Lewis v. Lewis
Filed 6/25/12 Lewis v. Lewis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
RICHARD B. LEWIS,
Petitioner and Appellant,
v.
MARY LEWIS,
Respondent
and Respondent.
2d Civil No.
B236017
(Super. Ct.
No. SD038828)
(Ventura
County)
Richard
B. Lewis (husband) appeals from the trial court's order awarding temporary
spousal and child support to Mary Lewis (wife).
We affirm.
The
parties were married in 1991. They have
an adult son and a minor son born in 2000.
The parties separated in November 2009.
On January 14, 2010,
husband served wife with a petition to dissolve the marriage. On January
27, 2010, wife filed a response.
In her response, wife requested spousal and child support.
Husband
was employed as a corporate vice-president.
In 2007 the corporation went public, and husband exercised his stock
options. He "netted" $2.6
million after taxes. In September 2008
husband resigned from the corporation.
Since his resignation, husband has been unemployed. In 2011 husband was 53 years old.
On
February 1, 2011, wife filed
an order to show cause requesting temporary
spousal and child support. Wife was
51 years old and unemployed. Wife
declared that, before husband's resignation from the corporation, "[h]e
was earning income in the range of $225,000-$250,000 per year." Husband informed wife that after his
resignation "he was offered a job, but didn't take it because he didn't
want to pay [her] spousal support."
Wife requested that the court "impute an income to [husband], based
either on his historical earnings during the marriage or on the vocational
evaluation to be performed by [wife's expert,] John Meyer. According to wife, husband had "paid no
child or spousal support since the date of separation." Husband did not object to the court's
consideration of this declaration.
In
March 2011 husband filed an Income and Expense Declaration. The declaration showed average monthly income
of $1,053 and average monthly expenses of $6,725. Husband estimated that the fair market value
of the parties' community property was $2,148,819.49.
On
June 3, 2011, wife filed an
Income and Expense Declaration showing average monthly income of $700 and
average monthly expenses of $7,419. Cash and deposit accounts
totaled $75,000. She had no other liquid
assets.
husband deposited between $600 and $700 into a joint account. She had "been living on" this
monthly deposit and funds in another account that was "divided equally
between [the parties], $194,355.36 each."
In January 2011 the funds in this account had dwindled to about
$100,000. Based on wife's June 2011
Income and Expense Declaration, at that time the $100,000 had decreased to
$75,000.
On
the same date that wife filed her June 2011 Income and Expense Declaration, the
trial court conducted a live witness evidentiary
hearing. Wife testified that she did
not have a college degree. Her last full
time job was in 1995, when she earned $12.00 per hour. For the past two years, she has been in
therapy for depression. Wife asserted
that she was emotionally "unhinged" and "incapable of
interacting with the public."
Husband had the opportunity to, but did not, cross-examine wife
concerning his turning down employment to avoid a support order.
Wife's
vocational expert witness, John Meyers, opined that wife "doesn't have any
earning ability at this point." His
opinion was based on her depressive disorder, age, limited education, and lack
of work experience and marketable skills.
He also took into account "the current job market." On the other hand, Meyers opined that husband
has an annual earning capacity of $150,000 to $160,000 and would be able find
work within 34 weeks. Husband has a
college degree in economics and years of experience as a corporate
executive. From 2001 until his
resignation in 2008, his annual earnings were at least $157,000.
Husband's
vocational expert witness, Howard Goldfarb, opined that wife is employable and
has an annual earning capacity of up to $31,000. It would take up to 34 weeks for her to find
employment. Goldfarb agreed with Meyers
that husband "does possess skills [so] that he can secure employment at a
skilled level," and that he would be "able to secure employment
within 34 weeks."
Husband
testified that he had "just started" looking for employment. (RT 109,
lines 5-7) He admitted that, when he was
served with wife's response to his petition for dissolution, he was put on
notice that she was requesting spousal and child support. (RT 123)
In
July 2011 the trial court filed its findings and orders. The court imputed to husband an annual income
of $130,000. The court found that
husband "has the ability and opportunity to work and earn $130,000 per year,"
while wife "can work and earn minimum wage when she gains control over her
depression and obtains remedial training which is expected to take six (6)
months." The court ordered husband
to pay monthly child support of $732 retroactively from February 1 until December 1, 2011, when it will be
reduced to $430. Husband was ordered to
pay monthly spousal support of $2,988 retroactively from February 1 until December 1, 2011, when it will be
reduced to $2,756. Starting on December 1, 2011, the court imputed
to wife earnings at the minimum wage.
The trial court denied husband's motion for reconsideration and to set
aside the orders.
review temporary spousal and child support awards under an abuse of discretion
standard. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317,
1327.) A court abuses its discretion
when its ruling exceeds the bounds of reason.
(Estate of Gilkison (1998.) 65 Cal.App.4th 1443, 1449.) " ' "[W]e must consider the
evidence in the light most favorable to the prevailing party and take into
account every reasonable inference supporting the trial court's decision."
' [Citation.] The court's findings based on conflicting
evidence are conclusive on appeal.
[Citation.]"
& Bunshoft (1999) 69 Cal.App.4th 223, 230.) The order appealed from "is presumed to
be correct . . . , and all intendments and presumptions are indulged in favor
of its correctness.
[Citations.]" (
Cal.3d 1130, 1133.)
The
purpose of temporary spousal support is " ' "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.]" (In re
Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 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.]" (In re
Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) "The court is not restricted by any set
of statutory guidelines in fixing a temporary spousal support amount. [Citation.]" (
Husband
contends that "there was no basis for temporary spousal support because
the marital status quo was both parties living off the community
assets." (Bold and capitalization
omitted.) The contention is without
merit. Husband ignores the years through
2008 when his annual earnings exceeded $200,000. (See fn. 1, ante.) The trial court could
properly consider these years of high earnings in ascertaining wife's marital
status quo position.
Furthermore,
the marital status quo was both parties living together in a single
household. Wife noted that, when husband
resigned, the parties "were not contemplating that we would be splitting
our financial assets to support two separate households." The cost of supporting two households was
greater than the cost of supporting a single household. Wife's living expenses were more than
husband's because she rented an apartment, while husband continued to live in
the mortgage-free family residence. Wife
declared: "My home is a two-bedroom apartment . . . for
which I had to advance a year's rent out of my assets
due to being unable to show an income . . . .
[Husband] resides, mortgage free, . . . in our . . . home in Simi
Valley. He may be living substantially the same lifestyle as when we were
married, but I, certainly am not."
" 'It has long been the rule in this state that a
parent's earning capacity may be considered in determining spousal and child
support. [Citations.]' [Citation.]
'[F]or purposes of determining support, "earning capacity"
represents the income the spouse is reasonably capable of earning based upon
the spouse's age, health, education, marketable skills, employment history, and
the availability of employment opportunities.'
[Citation.]" (
Cal.App.4th 269, 301.) "By express
statutory provision, trial courts have discretion to impute income to a parent
based on earning capacity. ([Family
Code] § 4058, subd. (b).)[
name="_ftnref3" title="">[3]] Case law also recognizes that
discretion. [Citations.] . . . [¶] But no authority permits a
court to impute earning capacity to a parent unless doing so is in the best
interest of the children. By explicit
statutory direction, the court's determination of earning capacity must be
'consistent with the best interest of the children.' (§ 4058, subd. (b) . . . .)" (
Husband
contends that the trial court abused its discretion in imputing income to him
based on his earning capacity because it "completely failed to consider
whether its orders were in the best interest of the minor child." But
husband has not cited any authority requiring the court to expressly consider
this issue. We presume that the court
impliedly found that the imputation of income to husband would be in the
child's best interest. (See
Cal.App.4th 229, 267 [where, as here, there is no statement of decision,
"the necessary findings of ultimate facts will be implied"].)
concluded that imputing income to husband would benefit the minor child because
it would effectively increase the child's overall monetary support. (Cf. In
re Marriage of Cheriton, supra,
92 Cal.App.4th at pp. 301-302 ["We
it difficult to imagine how the children's interests are served by [imputing
income to mother], since the imputation . . . effectively reduces overall monetary support for the children" (italics
added)].)
Husband
faults the court for failing to take into account that he was the "primary
custodial parent." But the
evidence does not support husband's assertion that the minor child was
primarily in his physical custody. Wife
declared that in September 2010 the parties had "filed a
custody of our [minor] son, . . . which provides for joint
equally shared custodial time." She
further declared that since September 2010 she has "exercised equal
custodial time with [the minor child]."
Husband declared: "While it was and continues to be my position
that it is in [the minor child's] best interest to be primarily in my physical
custody, at the Mandatory Settlement Conference in September 2010, I agreed to
a temporary 50% custody schedule, conditional on a full custody evaluation
being conducted."
Retroactive Support
"[A] temporary spousal support award can be made
retroactively, at least to the date of the order to show cause requesting
spousal support. [Citations.]" (In re
Marriage of MacManus (2010) 182 Cal.App.4th 330, 337.) Husband contends that the trial court abused
its discretion in awarding spousal and child support retroactively to February
1, 2011, the date of the order to show cause.
Since the vocational experts opined that he would be able to find
employment within 34 weeks, husband argues that the court should have allowed
him 34 weeks to find a job before imputing income to him.
The
court's ruling did not exceed the bounds of reason. (Estate
of Gilkison supra, 65 Cal.App.4th at p.1449.) The court found that on January 27, 2010, when wife filed a
response to husband's petition for dissolution, husband was put on notice that
wife was seeking spousal and child support.
The court could have reasonably concluded that husband should have
started looking for work no later than February 2010 and, had he done so, would
have been employed one year later when the order to show cause was issued. Meyers, wife's vocational expert, opined that
if husband had started looking for work 34 weeks before the June 2011 hearing
on the order to show cause, he would have been employed by the time of the
hearing. But husband made no effort to
look for work until just before the June 2011 hearing.
Based on wife's declaration,
the trial court implicitly and reasonably concluded that husband had elected
not to work to avoid payment of spousal support. Husband told wife that after his
resignation "he was offered a job, but didn't take it because he didn't want to
pay [her] spousal support." Husband's
declaration was to the contrary: "Since retiring in 2008, . . . I have not
been offered a job or turned down a job offer." We presume that the trial court found in wife's favor on
this disputed factual issue. (
Wiz Technology, Inc. (1999) 69 Cal.App.4th 1399, 1403.) " '[T]he trial court's resolution of any
factual disputes arising from the evidence is conclusive. [Citations.]'
[Citation.]" (
Hardship Deduction
"Circumstances
evidencing hardship include . . . [e]xtraordinary health expenses for which the
parent is financially responsible . . . ."
(§ 4071, subd. (a)(1).)
Husband contends that the trial court erroneously awarded wife a $787
hardship deduction for healthcare costs not paid by insurance. Husband argues that the evidence is
insufficient to support the hardship deduction. He also argues that the trial court erred in
not making findings under section 4072, which required it to (1) "[s]tate
the reasons supporting the deduction in writing or on the record," (2)
"[d]ocument the amount of the deduction and the underlying facts and
circumstances," and (3) "[w]henever possible, . . . specify the
duration of the deduction." (
The
court stated its reasons supporting the deduction and documented the amount of
the deduction. When husband's counsel
argued that "[n]ot one peace [sic]
of evidence was submitted in this court on that hardship deduction," the
court replied, "It's on [wife's June 2011] Income and Expense
Declaration." The declaration asked
the court to consider as a hardship "[e]xtraordinary health expenses"
of $787 per month. This amount included
$542 per month for
therapy for her depressive disorder, with the balance for prescriptions and
"doctor co-pays."
"[T]he
determination of whether the criteria are present to permit application of a
hardship deduction is reviewed for substantial evidence. [Citation.]" (In re
Marriage of Carlsen (1996) 50 Cal.App.4th 212, 215.) Viewing the "evidence in the light most
favorable to [wife], giving her the benefit of every reasonable inference, and
resolving all conflicts in her favor, as we must under the rules of appellate
review" (In re Marriage of Mix
(1975) 14 Cal.3d 604, 614), we conclude that substantial evidence supports the
finding that wife's monthly health expenses of $787 caused her to experience
"extreme financial hardship."
(§ 4070) According to wife's
June 2011 Income and Expense Declaration, her expenses exceeded her average monthly income by almost
$7,000. (See In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382
[substantial evidence supported father's hardship deduction where Income and
Expense Declaration showed that father had total monthly expenses of $4,753 and
a net monthly disposable income of $3,943 before payment of child support].)
Wife
had $75,000 in liquid assets, but the trial court reasonably refused to require
the exhaustion of these funds before allowing a hardship deduction. In a declaration filed in April 2011, wife
noted that her assets "are rapidly being depleted," and "when
they are gone [she] will have little, if anything, left to support
[her]." Wife continued: "I
have little education and few skills to attract employment to earn an income to
meet my needs . . . . [Husband], on the
other hand, has the education, experience and skills, and work history to find
employment that will support him at a reasonable level, consistent with the
marital standard of living."
"Husband may be able to afford to spend his share of the community
assets and then, once they are sufficiently depleted, step into a job where he
can earn substantial income and regenerate a comfortable financial estate for
his retirement years. I know that I am
unable to do so."
Husband
maintains that the trial court erroneously relied on wife's June 2011 Income
and Expense Declaration because it "was never entered into evidence"
at the hearing. But when the parties
rested, wife's counsel requested that the court "review her Income and
Expense Declaration filed today."
Husband did not object. During
closing argument, the court stated: "[T]he court has an obligation to
review the entire file and the contents of it, and the Court did review both
parties['] Income and Expense Declarations that were filed prior to today. The court also has reviewed the declarations
that were filed today." Husband
again failed to object and has therefore forfeited the issue.
v. Blacksher (2011) 52 Cal.4th 769, 797.)
Husband
argues that the trial court erroneously made the hardship deduction retroactive
to February 1, 2011, the date that the order to show cause was issued. Husband asserts, "[T]here was no
evidence at all that the purported hardship existed between February 1, 2011
and June 3, 2011." We
disagree. Wife's depressive disorder did
not begin in June 2011. She testified
that for the past two years she had been in therapy for the disorder.
The trial court
did not specify the duration of the hardship deduction, but this was not
error. The duration depended upon wife's
mental health. Since this was subject to
change, the court could have reasonably found that it was not feasible to
determine the duration of the deduction.
I
Husband
contends that, in calculating spousal and child support, the trial court erroneously
"attributed a deductible interest expense of $256 a month to [him.]" (AOB 21)
This contention is precluded by the "fundamental rule of appellate
procedure which precludes an appellant from raising issues [that
have been decided] favorabl[y] to himself. [Citations.]" (People v. Webb (1986) 186 Cal.App.3d 401, 411; see also
California (1979) 93 Cal.App.3d 233, 241.)
Husband's interest deduction decreased the amount of support payable by
him.
II
The
trial court allowed wife a $388 deduction for health insurance and made the
deduction retroactive to February 1, 2011.
Husband contests the retroactive application of the deduction. Wife's June 2011 Income and Expense
Declaration showed that in May 2011 she had incurred an expense of $321 for her
health insurance and $67 for her childrens' health insurance. But these were new expenses. Wife's February 2011 Income and Expense
Declaration showed that husband was paying the health insurance premiums for
both her and the children. In husband's
March 2011 responsive declaration to the order to show cause, he claimed that
he was paying the health insurance premiums.
In wife's April 2011 reply to husband's responsive declaration, she did
not dispute husband's claim.
Accordingly, insofar as this deduction was applied retroactively from
February 1 through April 30, 2011, it is unsupported by the evidence before the
court when it allowed the deduction following the June 2011 evidentiary
hearing.
But
any error was harmless because the trial court made a corresponding error in
calculating husband's deduction for health insurance. Husband's March 2011 Income and Expense
Declaration showed a monthly health insurance expense of $626. The expense was broken down as follows:
husband's policy - $171 per month; wife's policy - $321 per month; policy for
the two children - $134 per month.
Husband was entitled to the $626 deduction through April 30, 2011. But in May 2011 wife started paying for her
own health insurance and for one-half of the childrens' insurance ($321 + $67 =
$388.) Yet, the trial court allowed
husband the full $626 deduction for the period after April 30, 2011. Husband's deduction for this period should
have been $238, exactly $388 less than the $626 deduction that he received.
III
The
court's DissoMaster entries show other taxable income of $1,124 for husband and
$722 for wife. Without further
discussion, husband asserts that the parties' other taxable income "must
be equal because [it] represents the income generated from the parties[']
community assets that were being divided equally." "[W]e treat this issue as
[Citation.]" (
821.)
IV
Husband
asserts that "[h]e is going broke" and requests that wife pay his
attorney fees pursuant to section 2030.
" 'Such a request must properly be addressed to the trial court in
the first instance, and we express no opinion on that subject.' [Citations.]" (In re
Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.)
The
order awarding temporary spousal and child support is affirmed. Wife shall recover her costs on appeal.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
Oddenino & Gaule; Michael L. Oddenino,
for Appellant.
Alexander, Clayton & Wilson;
Marguerite A. Wilson. Taylor, McCord, Praver & Cherry; Patrick
G. Cherry, for Respondent.
name="_ftn1" title="">[1] Wife listed her nonliquid assets as follows:
"[Wife's] community share: Real Estate ($325,000); Auto ($30,000);
Investment & tax deferred accounts ($100,000)."
name="_ftn2" title="">[2] Husband's Social Security Earnings Statement showed
the following earnings history: 2001 - $157,642; 2002 - $178,815; 2003 -
$198,561; 2004 - $204,643; 2005 - $227,465; 2006 - $243,228; 2007 - $4,998,779;
2008 - $238,839; 2009 - $983. (1CT 151)
