Marriage of Cesana
Filed 1/22/13
Marriage of Cesana CA1/3
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of AMEDEO and NELLY CESANA.
AMEDEO CESANA,
Appellant,
v.
NELLY CESANA,
Respondent.
A134092
(Contra Costa County
Super. Ct. No.
MS275183)
Amedeo Cesana appeals from a
postjudgment support order, contending the court erred in denying his motion to
terminate spousal support and in ordering him to pay a portion of Nelly
Cesana’s attorney fees. We shall affirm.
Background
Nelly and Amedeo Cesana ended their 24-year marriage in 1985 with
the entry of a stipulated judgment of dissolution that incorporated the terms
of a marital settlement agreement.
The agreement provided that Nelly receive spousal support equal to
30 percent of Amedeo’s income, with a maximum of $9,000 per month. In the
years following the divorce, Amedeo’s financial circumstances varied greatly.
As a result, the parties did not observe the terms of the settlement agreement
but followed a subsequent oral agreement that Amedeo support Nelly to the best
of his ability. Amedeo made payments to Nelly in varying amounts over the years
until the present dispute arose in 2008.
While the couple was still married,
Amedeo had been the principal in a business that involved the design and
operation of systems for distribution, management, and payments in the freight
industry. Around the time of the divorce, the business was forced into
bankruptcy, which led to the oral modification of the settlement agreement.
Shortly after the divorce was final, Amedeo remarried and he and his new wife
Rhonda started a series of new businesses in the same industry, which
ultimately led to the formation in 1996 of Global Logistics Villages, Inc.
Prior to 2007, Amedeo owned 60 percent of the new company and Rhonda owned 40
percent. However, Amedeo developed non-Hodgkin’s lymphoma and in late 2007
transferred his interest in the company to Rhonda, making her the sole
shareholder.
From 2004 to 2007, Nelly worked as a
part-time receptionist for Amedeo and Rhonda at a rate of $3,000 a month.
Amedeo did not pay spousal support during this period. In July 2007, Nelly’s
employment was terminated and Amedeo began paying Nelly $1500 a month in
spousal support.
In January 2008, Amedeo received a
letter from Nelly’s attorney indicating that he owed a significant amount of
spousal support arrearages. Amedeo was shocked and “very, very upset†by the
letter. In March 2008, Amedeo transferred to Rhonda his interest in the family
home. Around the same time, at the age of 71, Amedeo partially retired and
reduced his annual salary from $180,000 to $60,000.
On June 16, 2008, Nelly obtained an order to show cause requesting a determination
of spousal support and spousal support arrearages. Nelly also requested that
Amedeo pay her attorney fees under Family Code section 2030.
In response, Amedeo sought to terminate spousal support.
On November 2, 2011, after six
hearing dates throughout 2010 and 2011, the court issued a tentative decision,
which among other things, ordered Amedeo to pay Nelly $1,500 per month in
spousal support, denied Nelly’s request for spousal support arrearages and
reimbursements, and ordered Amedeo to pay $15,000 of Nelly’s attorney fees. The
court found, as relevant to Amedeo’s claims on appeal, that Nelly’s monthly
expenses were $3,000 and her monthly income was $1,087 and that Amedeo’s
monthly income was $10,131 and his monthly expenses were $6,611. With respect
to the court’s calculation of Amedeo’s income, the decision states: “[Amedeo]
is currently employed by Global Logistics Village, Inc. He currently receives a
salary of $60,000 a year from the corporation which is wholly owned by his
current wife, Rhonda Cesana. She receives an annual salary of $140,000 per
year. The court finds that while Rhonda has a significant management role in
the company, and certainly performs more than just a clerical or administrative
function, that it is inequitable and unreasonable to divide the collective
income received by [Amedeo] and his wife in anything other than an equal manner
[f]or purposes of calculating the amount of income available for the payment of
spousal support.†The court recognized that Amedeo “brings unique skills to the
business which according to the testimony offered at trial [have] not been
replaced by any other individual. And, while [Amedeo] certainly has a right to
retire, he has not done so.†Accordingly, for purposes of determining current
support, the court found “that [Amedeo’s] earning potential is one-half of the
$200,000 total paid to [Amedeo] and his wife, or $100,000.†With respect to the
attorney fees award, the court found “based on the disparity of income between
the parties, but taking into account the debt incurred by [Amedeo], that some
but not all of [Nelly’s] fees should be paid by [Amedeo].â€
Amedeo objected to the tentative
decision on the ground that the court improperly considered his wife’s income
in determining his ability to pay spousal support and attorney fees. The court
overruled the objection as follows: “The court found in its tentative decisions
that [Amedeo] should have attributed to him income in the amount of $100,00 for
the purpose of determining his ability to pay spousal support. In so doing, the
court did not allocate a portion of [Amedeo’s] wife’s income to [Amedeo].
Rather, the court found that the means by which [Amedeo] and his current spouse
had allocated income generated by the business owned by the two of them was
inequitable.†The court continued, “[Amedeo] argued that during his most recent
illness he had transferred all ownership of the family business to his current
spouse. He then argued that his income was totally dependent upon whatever
amount she chose to pay him as the owner of that business. The court rejected
that argument in rendering its tentative decision. The court found that the
transfer of the family business to [Amedeo’s] spouse was done solely for estate
planning purposes, and that for all intents and purposes, the family business
continued to be community property for the purpose of determining management and
control. The court further finds based upon the history of the business, the
training and expertise of both [Amedeo] and [his current] spouse, that an
allocation of income between [Amedeo] and his spouse such as that proposed by
[Amedeo] constituted an artificial self-serving allocation of income so as to
diminish [his] spousal support obligation. . . . Indeed, expert
testimony received at trial suggested that [Amedeo’s] wife should be allocated
even less than one half of the income drawn by the parties from the business
which they run. The court, however, found that an equal division of income was
appropriate at this time in [Amedeo’s] career.†With respect to the calculation
of Amedeo’s expenses, the court “took into consideration the fact that [his] monthly
expenses totaled $13,222.34 per month†but that “the expenses that were listed
were the expenses of both [Amedeo] and his current wife.†Thus, “[o]ne half of
those expenses would amount to $6,611 per month, thereby leaving [Amedeo]
sufficient monies with which to pay the support that the court has ordered.â€
Amedeo filed a timely
Discussion
The trial court did not abuse its discretion in awarding spousal
support.
“An award of spousal support is a
determination to be made by the trial court in each case before it, based upon
the facts and equities of that case, after weighing each of the circumstances
and applicable statutory guidelines. [Citation]. . . In awarding
spousal support, the court must consider the mandatory guidelines of section
4320. Once the court does so, the ultimate decision as to amount and duration
of spousal support rests within its broad discretion and will not be reversed
on appeal absent an abuse of that discretion.â€
(In re Marriage of Kerr (1999) 77
Cal.App.4th 87, 93.) However, under section 4323, subdivision (b), the court
may not consider “[t]he income of a supporting spouse’s subsequent spouse
. . . when determining or modifying spousal support.â€
Amedeo contends that the court
violated section 4323, subdivision (b) by considering the income and assets of
his current wife for the purpose of determining his ability to pay support. In
Cal.App.4th 1436, 1444-1445 the court held that this provision prohibits both
direct and indirect consideration of a subsequent spouses’ income and that to
“avoid any absurd or unreasonable results,†a trial court “must not only
exclude the new spouse’s income, but also the additional expenses resulting
from the remarriage.†(Id. at p.
1445.) Recognizing the complications inherent in such calculations, the court
observed that “where the actual numbers would produce an inequitable result,
the trial court must exercise greater discretion based on all the available
facts and every appropriate consideration.†(Id. at pp. 1445-1446.)
Contrary to Amedeo’s argument, the
trial court here did not violate section 4323, subdivision (b). The court did
not improperly consider Rhonda’s income in determining his ability to pay
spousal support. Rather, the trial court found that Amedeo and his wife had
allocated their income in a self-serving manner so as to minimize his spousal
support obligation. The court imputed additional income to Amedeo based on what
it concluded was a fair and reasonable allocation. (See Millington v.
Millington (1968) 259 Cal.App.2d 896, 918 [husband “cannot by a unilateral
act, through his control over the corporate structure, regulate the flow from
the spigot from which the wife’s thirst must be quenchedâ€];
Cal.App.4th 1070, 1083 [father cannot unilaterally and voluntarily arrange his
business affairs in such a way as to effectively avoid paying child support].) Substantial evidence supports the court’s conclusion
and allocation.
Prior to 2008, both Amedeo and
Rhonda worked on the business equally and treated their income as equally
earned. Rhonda did a majority of the marketing and administration in addition
to running the operations while Amedeo’s work focused on the technical and
design aspects of the business. Each spouse “complemented each other†and the
“none of those businesses would have existed†without both of their
contributions. For most of this time, Amedeo and Rhonda received only one check
as their family income and shared all expenses. The couple considered this
amount their joint wages. In 2004, after learning that under that compensation
system Rhonda was not receiving credit for contributions to social security,
the couple separated their income. Having determined that their combined annual
wages would be $300,000, they decided that Amedeo was to be paid $180,000 and
Rhonda was to be paid $120,000. Rhonda, however, considered these numbers
arbitrary because they were “partners in every sense of the word.†By 2008
Rhonda was being paid $140,000 a year.
Amedeo testified that in 2008 when
he reduced his work schedule by two-thirds, he took a corresponding pay cut,
reducing his salary from $180,000 to $60,000. He emphasizes that two new employees
were hired to perform some of the work he previously performed. The fact
remains, however, that Amedeo continued to work for and provide his extensive
experience and expertise to the business. His income and expense declarations
filed in 2008 through 2010 show that he worked about 30 hours a week, not the 9
to 16 hours he claimed. Moreover, while a reduction in salary may have been
justified by Amedeo’s reduction in hours, in does not necessarily justify the
reallocation of income between Rhonda and Amedeo. Viewing the history of the
business and how wages were distributed between Amedeo and his wife Rhonda, it
was within the trial court’s discretion to determine that the equal
distribution that applied throughout the companies’ existence continued despite
the reduction in Amedeo’s hours. Accordingly, the court did not err in finding
that Amedeo’s annual income was $100,000.
Contrary to Amedeo’s further
argument, the court did not improperly compel Amedeo to continue working.
Amedeo relies on In re Marriage of
Reynolds (1998) 63 Cal.App.4th 1373, 1378 in which the court found an abuse
of discretion in imputing income to a retired spouse absent evidence of the
spouse’s “ability, opportunity, and willingness to work.†In this case,
however, as the court noted, while Amedeo is entitled to retire, he has not
done so. Thus, not only does he have the ability, opportunity, and willingness
to work, he is working.
We also reject Amedeo’s argument
that the court overvalued Amedeo’s assets, including the family home and the
business, or improperly allocated to him 100 percent of the value of those
assets. Having rejected the self-serving transfer of his share of the home and
business into Rhonda’s name, the court stated that “[f]or purposes of making
decisions in this case, the court will consider all assets so transferred to be the property and assets of [Amedeo].†(Italics
added.) Nothing in the trial court’s explanation suggests that it was
considering as Amedeo’s assets more than the percentage he transferred to
Rhonda. Nor does the decision suggest that the court overvalued those assets.
The court recognized the lack of equity in the family home and acknowledged
that while the business has been successful, its future stability “relies on
its relationship with one major customer.†Moreover, the court did not rely
heavily on the parties’ assets in calculating support. The decision was based
primarily on the disparity of the parties’ income.
Finally, Amedeo has failed to
establish that the court abused its discretion in calculating his monthly
expenses. As set forth above, section 4323 required the court to exclude from
the calculation all additional expenses resulting from Amedeo’s second
marriage. (In re Marriage of Romero,
to Amedeo’s argument, this does not mean that all of the couple’s joint
expenses should be allocated to him as if Rhonda were not present. Rather, the
court has broad discretion to determine which expenses are properly allocated
to the supporting spouse based on the entire financial picture. For example,
the court in Romero found that a
particularly large mortgage payment would not have existed but for the
remarriage so that it was error to consider it as husband’s expense in
determining his ability to pay spousal support. (Id. at pp. 1445-1446 [there is no per se “formula†to
calculate how much of the shared expenses to exclude; rather “the court must
determine what expenses are reasonable based only on [the support obligor’s]
net monthly incomeâ€].) In this case, Amedeo seems to suggest the entire
$13,222.34 in joint expenses included in his income and expense declaration
should have been allocated to him. Some of the expenses, however, are clearly
the product of his second marriage, including the cost of supporting his wife’s
mother and the full cost of groceries, restaurant expenses, gifts, clothes and
the like. Amedeo has made no attempt on appeal, nor apparently did he do so in
the trial court, to further refine what part of this amount is properly allocated
to him. Therefore, the court reasonably divided the joint expenses in half
based on the same evidence it used to allocate the couple’s income.
Attorney Fees
“[A] motion for attorney fees and
costs in a dissolution proceeding is left to the sound discretion of the trial
court. [Citations.] In the absence of a clear showing of abuse, its
determination will not be disturbed on appeal.†(In re Marriage of Sullivan
(1984) 37 Cal.3d 762, 768-769.) “[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 made.†(In re Marriage of
Cueva (1978) 86 Cal.App.3d 290, 296.)
Amedeo’s challenge to the attorney’s
fee award rests in large part on his argument that the court erred in
calculating the parties’ income and expenses as discussed above. Having
rejected each of his arguments in this regard, we must likewise reject his
argument that the court improperly relied on the disparity of the parties’ income
in awarding attorney fees. In addition, contrary to Amedeo’s suggestion, the
court considered the substantial debt Amedeo incurred in defending Nelly’s
claim for arrears in making its final award. In all, the court ordered Amedeo
to pay $15,000 of the approximately $50,000 in fees Nelly incurred in the
litigation. Based on the record before us, we cannot say that this award
constitutes an abuse of discretion.
The decision below is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Jenkins, J.
indicated.
name="_ftn2" title="">[2] Nelly has not appealed from the denial of her motion for support
arrearages and reimbursements.
We note that the record on appeal designated
by Amedeo, although sufficient to allow review, is incomplete. The register of
actions shows that the matter was tried before the superior court on October 18
and 19, 2010, April 22, May 20, 23 and 24, and June 15, 2011. Although Amedeo’s
designation includes the reporter’s transcript of the first six hearings at
which the evidence was received, he did not designate the reporter’s transcript
of the June 15 hearing at which closing arguments were made. Likewise, he did
not designate the parties’ posttrial points and authorities, filed on June 8
and 9, as part of the clerk’s transcript. The record contains the trial court’s
tentative statement of decision and ruling on objections, but Amedeo did not
designate his written objections to the court’s tentative decision, filed on
August 9, or the reporter’s transcript from the September 28 hearing, at which
the objections were argued, for inclusion in the record on appeal.
