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Marriage of Marash and Whitman

Marriage of Marash and Whitman
01:11:2013






Marriage of Marash and Whitman




















Marriage of
Marash and Whitman








Filed 12/10/12
Marriage of Marash and Whitman CA6









NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH
APPELLATE DISTRICT




>










In re the
Marriage of VERED MARASH

and ZACHARY
WHITMAN.


H036639

(Santa Clara County

Super. Ct. No.
FL-105-128865)




VERED MARASH,



Appellant,



v.



ZACHARY
WHITMAN,



Respondent.







Vered
Marash appeals from a judgment resolving issues over spousal and child support
in proceedings arising from the dissolution of her marriage to respondent
Zachary Whitman.href="#_ftn1"
name="_ftnref1" title="">[1] Vered contends that the href="http://www.mcmillanlaw.com/">family court abused its discretion by
using Zachary's actual rather than imputed income to calculate support, by
ordering her to reimburse Zachary for his overpayment of temporary support, by
refusing to deviate upward from guideline child support, and by failing to
consider fully the parties' relative circumstances in determining permanent
spousal support. We find no abuse of
discretion in the court's support orders, with the exception of a Dissomaster
calculation error both parties recognize.
We further agree with Vered's final contention, that the court failed to
make findings on Vered's request for pendente lite attorney fees under Family
Code section 2030.href="#_ftn2"
name="_ftnref2" title="">[2] We will therefore remand
this matter for recalculation of child support and for consideration of
attorney fees under section 2030.

Background



The
parties separated in August 2005 after nearly 15 years of marriage. They had two sons, born in 1991 and
1998. On September 7, 2005, Vered petitioned for dissolution of the marriage. The parties initially stipulated to an order
providing that Zachary would pay Vered temporary spousal support of $2,299 per
month and temporary child support of $3,027 per month, for a combined monthly
support award of $5,326.href="#_ftn3"
name="_ftnref3" title="">[3] At that time Zachary was
receiving funds from his mother in addition to income from his job as an insurance
sales agent, having been forced to enter this profession when his family retail
business closed at the end of 2003.
Vered, meanwhile, had an engineering degree but was suffering from
chronic health conditions that had forced her to stop working as a consultant
and project manager in November 2000.

In
August 2006, Zachary moved to modify temporary child and spousal support,
explaining that he was no longer receiving monetary gifts from his mother. Upon a request by Vered and a vocational
assessment by Tim G. Harper, M.A., the Honorable Derek Woodhouse imputed income
to Zachary of $55,000 per year (about $4,583 per month), along with investment
income of $833 per month and $3,500 "as the value of reduced living
expenses" per month because he was living with his mother without paying
rent. The resulting order, filed on February 14, 2007, was for total support of $4,839 per month beginning December 20, 2006. Zachary appealed from Judge
Woodhouse's order.

In
February 2007 Zachary's mother died, leaving her home and investments to
him. On August 6, 2007 Vered moved to modify child and spousal support and reallocate the
children's expenses. On October 11, 2007, the parties stipulated to an increase in combined child support to
$2,902 and an increase in temporary spousal support to $2,308, retroactive to August 6, 2007.

Zachary's
appeal was determined by this court's opinion on August 15, 2008, which found error in the imputation of income attributable to the
expense-free housing (H031329). The case
was remanded to the family court to enable it to decide "whether the value
of reduced expenses by virtue of [Zachary's] living arrangement should be
considered a 'special circumstance' justifying deviation from guideline child
support under section 4057."

On
March 20, 2009, Zachary moved to modify child and spousal support as well as
the division of expenses for the children.
In his accompanying declaration he reported that he had changed
employers, resulting in a better opportunity for mentoring and advancement but
at a lower initial income, because he could no longer receive residual
commissions from his previous employer.
Zachary cited declining market conditions, a "huge asset drain" from
litigation costs and attorney fees, and the "complete collapse" of
one of his investments as reasons the amount of imputed income was no longer
realistic. In addition, his older son,
though not yet 18 years old, was in college on a scholarship and had a large
amount of his own money from gifts that could be used for expenses. Zachary further questioned the amount and
necessity of the children's expenses, 75 percent of which Vered expected him to
pay but which should be included in child support. Vered was not working, but Zachary believed
that she received about $2,000 per month in Social Security disability
benefits.

On
October 2, 2009, Vered moved for attorney fees and costs and for
"enforcement and determination of arrearages" arising from the
October 11, 2007 stipulation and order regarding health care costs and other
expenses for the children. She also
requested $5,792.94 for arrearages accumulating between April and October 2009.

The
motions were heard over several days in July 2010 by the Honorable Carrie A.
Zepeda. Among the witnesses providing
testimony were Harper, Vered's vocational expert who had examined Zachary; Dr.
Richard Lee, Vered's primary care physician; Cheryl Foden, Zachary's vocational
expert who had examined Vered and reviewed Harper's report; the parties'
forensic accounting experts; and both parties.


The
family court issued a lengthy statement of decision explaining its analysis of
all the material issues presented. For
the "remand period" between December 2006 and August 2007 Judge
Zepeda followed this court's direction to determine whether it was appropriate
to deviate from guidelines in determining child and spousal support and
arrearages claimed by Vered. She
concluded that Zachary's mortgage-free situation "did not contribute
additional income from which to calculate or pay additional support." After paying support, his remaining income
was insufficient to meet his expenses, and the court declined to impute income
as urged by Harper, Vered's vocational expert.
Consequently, Zachary had been overpaying support during this period in
the amount of $18,952. Deducting from
that figure the expense arrearages, the court calculated $2,478.22 to be the
amount Vered owed Zachary.

Addressing
Vered's August 6, 2007 motion, the court noted that the October 11 stipulation
had reserved the right to modify the amount of temporary support pending the
appellate opinion. Notwithstanding
Zachary's mortgage-free situation, he had, the court observed, continued
"to lead a modest lifestyle."
Vered had not produced any evidence demonstrating that applying the
guideline formula would be unjust or inappropriate because of the housing
benefit. Consequently, the court found
no reason to deviate from guideline support in the amount provided in the
October 2007 stipulation.

Judge
Zepeda then turned to Zachary's March 20, 2009 motion to modify child and
spousal support. Applying section 3651href="#_ftn4" name="_ftnref4" title="">[4] and Marriage of Williams (2007)
150 Cal.App.4th 1221, 1234, the court found that Zachary had presented evidence
of changed circumstances since 2006, when Judge Woodhouse had imputed
income: his mother had died in February
2007, he had lost legal and physical
custody
of his sons in a final custody order in July 2007, the economic
downturn had discouraged potential clients from buying insurance, and he had
struggled with depression and other personal difficulties, including the
dissolution litigation. In addition, the
change in employers in December 2008 meant that he had lost residual
commissions from the policies sold in his previous employment. The court further noted Vered's receipt of
Social Security benefits and Zachary's loss of investment income when his
Panaseca stock became worthless. It
declined to penalize Zachary for the job shift or his inheritance; the reduced
income was likely to be temporary because the job move was advantageous, and
there was no evidence that the inheritance had adversely affected his
"motivation or desire to earn as much as he could from his work or that
the inheritance caused the downturn in his earnings."

In
short, Zachary had never achieved the income level Harper had projected for him
as his earning capacity or opportunity.
Consequently, Judge Zepeda concluded, changed circumstances warranted
application of actual income rather than imputed income. Zachary's payment of $34,826 thus resulted in
the overpayment for which he was entitled to reimbursement.

The
court next examined the issue of permanent support. Devoting some 16 pages of the statement of
decision to this issue, Judge Zepeda reviewed the documentary and href="http://www.mcmillanlaw.com/">testimonial evidence pertaining to all
of the factors listed in section 4320.
She acknowledged that the parties' younger son had to take medication
during the day. Vered also had serious
medical issues, suffering from chronic conditions involving the endocrine
system. She had once been a consultant
and project manager for Hewlett-Packard, but when she developed health problems
she left the company and had not been employed since 2000. Nevertheless, Judge Zepeda determined that
there was insufficient evidence regarding Vered's ability to work without
compromising the son's or her own medical needs. Consequently, Vered was directed to undergo
an evaluation by the Department of Rehabilitation "to see what sort of
work she can do, if any." That
information would help the court determine whether she would be able to work
without interfering with her care of her son.

Both
parties had suffered hardships— for Vered, her medical condition and that of
the younger son; and for Zachary, the loss of a family business, custody of his
sons, and his mother, all within a short period. The court found that notwithstanding Vered's
medical issues, she had "an obligation to support herself and her
children" and therefore was ordered to cooperate with the recommendations
made by the rehabilitation counselor.
Zachary, on the other hand, had failed to earn the amount Harper had
attributed to him as his earning capacity, though he worked 70 hours a week and
had taken several courses not only to learn the products offered by his new
company but also to develop a more successful professional style. The court found Harper's analysis to be
"flawed" and his opinion "unreliable" in his estimate of
Zachary's ability to earn $70,000-$80,000 a year. Thus, actual earnings from the new employer
were the appropriate measure to be used in calculating support. As for inherited stock, the court noted that
Zachary had been forced to sell some of it in order to pay property and estate
taxes, capital gains taxes, support, and
the cost of repairs on the home.
Zachary's home was the "bulk" of his wealth, but it was an
older home in need of repairs; it was the Atherton location that accounted for
much of its value. Besides maintaining a
modest lifestyle, Zachary supplemented his income by renting rooms in his
home. That income amounted to $2,133 per
month after deducting utilities and depreciation. The court determined that the appropriate
amount of guideline support beginning July 2010 was $970 per month for support
of the younger son (the older son had reached 18) and $1,150 per month for
spousal support.

Finally,
the court reached the issue of attorney fees, which Vered had requested under
former section 3557, under sections 2030 and 2032, and as sanctions under
section 271. The judge summarized the
relative merits of the parties' arguments over the five motions she had had to
address. She concluded that both parties
had succeeded on some issues and failed on others. Overall, "[t]he attorneys were equally
competent and demonstrated the necessary work ethic to litigate the
issues." Accordingly, the parties
were ordered to pay their own attorney fees.

Judgment
was entered on January 4, 2011, incorporating the court's statement of
decision. Vered filed a timely href="http://www.fearnotlaw.com/">notice of appeal.

Discussion


1. Standard and
Scope of Review



Representing
herself on appeal, Vered contends that the family court abused its discretion
when it (1) declined to impute income to Zachary; (2) ordered her to reimburse
Zachary for his overpayment of temporary support; (3) inadequately considered
the factors that determine the amount of permanent support; (4) rejected her
request to deviate from guideline child support in light of the special
circumstances presented; and (5) denied her request for attorney fees. She correctly observes that a court's
exercise of discretion in deciding support issues must be consistent with the
applicable legal principles and supported by href="http://www.fearnotlaw.com/">substantial evidence. But our standard of review embraces more than
that simple statement. All of the
court's decisions regarding support are reviewed for abuse of discretion. (Marriage
of Cheriton
(2001) 92 Cal.App.4th 269, 282-283.) This includes determinations of entitlement
to and amount of temporary and permanent spousal support (Marriage of Kerr (1999) 77 Cal.App.4th 87, 93; Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443), imposing or
denying attorney fees as section 271 sanctions (Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524),
modifications of child support (Marriage
of Williams, supra,
150
Cal.App.4th at pp. 1233-1234), and determining amounts of attorney fee awards
under section 2030. (>Marriage of Drake (1997) 53 Cal.App.4th
1139, 1166.) Whether to impute income to
the supporting spouse is necessarily a part of that exercise of the court's
broad discretion in making and modifying support awards. (Marriage
of Sorge
(2012) 202 Cal.App.4th 626, 642-643; Marriage of Cheriton, supra, 92 Cal.App.4th at p. 301; >Marriage of Schlafly (2007) 149
Cal.App.4th 747, 753.)

In
exercising its discretion over child support, the family court has a duty
" ' "to exercise an informed and considered discretion with
respect to the [parent's child] support
obligation . . . ."
[Citation.] Furthermore, "in
reviewing child support orders we must also recognize that determination of a
child support obligation is a highly regulated area of the law, and the only
discretion a trial court possesses is the discretion provided by statute or
rule. . . ."
[Citation.] In short, the trial
court's discretion is not so broad that it "may ignore or contravene the
purposes of the law regarding . . . child
support. . . ." [Citation.]' " (Marriage
of Williams
, supra, 150 Cal.App.4th at p. 1234, quoting >Marriage of Cheriton, supra, 92
Cal.App.4th at p. 283; see also Marriage
of Bodo
(2011) 198 Cal.App.4th 373, 384.)
Consequently, the court must adhere to the strong public policy of this
state by following the statewide uniform guidelines set forth in sections
4050-4076, including the mathematical formula prescribed in section 4055, which
is deemed to be "presumptively correct." (Marriage
of Williams, supra,
150
Cal.App.4th at pp. 1237.)

Spousal
support awards likewise are controlled by the applicable statutory law—notably,
the list of potentially relevant circumstances outlined in section 4320. In applying these factors to determine the
appropriate amount of spousal support, the 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.'
[Citation.] In balancing the applicable statutory factors, the trial
court has discretion to determine the appropriate weight to accord to
each. [Citation.] But the 'court may not be arbitrary; it 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.' [Citation.]
Furthermore, 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. [Citations.] Failure to do so is reversible
error." (Marriage of Cheriton, supra,
92 Cal.App.4th at p. 304; Marriage of
Kerr
, supra, 77 Cal.App.4th at p. 93.) The same rules govern the exercise of
discretion in determining requests for attorney fees in family law cases, where
such awards are subject to the guidelines set forth in sections 2030 and
2032. (Marriage of Cheriton, supra,
92 Cal.App.4th at p. 315.)

On
appeal, however, our analysis is controlled by different standards. Whether our focus is child support, spousal
support, or attorney fees, we may not substitute our judgment for that of the
lower court, and must affirm that court's decision unless we conclude, after
viewing all the evidence and indulging in all reasonable inferences in favor of
the judgment, that "no judge could have reasonably made the challenged
decision." (Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1046-1047 [child
support]; see also Marriage of Bodo, supra,
198 Cal.App.4th at p. 384 [sanctions]; Marriage
of
Blazer, supra,176
Cal.App.4th at p. 1443 [spousal support].)
Accordingly, we resolve any conflicts in the evidence in favor of the
lower court's determination, and all factual findings must be upheld if they
are supported by any substantial evidence.
(Marriage of Cryer, supra, 198 Cal.App.4th at p.
1047; see also Marriage of Schlafly, supra,
149 Cal.App.4th at p. 753 [imputation of income].)

2. Imputation of
Income



Vered's
first contention, challenging the court's decision to base support on Zachary's
actual income rather than earning capacity, forms the predicate of some of her
other assertions. In her view, the
family court "reversed" the previous decision by Judge Woodhouse,
which this court upheld, to impute income to Zachary based on his earning
capacity. In altering the
"method" of determining income for the remand period, Vered maintains,
the court abused its discretion "because there was substantial evidence supporting the continued imputation of income at earning capacity." She recalls Harper's report and testimony and
asserts that Zachary did not show that he had the "ability to work and
opportunity to work"— she means, we presume, at a higher income level.

But
the existence of substantial evidence supporting the appellant's position does not translate to a reversal of the lower
court's decision. Our function is not to
replace the family court's exercise of discretion with our own by accepting
evidence the court has rejected; we are required to uphold the judgment if any
substantial evidence supports the court's
decision
. The credibility of
Harper's analysis was part of that decision and thus is not for us to judge in
the first instance. (>Marriage of Calcaterra and Badakhsh
(2005) 132 Cal.App.4th 28, 34.) Judge
Zepeda found Harper's opinion regarding Zachary's earning capacity to be
unreliable and flawed. Whether we might
have reached a different conclusion is not material, as we are not permitted to
reweigh the evidence. It is the family
court in the first instance which "sits as trier of fact and . . . is called upon to determine that a
witness is to be believed or not believed. This is the nature of fact
finding." (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095,
1099.) We must view such determinations
in favor of the order. (>In re Marriage of Slivka (1986) 183
Cal.App.3d 159, 162-163.) As Judge
Zepeda gave a rational explanation for her view of the evidence and for the
conclusions she drew from the facts presented, we have no basis for finding an
abuse of discretion in using Zachary's actual income in these circumstances.

3. Overpayment of
Temporary Support



As
noted earlier, the family court found that Zachary had overpaid spousal and
child support during the remand period (December 2006-August 2007) and, after
deduction for arrearages, was therefore entitled to reimbursement of
$2,378.22. Vered contends that in making
this determination the family court did not consider all the factors required
by section 3653,href="#_ftn5"
name="_ftnref5" title="">[5] particularly the hardship this order would create for her and the
children. We find no support for this
assertion in the record. On the
contrary, the court expressly acknowledged section 3653. Following this court's directions, it
addressed the question of whether Zachary's reduced expenses for mortgage-free
housing justified an upward adjustment to guideline support. The court's conclusion was based on its findings
that the absence of a mortgage obligation "did not contribute additional
income" for purposes of calculating support and that Zachary was unable to
pay his expenses after paying support. The court further found no evidence that
the children lacked adequate space in their home with Vered, nor any other
evidence "that application of the [guideline] formula would be unjust or
inappropriate because of the alleged housing disparity." Vered does not refute these factual
conclusions. As discussed in subsequent
sections, the record discloses every indication that the court thoroughly
reviewed each party's income, expenses, assets, and standard of living in
determining the correct amount of support during the remand period. We see no abuse of discretion in the court's
conclusion that Zachary had overpaid both child and spousal support and was
therefore entitled to reimbursement.
(Cf. In re Marriage of Dandona
& Araluce
(2001) 91 Cal.App.4th 1120, 1126 [no showing of failure to
consider section 3653 in ordering reimbursement for husband's overpayment of
support].)

4. Permanent
Spousal Support



In
a similar vein Vered contends that the court abused its discretion when it
determined that $1,150 per month was the correct amount of spousal support for
Vered beginning July 2010. In her view,
the court "did not fully take
into account Zachary's earning capacity,
earned and unearned income, assets and standard of living." In addition, she argues, the court did not
take into account the parties' relative needs and obligations, Zachary's access
to "other financial assets" to meet his needs, the standard of living
established during the marriage, or the financial impact of a reduction in
permanent support from the previous level of temporary support.

We
disagree. As noted above, in setting
permanent support the court was required to consider the factors enumerated in
section 4320. (See Marriage of Cheriton, supra, 92 Cal.App.4th at pp.
302-303.) It clearly did so, and in
meticulous detail. The court described
the nature, symptoms, and effects of Vered's medical conditions, including
diabetes, hypothyroidism, adrenal fatigue, Sjogren's Syndrome, and
fibromyalgia, in addition to certain food sensitivities. Yet the court was unwilling to rule out the
possibility that Vered could sustain employment to some degree, and for that
reason it ordered her to undergo an evaluation by a rehabilitation
counselor. The court did address the
question of Zachary's earning capacity, the value of his asset in his home, and
his lifestyle, which was "modest."
The court specifically acknowledged the previous lifestyle the parties
had enjoyed, but it also described the "huge reductions in their
earnings"href="#_ftn6"
name="_ftnref6" title="">[6] attributable to Vered's medical conditions and the loss of
Zachary's family business, which forced him to enter a new profession. Those "major impacts" on their
marital standard of living translated to $3,155 per month. The court described the hardships both
parties had experienced — Vered's medical challenges, her burden of caring for
her son with his medical issues, and Zachary's loss of his business, his sons,
and his mother within a short period, and the attendant change of career late
in life. The court explicitly stated
that it had taken these facts into account in calculating child and spousal
support.

Vered
does not explain how the court's calculation of Zachary's income was
"inaccurate" or why the standard of living should be assumed to be at
the level it was in 2000. And although
she complains that Zachary's assets were not considered, she does not assign
error in the court's detailed description of the value of her home, Zachary's
home, her bank balances and stock holdings, and Zachary's stock holdings. The court's statement of decision reflects a
thorough examination of all the circumstances presented with scrupulous
attention to and explanation of all of the factors identified in section
4320. The voluminous documentary
evidence and extensive hearing testimony supported the court's findings. Vered
does not demonstrate otherwise.

5. Deviation from
Child Support Guidelines



Section
4057, subdivision (a), establishes a presumption that the guideline formula is
"the correct amount of child support to be ordered." A party may rebut this presumption by showing
circumstances that make application of the formula "unjust or
inappropriate." (§ 4057, subd.
(b).) Vered attempted to show that an
upward adjustment in support was necessary because Zachary was living in a home
with no mortgage payment. She renews
that argument on appeal. Based on this
"disparity in housing," she believes, "Zachary has economic
security and freedom not enjoyed by Vered and minor child" and therefore
should pay more than the guideline formula prescribes.

But
Judge Zepeda specifically addressed the implications of Zachary's
"mortgage free home" on the statutory presumption that the guideline
formula prescribed the correct amount of support. She observed that the lack of a mortgage
"did not contribute additional income from which to calculate or pay
additional support." She noted that
even while Zachary rented space in his home to help pay expenses and lived
modestly, his income was still insufficient to pay support. Accordingly, not only had Vered failed to
convince the court that application of the guideline formula would be unjust or
inappropriate, but the court found that it would be unjust and inappropriate >not to apply the formula in this case.

Other
than the asserted housing disparity, Vered does not offer reasons the court
should have departed from the guideline formula in making the child support
calculation. Because she failed to show
error in the application of the statutory guidelines, reversal is not required
on that basis.

6. Dissomaster
Entry Errors



Vered
next calls attention to the court's omission of rental income for the period of
November 2009 through June 2010. Zachary
concedes this error, but he maintains that it is not prejudicial because the
court overstated his rental income in any event, by taking his expert accountant's
testimony out of context. Because both
parties agree that error occurred, we will allow the court to re-examine its
rental calculations on remand and make any support adjustments the court finds
necessary as a result.

7. Attorney Fees



Vered's
request for attorney fees was made under both the sanctions provision, section
271, and the need-based provision, section 2030.href="#_ftn7" name="_ftnref7" title="">[7] By the time the judgment was
filed in January 2011, the 2010 amendment of section 2030 was in effect. Subdivision (a)(1) of that section provides,
in pertinent part: "In a proceeding
for dissolution of marriage . . .
the court shall ensure that each party has access to legal
representation, including access early in the proceedings, to preserve each
party's rights by ordering, if necessary based on the income and needs assessments,
one party, except a governmental entity, 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."

Section
2032 assists the court in applying section 2030 by authorizing the fee award
"where the making of the award, and the amount of the award, are just and
reasonable under the relative circumstances of the respective parties. [¶] (b)
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, to the extent
relevant, 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, subds. (a), (b).)href="#_ftn8" name="_ftnref8" title="">[8]

Section
2032 "not only requires that the court consider the financial resources of
each party, but also requires a broader analysis of the parties' relative
circumstances." (>In re Marriage of Cryer, supra,
198 Cal.App.4th at p. 1056.) "[A]
pendente lite fee award should be the product of a nuanced process in which the
trial court should try to get the 'big picture' of the case, i.e., 'the relative
circumstances of the respective parties' as the statute puts it. (§ 2032, subd. (a).) Conversely,
determination of a pendente lite attorney fee order is definitely not a
truncated process where the trial court simply (a) ascertains which party has the
higher nominal income relative to the other, and then (b) massages the fee
request of the lesser-income party into some manageable amount that feels like
it will pass an abuse of discretion test."
(Alan S., Jr. v. Superior Court, supra, 172 Cal.App.4th at p.
254.)

Vered
asserts an abuse of discretion in the family court's denial of her attorney
fees under section 2030 and 271. The
section 271 claim is not accompanied by argument beyond the bare statement that
the court erred, and we therefore need not discuss it further. Zachary, on the other hand, focuses on
section 271 and does not discuss Vered's primary argument under section 2030,
except to contend that she waived it by failing to object to the court's omission
of this subject in its statement of decision.
At most Zachary suggests that we "may presume that the trial court
reached the question of Vered's claim for fees under section[s] 2030 and 2032,
and decided that issue adversely to her."
We then should, according to Zachary, import the "findings in other
contexts concerning the economic condition of the parties," which leads to
the conclusion that no abuse of discretion occurred.

But
the statute does not permit such implied findings or (more to the point)
excuses for the lack of findings. Section
2030, subdivision (a)(2), as of January 1, 2011, requires the court to
"make findings on whether an award of attorney's fees and costs under this
section is appropriate, whether there is a disparity in access to funds to
retain counsel, and whether one party is able to pay for legal representation
of both parties. If the findings demonstrate disparity in access and ability to
pay, the court shall make an order awarding attorney's fees and costs. A party
who lacks the financial ability to hire an attorney may request, as an in pro
per litigant, that the court order the other party, if that other party has the
financial ability, to pay a reasonable amount to allow the unrepresented party
to retain an attorney in a timely manner before proceedings in the matter go
forward." Unlike the previous
versions of this statute, which called for consideration
of specified factors (income and needs of each party and other factors
affecting ability to pay), subdivision (a)(2) now appears to insist on >express findings on the parties'
financial needs and abilities to secure legal representation.

Here
it is apparent that the court focused on the issue of whether either party
should be ordered to pay the other's attorney fees as sanctions under section
271. It did not, however, examine the
merit of Vered's request under section 2030.
While the family court has "considerable latitude to make a just
and reasonable fee award" (In re
Marriage of Cryer, supra,

198 Cal.App.4th at pp. 1054-1055), "its decision must reflect an exercise
of discretion and a consideration of the appropriate factors." (In re
Marriage of Hatch
(1985) 169 Cal.App.3d 1213, 1219; accord, >In re Marriage of Keech (1999) 75
Cal.App.4th 860, 866.) Accordingly, the
court was obligated to determine whether an award was necessary to "ensure
that each party has access to legal representation," in "whatever
amount [was] 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)(1).) That determination would have
necessarily been expressed in an articulation of the court's findings on
whether an award was "appropriate, whether there is a disparity in access
to funds to retain counsel, and whether one party is able to pay for legal
representation of both parties."
(§ 2030, subd. (a)(2).)

Here
the court's statement of decision reflects no examination of the circumstances
the court was required to consider under sections 2030 and 2032. We therefore remand this matter to enable the
court to exercise its discretion, keeping in mind the policy expressed in
section 2030 to "ensure that each party has access to legal
representation" during the proceedings.

Disposition

The
judgment is reversed. The matter is
remanded for the limited purpose of allowing the family court to (1) re-examine
its Dissomaster calculations based on accurate rental income to Zachary from
November 2009 to June 2010 and (2) address and resolve Vered's request for
attorney fees under section 2030. The
parties shall bear their own costs on appeal.









_____________________________

ELIA,
J.



WE CONCUR:







__________________________________

RUSHING, P .J.







__________________________________

GROVER, J. href="#_ftn9" name="_ftnref9" title="">*





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] For ease of reference, we will refer to the parties by their first
names, as do the parties in their appellate briefs. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2] All further statutory
references are to the Family Code.

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3] The temporary child support figure assumed that the time the
children spent with Zachary was five percent.
But on October 7, 2005, the court entered a stay-away order preventing
Zachary from having contact with either of the children. In July 2007 he lost legal and physical custody,
and in December 2008 court-ordered "reconnection therapy" was
terminated. Thereafter Zachary had no
visitation with his sons.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4] This provision authorizes the family court to modify support if
necessary upon a showing of changed circumstances, although spousal support may
not be modified if an agreement between the parties specifically provides to
the contrary.

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">[5] Subdivision (d)(1) through (4) of the section requires the court to
consider the amount to be repaid, the duration of the overpayment, the impact
on the obligee and "other facts or circumstances that the court deems
relevant."

id=ftn6>

href="#_ftnref6"
name="_ftn6" title="">[6] In 2000 Zachary earned $97,000 and Vered earned $138,714. By 2005 Vered was earning nothing, and
Zachary's income had "plummeted" to $36,000 per year.

id=ftn7>

href="#_ftnref7"
name="_ftn7" title="">[7] Although Vered also based
her request on section 3557, she does not invoke this provision on appeal and
we will therefore not address it.

id=ftn8>

href="#_ftnref8"
name="_ftn8" title="">[8] Section 4320 "presents a near-exhaustive list of factors that
are to go into a spousal support award . . . . To be sure, not all section 4320 factors will
be relevant all the time (hence the 'to the extent relevant' language in
section 2032). But obviously a number of section 4320 factors will >usually bear on a pendente lite fee
order. These surely include earning capacity (subd. (a)); ability to pay,
taking into account such things as assets and standard of living (subd. (c));
respective needs (subd. (d)); obligations and assets (subd. (e)); age and
health (subd. (h)); and the overall balance of hardships (subd. (k))." (Alan S.,
Jr. v. Superior Court
(2009) 172 Cal.App.4th 238, 253.)

id=ftn9>

href="#_ftnref9"
name="_ftn9" title="">* Judge of the Monterey County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.








Description Vered Marash appeals from a judgment resolving issues over spousal and child support in proceedings arising from the dissolution of her marriage to respondent Zachary Whitman.[1] Vered contends that the family court abused its discretion by using Zachary's actual rather than imputed income to calculate support, by ordering her to reimburse Zachary for his overpayment of temporary support, by refusing to deviate upward from guideline child support, and by failing to consider fully the parties' relative circumstances in determining permanent spousal support. We find no abuse of discretion in the court's support orders, with the exception of a Dissomaster calculation error both parties recognize. We further agree with Vered's final contention, that the court failed to make findings on Vered's request for pendente lite attorney fees under Family Code section 2030.[2] We will therefore remand this matter for recalculation of child support and for consideration of attorney fees under section 2030.
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