Marriage of Sullens

Filed 4/30/08 Marriage of Sullens CA2/1

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Robert Axel, Commissioner. Affirmed as modified.

Law Offices of James P. Karmy and James P. Karmy for Appellant.

Richard A. Miller for Respondent.

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This is a family law case in which the trial court entered a judgment on reserved issues ordering Michael Sullens to pay Mary Sullens monthly child and spousal support, plus $14,115 in reimbursement for child support payments for Michaels children from a prior marriage, plus $7,500 for Marys attorneys fees. Michael appeals from the judgment and the fee order, challenging the sufficiency of the evidence and the attorney fee award. On January 29, 2008, we filed an opinion dismissing the appeal as untimely (In re Marriage of Sullens (Jan. 29, 2008, B193621 [nonpub. opn.]) but thereafter (on February 28) granted Michaels petition for rehearing. We now address Michaels issues, find merit in one of his contentions, modify the judgment and, as modified, affirm.

BACKGROUND

Michael and Mary were married in 1985. They had three children (born in 1989, 1993 and 1996), then separated in 2004, at which time Mary filed a petition to dissolve their marriage. In July 2005, the trial court entered a judgment dissolving the marriage, reserving jurisdiction over all other issues.

Following two days of trial during March 2006, the trial court entered a judgment on May 18, 2006, ordering Michael to pay child support (a total of $2,860 for all three children), spousal support of $1,000 per month, $7,500 for Marys attorneys fees (payable at the rate of $250 per month), and $14,115 to reimburse Mary for child support payments for Michaels children from a prior marriage.

On the same day the judgment was entered (May 18, 2006), the court mailed notice of entry of judgment to Mary and Michael. On June 12, Michael filed a motion to vacate the judgment or, in the alternative, for a new trial on the ground that the evidence did not support the orders made. On July 10, the trial court denied Michaels motions. On July 20, Michaels former lawyer (Daniel Gold) withdrew as Michaels attorney of record, leaving Michael in propria persona. On July 25, Mary served notice of the July 10 ruling on Mr. Gold but not on Michael. On August 29, Michael filed a notice of appeal from the May 18 judgment and the July 10 order.[1]

DISCUSSION

I.

Michael contends there is insufficient evidence to support the trial courts decision to impute an $8,500 earning capacity monthly to Michael. We disagree.

A.

Michaels briefs provide only a sketchy review of the evidence. As best as we can figure it out, Mary presented evidence (a dissomaster printout and a vocation consultants expert testimony) to show that Michael had the ability to earn passive rental income and the ability to work, and asked the trial court to impute $5,000 per month in earning ability to him, order him to pay $3,245 per month in child support, and $1,350 per month in spousal support. In addition, Mary asked for an order requiring Michael to pay her attorneys fees of $36,150.

According to Michael, Marys income and expense declaration filed on the day of trial is inconsistent with her evidence (because it shows her monthly income as $1,386 plus $500 in rental income (for a room in her residence). In addition, Michael points to his own income and expense declaration, which shows among other things that, at the time of trial, he was unemployed with monthly expenses of $8,081 and monthly income of $2,950 (rent paid to him for an unencumbered commercial building and four residential units).

B.

This was the courts ruling: Now let me explain how I got there. The court is imputing a total income to [Michael] of $8500 per month and I got to that by figuring what the rental income would have been and thats net after deductions of taxes and cash flow analysis for that number, taxes and insurance, maintenance and so forth[,] not a reduction in the principal on the loans in that commercial property or rental property but based on the cash flow of the analysis. [] In addition to that I added an attributed amount because the court is going to find that [Michael] at the age of 51 and in apparently good health and with the experience he has had should be out there earning money that would be to the benefit of his children and the combination of the two came to $8500.

C.

We reject Michaels challenge to the sufficiency of the evidence because he has not met his obligation to provide us with a meaningful summary of the evidence (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856) and because his argument ignores the fact that we are bound by the trial courts credibility calls (Lohman v. Lohman (1946) 29 Cal.2d 144, 149).

In any event, our own review of the record shows that, viewed in the light most favorable to the judgment, substantial evidence supports the judgment. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Michael owns an unencumbered commercial building on Whittier Boulevard and a four-unit residential building on Friends Avenue, both of which generate rental income. Although he claimed at trial that there were numerous vacancies, he offered no evidence to that effect and the trial court rejected his claims because they were not credible. Michael, who was only 51 years old at the time of trial, has a college degree and has worked as a salesman and operated his own business (which according to Marys expert means that Michael has an annual earning capacity of $50,000 to $70,000). And although he claimed he had heart problems that limited his ability to work, there was no evidence to that effect -- which explains the trial courts finding that Michael is deliberately unemployed to avoid paying support.

II.

As noted above, Mary asked for $36,150 for attorneys fees, which the court reduced to $7,500, payable at the rate of $250 per month. Michaels claim on appeal is that the award cannot stand because Marys income and expense declaration did not reflect the amounts in her savings accounts. (Cal. Rules of Court, rule 5.128.) There are two problems with this argument.

First, Marys declaration incorporated her trial brief which included all of her financial information.

Second, the award of fees is in any event a matter within the trial courts discretion and will be affirmed absent a showing of abused discretion. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866-867.) Since no such abuse has been shown, the order must be affirmed.

III.

The judgment orders Michael to reimburse the sum of $14,115 to Mary for Michaels separate child support debt paid during this marriage for his children from a prior marriage. We agree with Michael that this part of the judgment cannot stand.

Subdivision (a) of Family Code section 915 provides that a child . . . support obligation of a married person that does not arise out of the marriage shall be treated as a debt incurred before marriage.[2] Subdivision (b) of section 915 provides that if property in the community estate is applied to the satisfaction of a child . . . support obligation of a married person that does not arise out of the marriage, at a time when nonexempt separate income of the person is available but is not applied to the satisfaction of the obligation, the community estate is entitled to reimbursement from the person in the amount of the separate income, not exceeding the property in the community estate so applied. (Emphasis added; and see In re Marriage of Williams (1999) 213 Cal.App.3d 1239, 1245-1246.) A party claiming reimbursement under subdivision (b) of section 915 -- Mary, that is -- must demonstrate that her spouse had nonexempt separate income available at the time community funds were used to pay a particular support obligation. (In re Marriage of Sherman(2005) 133 Cal.App.4th 795, 805.)

Mary presented no such evidence, and none is cited in her respondents brief. It follows that the reimbursement order cannot stand.

DISPOSITION

The judgment is modified by deleting the order for Michael to reimburse Mary $14,115 for child support payments made on behalf of Michaels children from a prior marriage and, as modified, the judgment is affirmed, as is the attorney fee order. The parties are to pay their own costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] At the time we filed our original opinion, we were unaware of Mr. Golds withdrawal and the defect in service and sua sponte found the appeal untimely.

[2] All further section references are to the Family Code.