Marriage of Campbell

Filed 5/23/08 Marriage of Campbell CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a order of the Superior Court of Los Angeles County,
Marjorie S. Steinberg, Judge. Affirmed.

Merrill Lee Toole for Appellant.

Brian M. Moore for Respondent.

_____________________

INTRODUCTION

Former husband William Travis Campbell appeals an order, entered more than six years after the dissolution of his marriage to former wife Alexandria Campbell,[1] ordering Travis to pay private school tuition and expenses of the former spouses two children and ordering him to pay $15,000 of Andrias attorneys fees and costs. We conclude that because Travis did not show changed financial circumstances, the trial courts denial of his application to be relieved of his obligation to pay his childrens private school tuition and expenses was not an abuse of discretion. We also conclude that Travis has not shown that the attorneys fee award was an abuse of discretion. We affirm the order.

PROCEDURAL AND FACTUAL HISTORY

Andria and Travis were married on October 21, 1989. They had two children, Brittany Lilly Campbell (born September 19, 1991) and Trevor Glen Campbell (born January 7, 1993). Andria and Travis separated on December 16, 1999. On December 1, 2000, a judgment of dissolution was filed. The parties stipulation for judgment contained provisions for child custody, visitation, and spousal support. Pursuant to their stipulation, the trial court ordered Andria to have sole legal and physical custody of the children and Travis to have monitored-only visitation.

The trial court ordered Travis to pay Andria spousal support of $500 per month beginning July 1, 2000. Spousal support was to continue for 10 years until the July 1, 2010, payment, at which time spousal support would go to zero. The trial court did not order any spousal support from Andria to Travis and did not retain jurisdiction over that issue.

The trial court ordered Travis to pay Andria child support of $1,250 per child per month (for a total of $2,500 per month) beginning July 1, 2000. The trial court ordered the parties to divide equally payment of the cost of the childrens agreed-upon extra-curricular activities and uninsured medical expenses. Travis was responsible for 100 percent of costs for the childrens agreed-upon private school.

The trial court retained jurisdiction to resolve disputes arising under the judgment and to enforce its executory provisions.

On October 26, 2005, Andria filed an OSC requesting an order for attorneys fees and costs, and for the following findings, determinations, and orders by the trial court: (1) that Travis was in arrears on his child and spousal support obligation in the amount of $52,000 as of September 24, 2005; (2) that Travis was responsible to pay the childrens private school costs for school year 2005-2006, that Travis be ordered to pay all costs associated with the childrens private school education, and that Travis be ordered to pay Andria $10,000 as reimbursement for Andrias payment of tuition and other costs; (3) that Travis was obligated to contribute $9,313.50 to the childrens extracurricular expenses, or such sum as the court found appropriate, and that Travis be ordered to reimburse that sum to Andria; (4) that Travis owed $10,295.30 for his one-half share of the childrens uninsured medical and health related expenses, and that Travis be ordered to reimburse Andria for this sum; (5) that sums found due from Travis to Andria for monthly support, private school costs, reimbursement for extra-curricular activities and uninsured health related expenses be deemed a charge against Traviss estate and collectible from any sums payable to Travis out of a trust being maintained for Traviss benefit; (6) that for sums due from Travis to Andria, the trial court issue an order attaching and charging funds payable to Travis from the Billie Jean Campbell Irrevocable Trust (sometimes the Trust); (7) that Travis be ordered to post security of $226,000 for his future support obligations and that the court direct the trustee of the Billie Jean Campbell Irrevocable Trust to post such security out of sums payable for Traviss benefit; (8) and that Travis be ordered to pay Andrias attorneys fees and costs in the amount of $5,000. The OSC also requested that any sums payable from the Billie Jean Campbell Irrevocable Trust as arrearages, security, or otherwise be payable out of funds managed by any trustee and be paid out through the Gursey Schneider office and/or Glen Campbell Enterprises.

Travis opposed Andreas OSC by a responsive declaration, which opposed the orders requested by Andria, sought a guideline child support order, requested reimbursement for over-payment of private school tuition, extracurricular activities, and unreimbursed medical and other health related expenses, and requested attorneys fees and costs. With regard to payment of school tuition, Traviss attached declaration stated that the judgment was based on an agreement that he and Andria would each pay one-half the cost of private school, if it were agreed that the children should attend private school. Travis stated that he no longer agreed, because he could no longer afford to pay.

On November 30, 2005, the trial court ordered that the trustee should deliver any trust funds payable to Travis to Andrias attorney and should make such trust funds payable to Andrias attorney, and ordered the trustee not to deliver any trust funds to Travis pending further order of the court. The trial court ordered Travis to provide written instruction to the trustee of each trust of which he is a beneficiary directing disbursements for his benefit be delivered and be made payable to Andrias attorney. Andrias counsel was ordered to disburse $9,000 from such funds to Andria for October, November, and December 2005 monthly support, and to deposit all other funds in his Attorney Client Trust Account and maintain those funds pending further court order and determination of arrearage claims.

On March 9, 2006, Andria filed a declaration re information obtained from William Braunstein during discovery. Andria deposed Braunstein in connection with her pending application to attach trust funds payable to Travis to pay support arrearages and to post security for future support, and for attorneys fees and costs. In his deposition, William Braunstein identified his firm, Gudvi, Sussman & Oppenheim, as the accountant for the Billie Jean Campbell Trust, of which Travis was a beneficiary. Braunstein was the lead accountant for that trust, and was the son of the trustee, Jerome Braunstein. As trust accountant, he recorded income and paid taxes, bills, and distributions to beneficiaries. As of December 31, 2005, Travis had a capital balance of approximately $426,000 in the Trust, which remained after payment of $80,000 to Andrias attorney. That $80,000 was from a distribution to Travis on his fortieth birthday, and Travis would receive a further $22,544 as part of that distribution. Braunstein estimated that during 2006, Travis would receive $2,000 per month from the Trust as income. Trust beneficiaries received payments from trust principal on their 35th, 40th, and 45th birthdays. Travis could request an advance on his next birthday distribution, and could receive an advance if the trustee determined that an advance fulfilled trust terms. Travis had directed the Trust to pay the bill for the childrens education.

On May 5, 2006, Travis obtained an order to show cause seeking modification of existing orders for monitored visitation and $2,500 monthly child support, reduction of the $500 spousal support to $0, and seeking attorney fees and costs of $10,000.

On May 30, 2006, Andria obtained an order to show cause seeking an order allowing Trevor and Brittany to continue to attend private school, terminating Traviss right to prevent their attendance at private school and his right to relieve himself of the obligation to pay for private school, and requiring that Travis pay for tuition, administrative fees, books, supplies, and all costs of private school.

After a June 12, 2006, hearing, the parties entered into a stipulation. An order pursuant to stipulation, signed by the parties and the trial judge, was filed on December 18, 2006. In the stipulation, Andria and Travis waived claims for reimbursement from the other party for the childrens extracurricular expenses through June 12, 2006, and for payments for the childrens uninsured medical, dental, orthodontic, or other health expenses through December 31, 2005. The parties were ordered to divide equally the costs of Trevors participation in football in 2006, of Trevors orthodontic treatment, and of outstanding, unpaid bills for the childrens health care not covered by insurance. By the parties stipulation, the trial court found $39,500 in child support and spousal support arrearages were due Andria from Travis, that Andria waived interest on this amount, and that $39,500 should be paid to Andria out of funds held in trust by Andrias counsel. By the parties agreement, $7,500 had been paid to Andria from funds held in her counsels trust account, and this payment would be deemed applied toward Traviss support obligations for April, May, and June 2006.

Travis stated that he currently received $2,000 monthly from the Trust. Beginning June 12, 2006, the trial court ordered the Trustee to pay those $2,000 monthly payments directly to Andria and to be applied toward Trevors monthly support obligations.

By the parties stipulation,95

the trial court ordered Travis to be solely responsible for the childrens tuition for attending Chaminade School for the 2005-2006 school year. The trial court ordered $2,900.66 remaining in the trust account of Andrias counsel to be disbursed to Travis.

The trial court ordered Travis to undergo a vocational evaluation, with the report of that vocational evaluation to be considered by the court in determining modification of support. Regarding Andrias request that Travis post security for support, the parties requests for an award of attorneys fees and costs, and Traviss request for modification of child and spousal support, the trial court continued these issues to a later hearing.

The trial court held a hearing on remaining issues on December 18, 2006. On February 14, 2007, Travis filed a notice of appeal from the December 18, 2006, order. On February 15, 2007, the trial court issued an order on the matters submitted on December 18, 2006, regarding Traviss private school obligations and the parties requests for attorneys fees. The February 15, 2007, order was attached to a written order, signed by the trial judge and filed on March 12, 2007. The March 12, 2007, order addressed Traviss obligation to pay the childrens private school expenses and the parties request for attorneys fees and costs. It is from the March 12, 2007, appealable order[2] that the appeal was properly taken. We construe the February 14, 2007, notice of appeal to have been filed after entry of the final order. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, fn 6.)

In its March 12, 2007, order, the trial court found that in the stipulated judgment of dissolution, the parties agreed to Traviss above-guideline obligation to pay for the childrens private school education, that the parties had selected Chaminade Preparatory School as their childrens private school, and that this school was a good school and of reasonable cost. The trial court found unpersuasive Traviss contention that he could not afford private school expenses because he was unemployed. The trial court found that Travis was not employed at the time of the December 1, 2000, stipulated judgment of dissolution, that the evidence showed that Travis could choose to work if he desired, that the trial court could look to other assets to pay for private school, and that the cost of private school could be paid from Traviss trust funds. The trial court found that payment for private school tuition and expenses continued to be Traviss obligation, for approximately three years for Brittany and for approximately five years for Trevor. The trial court ordered Travis to pay the childrens private school tuition and expenses, to reimburse Andria $10,720 which she had advanced toward tuition expenses, and to pay the next installment of $9,450 directly to Chaminade School.

With regard to attorneys fees, the trial court found that the parties attorneys each charged reasonable fees, and that attorneys fees dealt with, inter alia, Traviss order to show cause for modification of support and Andrias order to show cause re arrearages. The trial court found that each party had roughly equal earning capacity. Travis had the ability to work, but chose not to work. The trial court found, however, that Travis had much greater financial resources than Andria, and would have these financial resources in a substantial sum even after deducting payment of child support and private school tuition from the trust fund. The trial court found it appropriate for Travis to contribute toward Andrias attorneys fees and costs, and ordered Travis to pay $15,000 as a contributive share of Andrias attorneys fees and costs.

ISSUES

Travis claims on appeal that:

1. The trial court abused its discretion in ordering Travis to pay all private school expenses, because there was no substantial evidence that he could continue to do so; and

2. The attorney fee award to Andrias attorney was excessive and was not based on substantial evidence of Traviss ability to pay.

DISCUSSION

1. The Trial Courts Order Requiring Travis to Pay the Childrens Private School

Tuition and Expenses Was Not an Abuse of Discretion

Travis claims on appeal that the trial courts order that he pay private school tuition and expenses was an abuse of discretion. We disagree.

a. This Court Reviews an Order Denying Modification of a Support Order

According to an Abuse of Discretion Standard

A reviewing court will ordinarily uphold a trial courts order granting or denying a modification of a support order unless the appellant can demonstrate an abuse of discretion, and will reverse only if prejudicial error is found after examining the record of proceedings below. To the extent the appellant challenges the trial courts factual findings, our review inquires whether substantial evidence supports the findings. On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. We accept all evidence favorable to the prevailing party as true, discard contrary evidence, and we do not reweigh the evidence or reconsider credibility determinations. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.)

b. Travis Did Not Show Changed Financial Circumstances, and Thus Denial of

His Application for a Downward Modification in Child Support Was Not an

Abuse of Discretion

Travis claims that the order that he pay for all private school tuition and costs was not based on substantial evidence of his income.

Travis first argues that an order for additional child support of the childrens educational costs is discretionary pursuant to Family Code section 4062, subdivision (b)(1),[3] and that such additional child support must be computed according to section 4061. Divorcing parents, however, may stipulate to a child support amount subject to approval of the court. ( 4065, subd. (a); see also 3901, subd. (b) [a parent may agree to provide additional support], and 4057, subd. (b)(1) [parties stipulation to a child support amount can rebut the presumption that the child support amount established by the formula in section 4055, subd. (a), is the correct amount of child support].) Thus divorcing parents can agree that one parent will pay child support exceeding the statewide uniform child support guideline amount ( 4050 et seq.), but the trial court retains jurisdiction to modify that agreed-upon child support amount. (In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.)

Where, as occurred in Andria and Traviss stipulation, the parties stipulate to a child support order above the amount established by the statewide uniform guideline, the parent seeking to obtain a downward modification of the child support order must demonstrate a change of circumstances. (In re Marriage of Laudeman, supra, 92 Cal.App.4th at pp. 1015.) The obligor has the burden of presenting admissible evidence of changed financial circumstances. (Id. at p. 1016.) Modification of spousal support requires a material change of circumstances since the last order. (In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 1133.) There was substantial evidence that Travis did not show a material change of financial circumstances and therefore the denial of his request for a downward modification of child support was not an abuse of discretion.

In his April 29, 2006, declaration, Travis stated that he had been unemployed for the previous 13 to 14 years, which included some years during his and Andrias marriage and the years since the dissolution of their marriage in 2000. Travis further stated that his income during the previous 10 years came from the Trust, $527.00 monthly from the Gursey Schneider office account, and $10,000 of annual royalties paid to him from a record made by his father. Travis stated that he had not received royalties for one and one-half years; he anticipated receiving future royalties but could not estimate the amount or when they would be paid. He had no other income. He received a principal payment from the trust on his 35th birthday and 40th birthday, and the trustee had withdrawn amounts for his benefit and to pay child support costs. His trust accountant testified that the principal amount in the trust after Traviss 40th birthday disbursement of principal would be approximately $400,000, from which monthly income would be $2,000. Travis stated that he now lived in a rural farm community with his wife and two stepsons.

Traviss May 5, 2006, income and expense declaration stated that he had no salary or wages, but had average other monthly income of $1,227, average monthly trust income of $2,000, and $100,000 in assets. His current wife paid $1,000 in household expenses, which he stated to be $6,982 monthly. He stated that to date he had paid his attorney $6,000 in fees and costs and still owed more than $10,000 in fees and costs. Traviss December 18, 2006, income and expense declaration stated that he had no salary or wages, average monthly trust income of $1,500 to $2,000, average other income (identified as royalties from parent) of $500, and $100,000 in assets.[4] His current wife paid $1,000 in household expenses, which he stated to be $6,045 monthly. To date he had paid his attorney $16,000 in fees and costs and still owed $15,000 in fees and costs.

The December 1, 2000, judgment ordered Travis to pay $2,500 monthly child support and $500 monthly spousal support. As of May 1, 2006, however, Andria was employed and the parties agreed to reduce monthly child support to $1,250 from May 1, 2006 through May 30, 2007, and to $1,450 after June 1, 2007. The parties further stipulated to reduce spousal support to zero.

A vocational examination by a vocational rehabilitation counselor reported that Travis had a college degree, had worked in college, and after college worked for two car rental businesses. He stopped working in 1992. Travis stated that he was not interested in working, had taken no concrete steps to develop a career or a return-to-work program, did not feel he possessed any marketable job skills, and had not begun a job search, sent out resumes, or completed any job interviews. The report concluded that Traviss bachelors degree would be a significant vocational asset for entry-level management positions, and he could earn $26,000 to $27,000 annually in management training positions.

The child support obligation is based primarily on actual earnings and on earning capacity. (In re Marriage of Henry (2005) 126 Cal.App.4th 111, 119.) For child support purposes, the trial court has discretion to consider the earning capacity of a parent in lieu of the parents income, consistent with the best interests of the children. ( 4058, subd. (b).) Where a parent has an earning capacitythe ability and opportunity to earn incomethe trial court may attribute income to that parent for child support purposes. (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1392.) Thus, the trial court was justified in attributing an amount of income to Travis when determining that no change of financial circumstances had occurred which required a downward modification of his child support obligation. A court, moreover, can consider assets beyond trust income in evaluating earning capacity. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1363.) Thus the trial court was justified in reaching trust principal to require Travis to make the payments he agreed to make for the childrens private educational costs.

We conclude that substantial evidence supports the trial courts finding that no change of circumstances had occurred since entry of the December 1, 2000, judgment of dissolution and stipulated child custody provisions. The order denying Traviss request for a downward modification of his child support obligation and requiring him to continue to pay the costs of his childrens private education, which costs he had agreed to pay, was not an abuse of discretion. We affirm that order.

2. The Attorney Fee Award Was Not an Abuse of Discretion

Travis claims that the attorney fee award was excessive and not based on substantial evidence of Traviss ability to pay.

a. Statutory Authority for an Attorney Fee Award, Which Is Reviewed According

to an Abuse of Discretion Standard

Section 3557, subdivision (a) states that the trial court, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the partys rights, shall award reasonable attorneys fees to . . . [] (1) A custodial parent . . . to whom payments should be made in any action to enforce any of the following: [] (A)  An existing order for child support.

Moreover, [f]or services rendered or costs incurred after entry of judgment, the court may award the attorneys fees and costs reasonably necessary to maintain or defend any subsequent proceeding[.] ( 2030, subd. (c).) Section 2032 states, in relevant part: (a) The court may make an award of attorneys fees and costs under Section 2030 . . . 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 partys 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 attorneys fees and costs has resources from which the party could pay the partys own attorneys 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.

(c) The court may order payment of an award of attorneys fees and costs from any type of property, whether community or separate, principal or income.

 The need of a spouse for an award of attorneys fees and the amount of that award are matters addressed to the sound discretion of the trial court. [Citation.] The exercise of this discretion will not be disturbed on appeal without a clear showing of abuse.  [Citation.] (In re Marriage of Schaffer (1984) 158 Cal.App.3d 930, 935-936.) We must affirm the award unless no judge could reasonably make the order. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)

b. Travis Has Not Shown That the Trial Courts Attorney Fee Award Was an

Abuse of Discretion

Travis argues that attorneys fees do not qualify as child support, and thus the Trust should not be obligated to pay attorneys fees. Section 2032, subdivision (c), however, states that the trial court may order payment of an attorneys fee award from any type of property, whether community or separate, principal or income.

Travis misstates the amount of the attorneys fee award as $25,000. The trial courts March 12, 2007, order makes $15,000 payable by Travis to Andrias attorney.

Travis also argues that the trial court had no evidence that Travis had the ability to pay his own attorneys fees and those of Andria.[5] The trial court found that each party had roughly equal earning capacity and that Travis could work and had the ability to work but chose not to. The trial court determined that Travis had much greater financial resources than Andria, and that he would continue to have those greater resources even after deduction from the trust fund for payment of child support and private school tuition. There was evidence to support this conclusion, in the form of testimony by the accountant of the Billie Jean Campbell Irrevocable Trust that the principal amount in the trust after Traviss 40th birthday disbursement of principal would be approximately $400,000.

Travis also argues that the amount of the attorneys fee award must have a tangible evidentiary foundation, and because the trust cannot be attached or invaded for the purpose of payment of attorneys fees to Andria, payment of those attorneys fees will have to come from amounts now provided for the children and their private school educational costs. Travis has, however, provided no evidence that the trust funds cannot be used to pay the attorneys fee award or that funds to pay Andrias attorneys fee award will have to come from child support or educational costs.

We have no basis for concluding that the award of attorneys fees and costs was an abuse of discretion, or that no reasonable judge would have made the award.

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondent Alexandria Campbell.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Because the parties share the same surname, for convenience this opinion will adopt the practice used by their attorneys and refer to them as Andria and Travis. We mean no disrespect to them. (In re Marriage of West (2007) 152 Cal.App.4th 240, 242, fn. 1.)

[2] An order granting or denying a request to modify a support obligation is an appealable order. (Fam. Code, 3554; In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 554.) An order awarding attorneys fees and costs is appealable as a final determination on a collateral matter. (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 565, fn 1.)

[3] Unless otherwise specified, statutes in this opinion refer to the Family Code.

[4] The income and expense statement has two handwritten zeros, for an apparent total of $1,000,000 in assets, but in the December 18, 2006, hearing Traviss attorney stated that he had added the two handwritten zeros in error.

[5] The trial courts order did not require payment of all attorneys fees and costs owed by Andria; it ordered payment of $15,000 of attorneys fees and costs, and left the remainder of amounts owed by Andria to her attorney (an additional $11,811.86, plus an estimated $700 for future work) to be paid by her.