Marriage of Brown

Filed 4/2/08 Marriage of Brown CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. Howatt, Jr., Judge. Affirmed in part, reversed in part.

In what is the third appellate proceeding in this divorce action between Kathryn E. M. Brown and David S. Brown, Kathryn appeals from a supplemental judgment regarding spousal support, child support, litigation expenses and attorney fees. She contends that the court erred in (1) failing to award her a retroactive increase in temporary spousal support and reducing the level of permanent support, (2) requiring her to reimburse David for uncovered health care expenses of their children, child support payments he made after the court awarded him sole custody of the children and various litigation expenses, and (3) denying her request that he pay all or part of her attorney fees. We reverse the judgment as to the permanent support award and the reimbursement of the uncovered health care expenses. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following factual recitation is based in part on the unpublished opinions from the prior appeals in this action (Brown v. Brown (Dec. 12, 2006, D046086) [nonpub. opn.] (Brown I); Brown v. Brown (Oct. 19, 2007, D046839) [nonpub. opn.] (Brown II)).

Kathryn and David met while attending the University of Virginia and married in December 1980, after their graduations. The couple moved to Florida, where David ultimately took a job as the in-house counsel for Vistana, the largest existing single-site timeshare project in the world. In 1988, Kathryn and David moved to San Diego, where David began working as the general manager of operations for Shell Winners Circle Resorts (Shell), a timeshare business affiliated with Vistana. (Brown II, supra, at p. 2.)

In 1990, David and fellow Shell employee Tim Stripe took over the company and, in the ensuing 12 years, they created 19 timeshare resort related businesses together. In November 1998, after the establishment of 16 of the companies as operating businesses, Kathryn and David separated and in July 1999, David petitioned to dissolve their marriage. (Brown II, supra, pp. 2-3.) Kathryn stayed in the Rancho Santa Fe house and the parties shared custody of their two daughters and two sons on an informal basis. (Brown I, supra, at p. 2.)

In July 2000, the parties submitted a stipulated order, pursuant to which David was to pay Kathryn monthly spousal support of $9,000 and child support of $4,000, both retroactive to March 1, 2000. The order was based on the parties' agreement that David's annual income (as reflected on his tax returns and cash flow data for the tax year ending in October 1998) was $293,000 and that Kathryn's was $0, but preserved the parties' rights to conduct discovery and seek a court finding as to their respective incomes. The stipulated order further provided that the parties would retain Robert Wallace to appraise their businesses and that if Wallace determined David's "personal spendable income" was "materially different" than the stated amount, Kathryn could "return to court for a [retroactive] modification of the support orders."

At about the same time, Kathryn began to accuse David of sexually abusing their four children and to interfere with his scheduled visits with them. (Brown I, supra, at p. 3.) In August 2000, David obtained a temporary restraining order against Kathryn and her father and the following month the court granted his ex parte request to have custody of the three minor children (the oldest daughter having reached the age of majority) transferred to him, subject to supervised visitation by Kathryn. (Id. at p. 6.)

A week later, the minor children requested that the court issue an order prohibiting Kathryn from contacting them and ordering her to stay away from their schools, a request the court granted. (Brown I, supra, at p. 7.) David applied for a second restraining order against Kathryn, which was also granted; based on the evidence submitted in connection with the hearing, the court continued David's custody of the children and the suspension of Kathryn's contact with them and ordered that both parents undergo psychiatric evaluation (at David's initial expense). (Ibid.) In late November 2000, the court allowed Kathryn to resume supervised visitation. (Id. at p. 8.) In June 2001, the court suspended David's obligation to make child support payments, reserving jurisdiction over the issue of the retroactivity of the suspension. The parties' marital status was terminated in November 2001. (Brown I, supra, at p. 5.)

A bifurcated trial was held on custody issues (the Custody Trial) in June 2004, at a time when only the two sons were still minors. (Brown I, supra, pp. 2-8) In August 2004, the court awarded David legal and physical custody of the boys, subject to supervised visitation by Kathryn. (Id. at p. 12.) Kathryn appealed the court's decision relating to the parties' youngest son (the older son having reached the age of majority), but was unsuccessful in obtaining a reversal of the judgment. (Id. at pp. 1, 2, 17.)

In December 2004, the court presided over trial on the issues between the parties relating to the valuation and division of the parties' property (the Property Trial). The evidence regarding the value of their Rancho Santa Fe home, their 150 acres of undeveloped property in Riverside County and their 70 percent interest in a joint venture holding 40 acres of undeveloped property in Orlando, Florida was fairly limited and largely undisputed. The characterization and valuation of the business assets, however, were hotly contested. (Brown II, supra, at pp. 3-4.)

The court issued a detailed written opinion regarding the property issues. It characterized four of the companies and 21.4 percent of a fifth one as David's separate property. It characterized the other businesses as community property, valuing five of them as of the date of trial and the remainder, as well as an additional 28.6 percent interest in the fifth company, as of the date of separation. (Brown II, supra, at pp. 4-5.)

In its statement of decision, the court concluded in part that, for the period from January 1999 through December 2004, David's stated annual income of $160,000 was understated by $540,000 per year and that distributions of profit he received during that period (essentially in lieu of additional salary) from businesses valued as of the date of separation were to be excluded from the distributions chargeable to him for purposes of allocating the community property assets between the parties. The court found that out of a total of $3,240,000 in distributions, $1,475,500 were properly chargeable to David.

The court awarded David all of the timeshare business assets and one-half of the parties' tax-deferred accounts; it awarded Kathryn the family residence, the Riverside property, the 70 percent interest in the Florida joint venture property and the other half of the tax-deferred accounts, as well as a payment of $1,730,095 to equalize the division of assets so that each received $7,177,131 in community property assets. David promptly paid Kathryn $1.4 million in cash, withholding $330,094 for amounts he was planning to seek reimbursement for from her. In July 2005, Kathryn appealed the Property Trial judgment. (Brown II, supra, at pp. 1, 5.)

While the Property Trial appeal was pending, the court held a trial on the remaining issues between the parties (the Support and Expenses Trial). As relevant to the current appeal, David sought to have the court reduce his spousal support obligation in light of the $1.4 million in cash Kathryn had received and he introduced expert testimony that a prudent investment of those funds would generate more than $50,000 in income annually, without invading the principal. He also sought reimbursement for a number of items, including $40,000 in child support paid after he was awarded sole custody of the children, one half of $90,649 in medical expenses he incurred for the children and certain litigation-related expenses that he paid.

Kathryn contended that the court should retroactively increase the temporary spousal support obligation of $9,000 to $18,000 based on its finding during the Property Trial that David's annual income was understated by $540,000. She introduced evidence showing that the value of the assets awarded to David in the Property Trial had grown to $15 million, whereas those awarded to her were still valued at $7 million and argued that $9,000 a month in spousal support was insufficient to maintain the marital standard of living, which had permitted the couple to save and invest substantial sums every month, travel and eat out regularly, things that David continued to do, but that she could no longer afford.

Kathryn also contended that she could not realistically invest the $1.4 million that she received from David because she had to pay back $450,000, half of which she had borrowed from her parents and the other half that she obtained through refinancing her house so that she could meet her expense obligations. She further argued that she should not be required to reimburse David for the children's medical expenses because he had incurred them without giving her notice and requested that the court order David to pay approximately $290,000 in attorney fees that she had incurred during the proceedings.

In June 2006, the court issued a detailed statement of decision regarding the issues raised in the Support and Expenses Trial. In relevant part, the court (1) denied Kathryn's request for a retroactive increase in temporary spousal support; (2) reduced the amount of monthly permanent support to $4,500; (3) ordered her to reimburse David for (a) one-half of the children's uncovered health care expenses, (b) all of the child support he paid to her after gaining custody of the children, (c) all of the expenses owed to her forensic expert, (d) one-half of the expenses attributable to Dr. Steven Sparta, (e) all of the expenses attributable to Dr. Bryan Bruns, and (f) one-half of the fees owed to the children's attorney; and (4) denied her request for an award of attorney fees.

In October 2007, this court affirmed the judgment in the Property Trial, by unpublished opinion. (Brown II, supra, at pp. 2, 14.) Kathryn now appeals from the judgment resolving the spousal support, reimbursements and attorney fee issues.

DISCUSSION

1. Incorporation by Reference of the Record from the Prior Appeal

In her brief, Kathryn purports to incorporate by reference the materials contained in the clerk's transcript for the appeal in Brown II. David objects that Kathryn cannot rely on the earlier record because she failed to designate those materials as part of the current record as required under the California Rules of Court. (Cal. Rules of Court, rule 8.147(b)(1) ["[a] party wanting to incorporate by reference parts of a record in a prior appeal in the same case must specify those parts in its designation], italics added.) However, in the proceedings below, both parties requested that the trial court take judicial notice of its existing case file, which it did, and the parties and the court relied on certain portions of that record during the trial, without objection. Based on these circumstances and in light of our necessary reliance on the prior unpublished opinions to establish various historical factual and procedural aspects of this case, Kathryn's failure to comply with this requirement is essentially a moot point.

2. Spousal Support

A. General Principles

During the pendency of any divorce proceeding, the court may order a party to pay any amount that is necessary for the support of his or her spouse. (Fam. Code,  3600; all further statutory references are to this code.) 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." (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) By contrast, permanent spousal support is designed to "provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property" in accordance with a complex variety of factors established by statute. (Ibid.; In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525.) Based on the difference in the applicable standards, permanent support orders are generally lower than temporary orders. (Id. at p. 525.)

B. Standard of Review

The propriety of setting or modifying spousal support rests in the sound discretion of the trial court. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479.) Accordingly we review the trial court's orders denying Kathryn's application for retroactive spousal support and reducing her monthly permanent spousal support from $9,000 to $4,500 for an abuse of discretion. In engaging in such review, we must "accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn. 5, quoting In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.)

An abuse of discretion is established "where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances" (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899, quoting In re Marriage of Olson, supra, 14 Cal.App.4th at p. 7) or where it fails to consider one or more of the applicable statutory criteria for setting spousal support. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)

C. Retroactive Temporary Spousal Support

Kathryn contends that the trial court erred, apparently as a matter of law, in denying her request for a retroactive increase in temporary spousal support based on its finding that David's true income for 1999 was $700,000 rather than $293,000 and the provision in the stipulated order authorizing a retroactive increase in the face of that "material difference" between David's represented and true incomes. David points out, however, that the stipulated order did not mandate an adjustment of spousal support even if there was a material difference between his actual income and the stated income on which the order was based.

David is correct that the stipulated order authorized, but did not require, a retroactive increase in spousal support in the event of a material discrepancy between his actual income and the stated level of income that provided the basis for the order. In this regard, the stipulated order contemplated that upon a request for a modification, the trial court would exercise its discretion in determining whether any retroactive increase in spousal support requested by Kathryn was appropriate in light of the statutory criteria for setting or modifying such support. (See also  4320.)

The question thus becomes whether the trial court abused its discretion in denying the request for a retroactive increase in support. Kathryn argues that an abuse of discretion is established because the court failed to articulate its reasons for making that decision. However, its June 2006 statement of decision did in fact articulate those reasons, one of which was that Kathryn had unduly delayed in seeking the increase. Kathryn's appellate briefs do not challenge this as a valid basis for the court's decision and thus she has not met her burden to show that the decision constituted an abuse of discretion. Although she did address this point at oral argument in response to the court's inquiry, this response was too little, and came too late.

Even if she had raised the argument in a timely fashion, however, we would nonetheless find no abuse of discretion; although the court did not make a finding regarding David's actual income until it issued its 2005 decision relating to the Property Trial, it could have reasonably concluded that Kathryn had ample opportunity to conduct discovery and request an increase in retroactive support earlier, i.e., some time during the more than four years that intervened between the execution of the stipulated order and the Property Trial.

We conclude the trial court did not abuse its discretion in denying Kathryn's request for a retroactive increase in spousal support.

D. Permanent Spousal Support

As noted above, the trial court must consider numerous statutorily-identified factors in setting permanent spousal support, including the marital standard of living. ( 4320, subds. (a), (c), (d); In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096-1098.) Kathryn contends that the trial court abused its discretion in reducing monthly permanent spousal support from $9,000 to $4,500 because it failed to properly consider the parties' respective abilities to maintain their marital standard of living, particularly in light of the following circumstances: (a) the award of all of the couple's income producing properties to David; (b) the award to her of all of the couple's non-income producing properties, for which she had to incur substantial monthly expenses in addition to those on which the temporary support award was based; and (c) her limited earning potential. Based on these factors, Kathryn argues that the court's reduction of the permanent support left her living well below the marital standard of living, while he was able to live well above it.

We agree with Kathryn's contention that the reduction of the permanent support amount constituted an abuse of discretion under the circumstances presented. A trial court's consideration of the marital standard of living must include a couple's historical practices of saving and investing. (In re Marriage of Drapeau, supra, 93 Cal.App.4th at p. 1097; In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1329.) Where a husband and wife live modestly compared to their means, but are able to save and invest as a result of doing so, the court must consider this in determining the amount of support to be awarded. (In re Marriage of Drapeau, supra, 93 Cal.App.4th at p. 1097; In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1329.)

Here, the court found that "[t]he parties' marital standard of living was relatively modest for most of their marriage" and recited the evidence showing that the parties lived frugally as to their living expenses. Its statement of decision did not make any reference to the uncontroverted evidence that the parties' frugal lifestyle allowed them to invest substantial amounts in their businesses and in investment properties, nor did it include any finding in this regard in its discussion of the parties' marital standard of living.

The trial court possesses broad discretion in weighing the factors in section 4320 to accomplish substantial justice for the parties. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) But it "may not be arbitrary . . . [and] must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities." (Ibid.) Moreover, "the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support." (Ibid., italics in original.)

Because the court did not analyze the parties' historical savings and investments before reducing the permanent spousal support amount, it abused its discretion in doing so and we reverse the judgment as to the amount of the permanent spousal support award accordingly. In so holding, we are not implying that on remand the trial court is required to make any particular order as to the amount of the permanent support, but merely that the court must consider this factor in exercising its discretion to determine the appropriate amount.

3. Child Support Issues

A. Reimbursement of Children's Health Care Expenses

Section 4062, subdivision (a), specifies that the court "shall order . . . as additional child support: [] . . . [] (2) The reasonable uninsured health care costs for the children as provided in Section 4063." Here, in addition to setting temporary spousal support and child support, the July 2000 stipulated order provided in part that the parties were to pay equally "[a]ny uninsured medical, dental, orthodontia, vision, and/or therapy [expenses] incurred on behalf of the children[.]"

Where, as here, the court makes an order for such "add-on" child support, section 4063, subdivision (b), provides that "when either parent accrues or pays costs pursuant to an order under this section, that parent shall provide the other parent with an itemized statement of the costs within a reasonable time, but not more than 30 days after accruing the costs." (See generally In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 466-468, 475.) In this case, David initially provided Kathryn with notice of the health care expenses on a monthly basis and deducted one-half of those expenses from his support payments; however, after Kathryn objected to this arrangement and obtained a court order prohibiting David from reducing the monthly support, David stopped providing Kathryn with notice of the amounts he was incurring for the children's health care; although Kathryn was aware that the children were receiving various therapeutic and other types of treatment, she did not request that David provide her with a monthly update regarding the costs of those treatments.

Kathryn contends that David's failure to provide her with notice of the children's health care expenses in accordance with section 4063, subdivision (b), eliminates his right to reimbursement for such expenses. This issue is one of statutory interpretation, as to which we exercise de novo review. (See In re Marriage of Lusby, supra, 64 Cal.App.4th at pp. 474-475, & fn. 5.)

In using the word "shall," section 4063, subdivision (b), indicates a legislative intent to protect the rights of the party against whom a claim for reimbursement is made, by giving that party prompt advance notice of changes in his or her potential liability. (See In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1497-1498 [recognizing that in determining the legislative intent, a court must "scrutinize the actual words of the statute, giving them a plain and commonsense meaning"].) Courts have recognized that "[i]t would work a serious injustice . . . to allow retroactive child support without proper notice . . . ." and that the statutory notice requirement ensures support obligors will not be surprised by large postjudgment retroactive liability claims and encourages those who plan to seek reimbursement of such expenses to act promptly. (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 845.)

In accordance with the statutory scheme, David was required to provide Kathryn with timely notice of the uninsured health care expenses he incurred for the benefit of the children, but did not do so. As a result, Kathryn was not obligated to reimburse him for such expenses and we reverse the judgment insofar as it requires her to do so.

B. Child Support Paid by David after He Gained Custody of the Children

After the trial court gave him sole custody of the children in September 2000 on an ex parte basis, David continued to pay Kathryn $4,000 a month for child support until June 2001, when the hearing on whether to make that change permanent occurred. At that hearing, the court issued an order suspending David's obligation to pay such support and reserving jurisdiction over the issue of whether to order Kathryn to reimburse the payments made in the intervening period. At the Support and Expenses Trial, David sought to have Kathryn reimburse him for the $40,000 in child support he paid during that time and the trial court granted his request.

On appeal, Kathryn contends that the trial court's reimbursement order violated section 3603, which provides that a child support order "may be modified or terminated at any time except as to an amount that accrued before the date of filing of the notice of motion or order to show cause to modify or terminate" such support. (See also  3653 [same restriction], 3651, subd. (c) [proscribing the powers of the court to modify, terminate or set aside support and imposing the same limitation].) However, pursuant to a judicially recognized exception to this statutory requirement, David is entitled to an offset of accrued child support obligations for the period during which the children were in his custody and he paid for all of the expenses relating to their care. (See In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 98, citing In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1074-1075 [recognizing that a court may properly refuse to enforce child support obligations that accrued during a period the child was living with the obligor parent without violating the statutory prohibition against retroactive modification where the obligor parent's direct payments for the child's needs during that period were equal to or greater than the amount of the accrued arrearages and thus sufficient to discharge the support obligations]; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 368.)

Here, the trial court expressly found that David's monthly expenses in caring for the children after he gained custody increased by at least $4,000, a finding that Kathryn does not challenge. Based on this finding, the court properly concluded that David was entitled to reimbursement for the $4,000 a month he paid to Kathryn from September 2000 through June 2001.

4. Litigation Expenses and Attorney Fees

In a divorce proceeding, the trial court may order payment of such fees and costs as between the parties, based on their relative circumstances, to ensure a parity of legal representation in the action. ( 2030, 2032.) The decision as to whether one party should be ordered to pay the other's attorney fees and costs, and the amount to be paid, is to be based on a consideration of the parties' respective incomes and needs and any factors affecting their respective abilities to pay. ( 2030; see also  2032 [court may make an award of attorney fees and costs where the award, and its amount, are just and reasonable under the relative circumstances of the respective parties].)

"In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration . . . the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." ( 2032, subd. (b).)

In accordance with the foregoing, the primary factor in determining whether to award fees and the amount of any such award is the relative circumstances of the parties (In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 882-883) and thus a disparity in the parties' respective circumstances may itself demonstrate relative "need," even where the applicant spouse admittedly has the wherewithal to pay his or her own fees. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) The trial court exercises its sound discretion in ruling on a request for an award of fees and costs and we will not disturb its determination of the issue absent a clear showing of abuse. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.)

A. Attorney Fees

Kathryn contends that based on the substantial discrepancies in the parties' circumstances, the court abused its discretion in denying her request to have David pay the fees and costs that she has incurred in these proceedings. However, the court was also entitled to consider each of the parties' conduct and tactics in the proceedings in determining whether to make an award in her favor. (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1167; see also In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167-168; generally In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 525-526.)

Although the portion of the court's statement of decision relating to the attorney fee issue did not specifically mention this factor, a review of the entire statement of decision and the history of this litigation make clear that the court believed Kathryn's own conduct contributed substantially to the length and scope of these proceedings. (See Brown I, supra, at pp. 2-12.) Based on the trial court's intimate familiarity with this action over the course of several years, including the three trials, we cannot conclude that the denial of Kathryn's request for her attorney fees constituted an abuse of discretion.

B. Litigation Expenses

Again citing the discrepancies in the parties' respective financial situations, Kathryn challenges the trial court's decisions requiring her to reimburse David for (i) all of the fees he paid to her forensic accountant, Robert Taylor, (ii) three-quarters of the fees he paid to the children's attorney, James Clark, and (iii) half of the fees he paid to Dr. Sparta and Dr. Bruns. These items are discussed in turn below.

i. Taylor

As noted above, Kathryn retained Taylor as her forensic expert. As of the time of the Property Trial, however, Kathryn had not paid him and David advanced Taylor $68,000 in fees so that that trial could go forward. At the Support and Expenses Trial, Kathryn testified that the court had previously ordered David to pay Taylor's fees, a matter that David and his counsel strongly denied. Although Kathryn represented to the court that she could substantiate her testimony in this regard, she never did so. In ordering Kathryn to reimburse David for that amount, the court implicitly rejected her testimony. Under the circumstances, we find no abuse of discretion as to this decision.

ii. Drs. Sparta and Bruns

In January 2000, the parties stipulated to retain Dr. Sparta for the purpose of evaluating each of them relating to the custody issues in this case. (Brown I, supra, at p. 3.) The order provided that David was responsible for advancing the costs of the evaluations, which he paid out of his separate property funds.

In September 2000, when Kathryn still had shared custody of the children, Dr. Sparta wrote a letter to the court indicating that he had found no evidence of child abuse by David and recommending that Kathryn continue in individual therapy and that the court consider awarding sole custody to David if she persisted in thwarting visitation. (Brown I, supra, at pp. 4-6, 10-11.) As a result of Kathryn's complaints about Dr. Sparta and her insistence on deposing him, he was unable to complete the parties' evaluations and the court ordered the parties to submit to psychiatric evaluations by Dr. Bruns. (Brown I, supra, at p. 7.)

The court again ordered David to advance the costs of the evaluations and reserved jurisdiction over their ultimate allocation. Dr. Bruns billed David a total of $24,025, $18,525 of which was for Kathryn's evaluation and $5,500 was for David's, although he subsequently agreed to discount the total amount due by $5,525.

At the Support and Expenses Trial, the court ordered Kathryn to reimburse David for one-half of the amount paid to Dr. Sparta and the entire amount paid to Dr. Bruns, whose involvement it found to have resulted from Kathryn's conduct. The court's finding is supported by substantial evidence and we find no abuse of discretion in the decision that Kathryn should be responsible for these costs. (Although Kathryn contends that certain of these fees related to testimony these witnesses gave at David's behest, she has not cited any evidence in the record that establishes this.)

iii. Clark

In April 2002, the court issued an order requiring the parties to share in fees owed to Clark for his representation of the children in these proceedings, subject to allocation at trial. (See Brown I, supra, at p. 6.) In accordance with the court's order, David paid Clark his half of the fees ($31,264), but Kathryn only paid a portion of her share. At trial, the court found that the majority of the fees were attributable to Kathryn's conduct and it ordered her to reimburse David $15,632, with the effect of making her responsible for three-quarters of the fees.

The evidence in the record supports the trial court's finding that the fees were largely attributable to Kathryn's actions (see also Brown I, supra, at pp. 2-12) and, as described above, the court had the discretion to rely on this factor in determining how to allocate the fees between the parties. We find no abuse of discretion in its determination.

DISPOSITION

The judgment is reversed insofar as to the permanent spousal support award and the requirement that Kathryn reimburse David for $45,324 he incurred for the children's health care expenses that were not covered by insurance. In all other respects, the judgment is affirmed. The matter is remanded for further proceedings consistent herewith. Each side is to bear his or her own costs on appeal.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P.J.

IRION, J.

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