Filed 7/20/17 Marriage of O’Toole and Greenlaw CA1/1
Reposted to give correct file name
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


In re the Marriage of THOMAS O’TOOLE and JULIE GREENLAW.

THOMAS O’TOOLE,
Appellant,
v.
JULIE GREENLAW,
Respondent.


A145479

(Contra Costa County
Super. Ct. No. MSD1201850)


Appellant Thomas O’Toole appeals from a judgment entered in this dissolution proceeding requiring his former wife, respondent Julie Greenlaw, to pay him spousal and child support. O’Toole contends that the trial court made a number of errors in calculating and awarding this support, which he considers to be too low. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
O’Toole is an attorney, and Greenlaw is a dentist. During their marriage they invested in property, including rental units, and amassed a healthy amount of savings. After having been married for more than 16 years, O’Toole and Greenlaw separated and initiated proceedings to dissolve their marriage. Since their separation, they have shared equal custody of their two minor children. In late 2013, they entered into a stipulated judgment that resolved property-distribution issues but left open whether either party would be required to pay spousal support or prospective child support. A trial on the unresolved issues spanned several days in 2014. In March 2015, the trial court issued a tentative decision, and both parties filed objections. The court accepted various objections by each party, and it subsequently issued a 15-page final decision. Judgment was entered in May 2015 based on the final decision, and it awarded O’Toole monthly spousal support of $300 and monthly child support of $397. These awards were made retroactive to January 1, 2015. O’Toole appealed. Greenlaw filed a cross-appeal, but she subsequently abandoned it.
II.
DISCUSSION
A. The Applicable Standard of Review.
It is well settled that we presume the correctness of a judgment, and “ ‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
We review awards of both child and spousal support under an abuse of discretion standard. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283 (Cheriton).) This “ ‘is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.’ ” (In re Marriage of Walker (2012) 203 Cal.App.4th 137, 146.)
In reviewing orders for spousal support, we recognize that the trial court “must consider the mandatory guidelines of [the applicable statute]. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn. omitted.) Similarly, in reviewing orders for child support, we recognize that a “ ‘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.’ ” (Cheriton, supra, 92 Cal.App.4th at p. 283.) Thus, we “review support awards for abuse of discretion ‘with the understanding that a sustainable exercise of discretion requires that the trial court have considered and applied all relevant [statutory] factors.’ ” (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 357.)
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) In other words, “[w]e accept all evidence favorable to the prevailing party as true and discard contrary evidence.” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
B. The General Law Governing Spousal Support.
The purpose of long-term spousal support is to provide financial assistance as determined by the financial circumstances of the parties after their marriage is dissolved and their property divided. (Murray, supra, 101 Cal.App.4th at p. 594.) Family Code section 4330, subdivision (a) permits a trial court to “order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320).” Section 4320, in turn, sets forth factors the court must consider in assessing whether to order spousal support. These factors include the extent to which each party’s earning capacity is sufficient to maintain the marital standard of living (subd. (a)), the extent to which the supported party contributed to the supporting party’s training or career (subd. (b)), the supporting party’s ability to pay (subd. (c)), each party’s needs based on the marital standard of living (subd. (d)), each party’s assets and obligations (subd. (e)), the duration of the marriage (subd. (f)), the age and health of the parties (subd. (h)), the balance of hardships to each party (subd. (k)), the goal that the supported party be self-supporting within a reasonable time period (subd. (l)), and any other factors the court deems just and equitable (subd. (n)).
“ ‘In 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.’ [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 trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error.” (Cheriton, supra, 92 Cal.App.4th at p. 304.)
C. The General Law Governing Child Support.
In California, the amount of child support a parent must pay is determined by statutory guidelines. Under these guidelines, courts calculate child support by applying a mathematical formula contained in section 4055. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 385-386; see §§ 4050-4076.) “[A]dherence to the guidelines is mandatory, and the trial court may not depart from them except in the special circumstances enumerated in the statutes.” (Cheriton, supra, 92 Cal.App.4th 269 at p. 284.) “The guideline amount of child support . . . is presumptively correct.” (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359.) In applying the uniform guideline, a trial court may use a computer program called DissoMaster. “DissoMaster is one of two privately developed computer programs used to calculate guideline child support as required by [Family Code] section 4055, which involves, literally, an algebraic formula.” (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 523, fn. 2.)
D. The Trial Court Properly Exercised Its Discretion in Awarding Spousal Support.
1. The Trial Court Did Not Improperly Rely on DissoMaster.
In its final decision, the trial court considered and applied each of section 4320’s factors in determining long-term spousal support, and O’Toole does not contend otherwise. He argues, instead, that the trial court nonetheless abused its discretion because it relied on DissoMaster in its determination. We are not persuaded.
We start by summarizing the applicable law. A trial court’s reliance on DissoMaster is perfectly proper in determining temporary spousal support and child support, but it is generally improper in determining long-term spousal support. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3.) When it comes to long-term spousal support, a court abuses its discretion if it “simply [substitutes] the use of a computer program for the required consideration and appropriate weighing of the [section 4320] factors.” (Id. at p. 9; see also In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081-1082.) At the same time, a court does not abuse its discretion by taking into account the DissoMaster calculation when one or both of the parties have fluctuating incomes and the court still considers all of the section 4320 factors. (Olson, at p. 9.)
We find nothing in the record to support O’Toole’s argument that the trial court here improperly relied on DissoMaster in determining long-term spousal support. In its final decision, the court carefully discussed and considered the section 4320 factors. It also made the following comment about DissoMaster:
“Initially, only [Greenlaw] prepared and submitted a DissoMaster calculation for child support along with her written closing argument for the court’s review. The proposed inputs by [O’Toole] were taken from his closing argument, though [O’Toole] has now belatedly submitted proposed DissoMaster calculations with his ‘objection’ to the court’s [tentative] Decision. The court has prepared its own DissoMaster calculation which it believes incorporates the findings contained herein and attached it to this [final] Decision as Court’s Exhibit 1. For the purpose of evaluating the tax implications and determining the actual cost to [Greenlaw] of the court’s spousal support award, the court has also attached Court’s Exhibit 2, which includes the user-defined spousal support amount in addition to the formula-derived child support calculations.” (Italics added.)

The court explained that the “award of spousal support would be fully taxable to [O’Toole] and deductible to [Greenlaw]. (§ 4320(j).)” The exhibits attached to the final decision show that Greenlaw’s projected taxes would be reduced by $125 if Greenlaw were required to pay O’Toole $300 in monthly long-term support.
Nothing about the final decision’s comment or exhibits shows that the trial court substituted DissoMaster for its judicial discretion or in lieu of its consideration of the section 4320 factors. They merely demonstrate that DissoMaster calculations proposed by the parties for the purpose of determining child support were used to assess, as is required under section 4320, subdivision (j), tax implications of an award of long-term spousal support. We can find nothing improper with the court’s approach, much less that it constituted an abuse of discretion.
2. The Trial Court Properly Set a Retroactive Date of Its Award of Spousal Support.
As we mentioned, the trial court ordered spousal support retroactive to around four months before the judgment (January 1, 2015). In choosing this date, the court found “that [O’Toole] has been able, through his own efforts and due to the division of the parties’ substantial marital estate, to maintain (more or less) the status quo pending trial and a decision on long-term support. The evidence established that up until 2014, [O’Toole] continued to ‘max out’ his deferred compensation contributions, and that he chose to rent out properties at below market rates.” The court also found that “[O’Toole] was not in need of temporary spousal support,” and it therefore denied his request for a retroactive award of temporary spousal support.
O’Toole argues that the trial court abused its discretion in not setting the retroactive date earlier than January 1, 2015. We are not persuaded. Section 4333 allows a spousal support order to “be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date.” (Italics added; see also In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1152.) January 1, 2015, was a date subsequent to the initiation of these proceedings. Other than to express his dissatisfaction that an earlier date was not chosen, O’Toole has presented nothing to establish that the court abused its discretion in selecting this date.
3. The Trial Court Properly Identified the Parties’ Marital Standard of Living.
One of the objections O’Toole made to the trial court’s tentative decision was that it failed to make a specific finding regarding the parties’ marital standard of living. The court accepted this objection, and it described in more detail the parties’ marital standard of living in its final decision. It stated, “The court finds that the parties, who took vacations, enrolled their children in private schools, owned a home in an affluent area of the county, bought and ‘flipped’ investment properties, held rental properties, and amassed significant savings enjoyed a solidly upper-middle class standard of living during marriage.” O’Toole contends that this statement was not sufficiently precise. We disagree.
Section 4330 permits courts to award spousal support in “an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage.” In an award of spousal support, the court “shall” make specific factual findings with respect to the standard of living during the marriage. (§ 4332.) But this may be a “general description, not intended to specifically spell out or narrowly define a mathematical standard. If the Legislature had intended something more specific, it could have prescribed a more specific measurement, such as the marital standard of living as measured by the gross annual family income. The Legislature has wisely chosen not to do so . . . . [T]he Legislature intended ‘marital standard of living’ to be a general description of the station in life the parties had achieved by the date of separation and this is satisfied by the everyday understanding of the term in its ordinary sense, i.e., upper, middle or lower income.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 491; see also In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207-208.)
We agree with Smith, and conclude that the trial court here made a sufficient finding regarding the parties’ marital standard of living. Even if the finding that the parties enjoyed a “solidly upper-middle class standard of living,” standing alone, might be considered wanting, other findings provided additional context and support for the finding. They described the parties’ income and assets with specificity, and they bolstered the court’s general reference to the parties’ upper-middle class lifestyle. For example, the court found that the couple “took vacations, enrolled their children in private schools, owned a home in an affluent area of the county, bought and ‘flipped’ investment properties, held rental properties, and amassed significant savings . . . .” It found that “[i]t is clear that neither party can replicate the standard of living that they enjoyed during marriage. It is worthy of note, however, that during the testimony from both parties, it was apparent to the court that during the marital period the community was living significantly below its means, that they were conservative and mostly cautious about their day-to-day expenses, and that they regularly saved and invested significant portions of their accumulated wealth.” Further, the court noted that “[e]ach party has or anticipates incurring financial obligations that one would expect for normal middle-aged, upper middle class professional adults, including the costs of their housing.” Altogether, the court’s findings sufficiently described the parties’ marital standard of living.
4. The Trial Court Issued a Proper Gavron Warning.
O’Toole argues that the court failed to give Greenlaw a warning under In re Marriage of Gavron (1988) 203 Cal.App.3d 705. But a Gavron warning “is a fair warning to the supported spouse he or she is expected to become self-supporting.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55-56.) The warning is aimed at “the recipient of support.” (§ 4330, subd. (b).) Here, O’Toole is the recipient of support and it was thus entirely appropriate for the court to issue the warning to him and not to Greenlaw.
E. The Trial Court Properly Exercised Its Discretion in Attributing Income to the Parties for Determining Spousal and Child Support.
O’Toole next contends that the trial court abused its discretion by attributing too much income to him and too little income to Greenlaw for the purpose of determining spousal and child support. We again disagree.
1. O’Toole’s Employment Income.
O’Toole maintains that the trial court’s attribution to him of monthly employment income was improper for two reasons. First, he argues that the court wrongly based his income on his average earnings for the two years preceding the trial, rather than on his average earnings for a longer period of time. The argument fails. To begin with, O’Toole did not make the argument below, and he has accordingly forfeited it. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1496 (Feldman).) Furthermore, even if the argument had been properly preserved, we would reject it on its merits. To be sure, “[i]t is a manifest abuse of discretion [for a trial court] to take so small a sliver of time to figure income that the determination essentially becomes arbitrary.” (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1083.) But in Riddle, the period of time was “[a] mere two months[,] an embarrassingly short period on which to predict the annual income of a commissioned salesperson who works in the financial markets.” (Ibid.) Here, the amount of time was two years, not two months. O’Toole points to no authority, and we have found none, holding that a trial court abuses its discretion by using a two-year, rather than a longer, period from which to calculate an average income attributable for purposes of calculating support.
The second argument O’Toole makes about the trial court’s attribution of his employment income is that the court did not explain “how it calculated [his] income to be $13,054 per month.” The argument is disingenuous. This calculation is patently supported by O’Toole’s earnings as reported in the 2012 and 2013 K-1 tax statements for O’Toole’s law partnership. These earnings amounted to $155,052 in 2012 and $158,260 in 2013. The monthly average of these earnings, therefore, was $13,054 ($155,052 + $158,260 = $313,312 ÷ 24 months = $13,054.67). O’Toole cannot credibly contend to be unaware of how the court derived this monthly average since he pointedly objected below to the use of these K-1 earnings to calculate his income.
2. O’Toole’s Rental Income.
In the parties’ agreed-upon division of community property, O’Toole received two investment rental properties. He maintains that the trial court abused its discretion in attributing rental income from these properties to him. He first claims that the amount attributed to him, $866 per month, was not supported by substantial evidence. He is wrong. Evidence shows that in 2013 he claimed rental income for tax purposes in the amount of $10,627.48. This reflects a rounded monthly amount of $866.
He next claims that the trial court wrongly imputed to him an additional $400 in additional rental income. But substantial evidence again supports the court’s ruling. Evidence was presented that one of the properties was being rented at $150 less than its market rate and that in 2013 O’Toole failed to collect $3,000 of rent for the other property. The annual sum of these two figures is $4,800 ($150 x 12 = $1,800. $1,800 + $3,000 = $4,800). The monthly sum, $400, was the amount of rent imputed to O’Toole’s income ($4,800 ÷ 12 = $400).
3. O’Toole’s Investment Income.
In the agreed-upon division of community property, both parties were awarded substantial liquid assets. In its tentative decision, the court initially attributed to each party essentially “equal amounts of ‘rate of return’ [of this] investment income.” O’Toole contends that the “Court did not state how it calculated the rate of return.” But he has failed to cite any place in the record showing that he objected below to this calculation, and he has therefore forfeited the argument on appeal. (Feldman, supra, 153 Cal.App.4th at p. 1496.) And even if he had preserved the argument, we would rule against him on the merits. Evidence was presented that at the time of the hearing that O’Toole had total liquid assets in the amount of $985,387.78. Greenlaw argued for the application of a 3 percent rate of return as investment income on these assets, which amounts to $2,463 in monthly interest earnings. This was the amount the court imputed to O’Toole in its final decision. A 3 percent rate of return is reasonable and within the trial court’s discretion to impose. (See, e.g., In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 646.)
4. Greenlaw’s Investment Income.
As we mentioned, in its tentative decision the trial court attributed to Greenlaw for purposes of calculating support essentially the same amount in imputed investment income that it attributed to O’Toole. In doing so, it observed that she had used $400,000 of her liquid assets for a down payment on a home and in doing so had “vastly increased her expenses well beyond the marital norm.” In its final decision, however, the court reconsidered its ruling and changed it by not “imputing investment income to [Greenlaw] that she does not actually receive.” It determined that it was “not . . . in the children’s best interests” to attribute to Greenlaw income from the $400,000 she had used for her down payment.
Evidence was presented that at the time of the hearing Greenlaw had total liquid assets in the amount of $560,000. In its final order, the court imputed to her the same 3 percent rate of return on these assets that it had imputed to O’Toole on his liquid assets. This calculation resulted in an imputation to Greenlaw of $1,400 in monthly investment income.
O’Toole contends that the trial court abused its discretion because it “chose to impute a rate of return to [O’Toole’s] assets but not to [Greenlaw’s] assets . . . [and] did not state why it chose [O’Toole] over [Greeenlaw] to impute a rate of return . . . .” The premise of the contention is false. The court did impute a rate of return to Greenlaw’s liquid assets. It just declined to impute a rate of return to non-liquid assets, such as the money Greenlaw used for the down payment on her residence. We can find nothing wrong in the court’s decision to so limit the imputation of investment income. O’Toole was awarded the family home, where he continued to reside at the time of the hearing. Greenlaw no longer lived there, and the parties’ separation required her to find housing. While the purchase price of the home she bought was admittedly high, only a portion of her liquid assets, $400,000, was used for the down payment. This amount was no longer liquid, and Greenlaw faced long-term mortgage costs. The court specifically found that in these circumstances, “as it relates to Child Support, it would not be in the children’s best interest to impute income [on the assets used for the down payment] based on the parties’ overall financial resources.” We find no abuse of discretion.
5. Greenlaw’s Employment Income.
O’Toole contends that the trial court’s attribution to Greenlaw of monthly income was improper because the amount was calculated from too short a period of time, ignored evidence of Greenlaw’s bank savings, and gave insufficient weight to his expert’s opinions about Greenlaw’s income. These arguments all lack merit.
As to the first argument, O’Toole states, “[I]t appears the Court only focused on the timeframe 2011-14, which is the last year of marriage (2011) and the three years of separation through trial (2012-14).” He maintains that “the Court refused to consider any time frame prior to the Parties[’] March 2012 date of separation” when Greenlaw had higher earnings. We perceive no abuse of discretion. To the extent the court discounted prior years’ earnings, it stated a basis for doing so: “the evidence rather convincingly showed that broader factors, including the Great Recession / general economic downturn and changes in the dental industry as described by [Greenlaw] and her expert, were the primary reasons that [Greenlaw’s] business income declined and then leveled off in recent years.” Substantial evidence supported this determination. The average amount of earnings attributed to Greenlaw, $17,406, is supported by the information she provided in her income-and-expense declaration. An income-and-expense declaration to which no objection is made may constitute substantial evidence in support of findings made by the trial court. (See In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382.)
Second, O’Toole argues that “the Court ignored [Greenlaw’s] bank balances, which were not supporting her story” regarding employment earnings. But he has not cited any place in the record showing that he objected below on this point, and he has therefore forfeited the argument on appeal. (Feldman, supra, 153 Cal.App.4th at p. 1496.) Because O’Toole did not raise the objection below, Greenlaw did not have a reason to explain her account balances, and as a court of review we are in no position to speculate about them.
Finally, O’Toole argues that the trial court gave insufficient weight to his expert’s opinions about Greenlaw’s income. But as a reviewing court, we have “no power to judge . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ ” (Leff v. Gunter (1983) 33 Cal.3d 508, 518; see In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329 [“[A] daunting burden [is] placed on one who challenges the sufficiency of the evidence to support a trial court finding.”].) Even if no evidence had been presented to contradict O’Toole’s expert, “the general rule [is] that ‘expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.’ [Citation.] Thus, ‘[a]s a general rule, “[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” [Citation.] This rule is applied equally to expert witnesses.’ [Citation.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632; see also In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 820.) We simply cannot conclude that the trial court wrongly credited Greenlaw’s expert and wrongly discredited O’Toole’s.
III.
DISPOSITION
The judgment is affirmed. Greenlaw is awarded her costs on appeal. Greenlaw’s October 11, 2016 motion for sanctions is denied.






_________________________
Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.















O’Toole v. Greenlaw (A145479)