009, that interest
would run on the order for temporary child and spousal support from December
31, 2008. She urged that Randy be
estopped from taking a different position.

G. Order
on Second Motion to Quantify Arrearages

The trial court entered its order on Laurie’s
second motion to quantify temporary child and spousal support arrearages on
July 18, 2011. In its order, the court
stated that the parties had agreed that (1) the amounts due under the December
5, 2008 statement of decision for the period of June 15, 2004, through December
31, 2008, was $571,136 for child support and $812,050 for temporary spousal
support; and (2) Randy had made payments totaling $510,000 during that
time. The court then ruled that Randy
owed “a net payment of $873,186 effective December 31, 2008, to be paid within
ninety days of this Order.” The order
did not allocate a specific amount to either child support or temporary spousal
support.

Regarding the issue of when interest
should begin to run on the support award, the trial court found that Randy’s
position was “frivolous” and he was “bound by his attorneys’ earlier, multiple
representations and stipulations.” The
court therefore ordered that “[i]nterest will run at the legal rate of 10% from
December 31, 2008.”

As to Laurie’s request for sanctions
under section 271, the trial court found that sanctions were appropriate because
Laurie’s second motion to quantify arrearages had been necessary due to Randy’s
attempts to avoid his own attorney’s prior stipulations about interest and the
support computations of his own accounting experts. Finding that Randy had the ability to pay,
the court awarded Laurie $5,000 in section 271 sanctions.

>III.
DISCUSSION

Randy filed
a timely notice of appeal from the July 18, 2011 order on Laurie’s second
motion to quantify temporary child and spousal support. On appeal, he challenges only that portion of
the support order awarding temporary spousal support. “[A]n order for temporary spousal support is
in the nature of a final judgment and so is directly appealable. [Citation.]”
(In re Marriage of Murray (2002)
101 Cal.App.4th 581, 595.)

We
understand Randy to generally contend that the trial court’s award of guideline
temporary spousal support should be reversed because the amount of the award
exceeds Laurie’s needs during the 2004-2008 period. He also challenges the court’s ruling that interest
on the award of temporary spousal support should run from December 31, 2008, and the award of $5,000 in sanctions
under section 271.

Before
addressing Randy’s contentions of trial court error, we will provide an
overview of temporary spousal support and the applicable standard of review.

A. Temporary
Spousal Support

An award of temporary spousal
support is authorized by section 3600, which provides in part: “During the pendency of any proceeding for
dissolution of marriage . . . the court may order (a) the husband or wife
to pay any amount that is necessary for the support of the wife or husband . .
. .”

“Generally,
temporary spousal support may be ordered in ‘any amount’ based on the party’s
need and the other party’s ability to pay.
[Citations.] ‘Whereas permanent
spousal support “provide[s] financial assistance . . .,” temporary spousal
support “is utilized to maintain the living conditions and standards of the
parties in as close to the status quo position as possible pending trial and the
division of their assets and obligations.”
[Citations.]’ [Citation.] The court is not restricted by any set of
statutory guidelines in fixing a temporary spousal support amount. [Citation.]”
(In re Marriage of Wittgrove
(2004) 120 Cal.App.4th 1317, 1327 (Wittgrove).)

Although no
explicit statutory standards govern the calculation of temporary spousal
support (Cheriton, >supra, 92 Cal.App.4th at p. 312) former
Santa Clara County Superior Court Local Family Rule 3B (now rule 3C) provided
the following guidelines during the relevant time period: “Temporary spousal or partner support is
generally computed by taking 40% of the net income of the payor, minus 50% of
the net income of the payee, adjusted for tax consequences. If there is child support, temporary spousal
or partner support is calculated on net income not allocated to child support
and/or child-related expenses. The
temporary spousal support calculations apply these assumptions.”

Additionally,
the Appendix to the Santa Clara County Superior Court Local Family Rules
includes “Discretionary Policy Statements” (capitalization omitted) that “will
apply to temporary and permanent orders, in the Court’s discretion.” Section A3 provides: “The Court will use the local spousal or
partner support formula at temporary spousal or partner support hearings except
in the following circumstances: [¶] a.
The application would be inequitable; or [¶] b. The demonstrated need for the
requested support is below the formula amount.
[¶] In the interest of avoiding
unnecessary litigation on this issue, the Expense Declaration of the payee will
not be viewed as determining or fixing need, but as indicating the level of
expenditure under the existing circumstances.”
Section A(2) provides: “In
determining the standard of living during marriage . . ., as provided in
current statutory and case law regarding the standard of living, the Court will
usually base its findings on the combined gross incomes of the parties at the
time of separation.”

B. Standard
of Review

The standard of review that
applies to an order for temporary spousal support is abuse of discretion. (Wittgrove,
supra, 120 Cal.App.4th at p.
1327.) “[I]n exercising its broad
discretion, the court may properly consider the ‘big picture’ concerning the
parties’ assets and income available for support in light of the marriage
standard of living. [Citation.] Subject only to the general ‘need’ and ‘the
ability to pay,’ the amount of a temporary spousal support award lies within
the court’s sound discretion, which will only be reversed on appeal on a
showing of clear abuse of discretion.
[Citation.]” (>Ibid.)

This court
has explained that “ ‘[t]he abuse of discretion standard is not a unified
standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial
court’s findings of fact are reviewed for substantial evidence, its conclusions
of law are reviewed de novo, and its application of the law to the facts is reversible
only if arbitrary and capricious.’
[Citation.]” (>In re Marriage of Walker (2012) 203
Cal.App.4th 137, 146.)

The burden
is on the appellant to establish an abuse of discretion. (In re
Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230 (Rothrock).) Where the
appellant contends that the trial court abused its discretion because the
court’s findings of fact are not supported by substantial evidence, “ ‘ “[o]ur
power begins and ends with a determination as to whether there is >any substantial evidence to support [the
findings]. . . . we have no power to judge of the effect or value of the
evidence, to weigh the evidence, to consider the href="http://www.mcmillanlaw.com/">credibility of the witnesses, or to
resolve conflicts in the evidence or in the reasonable inferences that may be
drawn therefrom.” [Citations.]’ [Citation.]”
(In re Marriage of Schnabel (1994)
30 Cal.App.4th 747, 752.)

In other
words, “the test is not the presence
or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial
evidence in favor of the respondent. If
this ‘substantial’ evidence is present, no matter how slight it may appear in
comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look
only at the evidence and reasonable inferences supporting the successful party,
and disregard the contrary showing.
[Citations.]” (>Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631 (Howard).)

C. Analysis

1. Award of Temporary Spousal Support

Randy insists
that the trial court erred in calculating temporary spousal support for the
period of 2004-2008 under the Santa Clara County Superior Court guidelines
because his evidence shows that the award greatly exceeds Laurie’s needs, which
should be capped at $25,000 per month.
According to Randy, “[t]he $22,000 cap was based upon the forensic
accounting evidence presented by Randy’s expert, Mr. Blumenthal, of the
expenses for the entire family of five for the year 2002. [Citation.]
The $25,000 cap was a ‘rounding up’ of that figure.” Randy also argues that the trial court erred
in rejecting the $25,000 cap since Blumenthal’s expert testimony on the
pre-separation marital standard of living was unrefuted.

Laurie
disagrees. She argues that the trial
court did not abuse its discretion in awarding temporary spousal support for
the 2004-2008 period based on the Santa Clara County Superior Court guidelines,
which the court adjusted downward for the years 2006-2008. She also contends that Randy has waived his
challenge to the trial court’s factual findings because he violated the rule
that a substantial evidence challenge must set forth all of the material
evidence on a point, not just the appellant’s evidence. Alternatively, Laurie contends that the trial
court’s rulings are supported by substantial evidence showing that 2002 was not
a typical year for the Fry family and the marital standard of living included a
number of expenses that Randy’s expert failed to consider.

>Use
of Guidelines

At the
outset, we will consider the trial court’s use of guidelines to calculate
temporary spousal support. Although
there are no statutory guidelines governing the calculation of temporary
spousal support (Cheriton, >supra, 92 Cal.App.4th at p. 312), the
trial court may properly use “local rules or guidelines that provide
‘standardized temporary spousal support schedules’ that mark appropriate awards
for spousal support based solely on the parties’ incomes with adjustments for
any child support.” (>Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
“[T]he use of such guidelines has been held to be a valuable tool in an
aid to calculating Montemporary support.
[Citation.] Further, even where
standardized local schedules have exceeded a party’s stated living expenses
because he or she has cut back or is living frugally, courts have held the use
of such guidelines for temporary spousal support proper to maintain the marital
lifestyle. [Citation.]” (Id.
at pp. 1327-1328, fn. omitted.)

Thus, it is
well established that “[t]he use of such guidelines ‘should be encouraged to
help lawyers and litigants predict more accurately what temporary support order
would be issued if the case proceeded to a contested hearing. . . .”
(In re Marriage of Winter (1992)
7 Cal.App.4th 1926, 1933.) Where,
however, there are “unusual facts or circumstances,” the court may
appropriately apply the guidelines “as modified by such facts or
circumstances.” (In re Marriage of Burlini (1983) 143 Cal.App.3d 65, 70 (>Burlini).)

Accordingly,
to the extent that Randy contends the trial court was precluded as a matter of
law from using the Santa Clara County Superior Court guidelines to calculate
temporary spousal support arrearages, we find no merit in that contention. We therefore turn to Randy’s chief
contention: that the trial court erred
in awarding guideline temporary spousal support because the amount exceeds
Laurie’s needs as reflected the marital standard of living.

>Marital
Standard of Living

This court
has determined that “the trial court’s exercise of its discretion regarding
retroactivity of temporary support must be guided by two overriding
concerns: the supported spouse’s need
and the supporting spouse’s ability to pay.
In short, ‘the trial court should tailor its award on the basis of the
equitable rights of the parties in light of their economic needs and abilities’
during the period for which a retroactive increase is sought. [Citation.]”
(Cheriton, >supra, 92 Cal.App.4th at
pp. 312-313.)

The
supported spouse’s need is the amount needed to to maintain the pre-separation
marital standard of living, since the purpose of temporary spousal support is
maintain the living conditions and standards of the parties as close to the
pre-separation status quo position as possible.
(Wittgrove, >supra, 120 Cal.App.4th at p. 1327>.)
Therefore, “[t]rial courts may properly look to the parties’ accustomed
marital lifestyle as the main basis for a temporary support order. [Citations.]”
(Ibid.)

In the
present case, the trial court awarded retroactive temporary spousal support for
the period of 2004-2008. The July 18,
2011 order provides that Randy owes “a
net payment of $873,186” for both child support and temporary spousal
support. The order did not allocate a
specific net amount to temporary spousal support.

Randy argues, however, that the
award of temporary spousal support constitutes a windfall to Laurie because the
award greatly exceeds the amount that was needed to maintain the pre-separation
marital standard of living. According to
Randy, the trial court was required to accept the unrefuted opinion of his
accounting expert, Blumenthal, that the amount necessary for Laurie to maintain
the marital standard of living was $25,000 per month (rounded up by Randy from
$22,000), based on the parties’ living expenses for the year 2002.

Randy further argues that the
temporary spousal support that Laurie needed to maintain the marital standard
of living should be calculated by adding together two amounts—monthly child
support and Laurie’s monthly income—and subtracting the total from
$25,000. Using this method of
calculating temporary spousal support, Randy argues that Laurie was entitled to
an award of monthly temporary spousal support as follows: In 2004, $965 per month; in 2005, $5,223 to
$5,589 per month; and in 2006-2008, none.

The trial court, in its December 5,
2008, statement of decision, declined to base the award of temporary spousal
support on Blumenthal’s opinion that the marital standard of living should be
capped at $25,000 per month, based on the family’s expenses for 2002. The court found that “[t]he calculation only
covers a single year, and there was evidence that the family’s activities in
that year were not necessarily typical of the years before separation. Randy’s expert [Blumenthal] conceded that he
could have expanded his computation to cover from two to five years, and that
he did not know whether the total would materially change.”

The trial court also found that the
pre-separation marital standard of living included several living expenses that
Blumenthal had not considered, including the use of the family residence; an
annual contribution to a retirement plan; the lease value of a newer automobile
for Laurie; fees to join a country club; and the rental value of vacation
properties. The court further found that
“the computation for 2002 is not adjusted for inflation for the years of
ordered support, from 2004 forward.”

Randy disputes the trial court’s
findings regarding the marital standard of living. He argues that the court improperly used a
guideline calculation that assumed that the supported party paid for housing,
although Laurie had no mortgage expense.
He also argues that contribution to a retirement plan does not
constitute a living expense; the cost of a car lease was properly excluded
because Laurie had two late-model vehicles; the replacement cost of a country
club membership does not constitute a living expense; and Laurie offered no
evidence of the rental cost of vacation properties or of “significant inflation
between 2002 and 2004.”

Laurie contends that it was within
the trial court’s discretion to reject Blumenthal’s computation regarding the
marital standard of living, for several reasons: the court could properly treat Laurie’s
post-separation, rent-free use of the family home as a reimbursement issue;
Blumenthal conceded in his testimony that he could have, but did not, include
the family’s annual contribution to a retirement plan in his computation;
Blumenthal also conceded that cars needed to be replaced over time, but he
failed to include the cost of vehicle lease or replacement in his computation;
although Laurie testified that she used a country club membership during the
marriage, Blumenthal did not include a country club membership in the marital
standard of living; and Laurie testified that the parties vacationed at ranches
in Texas and Martinez, but Blumenthal did not include the expense of vacation
rentals although he had considered vacation rentals in the past in computing
the marital standard of living.

As to inflation, Laurie argues that
the trial court also acted within its discretion when the court rejected
Blumenthal’s opinion that the year 2002 could be used to establish the marital
standard of living, since Blumenthal admitted in his testimony that he had not
made an adjustment for inflation during the years 2002-2007 although an
inflation adjustment could have resulted in a higher number.

>Abuse of Discretion

We determine that Randy has not met
his burden to show that the trial court abused its discretion in rejecting
Blumenthal’s opinions regarding the marital standard of living and awarding
retroactive temporary spousal support under the local guidelines, for two
reasons.

First, we are not convinced by
Randy’s argument that the trial court was required to accept the unrefuted
testimony of Blumenthal, his accounting expert, that the amount necessary for
Laurie to maintain the marital standard of living was $25,000 per month, based
on the parties’ living expenses for the year 2002. “[T]he fact the expert’s testimony was not
contradicted by other expert testimony does not make it conclusive on the trial
court or on us. [Citation.]” (In re
Marriage of Rosen (2002) 105 Cal.App.4th 808, 820.) “[T]he general rule [is] that ‘expert
testimony, like any other, may be rejected by the trier of fact, so long as the
rejection is not arbitrary.’
[Citation.] Thus, ‘[a]s a general
rule, “[p]rovided the trier of fact does not act arbitrarily, he may reject in
toto the testimony of a witness, even though the witness is
uncontradicted. [Citations.]” [Citation.]
This rule is applied equally to expert witnesses.’ [Citation.]
The exceptional principle requiring a fact finder to accept
uncontradicted expert testimony as conclusive applies only in
professional negligence cases where the standard of care must be established by
expert testimony.” (Howard, supra, 72 Cal.App.4th at p. 632; accord, >People ex rel. Brown v. Tri-Union Seafoods,
LLC (2009) 171 Cal.App.4th 1549, 1568 [same].)

The trial court’s rejection of Blumenthal’s
testimony regarding the marital standard of living was not arbitrary because
the court found that 2002 was not a typical year for the Fry family and
Blumenthal had failed to consider a number of pre-separation expenses in his
computation of the marital standard of living, despite the evidentiary support
for those expenses (the annual retirement plan contribution; the need to
replace cars; the use of a country club membership; and the use of vacation
properties).

Second, the trial court had the discretion
to use the local guidelines (Santa Clara County Superior Court Local
Family Rule 3B (now rule 3C)) to calculate retroactive temporary spousal
support. As we have discussed, the trial
court may properly use “local rules or guidelines that provide ‘standardized
temporary spousal support schedules’ that mark appropriate awards for spousal
support based solely on the parties’ incomes with adjustments for any child
support . . . .” (Wittgrove, supra, 120
Cal.App.4th at p. 1327.) Here, the trial
court properly modified the guideline support for the years 2006, 2007, and 2008 by using the parties’
2005 income distributions from the Taw due to the unusual circumstance that the
post-separation Taw distributions were much greater than those parties had
received during the marriage. (See Burlini,
supra, 143 Cal.App.3d at p. 70.)

In short, we determine that the
July 18, 2011 order awarding temporary spousal support to Laurie does not
constitute an abuse of discretion because the trial court used the local guidelines
to calculate the award “ ‘on the basis of the equitable rights of the parties
in light of their economic needs and abilities’ . . . .” (Cheriton,
supra, 92 Cal.App.4th at pp.
312-313.) We find no merit in Randy’s
contention that the trial court erred because the award of temporary spousal
support exceeds Laurie’s needs, as computed by his accounting expert, since
“[t]he showing on appeal is insufficient if it presents a state of facts that
affords only an opportunity for a difference of opinion. [Citation.]”
(Rothrock, >supra, 159 Cal.App.4th at p. 230.)

2. Section 4322

We understand Randy to argue
that the award of temporary spousal support for 2008 violates section 4322,
which provides: “In an original or
modification proceeding, where there are no children, and a party has or
acquires a separate estate, including income from employment, sufficient for
the party’s proper support, no support shall be ordered or continued against
the other party.” Randy reiterates his
argument that “there was no evidence to establish that Laurie had a need for
more than $25,000 per month to support herself at the pre-separation standard
of living.”

Laurie
contends that Randy waived the section 4322 issue by failing to object to the
proposed statement of decision on that ground.
She also notes that the trial court determined in its statement of
decision that it was unclear whether the distributions from the Taw constituted
income or a partial liquidation of capital.
Further, Laurie asserts that the trial court impliedly found in its
statement of decision that “Laurie’s estate remained insufficient in 2008 for
her proper support . . . .”

Section
4322 appears in division 9, part 3, chapter 2 of the Family Code, which governs
awards of permanent spousal support.
(See, e.g., In re Marriage of
Terry (2000) 80 Cal.App.4th 921.)
However, even assuming that section 4322 applies to an award of
temporary spousal support, as discussed ante
we have determined that the trial court did not abuse its discretion in
rejecting the testimony of Randy’s expert that Laurie needed no more than
$25,000 per month to maintain the marital standard of living. We therefore find no merit in Randy’s
contention that the trial court’s order violated section 4322.>

D. Interest
on the Temporary Spousal Support Award

Randy contends
that the trial court erred in its order that interest on the award of temporary
spousal support run from December 31, 2008, because interest on a money
judgment accrues only upon the date of entry of judgment, pursuant to Code of
Civil Procedures section 685.020.href="#_ftn4"
name="_ftnref4" title="">[4]
Randy also denies that he stipulated that
interest would run from December 31, 2008, asserting that he agreed only that
“interest would commence effective December 31, 2008 if the court’s December 5,
2008 order was ‘affirmed’ . . . .
Affirmance of the December 5, 2008 order on appeal was a condition of
the stipulation.”

Laurie asserts that Randy has
misstated the facts. She maintains that
when Randy took the position during the pendency of Fry I that the trial court lacked jurisdiction to issue an order
incorporating the parties’ support calculations, his attorney agreed that legal
interest would accrue on any temporary support arrearages as of December 31,
2008.

Our evaluation of Randy’s contention
is governed by the rules pertaining to stipulations. “ ‘A stipulation is “[a]n agreement between
opposing counsel . . . ordinarily entered into for the purpose of avoiding
delay, trouble, or expense in the conduct of the action,” [citation] and serves
“to obviate need for proof or to narrow [the] range of litigable issues”
[citation.]’ [Citation.]” (Mileikowsky
v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279, overrulled on
another point in Mileikowsky v. West
Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273.) Where the stipulation consisted of a “a
colloquy on the record between the court and two counsel,” the standard of
review that applies to the trial court’s construction of the parties’ agreement
is substantial evidence. (>Winograd v. American Broadcasting Co. (1998)
68 Cal.App.4th 624, 632-633 (Winograd).)

In the July 18, 2011 order, the
trial court made the following findings regarding the interest
stipulation: “Randy’s position is
frivolous. The stipulation’s condition
on the support being affirmed on appeal would obviously be satisfied whenever
the support is affirmed on appeal. If
the award of support is reversed, interest obviously would not be due. The stipulation was not conditioned on the
specific pending appeal [Fry I] of
the Statement of Decision. In fact, in
his June 15, 2009 memorandum opposing Laurie’s original motion to quantify
arrearages . . . Randy stated: ‘Absent
a reversal on appeal, Randy assumes that interest is in fact running from
December 31, 2008’ (emphasis added).
Randy agreed to pay interest in direct response to Laurie’s concern that
the Statement of Decision did not state specific amounts of support, and that
Randy was avoiding stipulating to the amounts to avoid interest. [¶]
Randy is therefore bound by his attorneys’ earlier, multiple
representations and stipulations.
Moreover, at the oral argument on this motion on April 19, 2011, Randy’s
attorney agreed that Randy could have, legally, stipulated to pay interest as
of December 31, 2008. Interest will run
at the legal rate of 10% from December 31, 2008.”

Having reviewed the record with
respect to the parties’ interest stipulation, we find that the trial court’s
construction of the stipulation is supported by substantial evidence. The December 5, 2008 statement of decision
and order directed Randy to pay the net amount of temporary spousal support
arrearages that the parties’ experts had calculated that he owed under the
guidelines by December 31, 2008. In his
opposition to Laurie’s first motion to quantify arrearages, Randy stated: “Absent a reversal on appeal, Randy
assumes that interest is in fact running from December 31, 2008. That is why, in compliance with [Code of
Civil Procedure section] 917.1, the bond posted [in Fry I] was in the amount of 1.5 times the undisputed sum. The extra 50% provided for by statute is
intended to cover anticipated interest.”
Then, during the June 26, 2009 hearing on the motion, the following
colloquy occurred:

“THE
COURT: . . . Are you stipulating now that interest on
whatever amount is finally determined under the order, if it’s affirmed,
interest runs from December 31, 2008, at 10 percent?

“[RANDY’S
COUNSEL]: Yes, I believe that is
correct. And I believe that’s what their
cases stand for, your Honor.

“THE
COURT: So even though there’s no
stipulated amount you’ll agree whatever the amount is later runs from December
31st, 2008?

“[RANDY’S
COUNSEL]: Yes, your Honor.”

On this
record of “ ‘the objective manifestations of agreement or expressions of intent’
of the parties” (Winograd, >supra, 68 Cal.App.4th at p. 636), we
determine that substantial evidence supports the trial court’s construction of
the interest stipulation: Randy agreed
that interest on the award of temporary spousal support arrearages would run
from December 31, 2008. We therefore
find no merit in Randy’s contention that the stipulation should be construed
differently.

E. Section
271 Sanctions

Finally, Randy contends that the trial court abused its discretion in
awarding Laurie sanctions of $5,000 under section 271.href="#_ftn5" name="_ftnref5" title="">[5]

Section 271 advances the policy of the law
“ ‘to promote settlement and to encourage cooperation which will reduce
the cost of litigation.’ ” (In
re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) Thus, “[f]amily law litigants who flout that
policy by engaging in conduct that increases litigation costs are subject to
the imposition of attorneys’ fees and costs as a sanction. [Citations.]”
(Ibid.; see also In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 827 (Falcone).)

The standard of review for an
order imposing sanctions under section 271 is abuse of discretion. (In re
Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) “ ‘ “ ‘[T]he trial court's
order will be overturned only if, considering all the evidence viewed most
favorably in support of its order, no judge could reasonably make the
order.’ ” ’ [Citation.] ‘In
reviewing such an award, we must indulge all reasonable inferences to uphold
the court’s order.’ [Citation.]” (Ibid.)

In the July
18, 2011 order, the trial court stated that sanctions under section 271
were “appropriate, because Randy and his attorneys have frustrated 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. This disputed motion
[Laurie’s second motion to quantify arrearages] was unnecessary. Laurie sought to specify the amount of
temporary child and spousal support by accepting the computations of Randy’s
expert, and the amounts stated above were included in the stipulation that the
parties submitted to the Court of Appeal. . . .
Randy’s arguments in attempting to avoid his own attorney’s multiple
stipulations about interest are frivolous.”

Randy
maintains that the trial court erred because he was not uncooperative and in
good faith took the legally correct position that interest could not accrue
until a money judgment was entered.
Laurie, on the other hand, argues that Randy’s conduct in taking a
position contrary to his earlier stipulation that interest would run on the
temporary spousal support award from December 31, 2008, constituted conduct
that frustrated settlement and increased the cost of litigation, and therefore
the trial court did not abuse its discretion in awarding sanctions under
section 271.

We find
that the evidence supports the trial court’s findings that Randy refused to
agree that his own expert’s calculations of guideline temporary support under
the December 5, 2008 statement of decision were correct, which necessitated
Laurie’s second motion to quantify arrearages.
And, as discussed ante, the
evidence also shows that Randy denied that he had previously stipulated that
interest on the award of temporary spousal support would run from December 31,
2008. Since it may be inferred from this
evidence that Randy failed to cooperate and engaged in conduct that increased
the cost of litigation (Falcone, supra, 164 Cal.App.4th at p. 827),
we conclude that the trial court did not abuse its discretion in awarding
sanctions of $5,000 under section 271.

>IV.
DISPOSITION

The July
18, 2011 order is affirmed. Costs on
appeal are awarded to respondent Laurie E. Fry.





___________________________________________

Bamattre-Manoukian, J.











WE CONCUR:









__________________________

ELIA, ACTING P.J.















__________________________

Márquez,
J.