Marriage of Muhammad and Santana

Filed 5/20/08 Marriage of Muhammad and Santana CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Linfield, Judge. Affirmed.

Chaudhry Fikir Muhammad, in pro. per., for Appellant.

Law Offices of Richard S. Jacinto, Richard S. Jacinto and John Kemp for Respondent.

____________________________________

Appellant Chaudhry Fikir Muhammad (husband) appeals from that portion of a dissolution judgment awarding spousal support and attorney fees to respondent Socorro Ramos Santana (wife). Husband argues the trial court abused its discretion in fixing spousal support and awarding attorney fees. Husbands appellate brief fails to establish an abuse of discretion by the trial court, and we therefore affirm.^[1]

FACTS AND PROCEDURAL BACKGROUND

Husband filed a petition for dissolution on May 31, 2006, after a 14-year marriage. The trial court first determined that a prenuptial agreement was valid, except for the clause regarding spousal support. A trial was held on the issue of spousal support.^[2] Husband was 79 at the time of trial and had retired the previous year. Wife was 78.

Husband owned property on Beverly Boulevard valued by the county assessor at $243,116, but with an actual value of a minimum of $1 million. He owned property on West Cedar valued by the assessor at $223,804, but with an actual value of $450,000. The property produces $18,000 of income per year. Husband has liquid assets valued at $318,213. He has $100,000 in credit card debt. His current pension is $3,563 per month. He pays more in mortgages than his income property produces by $4,000 per month.

During the last two years of the marriage, husband gave wife $700 per month. Wife has a retirement account valued at $24,748. She has another account valued at $21,347.27. She has $4,000 in bank accounts. Wifes monthly expenses total $1,714. Her monthly income is $958. She makes up the difference by taking money out of the bank. Her home is worth $400,000 and is owned free and clear. Wife receives $858 in Social Security and $106 from her retirement accounts.

Wifes attorney fees were between $7,000 and $9,000.

After closing arguments, the trial court stated: The court on the issue of spousal support, obviously, has to look at the [Family Code section] 4320 factors. These are the factors that the Legislature has determined need to be analyzed by the court in determining if there should be spousal support and if so how much. Many of the factors are not applicable to this case. Were dealing obviously with two retired people, so all of the factors which discuss earning potential, retraining, ability to be retrained for another job, those issues are not in play here. Im not going to spend any time going through them.

The trial court found husband owned property worth in excess of $1 million and bank account assets of $318,000. Wife owned a home valued at approximately $400,000 and $45,000 in her retirement account. The court found husbands monthly income was $8,000 and wifes monthly income was $964. Husband stated his expenses were $12,000 per month, while wifes expenses were $1,714 per month. Husband also had credit card debt of $100,000.

The trial court noted the length of the marriage. The court also stated that it would not expect husband or wife to work, as they were both retired people, and therefore, the court did not impute income to either. The court acknowledged that husband was experiencing cash flow problems as expenses for the real properties increased, but noted he also had appreciating assets. [L]ooking at all those things and balancing all of these [Family Code section] 4320 factors, the court is going to award spousal support. The court is going to award spousal support in the amount of $1,000 a month[,] which would be the amount that the court believes is both equitable and necessary for wife to maintain her previous marital standard of living and her current expenses.

I should add, the marital standard of living was middle class. Husband was earning roughly $100,000. They did not live luxuriously, by any means, but this was certainly at least a middle class standard of living, and in terms of the income of the families was upper middle class, though I dont think the parties lived in actually the way you think of upper middle class families living. The trial court examined the ability to pay attorney fees and ordered husband to pay $5,000 of wifes attorney fees.

Husband filed a substitution of attorney to represent himself. Husband filed multiple motions for reconsideration, all of which were denied. The trial court entered a dissolution judgment ordering husband to pay spousal support to wife of $1,000 per month. Spousal support arrears of $8,000 were to be paid by July 1, 2007. In addition, husband was ordered to pay wifes attorney $5,000 as husbands contribution to wifes attorney fees and costs. Husband filed a timely notice of appeal.

DISCUSSION

Husband appeals from the portion of the judgment awarding spousal support and payment of $5,000 of wifes attorney fees.

To determine an award of permanent spousal support, the trial court must consider and weigh the statutory factors set forth in Family Code section 4320, to the extent they are relevant. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) 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. [Citations.] (Id. at p. 304.)

Once the trial court has considered the mandatory guidelines of Family Code section 4320, it has broad discretion to determine the amount and duration of spousal support, and an award will not be reversed on appeal absent an abuse of that discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) Generally, the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] [Citation.] To the extent that a trial courts exercise of discretion is based on the facts of the case, it will be upheld as long as its determination is within the range of the evidence presented. [Citation.] [Citation.] Conversely, a court abuses its discretion if its findings are wholly unsupported, since a consideration of the evidence is essential to a proper exercise of judicial discretion. [Citation.] [Citation.] (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)

The record on appeal simply does not support husbands contentions that the trial court abused its discretion in fixing spousal support and awarding attorney fees. The court considered the evidence, applied the statutory criteria, and entered a ruling that was neither arbitrary nor capricious. Husbands brief essentially asks this court to reweigh the facts, which is not our function.

DISPOSITION

The judgment is affirmed. Respondent Socorro Santana is awarded her costs on appeal.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] At oral argument, husband was granted permission to lodge additional documents with the clerk of this court. The documents have been ordered filed. The additional documents provide no basis for finding an abuse of discretion in the judgment on appeal.

^[2] No documents filed prior to the trial date of April 20, 2007, were made part of the record on appeal, including husbands petition for dissolution of marriage.