Marriage of Prokop
Filed 3/26/13 Marriage of Prokop CA4/1
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In
re Marriage of STANLEY and MARIA PROKOP.
STANLEY PROKOP,
Respondent and Appellant,
v.
MARIA
ARROYO PROKOP,
Petitioner and Respondent.
D059062
(Super. Ct. No. D513103)
APPEAL
from a judgment of the Superior Court of
County, Joel Wohlfeil, Judge.
Affirmed.
Stanley
J. Prokop appeals from a judgment that, among other things, imputed income to
him and denied him spousal support. He
contends the trial court erred in deciding these and other issues. We reject his contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Maria and Stanley were married in
1998 and have one minor child. Maria
served as an officer in the United States Army, became an attorney and worked
as a juvenile court referee until 2003 when multiple sclerosis rendered her
permanently disabled and unable to work.
Maria received disability benefits from the Veterans Administration and
retirement disability from her work as a referee. Stanley worked for Science Applications International Corp
(SAIC) as the manager of the computer security engineering team and earned an
annual salary of $102,700. He quit his
job in 2005 claiming it was too stressful to work and take care of his
family. Thereafter, Stanley trained to become an aircraft mechanic so he could work
on his own plane.
The couple separated in 2008. They stipulated that Stanley would submit to a vocational examination by Carole A.
Nimietz, a certified vocational evaluator and vocational rehabilitation
counselor. In April 2010 the court
entered a partial judgment regarding custody, visitation and division of some
of the property. After trial, the court
issued its intended statement of decision.
Both parties filed objections to the intended statement of
decision. After ruling on the
objections, the court incorporated its changes into a findings and order after
hearing, and directed that the tentative decision and changes constituted its
statement of decision. Stanley timely appealed.
DISCUSSION
I.
Imputed Income
A. Trial Court's Findings
The trial court found Stanley's employment history, skills, education and
certifications to be "remarkable."
Stanley earned about $100,000 a year working at SAIC. After leaving his job in early 2005, the
court found that Stanley "devoted his working time" to flying and
airplane mechanics. It concluded that Stanley would be "clearly under-employed" working as
an airplane mechanic with an annual earning capacity of $41,600. The court acknowledged Stanley required
shoulder surgery and would be unable to perform the responsibilities of an
airline mechanic, but found that he had ample time to secure a higher earning
computer security job before scheduling the pending surgery.
The court accepted the testimony of
Dr. Samuel Bresler, Maria's human resources expert, that potential jobs existed
for Stanley as a computer security engineer, but rejected Dr.
Bresler's conclusion that Stanley
qualified for an annual compensation package of more than $109,000. Instead, the court agreed with Nimietz's
testimony that Stanley's earning potential in the computer security field was
between $80,000 and $90,000. To allow Stanley time to recuperate from his scheduled shoulder surgery,
the court delayed imputing the higher computer security engineering income for
six full months. Based on Stanley's work
and activities in the airplane industry after quitting his job at SAIC, the
court imputed to Stanley the amount of money an airplane mechanic could have
earned—$41,600 per year or $3,467 per month for six months. Thereafter, it imputed annual income to Stanley of $90,000 per year or $7,500 per month.
B. Analysis
A trial
court has the discretion to substitute earning capacity for actual income in applying
the guideline formulas for child and spousal support. (In re
Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337 (
Cal.App.4th 269, 308.) "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. [Citation.]" (LaBass
& Munsee, supra, at pp.
1337-1338, internal quotation marks omitted.)
We review the trial court's decision to impute income to Stanley based
on his earning capacity for an abuse of discretion. (In re
Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.) We review the specific amount imputed under
the substantial evidence standard. (
Cal.App.4th 923, 930.) Under the substantial
evidence standard of review, "we do not pass on the credibility of
witnesses, resolve conflicts in the evidence, or determine the weight of the
evidence. [Citation.] We simply determine whether there is
trial court, that supports the court's findings." (In re
Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 503.)
Stanley does
not challenge the trial court's decision to impute income to him; rather, he
claims the evidence does not support the court's findings that: (1) he had the ability to earn an airplane
mechanic salary of $41,600 for six months based on his pending surgery; and (2)
current opportunities existed for him to work as a computer security engineer. Specifically, he contends the court
ignored his pending surgery and rehabilitation time when it imputed the
airplane mechanic salary of $41,600 per year.
As we
shall explain, the evidence supported the trial court's implied conclusion that
Stanley had been malingering, and that he had the ability to work
period after his surgery to earn the imputed salary of $41,600 per year.
Stanley
focuses on his health and ignores that the ability to work includes other factors
such as age, occupation, skills, education, background, work
experience and qualifications. (
1337-1338.) Significantly, Stanley does
not dispute the trial court's conclusions that other than his shoulder, he was
in good health, his unemployment was voluntary and he possessed significant
skills, education and job history. Additionally, the record does not support Stanley's
assertion that the trial court ignored his pending surgery and rehabilitation time
when it imputed a salary of $41,600 per year for six months. In imputing this salary, the trial court
expressly acknowledged that Stanley had shoulder surgery in April 2010 and
would not be able to "perform mechanic responsibilities," but noted
that Stanley had ample time to secure a job after he separated from Maria in
2008 and before undergoing surgery.
Trial took place about 10 months after
Nimietz prepared the vocational report for Stanley. Nimietz reported that after Stanley left SAIC
in 2005, he worked on airplanes until about June 2007, but had no further work
history and was attending school to become a mechanic. In her report, Nimietz noted that Stanley
experienced a "pinching sensation" in his right shoulder over the
last 18 months and intermittent discomfort in his right knee. Stanley, however, provided no medical
evidence from a treating physician limiting his ability to work and reported
that he could kneel, crouch, squat and climb ladders. Nimietz concluded that Stanley had no
physical disabilities and was not restricted in the type of work he could
perform. She also concluded that Stanley
had not been diligent in searching for a job, that he had the ability to earn
an annual income of $41,600 as an entry-level mechanic or $80,000 to $90,000 as
a senior security manager.
In August 2009, Stanley had shoulder
surgery. In November 2009, his physician
noted that while Stanley continued to experience discomfort in that shoulder,
he could fully elevate that arm. In
April 2010, Stanley testified that he had another shoulder surgery scheduled
for later that month. Stanley, however,
was not advised by any doctor that he could not work in the computer field.
The court heard testimony from Dr. Bresler regarding
available jobs in the computer field. Dr. Bresler
"found between 400 and 450 jobs" within 50 miles of Stanley's home
zip code while searching for "security engineering manager,"
"senior security engineer" and "certified information system
security professional." Using his
expert opinion considering the job descriptions and Stanley's background and
experience, he narrowed the list to 10 jobs, identifying the specific employers
and available positions, and then divided the jobs into three categories,
providing salary ranges available for these various positions that ranged from
about $68,000 to $124,000. Dr. Bresler
believed that given Stanley's recent absence from the job market, Stanley would
likely be offered an amount around the median salary, but that he should
eventually earn the top end of the scale based on his education and experience.
In
the absence of any evidence showing that Stanley would be unable to work in any
capacity for six months after his shoulder surgery this evidence amply
supported the trial court's implied conclusion that, if motivated to find
employment, Stanley would be able to earn at least $41,600 annually for six
months.
Next, Stanley contends the
evidence did not support the trial court's decision to step up his imputed
income to $90,000 after six months, claiming current opportunities did not
exist for him to work as a computer
security engineer and Nimietz's June 2009 report was stale.
We disagree.
Nimietz's report supported the
trial court's implied conclusion that computer jobs existed for Stanley if he
was motivated to find such employment.
While this report was 10 months old by the time of trial, the court also
had before it Dr. Bresler's report, prepared two months earlier, that similarly
supported the court's conclusion.
While
Dr. Bresler acknowledged the poor state of the general
job market, he concluded that jobs existed for computer professionals in
multiple industries. The fact Stanley
subsequently applied for the 10 jobs identified by Dr. Bresler but did not
obtain employment, while disheartening, is not dispositive as Dr. Bresler
identified hundreds of other jobs during his initial search. Maria met her burden of showing job
opportunities existed for Stanley where he could earn $90,000; her burden did "not
include actually showing that the [spouse] to whom the income
given job if
he . . . had applied."
(In re Marriage of Bardzik
(2008) 165 Cal.App.4th 1291, 1305 ["Readers need only use a little
imagination to think of all the ways that a parent with both ability to do a
job and the opportunity to get it could subtly sabotage a job application or
interview." (Fn. omitted.)].)
Finally,
we reject Stanley's contention that the court was biased against him based on
its comment at a pretrial hearing in July 2009 that "there's no question
that for purposes of permanent support orders, the court will impute
income." At that hearing, the court
received and considered Nimietz's report and imputed minimum wage income to Stanley
for purposes of awarding child support.
After reviewing the transcript we are convinced that the court made its
comment to warn Stanley that, based on Nimietz's report, it would be imputing
income to him in the future. This
warning, however, does not demonstrate bias without a showing that the trial
court failed to weigh and consider all the evidence before it imputed income
for purposes of permanent support.
Rather, the court's intended statement of decision reveals it
considered, among other things, Stanley's employment history, Nimietz's report,
and Dr. Bresler's testimony.
The
trial court properly imputed income to Stanley.
Accordingly, we reject his arguments that the child support or ruling on
his attorney fee request must be reversed because they were based on the
imputed income.
II.
A. Trial Court's Findings
The
trial court allocated over two pages of its statement of decision to the issue
of spousal support. It found that the parties' marital standard of living
was upper middle class and that the marriage was long-term. It found that the parties' minor child did
not impair their ability to work, that neither party contributed to the other
party's education, there was no criminal conviction for abuse, and any
emotional distress resulting from domestic violence did not factor into its
decision.
It considered Stanley's age, health, his historical
earnings and imputed earning capacity and found a market existed for his
"impressive skill sets." It
noted that Stanley's earning capacity was impaired because he allowed a certification
to lapse, but concluded that his unemployment was voluntary and that the
impaired earning capacity fell "squarely on [Stanley's] shoulders."
As to Maria, the court found she was completely disabled
and had no earning capacity. It noted
there was conflicting evidence regarding her ability to pay spousal support,
with Maria arguing that she required all of her income for her health care
needs and supporting the minor child, and Stanley arguing Maria had the ability
to pay spousal support because her income exceeded his income. Ultimately, the court concluded that both
parties possessed a need for support noting that each lived under "modest
circumstances." Finally, it found
that both parties possessed assets to support themselves, that Stanley stated
under oath that he was "financially secure," and that Stanley would
suffer a tax penalty if he withdrew funds from his pension/retirement accounts
at his current age.
Based on all of the above, the trial court concluded it
"would be unjust and inequitable for [Maria], as a 100% disabled veteran,
to support [Stanley], who present[ed] as a talented, educated and experienced
professional capable of earning an annual income of $90,000 or more." Accordingly, it denied Stanley's request for
spousal support, but reserved the right of each party to request support in the
future.
B. Analysis
Stanley
contends the trial court abused its discretion when it declined to award him
spousal support because it failed to analyze all of the Family Code section
4320 factors. (Undesignated statutory
references are to the Family Code.)
Specifically, he complains that the court did not mention or consider
Maria's income and expenses. We
disagree.
Section
4320 identifies 14 factors a trial court must consider in ordering permanent
spousal support. (§ 4320, subds.
(a)-(n).) These factors include each
spouse's ability to maintain the marital standard of living and the obligations
and assets of each spouse. (§ 4320,
subds. (a), (e).) While the trial court
"must consider the mandatory guidelines of section 4320," it
possesses broad discretion to weigh the factors with the goal of accomplishing
substantial justice for the parties in the case before it. (In re
Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn. omitted.) " 'Because trial courts have such broad
discretion, appellate courts must act with cautious judicial restraint in
reviewing these orders.' " (
Here,
review of the trial court's entire statement of decision regarding spousal
support, including the attached DissoMaster printouts, shows the court properly
considered all of the section 4320 factors, including Maria's income and
expenses. The court found that Maria had
no earning potential and the DissoMaster printouts listed the parties' income
and expenses. After a lengthy analysis,
it found that Maria's disability income was available for purposes of
determining child support. Although the
trial court did not make a similar finding under the portion of the statement
of decision addressing spousal support, in the absence of any contrary
indication, we assume the court considered Maria's disability income as
available for purposes of determining spousal support.
Significantly,
the trial court commented that conflicting evidence existed regarding Maria's ability
to pay any spousal support, noting the specific arguments of each party. Thereafter, it found that both parties lived
under "modest circumstances" and needed support. This constituted an implied finding that
or combined, to maintain the marital standard of living. (In re
Marriage of Smith (1990) 225 Cal.App.3d 469, 488 ["In most instances,
it is impossible at separation for either party to have sufficient funds to
continue to live in the same life-style enjoyed during the
marriage."].) After examining all
the section 4320 factors and the unique circumstances before it, the trial
court declined Stanley's request for permanent spousal support, but reserved the right for either party
to request support in the future. In
sum, Stanley has failed to demonstrate that the trial court abused its
discretion when it declined his request for spousal support.
Finally,
Stanley contends the statement of decision contains several ambiguous
findings. First, he claims that the
court's finding that "each party possesses assets from which they will be
able to support themselves" is ambiguous as to what assets he has from
which he could support himself. He next
claims the court's reasoning was ambiguous as to why it did not award spousal
support.
The purpose
of a statement of decision is to explain "the factual and legal basis for
its decision as to each of the principal controverted issues at
trial"].) (Code Civ. Proc.,
§ 632.) Here, the principal controverted issue was
Stanley's right to spousal support. In
deciding this issue the court cited the legal basis for its decision (§ 4320)
and listed specific facts that it weighed in deciding the matter. Nothing more is required. This is presumably why the trial court
overruled Stanley's ambiguity objections to certain parts of the statement of
decision.
III.
A. Facts
In
July 2009, the trial court denied Stanley's request for temporary spousal
support without prejudice. "In lieu
of ongoing temporary spousal support, the court award[ed] $50,000 to [Stanley]
to be paid from the house proceeds held in trust," reserved jurisdiction
over allocation of this payment, and made the award without prejudice. In his trial brief, Stanley argued that an
issue to be litigated included the allocation and characterization of the
$50,000 awarded to him from the proceeds of the sale of the family
residence. During closing argument, his
counsel argued that the income figures used by the court to determine child
support would have produced suggested spousal support of about $3,796 per
month, that Stanley requested support in March 2009, a 13-month period, and
that the $50,000 should be treated as temporary spousal support. The trial court denied Stanley's request to reallocate
the character of the $50,000 distribution as temporary spousal support, stating
that the funds remained Stanley's share of the proceeds from the sale of the
community residence.
B. Analysis
Stanley
contends the trial court abused its discretion when it charged him for his own
temporary support. Maria responds that
Stanley's failure to appeal from the appealable July 2009 order denying
temporary support precludes us from exercising jurisdiction to review that
order in this appeal. Even if jurisdiction
existed, Maria contends we cannot determine whether the trial court abused its
discretion because Stanley did not include in the record on appeal the evidence
on which the court denied temporary spousal support.
While
a temporary support order is appealable (In
re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637), Stanley is not
appealing from the July 2009 order denying him temporary support, he is
appealing from the court's subsequent order denying his request to reallocate
the character of the $50,000 distribution as temporary spousal support. We have jurisdiction to review this order and
do so based on the evidence presented at trial.
Temporary
spousal support is intended to preserve the standard of living enjoyed by the
parties pending final division of their assets.
(In re Marriage of Winter
(1992) 7 Cal.App.4th 1926, 1932 (Winter).) Unlike permanent support, an award of
temporary support may be ordered in "any amount" subject only to the
supported party's needs and the supporting party's ability to pay. (§ 3600; In
re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) Trial courts are permitted and encouraged to
use standard guidelines, based solely on income, in setting temporary spousal
support to promote consistency and predictability. (Winter,
supra, at p. 1933.) A trial court, however, may take into account
any unusual factors (In re Marriage of
Olson (1993) 14 Cal.App.4th 1, 5-6, fn. 3; Winter, supra, at p.
1933) and we review a temporary spousal support order for an abuse of discretion
(Winter, supra, at p. 1933).
Under
the facts and circumstances, we cannot conclude that the court abused its
discretion when it denied Stanley's request to reallocate the
character of the $50,000 distribution as temporary spousal support. First, the trial court could have reasonably
concluded that Maria did not have the ability to pay temporary spousal support
as her expenses exceeded her income. Maria received monthly income of about $15,716 and she
presented evidence that her monthly expenses were about $16,207. Significantly, multiple sclerosis is considered a very expensive medical condition
as individuals with the disease live near normal life spans, but accumulate
additional disabilities as they age. Maria suffered from urinary and bowel problems,
severe muscle spasms and debilitating fatigue.
She took numerous medications, used a motorized wheelchair and required
personal and household assistance.
The
trial court could have also reasonably concluded that although Maria's monthly
income greatly exceeded Stanley's monthly income, Stanley had sufficient assets
to maintain a standard of living equal to Maria's. Namely, when
Stanley stopped working in 2005 he implied to his friends that he did so
because he was financially secure.
Stanley also filed a sworn declaration shortly after Maria filed her
petition stating he was "financially secure." Further, during the pendency of the trial
court proceedings, in addition to the $50,000 awarded to Stanley from
the house proceeds held in trust, the trial court awarded Stanley $126,000 from
funds held in trust by Maria's attorney as a settlement of his claims for
reimbursement to the acquisition of community property under section 2640, and
awarded both parties $40,000 of community property funds to use as they
pleased.
Under these unusual circumstances, the court's decision
to deny Stanley temporary spousal support did not amount to an abuse of
discretion.
IV.
A. Facts
In
early December 2008, Maria filed her petition seeking a dissolution. Later that month, Maria sold stock without
Stanley's authorization. Shares in two
companies were sold for a total of about $6,900. After the sale the share price for both
stocks went up.
At
trial, Maria testified that she did not realize that the checking account was a
stock account and that she had authorized the sale of stock. Maria claimed that she wanted to pay the
mortgage and did not realize she was "violat[ing] anything." Stanley presented evidence that Maria's
unilateral sale of stock cost the parties about $5,900. Maria's counsel argued that Maria did not
"intentionally or maliciously sell the stocks." Stanley's counsel argued that Maria should be
ordered to reimburse the community for the loss as her sale of the stocks violated
an automatic temporary restraining order (ATRO).
In
its statement of decision, the court noted that both parties made a
reimbursement claim arising from unauthorized distributions to benefit only one
party. Specifically, Stanley sought
reimbursement of $9,030 from Maria for sale of the stock and Maria sought
reimbursement from Stanley of $8,920.
The court commented that both parties testified regarding the
distributions and it "accept[ed] each party's respective
explanations." It found that the
distributions were reasonable or necessary, that neither party unreasonably
benefited at the expense of the other and denied each party's claim for
reimbursement.
B. Analysis
In
this, and every dissolution proceeding,
four standard mutual ATRO's bind the petitioner, upon filing the petition and
issuance of summons, and bind the respondent, upon personal service or waiver
of service of the petition and summons.
(§§ 233,
subd. (a), 2040, subd. (a).) The ATRO's bar both parties from, among other
things, transferring or disposing of any property without the other party's
written consent or a court order, "except in the usual course of business
or for the necessities of life."
(§ 2040, subd. (a)(2).)
Citing In
re Marriage of McTiernan and Dubrow (2005) 133 Cal.App.4th
1090 (McTiernan), Stanley contends reimbursement was mandated because
Maria's innocent intent is irrelevant.
In McTiernan, the trial court concluded that the husband violated
an ATRO by unilaterally selling community property stock to pay community
expenses. (Id. at pp. 1102-1103.) It
found that the husband had not acted maliciously, but awarded the wife $284,087
in lost appreciation. (
award of wife's share of profits lost by his violation of the injunctive order
constituted a form of punitive damages."
(Ibid.) The appellate court rejected this argument,
stating that the remedy paralleled the one provided in another statute for
breach of a spouse's fiduciary duty involving asset transfer that impairs the
other spouse's undivided one-half interest.
(Ibid., citing § 1101, subd.
(a).)
As a threshold matter, Stanley cited no authority that a
trial court is mandated to order reimbursement for the violation of an
ATRO. Rather, we review an order on a
reimbursement claim for abuse of discretion.
(See, e.g., In re Marriage of
Reilley (1987) 196 Cal.App.3d 1119, 1124-1125.) Where the trial court's 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." (In re
Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
McTiernan
instructs that the violation of an ATRO need not be malicious to warrant reimbursement. (McTiernan, supra, 133 Cal.App.4th at
pp. 1102-1103.)
There,
the improper sale of community assets by the husband resulted
in a large loss to the wife. (
Here, in contrast, the trial court found that both parties made unauthorized distributions of about equal amount,
but declined to order reimbursement to either party because neither party
unreasonably benefited and the distributions were reasonable or necessary. Stanley did not challenge the trial court's
finding that he had made an unauthorized distribution and he has not
demonstrated how the trial court's decision to essentially treat the violations
as a "wash" amounted to an abuse of discretion. On this record we cannot conclude that the
trial court abused its discretion in denying Stanley's request for
reimbursement.
V.
A. Facts
In
the April 2010 partial judgment, the trial court awarded Stanley
"[o]ne-half of the community interest in [Maria's] retirement benefits and
accounts, including but not limited to her [San Diego County Employees
Retirement Association (SDCERA)]."
In his trial brief, Stanley claimed that an issue to be litigated
included his community property interest in Maria's SDCERA. He argued that Maria should be ordered to pay
him his share of the $4,222 monthly benefit for 17 months.
After the court issued its intended statement of
decision, Maria filed an objection thereto stating that in its attachments to
the intended statement of decision the court "included the entirety of [her]
SDCERA retirement as income to [her] and failed to include any portion of the
SDCERA retirement to [Stanley]. Pursuant
to the Partial Judgment, filed April 2, 2010, [Stanley] has been awarded
'[o]ne-half of the community interest in [Maria's] . . . SDCERA." Accordingly, Maria represented that she was
in SDCERA for 9.6 years, that she was married to Stanley for six of those
years, which equaled 62.5 percent and that Stanley's portion would be half of
that, or 31.25 percent, which amounted to $1,319 per month to Stanley.
The
court held a hearing on the parties' objections to its intended statement of
decision. Maria's counsel represented to
the court that the parties had reached a stipulation in relation to Maria's
objection about the child support and "regarding the division of
retirement." Thereafter, Maria's
counsel represented that as to Maria's objections "regarding the
recalculation of child support, and the issue of [Stanley] receiving a portion
of [Maria's] SDCRA [sic]
retirement" that the parties agreed "as of August 1st, 2010, counsel
will meet and confer and recalculate child support on the basis that [Stanley]
will be receiving" about "$1,319 per month from [Maria's] SDCRA [
hearing the court commenced Stanley's SDCERA retirement payments of about
$1,319 per month effective August 1, 2010, and stated that the parties taxable
income for purposes of child support would be adjusted accordingly.
B. Analysis
Stanley
asserts the trial court erred when it did not award him retroactive SDCERA
payments. He claims that Maria
received a windfall of at least $799 a month for 20 months (December 2008 to
July 31, 2010) or $15,980. Maria
responds, among other things, that Stanley waived this issue when his counsel
stipulated in open court that Maria's monthly SDCERA benefit would be reduced
"as of August 1, 2010."
Stanley asserts that Maria has mischaracterized the record and that this
agreement was the result of his "objection number 1" to the intended
statement of decision. We agree with
Maria.
Stanley
is incorrect that the stipulation pertained to his objection number one.
The record clearly indicates that the stipulation addressed Maria's
objection regarding how child support
should be calculated taking into consideration that Stanley would be receiving
a portion of her SDCERA retirement. Apparently
based on the parties' stipulation that Stanley would begin receiving $1,319 per
month starting August 1, 2010 from Maria's SDCERA retirement account, the court
commenced Stanley's SDCERA retirement payments of about $1,319 per month
effective August 1, 2010. Accordingly,
we agree with Maria that Stanley waived any alleged error in its division of
Maria's SDCERA retirement under the doctrine of invited error. (Jentick
v. Pacific Gas & Electric Co. (1941) 18 Cal.2d 117, 121.)
VI.
A. Facts
In
July 2009, the trial court awarded Stanley $14,472.43 out of the proceeds from
the sale of the family home and reserved jurisdiction over the allocation of this
payment. After trial, Stanley requested
attorney fees under section 2030, citing his need and the disparity in income
between the parties. Stanley's counsel
represented that each party expended about $80,000 in attorney fees, for a
total of $160,000 and that Stanley should be responsible for 30 percent of the
total, or $48,000, based on his imputed income.
Stanley stated that he sought a minimum award of $32,000.
In
its intended statement of decision, the trial court denied any further award
and ordered that each party bear their own attorney fees and costs stating it
"is not persuaded, under the current circumstances, that directing [Maria]
to make a further contribution to [Stanley's] attorney fees and costs would be
just and reasonable." Stanley objected
to this portion of the intended statement of decision claiming the court's
analysis was incomplete because it failed to consider: the section 4320 factors; his failure to
receive any temporary spousal support; that he used his credit card to pay his
fees; and the disparity in income between the parties. The trial court overruled the objection.
B. Analysis
Stanley
claims the trial court erred when it denied his request for a need based
attorney fee award under section 2030.
Specifically, he contends the record does not reflect what the court
considered and the trial court failed to make factual findings necessary to
resolve disputed material issues. We
reject his contentions.
The
trial court may order one party to pay the other party's attorney fees "if
necessary based on the income and needs assessments." (§ 2030, subd. (a)(1).) In assessing ability to pay, the court is not
restricted to 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.) An award under section 2030 is proper when it
is "just and reasonable under the relative circumstances of the respective
parties." (§ 2032, subd. (a).) In determining what is just and reasonable the
court may also consider any other factors including such matters as earning
capacity, age and health, and the balance of the hardships to each party. (§§ 2032, subd. (b), 4320.)
Because
a trial court has broad discretion in ruling on a motion for fees and costs, we
will not reverse absent a showing that no judge could reasonably have made the
order, considering all of the evidence viewed most favorably in support of the
order. (In re Marriage of Sullivan, supra,
37 Cal.3d at pp. 768-769.) Nonetheless,
"the record must reflect that the trial court actually exercised that
discretion, and considered the statutory factors in exercising that
discretion." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
We
review the entire record to determine whether the trial court properly
considered the statutory factors. As
discussed above, the trial court addressed all of the section 4320 factors in
that portion of the intended statement of decision regarding spousal support. (Pt. II.B., ante.) The court was not
required to reiterate those same findings in regard to attorney fees and we
similarly decline to repeat them here.
The trial court necessarily considered all of its previous findings when
it concluded that further contribution by Maria to Stanley's attorney fees and
costs "would [not] be just and reasonable." (§ 2032, subd. (a).) Stanley's singular focus on the income of the
parties is insufficient to show the trial court abused its discretion when it
declined Stanley's request for a further contribution.
Finally,
while Stanley asserts the trial court did not make factual findings necessary
to resolve disputed material issues, he failed to explain what factual findings
the court failed to make. On this
record, we conclude the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
Respondent is entitled to her costs on appeal.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
