Marriage of Gold

Filed 8/22/06 Marriage of Gold CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.

We consider an appeal and a cross-appeal arising out of the dissolution of the marriage of Steven and Anne Gold, following a multiple-day trial on issues not resolved by the parties' marital settlement agreement (MSA). Steven challenges (1) the trial court's child support and spousal support orders, (2) its order directing Steven to pay attorney fees and sanctions to Anne, and (3) its ruling denying Steven income on rental property that he claims Anne was obligated to pay to him under the terms of the MSA.^[1] Anne cross-appeals, asking us to strike the trial court's finding that imputed a certain level of income to her, but expressly asking us not to disturb any aspect of the judgment based on that finding.

As we will explain, (1) Steven's contentions on appeal lack merit, and (2) we are without jurisdiction to consider Anne's cross-appeal because it does not challenge the judgment or an appealable order. Accordingly, we affirm the trial court judgment and we dismiss Anne's cross-appeal.

I

FACTUAL AND PROCEDURAL BACKGROUND

A

Dissolution Proceedings

Anne and Steven were married in 1984. Their two daughters were born in 1989 and 1991. Anne and Steven separated in May 2001, and the marriage was dissolved as of August 15, 2002, without determination of property rights or support obligations.

Steven is an attorney who has practiced law since 1988. Anne is a real estate agent who worked part time during the marriage. While they were married, Anne and Steven owned a home as well as several rental properties. Steven has remarried, and his current wife, who is also a lawyer, acted as his counsel during trial in this matter.

In May 2004, Anne and Steven entered into the MSA, and the court entered judgment on it.^[2] The MSA disposed of many of the financial issues arising in the dissolution but reserved other issues for determination by the trial court, including spousal support, child support, custody and visitation. Among the items of community real property disposed of in the MSA was a rental property on Elderburry Court in San Diego (the Elderburry property), which the MSA directed would be transferred to Steven as his separate property. Steven also agreed to make a $28,051.50 equalization payment to Anne, to be paid through an escrow established for the transfer of the Elderburry property.

The Elderburry property was not immediately transferred to Steven because a number of disputes arose that delayed the closing of the escrow. The trial court found that both parties caused the delay.^[3] Escrow eventually closed in July 2004, approximately two months after judgment was entered on the MSA. Steven did not make the equalization payment to Anne until the escrow closed. Anne, who was managing the Elderburry property, did not give Steven the $3,300 in rents she received on the Elderburry property for the two months between the entry of judgment on the MSA and the close of the escrow. The delay in the transfer of the Elderburry property gave rise to disputes as to whether (1) Anne was required to pay over to Steven the two months of rent and (2) Anne was owed two months of interest on the equalization payment.

On several dates between October 2004 and February 2005, a five-day trial was held to resolve issues left open by the MSA. The issues at trial also included (1) Anne's claim that Steven owed child and spousal support arrearages, including a substantial sum for the children's medical and dental expenses that he was obligated to pay pursuant to an earlier court order; and (2) issues that arose out of the delay in the transfer of the Elderburry property.

B

The Trial Court's Rulings

After trial, the court issued a statement of decision, which it later incorporated into a detailed judgment. Among the trial court's rulings in the statement of decision and the judgment were the following rulings pertinent to this appeal.

First, the trial court awarded sole legal and physical custody of the parties' two daughters to Anne, with no visitation by Steven until recommended by a conjoint therapist.

Second, Steven was ordered to pay child and spousal support in the following amounts: (1) for the period June 1, 2003 through January 31, 2005, Steven was to pay prejudgment child support of $2,133 per month, with credit for any payments made during the time period, and prejudgment spousal support of $1,200 per month, with arrearages on the prejudgment child support to be paid at the rate of $500 per month, and arrearages on the prejudgment spousal support to be paid at the rate of $100 per month; and (2) for the period beginning February 1, 2005, Steven was to pay postjudgment child support of $2,396 per month and postjudgment spousal support of $1,400 per month, continuing until further order of the court. As a predicate to this ruling, the trial court imputed income to Anne of $3,333 per month, and found that Steven had current gross income of $10,630 per month.

Third, Steven was ordered to pay a total of $6,452.07, including interest, for underpayment of child support and spousal support in the period from May 1, 2002 to July 31, 2004, at the rate of $50 per month.

Fourth, Steven was ordered to pay a total of $3,216.49, plus interest, for arrearages on payments for the children's medical and dental expenses.

Fifth, Steven was ordered to pay $30,000 of Anne's attorney fees, payable at the rate of $500 per month.^[4] The trial court found, among other things, that Anne had a need for contribution, Steven had the ability to pay, and "[t]he case has been over-litigated due primarily to the conduct of [Steven] and his current counsel who is also his current wife." The award was made pursuant to Family Code sections 2030 and 3557.^[5]

Sixth, the trial court ordered Steven to pay $10,000 in sanctions to Anne pursuant to section 271 within 30 days. The trial court found that "[Steven] and his counsel have repeatedly engaged in conduct that frustrated settlement and unreasonably drove up fees." Giving several specific examples, the trial court stated that Steven, while represented by his current wife, "generated unnecessary fees for [Anne] and abused the judicial process," and the case "was significantly over-litigated and inexcusably delayed because of [Steven's] conduct." Also giving several specific examples, the trial court observed that Steven "repeatedly violated court orders to pay support and professional fees associated with the litigation."

Finally, resolving the disputes caused by the delay over the transfer of the Elderburry property, the trial court found in the statement of decision that both parties contributed to the delay in closing the escrow, and thus "[Steven] is not entitled to the rental proceeds because he failed to meet his obligation to pay the loan on the property and to maintain the property," and that "[Anne] is not entitled to interest on the equalization payment because she contributed to the delay of the sale of the property. In addition she received the rental proceeds on the property pending the sale." The judgment, however, took a different approach, stating that "[Steven's] request for reimbursements relating to the Elderburry property and [Anne's] request for interest on the equalization payment are deemed a wash. Neither party will have any obligation to the other relating to either such transaction." (Italics added.) In contrast to the statement of decision, the judgment's reference to a "wash" implies a finding that Steven was entitled to the rents, and that Anne was entitled to interest on the equalization payment, but that the amounts offset each other.

Steven timely appealed, challenging the rulings on child support, spousal support, attorney fees, sanctions, and his entitlement to the rents from the Elderburry property. Anne cross-appealed, requesting that we strike the trial court's finding that imputed income to her of $3,333 per month because the record does not support that finding, but asking that we not disturb any part of the judgment predicated on that finding.

II

DISCUSSION

A

The Trial Court Did Not Err in Basing Its Support and

Attorney Fee Ruling on Anne's Imputed Income

We first address Steven's argument that the child support, spousal support and the attorney fee award must be reversed because the trial court arrived at them by using Anne's imputed earning capacity of $3,333 per month (or $40,000 a year) to calculate them, rather than using what Steven contends is Anne's higher actual income "in the neighborhood of $8,900.00 per month."^[6] In support of his claim that Anne's actual income exceeded the court's imputed earning capacity figure, Steven points to Anne's applications for home loans from June 2004, which stated Anne's income as $8,934 per month, and a November 2001 loan application indicating income of $14,750 per month. Steven also relies on Anne's bank statements, which he claims show deposits of $122,364.98 in 2003, and $96,061.96 from January 2002 to mid-July 2003, excluding transfers.

The trial court's ruling regarding the amount of child support, spousal support and attorney fees is reviewed for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283 (Cheriton).) However, the issue presented here turns on a question of fact (i.e., Anne's current income or earning capacity), and we review the trial court's factual findings to determine if they are supported by substantial evidence. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480 ["So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it"].)

The trial court has statutory authority to consider earning capacity, rather than actual income, in setting child support, spousal support and attorney fees. Section 4058, subdivision (b) states that in setting child support "[t]he court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." In setting spousal support, the trial court is directed by section 4320, subdivision (a) to consider "the earning capacity of each party." (Italics added.) In making an award of attorney fees under section 2030, the trial court is directed by statute to "tak[e] into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320" (§ 2032, subd. (b)), which, as we have shown, relies on earning capacity rather than actual income. "Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire." (In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372.)

In arriving at Anne's imputed earning capacity, the trial court's statement of decision explained the following: "[Anne] represents that her self-employment commission[-]only income from real estate sales averages $1,656.20 each month and that she has negative income from her rental properties. The court finds [Anne] has the capability and responsibility to be fully employed. [Anne] is capable of performing in the top quartile of her branch office and of generating positive cash flow from her rental properties and other investments. Salary is therefore imputed at $40,000 annually [i.e., $3,333 per month]."^[7]

In reviewing a support order, we will imply necessary findings as long as those implied findings are supported by substantial evidence. (See In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 826 (Rosen) ["Although we will imply necessary findings and resolve ambiguities in support of the [support] [o]rder, the findings . . . must be supported by substantial evidence"].) Here, the trial court's decision to base its support orders and attorney fee ruling on Anne's earning capacity of $3,333 per month, rather than her actual income, includes an implied finding that Anne's actual income was, as she represented on her income and expense declaration, less than her earning capacity of $3,333 per month. Steven disputes that implied finding, contending that Anne's actual income is greater in amount, as shown by her bank deposits and loan applications, and that the trial court improperly failed to take that evidence into account.

As we will explain, substantial evidence in the record supports the trial court's implied rejection of the loan application and bank deposit evidence as indicative of Anne's purportedly greater actual income. Accordingly, the trial court was within its discretion to rely on documentary evidence presented by Anne establishing the amount of her income. Because the actual income established by Anne was less than the $3,333 per month of earning capacity imputed by the trial court, we reject Steven's argument that the trial court erred in basing its support and attorney fee award on Anne's earning capacity rather than her allegedly higher actual income.

Anne established her actual income through her income and expense declarations and federal tax documents. Anne's income and expense declaration of June 10, 2004, listed $1,505.75 average monthly self-employment income as a realtor (after the deduction of business expenses) and negative $1,314.80 rental income. The information attached to the declaration showed that for the period May 1, 2003, through April 30, 2004, Anne earned net commissions of $28,581.73 and had annual business expenses of $10,512.72 (or $876.06 monthly), for a net annual income of $18,069.01. Anne's IRS Form 1099 for 2003 from her real estate agency reported compensation earned of $27,674.42. This amount was reflected on Anne's IRS Schedule C filing from 2003, along with business expenses of $14,425, for a net income in 2003 of $13,249. "A parent's gross income, as stated under penalty of perjury on recent tax returns, should be presumptively correct." (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332.)

Similarly, Anne's income and expense declaration filed January 26, 2005, listed $1,530.03 average monthly self-employment income as a realtor (after the deduction of business expenses) and negative $1,954.38 rental income. The information attached to the declaration showed that for the period January 1, 2004, through December 31, 2004, Anne earned net commissions of $25,096.22 and had annual business expenses of $6,735.84 (or $561.32 monthly), for a net income in 2004 of $18,360.38.^[8]

Steven attempted to rebut this evidence by relying on Anne's bank statements from 2002 and 2003, which he claimed show deposits of $122,364.98 in 2003, and deposits of $96,061.96 from January 2002 to mid-July 2003, excluding transfers. In response, Anne presented a chart she prepared that described the nature of each of the bank deposits that she made from September 2001 through June 15, 2004.^[9] The chart showed, for example, that the items Steven included in his calculation of the $122,364.98 of deposits that Anne made in 2003 encompassed, among other things, deposits of over $46,000 in loans from family members and $31,004 in support payments from Steven. These items were properly excluded from Anne's income for the purposes of the support determination. (See In re Marriage of Rocha (1998) 68 Cal.App.4th 514, 518 [student loan was not "income" for child support purposes]; § 4058 [excluding support payments received from the other spouse to the proceeding in determining gross income for child support purposes].) The chart also showed that in 2003 Anne deposited $41,056 in rent payments from the rental properties she owned with Steven. The deposits of these rents did not provide evidence of Anne's earning capacity for two reasons. First, Anne showed that she operates the rental properties at a loss. Second, at the time of trial, Anne no longer owned all of the rental properties for which she collected rents in 2003. (See In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 [" '[A]n order for spousal support must be based on the facts and circumstances existing at the time the order is made,' " italics added].)^[10]

Significantly, the chart showed only $22,450 of deposits in 2003 for real estate commissions. Anne testified that she had no sources of income other than her real estate commissions, loans from her family, real estate rental income and funds from refinancing her real estate. We note that "cash flow" does not necessarily equate to income for support purposes. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1080.) Based on this principle, and Anne's detailed description of the deposits into her bank account, we conclude that the trial court was within its discretion to reject the bank statements as a basis for determining her current actual income.^[11]

Steven also attempted to rebut Anne's income evidence with loan applications that Anne submitted in June 2004, stating her income as $8,934 per month, and a November 2001 loan application stating her income as $14,750 per month. The testimony and evidence at trial provided a sound basis for the trial court to disregard the income figures appearing on the loan applications. Anne testified that a loan officer filled out the income figures on the loan applications for her, although she signed them, and that the income figure on the loan application in 2001 likely included both rental income and some of Steven's income because they separated half‑way through 2001. Further, documents in the record indicate that loan officers may have included items in the income calculation that would not properly be used to calculate her current income or earning capacity for the purposes of a dissolution proceeding. Documents in the record show that the loan officers responsible for the 2001 loan application, for example, arrived at Anne's income by taking into account support payments and rental income on all properties owned at the time, and the full amount of Anne's real estate commissions, without any reduction for rental or business expenses. (See § 4058, subd. (a)(2) [gross income of self-employed persons calculated for purposes of child support by deducting business expenditures].)

Based on these facts, we conclude that substantial evidence supports the trial court's implied rejection of the bank statements and loan documents to dispute the income evidence presented by Anne. That evidence showed that Anne's income was less than the $3,333 per month earning capacity imputed by the trial court. Accordingly, we reject Steven's argument that the $3,333 earning capacity figure used by the trial court to calculate the support and attorney fee orders was too low.

B

Steven's Other Attacks to the Spousal Support Award Are Without Merit

Steven also attacks the spousal support award on the ground that the trial court purportedly did not consider his financial condition in making the award.

In assessing this argument, we apply the principle that " '[i]n making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.' " (Cheriton, supra, 92 Cal.App.4th at p. 304.) However, "the court does not have discretion to ignore any relevant circumstance enumerated in the statute" and must " 'tak[e] into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.' " (Ibid.) Under section 4320, the relevant factors " ' "include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." ' " (Rosen, supra, 105 Cal.App.4th at p. 829.)

Steven first argues, without citing any portion of the record, that in making the spousal support award "the trial court simply took the sum of money that [Steven] earned in excess of [Anne's] earnings and gave it to [Anne]," and that the ruling "flies in the face of the myriad of cases that require both parties' positions be considered in making the support award." (See, e.g., Rosen, supra, 105 Cal.App.4th at p. 826 ["Spousal support must be established according to the needs of both parties and ' "their respective abilities to meet these needs" ' "].)

We disagree with Steven's characterization of the spousal support ruling. The record shows that the trial court properly considered the factors set forth in section 4320, including that the parties "enjoyed a moderate to high standard of living" during the marriage, that Anne supported Steven while he earned his law degree, that Anne has marketable skills and education but "is unable to maintain the marital standard of living," and that "[Steven] has the ability to pay spousal support in that he makes a good salary." Thus, the record shows that the trial court adequately considered the relevant factors, including Steven's ability to pay and the marital standard of living.

Steven also complains that the trial court abused its discretion in ordering a $1,400 monthly spousal support payment because he is not able to maintain the marital standard of living and pay the ordered amount of spousal support. Steven points out that section 4320 required the trial court to consider "[t]he ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living" (§ 4320, subd. (c), italics added), and "[t]he needs of each party based on the [marital] standard of living" (§ 4320, subd. (d), italics added), but the spousal support award left him with inadequate funds to meet his expenses and maintain the marital standard of living for himself.

We reject this argument. The payment of monthly spousal support of $1,400 and a monthly child support of $2,396 left Steven with $4,279 of his monthly $8,075 in monthly net income to support himself. Steven failed to include a copy of his income and expense declaration in the appellate record. Thus we are forced to rely on his trial testimony regarding his expenses. At trial, Steven testified that he had $3,470 in monthly living expenses (not including service of debt) and a $1,600 mortgage payment. However, according to Steven's testimony, many of the expenses were attributable to his new wife and two stepdaughters.^[12] "[T]he trial court, in determining husband's ability to pay spousal support, must also eliminate from consideration all additional expenses resulting from the remarriage." (In re Marriage of Romero (2002) 99 Cal.App.4th 1436, 1445.) Deducting Steven's expenses resulting from his remarriage, we conclude that substantial evidence supports a finding that after Steven paid spousal and child support, he would be left with a sufficient amount of his salary to maintain the marital standard of living for himself and to meet his own living expenses. Accordingly, the trial court did not, as Steven argues, abuse its discretion by failing to consider his ability to maintain the marital standard of living.

C

Attorney Fees

We next examine whether, as Steven argues, the trial court abused its discretion by ordering him to pay, at the rate of $500 per month, $30,000 of Anne's attorney fees. Billing records submitted by Anne in support of her request for attorney fees showed that she incurred approximately $45,000 in attorney fees after the MSA was approved in May 2004. " '[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.' [Citation.] Thus, we affirm the court's order unless ' "no judge could reasonably make the order made. [Citations.]" ' " (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630 (Duncan).)

The trial court's award was made both under section 2030 and section 3557. Thus, we examine both of those provisions.

Section 2030 directs that in a proceeding for dissolution of marriage "the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a).) "The purpose of [an award under section 2030] is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy." (Duncan, supra, 90 Cal.App.4th at pp. 629-630.) The decision to award attorney fees "shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." (§ 2030, subd. (b).) Further, section 2032 directs that in assessing whether a fee award is just and reasonable under section 2030, a trial court should "tak[e] into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320." (§ 2032, subd. (b).) As we have discussed, the parties' circumstances described in section 4320 " ' "include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." ' " (Rosen, supra, 105 Cal.App.4th at p. 829.)

Section 3557 provides a basis for an award of attorney fees to Anne to the extent that she litigated claims for past‑due spousal support and child support. Section 3557 provides, in relevant part, that "absent good cause to the contrary, the court, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, shall award reasonable attorney's fees to . . . [¶] (1) A custodial parent . . . to enforce . . . [¶] [a]n existing order for child support" and "[a] supported spouse in an action to enforce an existing order for spousal support."

Summing up the three grounds on which he bases his challenge to the attorney fee award, Steven states that his "disagreement is whether the court abused its discretion in ordering him to pay $30,000.00 in attorney's fees at the rate of $500.00 per month when [(1)] the evidence clearly showed that [he] did not have the ability to pay this, [(2)] that the need-based fee contribution was really a sanction, and [(3)] there was no evidence presented as to the extent and nature of legal services provided to [Anne]" to allow the court to distinguish between the fees awarded under section 3557 relating to collection of support arrearages and those awarded under section 2030 relating to the dissolution proceedings. As we will explain, we reject each of these contentions.

1

Steven's Argument That He Lacked the Ability to Pay Attorney Fees

We first address Steven's claim that the trial court erred in awarding attorney fees, because he lacked the ability to pay. Steven argues that he was ordered to pay a total of $4,446 per month in support and support arrears, and that his net income was $8,075 per month, leaving only $3,629 per month after the support and arrears payments, which exceeded his basic living expenses.

Initially, we reject the premise of Steven's argument (i.e., that the amount left of his salary after he makes the support and attorney fee payments exceeds his living expenses) because, as we have explained above, many of the expenses Steven claims are attributable to his remarriage and thus are not properly considered expenses for the purpose of this dissolution proceeding.

Steven's argument also fails for the independent reason that the trial court was not limited to considering Steven's income and expenses in deciding whether to order him to pay a portion of Anne's attorney fees. Here, the trial court properly relied on other factors, including that Anne had a need for contribution to her attorney fees and Steven "has available to him, as resources for payment of attorney's fees, some or all of the following: salary, proceeds from the division of marital property, a retirement account, deferred compensation account, equity line of credit loan, savings account, cash withdrawal from credit cards and refinancing of real property."

In making a needs-based attorney fee award, "the trial court is not restricted in its assessment of ability to pay to a consideration of salary alone, but may consider all the evidence concerning the parties' income, assets and abilities." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) "In assessing one party's relative 'need' and the other party's ability to pay, the court may consider all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.)

Steven argues that the trial court should not have relied on sources of payment other than his income because "there were no findings as to whether [he] could access his retirement or qualify for a loan," and thus the trial court erred in making the attorney fee award.

First, we reject this argument because there is no requirement that the trial court make a specific finding as to whether Steven could access each of his various assets and sources of payment. " 'A trial court in rendering a statement of decision . . . is required only to state ultimate rather than evidentiary facts.' " (In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 686.) Here, the ultimate fact found by the court was simply that "[Steven] has the ability pay attorney's fees."

Second, even if a specific finding was required, we reject Steven's argument because the record indicates that Steven did not object to the proposed statement of decision on the ground that it did not include a specific finding on his ability to access his various assets. A party who objects on appeal to an omitted finding is required to have completed a two-step process. First, the party must have requested a statement of decision under Code of Civil Procedure section 632, and second, it must have "point[ed] out [any claimed] deficiencies in the . . . statement of decision" to the trial court. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 (Arceneaux).) "By filing specific objections to the court's statement of decision a party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous." (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380 (Golden Eagle).) If this second step is omitted and "a party does not bring such deficiencies to the trial court's attention," the party "waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment." (Arceneaux, at pp. 1133-1134; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140 [under Code Civ. Proc., § 634, a party must raise an objection to the statement of decision to "in order to avoid an implied finding on appeal in favor of the prevailing party"].) Here, Steven did not satisfy the second step required by Code of Civil Procedure section 634. He failed to point out to the trial court the error he now asserts, namely, that the statement of decision does not contain a specific finding on his ability to access his retirement or obtain a loan. (See Arceneaux, at p. 1134 ["[Code of Civil Procedure] section 634 clearly refers to a party's need to point out deficiencies in the trial court's statement of decision as a condition of avoiding such implied findings, rather than merely to request such a statement initially as provided in [Code of Civil Procedure] section 632"].) Thus, he may not object to the omitted finding on appeal.

Third, the record reveals no reason to question the trial court's implied finding that Steven could access his assets or obtain a loan to pay the attorney fees. Significantly, Steven points to no evidence in the record suggesting that he would be unable to access his retirement, qualify for a loan, or access any of the other sources of payment identified by the trial court. The record contains evidence that Steven had a steady job, made a good salary, owned real estate, and had previously been extended lines of credit and loans -- all of which permits an inference that Steven could borrow money if necessary.

We conclude that where, as here, Steven possessed several significant assets and a much higher earning capacity than Anne, the trial court was well within its discretion to make a needs-based award of attorney fees to Anne based on Steven's total financial situation.

2

Steven's Argument That the Trial Court Improperly Imposed the

Attorney Fee Award as a Sanction

Next we address whether, as Steven argues, the trial court abused its discretion by treating the attorney fee award as a sanction, rather than basing the award on a needs-based standard as required by section 2030. In support of his claim that the award functioned as a sanction, Steven relies on the trial court's statement, in the context of the making the attorney fee award, that "[t]he case has been over-litigated due primarily to the conduct of [Steven] and his current counsel who is also his current wife. Neither [Steven] nor his counsel have any objectivity as it relates to this case and thus are prone to take unreasonable positions and litigate rather than resolve issues."

We do not find this statement indicative of an intent to sanction Steven through the imposition of attorney fees. Instead, because this statement appears immediately before the trial court's finding that Anne has incurred attorney fees and that those fees are "reasonable," consideration of Steven's litigation conduct appears to have been part of the trial court's evaluation of the reasonableness of Anne's attorney fees. A finding regarding the reasonableness of the attorney fees incurred is a necessary part of a court's decision to award fees under section 2030. (See § 2030, subd. (a)(1) [stating that the court may award "whatever amount is reasonably necessary for attorney's fees," italics added]; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870 [a trial court abuses its discretion if it orders the payment of attorney fees "without making any inquiry into the reasonableness of those fees"].) In assessing the reasonableness of fees in the context of making a fee award under section 2030, "the opposing party's dilatory and uncooperative conduct may justify what might otherwise be an excessive need-based fees and costs award" (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2005) ¶ 14:195, p. 14-50.10, italics added.) For example, In re Marriage of Kozen (1986) 185 Cal.App.3d 1258, 1264, held that the amount of the attorney fee award to the wife was reasonable in light of the husband's actions that drove up the cost of the litigation. Similarly, In re Marriage of Dick (1993) 15 Cal.App.4th 144, 168, held that the amount of attorney fees awarded to the wife was justified where the complexity of the case was "occasioned, for the most part, by husband's intransigence." Here, the trial court properly considered Steven's litigation conduct in deciding that the amount of attorney fees incurred by Anne was reasonable.

3

Steven's Argument That the Trial Court Erred in Not Stating

Which Attorney Fees Were Ordered Under Section 3557

Steven also claims that the trial court erred because it did not distinguish between the attorney fees awarded under section 3557 (for enforcement of support obligations) and those awarded under section 2030 (for the dissolution proceedings in general).^[13] We reject this argument because we read the trial court's statement of decision as ordering Steven to pay a full $30,000 of Anne's attorney fees pursuant to section 2030, but also stating that section 3557 was available as an independent basis for awarding an unspecified portion of the $30,000. In its analysis of what portion of Anne's attorney fees Steven should be ordered to pay under section 2030, the trial court considered the relevant factors under section 2030, including Anne's need for contribution and Steven's ability to pay, and concluded that $30,000 would be a reasonable contribution. Because the $30,000 attorney fee award was properly awarded under section 2030, Steven's argument that the trial court erred in failing to specify which portion of the award also would have been awardable under section 3557 fails on the ground that the error was harmless. (See Code Civ. Proc., § 475 [appealed order shall not be reversed unless the error was "prejudicial" and caused "substantial injury"].)

Further, we reject Steven's argument because the record shows that he did not specifically object to the proposed statement of decision on the basis that the trial court did not apportion the attorney fee award between section 3557 and section 2030. (See Arceneaux, supra, 51 Cal.3d at p. 1134; Golden Eagle, supra, 20 Cal.App.4th at p. 1380 ["any defects in the trial court's statement of decision must be brought to the court's attention through specific objections to the statement itself"]; cf. In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1361 ["Absent a request for a statement of decision as to how attorney fees were computed the complaining party has waived any failure to provide such a computation"].) Because he did not raise the issue in the trial court, Steven has waived his right to complain on appeal about the trial court's lack of specificity.

D

Sanctions

Steven challenges the trial court's imposition of $10,000 in sanctions under section 271 on the basis that "[i]n ordering a party to pay sanctions under . . . section 271, the trial court may not impose an unreasonable financial burden on the sanctioned party."

"A sanction order under . . . section 271 is reviewed under the abuse of discretion standard. ' "[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 . . . ." [Citations.]' " (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)

Section 271, subdivision (a) states in part that "[a]n award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed." (Italics added.) "The trial court is not restricted in its assessment of comparative ability to pay to a consideration of salary alone. It may take into account all the evidence concerning the parties' income, assets and abilities." (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60; see also In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180 (Petropoulos) [considering whether sanctions order posed an unreasonable financial burden].)

Relying on the same argument of financial hardship he presented regarding the attorney fee award, Steven argues that the support orders, arrearages payments and attorney fee award left him with only $3,129 per month to support his lifestyle, and that the trial court thus erred in imposing an additional payment of $10,000 in sanctions without considering his overall financial condition.

We reject this argument because, as we have explained above with respect to the payment of attorney fees, the trial court made an implied finding, which Steven has presented no basis to question, that Steven had a variety of assets from which to satisfy the obligations imposed by the court. Similarly, in the context of the sanctions order, we imply a finding that the award will not impose an unreasonable financial burden on Steven. Applying the applicable standard that "we must indulge all reasonable inferences to uphold the court's [section 271 sanction] order" (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991), we conclude that substantial evidence supports an implied finding that because of the assets Steven owned and the amount of his salary, the sanctions order would not impose an unreasonable financial burden on him. (See Petropoulos, supra, 91 Cal.App.4th at p. 180 [due to the fact that the wife was awarded real property in the marital property division, enjoyed capital gains and rental income on the property, and received spousal support and part-time income, imposing sanctions on her did not impose an unreasonable financial burden].)

E

Disputes Caused by the Delay in the Transfer of the Elderburry Property

We next address the issues arising from the delay in the transfer of the Elderburry property to Steven after judgment was entered on the MSA. As we have explained, the MSA provided that the community Elderburry property would be transferred to Steven as his separate property through an escrow, and that Steven would make an equalization payment of $28,051.50 to Anne through the escrow.

As we have described, the trial court resolved the disputes by denying the relief sought by both Steven and Anne, but the statement of decision and the judgment provided different grounds for that outcome. The statement of decision ruled that both Anne and Steven had caused the delay, and thus neither were entitled to the payments they sought. The judgment, in contrast, appeared to rule that Steven and Anne were both entitled to the payments they sought, but that monies owed amounted to a "wash." Despite the trial court's conflicting reasoning for its decision, "[w]e are required to uphold the ruling if it is correct on any basis, regardless whether such basis was actually invoked" by the trial court. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

The issues arising out of the delay in the transfer of the Elderburry property can be resolved by interpreting the provisions of the MSA. Interpretation of a contract presents a question of law, which we determine de novo on appeal. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; see also In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 ["Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally"].) "When the language of the judgment incorporating the marital settlement agreement is clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language." (Iberti, at p. 1440.) Accordingly, we undertake our own contractual interpretation of the MSA to determine its impact on the questions presented.

Relying for his argument on the terms of the MSA, Steven states that "the [MSA] unambiguously stated that [he] was to receive the rents." Also relying on the terms of the MSA, we disagree.

First, there is no indication in the MSA that Steven was to receive the rents collected on the Elderburry property for months of tenancy occurring before the Elderburry property was transferred to him. Regarding the Elderburry property, the MSA states that it "shall be transferred through an escrow, selected and paid for by Steven," and that "Anne will deposit into escrow the full security deposit paid by the current tenants (min. $1500.00). Escrow will include transfer of current lease and any and all unused rents to Steven or purchaser (if property is sold by Steven through this escrow)." (Italics added.) Thus, the MSA provides only that Steven will receive the amount paid by the tenants for the security deposit, and any unused rents, which plainly refers to amounts paid by the tenants for periods that had not yet occurred, such as a deposit for last month's rent required as a condition of the rental. The MSA makes no mention of Steven receiving any of the rents collected from the tenants before the Elderburry property was transferred to him and that were applied to current rental periods.

Second, the MSA makes clear that the Elderburry property was to become Steven's separate property by way of an escrow. Thus, until the escrow occurred, the asset remained postseparation community property. The MSA contains a waiver of "all rights to reimbursement to which a party . . . may be entitled as a result of one party's use of community assets after the date of separation." That contractual provision forecloses any argument that Steven is entitled to a portion of the rents paid to Anne as a result of her management of the Elderburry property at the time it was a community asset.

Next, with respect to whether Anne is entitled to interest on the equalization payment, Anne has not addressed that issue in her cross-appeal. Instead, in responding to Steven's appeal, she asks that if we conclude that Steven is entitled to receive rents, we should direct the trial court to consider whether Anne is entitled to interest on the equalization payment to "prevent a windfall to Steven." Because we have concluded that Steven is not entitled to the rents, we need not address whether Anne is entitled to interest on the equalization payment.

F

Anne's Cross-appeal

In her cross-appeal, Anne argues that because there was insufficient evidence on the issue, the trial court erred in imputing to her a capacity to earn $3,333 per month. However, Anne does not request that we remand to the trial court to arrive at a modified imputed earning capacity figure and correspondingly modify the child support and spousal support judgment. Instead, the only relief Anne seeks is that we strike the finding regarding her imputed earning capacity from the statement of decision and the judgment. Anne states that "[s]he does not request that the issue be remanded for modification of support," and does not wish to disturb the judgment. Instead, she "wishes the finding deleted so that it is not binding on her in future proceedings." In other words, Anne is not actually appealing from the judgment. Instead, she is attempting to appeal a finding alone.^[14]

We do not have the authority to issue the limited relief sought by Anne. As shown by the briefing of her cross-appeal, Anne has not appealed from a judgment or an order, only from a finding. A finding, disconnected from an appeal of an order or judgment, is not a proper subject for appeal. Code of Civil Procedure section 904.1 states that an appeal must be from a judgment or an order made appealable by statute. The trial court's finding regarding Anne's imputed income is neither a judgment nor a statutorily appealable order. "[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion." (Olson v. Cory (1983) 35 Cal.3d 390, 398.) "The appealability of the judgment or order is jurisdictional and an attempt to appeal from a nonappealable judgment or order will ordinarily be dismissed." (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297.) Accordingly, on our own motion, we dismiss Anne's cross-appeal because we lack jurisdiction over it.

DISPOSITION

We affirm the judgment, and we dismiss the cross-appeal. Anne Gold is to receive costs on appeal.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] As is customary in family law cases, we refer to the parties by their first names for the sake of clarity, and we intend no disrespect thereby.

^[2] Prior to the MSA, several proceedings had occurred. In March 2003, a temporary support order was entered setting the amount of child support and spousal support, and stating, among other things, that "[t]he issue of arrears for underpayment or credits for overpayment of support prior to Sept[ember] 30, 2002 is reserved until time of trial." In August and September 2003, an alternate valuation trial was held, with the trial court rejecting Anne's request for an alternate valuation date for certain community assets.

^[3] Because, as our discussion will show, that finding is not relevant to our analysis, we do not review it.

^[4] The MSA required that the attorney fee award be limited to fees incurred after the entry of the MSA, as the MSA had resolved all claims for attorney fees incurred up to the date of MSA's "negotiation and approval."

^[5] Unless otherwise indicated, all further statutory references are to the Family Code. Section 2030 provides for the award of reasonable attorney fees in a dissolution proceeding to preserve each party's right to legal representation based on their income, need and ability to pay. Section 3557 provides that reasonable attorney fees shall be awarded to the collecting party in an action to collect spousal or child support, upon the court's consideration of ability to pay, income and need.

^[6] In setting the amount of spousal support, the trial court applied the factors set forth in section 4320. This included the finding that "[Anne] has a need for spousal support in that at her current earning capacity, she is unable to maintain the marital standard of living," and that "she is able to engage in gainful employment, albeit not at a position to command a salary sufficient to maintain the marital standard of living."

^[7] A different income for Anne would change the amount of guideline child support ordered under the formula set forth in section 4055, which takes into account, among other things, the total net monthly disposable income of both parents. (§ 4055, subd. (b).) Anne's income also impacts the amount of spousal support, because spousal support must be based on, among other things, the earning capacity of each party. (§ 4320, subd. (a).) Similarly, Anne's income impacts the trial court's decision whether to award attorney fees under sections 2030 and 3557 because an award of fees under both of those provisions depends on the parties' income, need and ability to pay. (§§ 2030, subd. (a)(2), 3557, subd. (a).)

^[8] A document in the record also shows Anne earned real estate commissions of $34,887.59 in 2001 before business expenses were deducted.

^[9] Steven argues, "It was [Anne's] burden to show the source of the deposits because of the discrepancies between the bank statements, her loan applications, and her Income and Expense Declarations." To support his argument, Steven cites In re Marriage of Rine (1993) 18 Cal.App.4th 953, 959, in which the court stated that an unemployed father who applied for a modification in child support had the burden to explain discrepancies between his income and expense declaration and deposits into his checking account. Anne argues that Rine does not impose such a burden on her because she is not a self-employed person with no verifiable source of income like the father in Rine who claimed to be unemployed. We agree. Further, as we explain, Anne did present evidence to explain the deposits that Steven relied on to argue for a higher actual income figure.

^[10] The chart gave similar explanations for deposits that Anne made during other periods covered by the bank statements relied on by Steven.