In re Marriage of Loveman
Filed 4/22/13 In re Marriage of Loveman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
In re Marriage of MAUREEN and STEPHEN LOVEMAN.
2d Civil No.
B237481
(Super. Ct.
No. SD037831)
(Ventura
County)
MAUREEN LOVEMAN,
Petitioner
and Respondent,
v.
STEPHEN LOVEMAN,
Respondent
and Appellant.
Stephen
Loveman, proceeding in propria persona,
appeals from (1) a postjudgment order setting permanent spousal support at
$3,000 per month, (2) an order denying his request to set aside the support
order, and (3) an order requiring him to pay the reasonable attorney fees of
his former wife, respondent Maureen Loveman.
We affirm.
Procedural Background
The parties married in June 1986 and
separated in August 2008. They have two
adult daughters.
In March 2009 a
pursuant to the stipulation of the parties.
Appellant agreed to transfer to respondent $111,250 from his share of a
thrift savings plan. Respondent agreed
to transfer to appellant her interest in the family residence and waive spousal
support for two years. Beginning on April 1, 2011,
appellant agreed to pay respondent monthly spousal support of $3,000. This amount was calculated by using the
DissoMaster program.
name="_ftnref1" title="">[1] The exact DissoMaster support figure was
$3,132.
In June 2011 appellant filed an
order to show cause for modification of spousal support. In a supporting declaration, appellant stated
that his "financial situation has deteriorated" because he "spent
over $45,000 to support [his] two daughters in college." In January 2011 he withdrew $55,800 from his
thrift savings plan. He used this money
to pay "off some of the credit cards that
[he had]
used to finance [his] daughters' college expenses." Because of his "current tax situation,
including an early withdrawal penalty, [he] will owe an additional $21,000.00
in taxes . . . ."
Appellant
attached an Income and Expense Declaration showing that his average monthly
gross income was $9,838 with deductions of $546. His average monthly estimated expenses were
$9,689, including non-mortgage debt payments of $3,834. His total non-mortgage debt was $72,796. He had deposit accounts of $14,000, other
liquid assets of $12,000, and $5,000 equity in his residence. His two adult daughters were living with him,
but they were not paying any of the household expenses.
Respondent filed opposition to the
request for modification of spousal support.
Respondent declared that she was 52 years old, that she had not worked
since 1982, that she had "actively sought employment to no avail,"
and that she was "living at [her] parent's house because [she did] not
have an income." Respondent filed
an Income and Expense Declaration showing that she had no income and that her
average monthly estimated expenses were $3,170, including rent of $1,500. Her only assets were $30,000 in deposit
accounts. She had no debt.
On July 20, 2011, the trial
court conducted a hearing on the request to modify spousal support. The court considered the request to be a
motion to set permanent spousal support pursuant to paragraph 4.7 of the
stipulated judgment of dissolution. Paragraph
4.7 provided: "The Parties stipulate and agree that the Court shall retain
jurisdiction to establish a permanent spousal support order and for the court
to consider all factors as enumerated in Family Code § 4320. . . . At any time, either Party may file an OSC
[order to show cause] or a Request for Trial Setting to establish and/or
challenge the amount and duration of spousal support."
"this is a de novo proceeding today" and "there is no obligation
to show a change of circumstances in order to . . . adjudicate spousal support
based upon all the factors contained in Family Code section 4320."
The
court orally denied appellant's request to modify spousal support. It set permanent spousal support at $3,000
per month. The court stated: "[H]aving considered the [section] 4320
factors to the extent that such evidence has been presented, I find that $3,000
a month is a perfectly satisfactory spousal support order . . . ." Neither party requested a statement of
decision nor asked the court to specify the section 4320 factors that it had
considered. A written spousal support
order was filed in August 2011.
Appellant moved for a new trial. In October 2011 the court denied the motion
and made additional written findings concerning its ruling on July 20, 2011. The court found, inter alia, "that the
parties had achieved a middle standard of living at the time of
separation." The court also found
that respondent "is living with her parents and paying them
rent." The court concluded that
appellant's "continuing contributions to the support of the parties' adult
children is not a factor the court can consider."
In
February 2012 the trial court orally ordered appellant to pay respondent's
attorney fees of $9,700. A written order
was filed in March 2012. In the written
order the court found that appellant "has the ability to pay the sums
awarded and that [respondent] has the requisite need to warrant this
order."
On June 7, 2012,
the trial court filed a written order entitled:
"Statement of Decision and Ruling on [Appellant's] Request to Set
Aside the Support Order of July 20, 2011, Pursuant
to Family Code Section 3691." (Bold
and some capitalization omitted.) In its
statement of decision, the court noted that the request had been filed on August 19, 2011. The request, however, is not included in the
record on appeal.
title="">[4] The court found that respondent had committed
actual fraud and perjury by stating in her Income and Expense Declaration that
she was paying monthly rent of $1,500. In fact, respondent "was then living
rent-free with her parents."
request to set aside the support order.
The court concluded that respondent's "misrepresentation of her
actual expenses did not materially affect the court's order of July 20, 2011."
Appellate Procedure
Appellant's
47-page opening brief fails to comply with the rules of appellate
procedure. †'A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown.' " (
557, 564.) "To demonstrate error,
appellant must present meaningful legal analysis supported by citations to
authority and citations to facts in the record that support the claim of
error. [Citations.]" (In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
"When an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the reviewing court is
unnecessary. [Citations.]" (Landry
v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; see
also Gunn v. Mariners Church, Inc. (2008)
167 Cal.App.4th 206, 217-218 [" 'an appellant must present a factual
authority on each point made or the argument may be deemed waived' "]).
Many
of appellant's arguments are not supported by meaningful legal and factual
analysis with record
references. An example is argument E.1
at pages 32-33 of appellant's opening brief.
In this argument appellant accuses the trial court of being "a
conduit for corruption" because it granted respondent's request for
attorney fees based on her counsel's "perjurious statements," even
though appellant had "brought this perjurious conduct to the court's
attention in his 10/11/2011 Response
declaration."
title="">[6]
The
California Rules of Court require that a brief "[s]tate each point under a
separate heading or subheading summarizing the point . . . ." (Rule 8.204(a)(1)(B).) "This is not a mere technical
requirement; it is 'designed to lighten the labors of the appellate tribunals
by requiring the litigants to present their cause systematically and so
arranged that those upon whom the duty devolves of ascertaining the rule of law
to apply may be advised, as they read, of the exact question under
consideration, instead of being compelled to extricate it from the mass.' [Citations.]" (In re
S.C., supra, 138 Cal.App.4th at
p. 408.) "The failure to head an
argument as required by California Rules of Court, rule [8.204(a)(1)(B)]
constitutes a waiver.
[Citations.]" (
(1995) 34 Cal.App.4th 1826, 1830, fn. 4)
Many
of appellant's arguments are not presented under a separate heading. For example, argument B. on page 23 is
headed, "July 20, 2011 Attorney Misconduct and the Court's Reliance on
it." (Bold omitted.) But in the first paragraph of the argument,
appellant contends that the trial court erroneously "failed to make a
finding as to the parties' marital standard of living . . . as required under
[§] 4332 and simply granted [respondent's] request [for monthly spousal
support]." In the second paragraph,
appellant contends that "the court made its ruling without considering
Appellant's lack of funds available due to his monthly expenses and $40,000 in
debts including debts to the IRS and Franchise Tax Board, violating paragraph
4.7 of the parties' stipulated agreement, and the mandatory factors contained
in [§] 4320." These
contentions have nothing to do with attorney
That
appellant is proceeding in propria persona is no excuse for his failure to
comply with the rules of appellate procedure.
persona, he is entitled to the same, but no greater, consideration than other
litigants and attorneys [citations].
Further, the in propria persona litigant is held to the same restrictiv
attorney [citation]." (Nelson
v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.)
We
consider only those arguments that are properly presented under a separate
heading summarizing the point to be made in the argument. In addition, we consider only those arguments
supported by meaningful factual and legal analysis with pertinent citations to
the record and legal authority. All
other arguments are waived.
Appellant's
cognizable arguments are threefold.
First Argument
The
first cognizable argument is that the trial court abused its discretion on July
20, 2011, when it set permanent spousal support at $3,000 per month. "Permanent spousal support 'is governed
by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to
order a party to pay spousal support in an amount, and 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 set forth in section 4320.'
[Citations.] The statutory
factors include the supporting spouse's ability to pay; the needs of each
spouse based on the marital standard of living; the obligations and assets of
each spouse, including separate property; and any other factors pertinent to a
just and equitable award. (§ 4320,
subds. (c)-(e), (n).) 'The trial court
has broad discretion in
balancing the applicable statutory factors and determining the appropriate
weight to accord to each, but it may not be arbitrary and must both recognize
and apply each applicable factor.'
[Citation.]" (
Cal.App.4th 1438, 1442-1443.) " '
"Because trial courts have such broad discretion, appellate courts must
act with cautious judicial restraint in reviewing [spousal support]
orders." [Citation.]' [Citation.]" (In re
Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096.)
"[W]e
review spousal support
orders under the deferential
abuse of discretion standard. [Citation.]" (In re
Marriage of Blazer, supra, 176
Cal.App.4th at p. 1443.)
" 'A
trial court's exercise of discretion will not be disturbed on appeal unless, as
a matter of law, an abuse of discretion is shown—i.e., where, considering
all the relevant circumstances, the court has "exceeded the bounds of
reason" or it can "fairly be said" that no judge would
reasonably make the same order under the same circumstances. [Citations.]'
[Citation.]" (
Cal.App.3d 469, 480.)
" 'To
the extent that a 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." '
[Citation.]" (
import of these traditional rules of appellate review. (See eg., In
re Gilkison (1968) 65 Cal.4th 1443, 1448-1449.)
The
trial court did not abuse its discretion.
Appellant's income and expense declaration showed that his average
monthly gross income was $9,838 with deductions of $546. Although his average monthly estimated
expenses ($9,689) exceeded his gross monthly income after deductions ($9,292),
these expenses included non-mortgage debt payments of $3,834. "The obligation to provide for the wife
is not subordinate to [debts] owed other persons." (Rosenthal
v. Rosenthal (1961) 197 Cal.App.2d 289, 298.) Furthermore, a substantial portion of
appellant's non-mortgage debt payments was attributable to expenditures he had
made for his adult daughters' college education. In addition, appellant was
subsidizing his daughters' living expenses.
His Income and Expense Declaration showed that they were living with
him, but were not paying any of the household expenses. Neither party had a legal obligation to
support the adult daughters or fund their college education. (In re
Marriage of Serna (2000) 85 Cal.App.4th 482, 489, 491.) It would be improper to allow "a
reduction in what a supporting spouse pays because that spouse has voluntarily
undertaken a duty that the supported spouse has no obligation to
fund." (Id., at p. 492, fn.
omitted.)
Unlike
appellant, respondent was unemployed and had no income. Her Income and Expense declaration showed
monthly estimated expenses of $3,170. In
these circumstances, the trial court did not exceed the bounds of reason in setting
permanent support at $3,000 per month.
Nevertheless,
appellant argues that the trial judge abused his discretion because he
"failed to state with particularity any of the [section 4320] factors he
considered in the July 20, 2011 hearing.
He simply stated that he had considered the factors, but failed to
delineate which factors, or the respective weight of each factor." Section 4320 provides that the court
"shall consider all" of the factors "[i]n ordering spousal
support." The statute does not
require express findings on each factor.
If appellant wanted an explicit
analysis of each of the applicable section 4320 factors, he should have
requested a statement of decision (Code Civ. Proc., § 632) at the hearing
on July 20, 2011. (See
Cal.App.3d 1260, 1274; In re Marriage of
Reilley (1987) 196 Cal.App.3d 1119, 1125-1126 [judgment of dissolution
reversed because trial court failed to render a timely requested statement of
decision on issues of child and spousal support].) If the statement of decision had omitted
applicable factors, appellant would have been required to bring the deficiency
to the court's attention to avoid a waiver.
(In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133-1134; In re
Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) But appellant did not request a statement of
decision. "In reviewing a judgment
without a statement of decision the appellate court indulges every intendment
in favor of the judgment, and assumes the trial court found every essential
fact to support the judgment." (
Cal.App.3d 505, 515.) We therefore
assume that the trial court did what it said it had done: that it had properly
"considered the Family Code § 4320 factors."
Geraci (2006) 144 Cal.App.4th 1278, is
distinguishable. In Geraci the appellate court reversed an award of spousal support
because "the record provide[d] inadequate grounds to accord the usual
deference to the [trial] court's exercise of discretion in making the award of
spousal support." (
at p. 1299.) The appellate court
noted that "[o]ther than the [trial] court's general assertion the factors
listed in section 4320 favored an award of spousal support to [wife] the record
provides no insight into how the court weighed the statutory factors and thus
how it exercised its discretion." (
at p. 1297.) The appellate court
also noted that "the evidence presented in this case raises some question
whether the [trial] court in fact weighed or even gave due consideration to the
statutory factors." (
at p. 1298.)
Unlike
the instant case, in Geraci the trial
court issued a statement of decision.
"It is the statement of decision which allows the court to place
upon the record its view of facts and law of the case. [Citation.]
A failure to request a Code of Civil Procedure section 632 statement
results in a waiver of such findings; [appellant] cannot now be heard to complain. [Citation.]" (In re
Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.)
Moreover,
in contrast to Geraci, the evidence
presented here does not indicate that the trial court failed to weigh or give
due consideration to the statutory factors.
In its statement of additional findings filed on October 25, 2011, the
trial court expressly considered several section 4320 factors, including the
age and health of the parties, their hardships, the duration of the marriage,
the needs of each party based on the marital standard of living, and the
earning capacity of each party. The court
stated: "The determination of this issue [permanent spousal support] calls
for a consideration of all of the circumstances or factors set forth in Family
Code section[] 4320 . . . ."
Second
Argument
Appellant's
second cognizable argument is that the trial court erroneously denied his
request to set aside the support order of July 20, 2011, pursuant to section
3691. Again we review the denial for
abuse of discretion. (See
Cal.App.4th 92, 118.)
Appellant's
request is not included in the record on appeal. Its omission precludes meaningful
review. "It was [appellant's]
burden . . . to present an adequate record for review. [Citation.]
Having failed to do so, the [order denying his request] must be
affirmed. [Citation.]" (Oliveira
v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
In
any event, based on the record before us, the trial court did not abuse its
discretion in denying appellant's request to set aside the support order of
July 20, 2011. Section 3691 provides that
the grounds for setting aside such an order are actual fraud, perjury, or lack
of notice. The court found that
respondent had committed actual fraud and perjury by stating in her Income and
Expense Declaration that she was paying monthly rent of $1,500 when she was
actually "living rent-free with her parents." But a finding of actual fraud or perjury is
not alone sufficient to warrant the setting aside of a support order under
section 3691. "[B]efore granting
relief, the court [must] find that the facts alleged as the grounds for relief
materially affected the original order."
(§ 3690, subd. (b).)
"[A] support order may not be set aside simply because the court
finds that it was inequitable when made, nor simply because subsequent
circumstances caused the support ordered to become excessive or
inadequate." (§ 3692.)
The
trial court found that respondent's misrepresentation of her rental expense
"did not materially affect [its] order of July 20, 2011." Appellant has not shown that this finding
exceeded the bounds of reason so as to constitute an abuse of discretion. He cites no authority requiring that spousal
support not exceed the supported spouse's actual expenses. In setting spousal support, one of the
factors to be considered is "[t]he needs of each party based on the standard of living
established during the marriage."
(§ 4320, subd. (d).) The
trial court determined that respondent's needs based on the marital standard of
living exceeded her monthly expenses of $1,670 (expenses of $3,170 on the
Income and Expense Declaration less rental expense of $1,500). The court also impliedly determined that
respondent should not be penalized for living frugally. The court reasoned: "Where, as here, the
supported spouse has no income, largely as a result of the devotion of time to
domestic duties in a marriage of long duration, and the income of the
supporting spouse is insufficient to permit both parties to live at the marital
standard of living, the court's primary task is 'to fairly allocate the funds that
[are] available.'
[Citations.]" The court
concluded that, in view of the parties' middle standard of living and
appellant's gross monthly income of $9,838, monthly spousal support of $3,000
was a fair allocation of the available funds.
The court noted that it had considered "the 'expenses' of both
parties . . . in the context of the 'needs of each party based upon the marital
standard of living.'
[Citation.]"
Third
Argument
Appellant's
third cognizable argument is that the trial court abused its discretion in
ordering him to pay respondent's attorney fees of $9,700. " 'The trial court may in its discretion
award fees or costs reasonably necessary to maintain or defend any proceeding
occurring after entry of
The trial court is to decide "what is just and reasonable under the
relative circumstances" [citation], taking into consideration "the
need for the award to enable each party, to the extent practical, to have
sufficient financial resources to present the party's case adequately . . .
. The fact that the party requesting an
award of attorney's fees and costs has resources . . . 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" [citation].'
[Citation.] 'In assessing the
applicant's relative "need" and the other party's ability to pay, the
court may take into account "all evidence concerning the parties' current
incomes, assets, and [li]abilities, including investment and income-producing
properties." ' [Citation.] . . .
[¶] ' "[A] motion for attorney fees
and costs in a dissolution proceeding is left to the sound discretion of the
trial court. [Citations.] In the absence of a clear showing of abuse,
its determination will not be disturbed on appeal." [Citation.]
Thus, we affirm the court's order unless " 'no judge could reasonably
make the order made. [Citations.]' " '
[Citation.]" (
Cal.App.4th 387, 405-406.)
The
trial court did not abuse its discretion.
In his last Income and Expense Declaration filed in January 2012,
appellant showed that he had deposit accounts of $200, liquid assets of $3,000,
and $5,000 equity in his residence. He
continued to have gross monthly earnings of $9,838, but his estimated average
monthly expenses had increased to $12,418.
This was because his monthly non-mortgage debt payments had increased 63
percent to $6,258, compared to $3,834 in June 2011. Other persons had paid $500 of appellant's
monthly expenses, reducing them to $11,918.
Of appellant's monthly debt payments, $5,000 was attributable to two credit
cards. On a Chase card appellant had
made a December 2011 payment of $3,000 and had a remaining balance of
$12,000. On a Discover card appellant
had made a December 2011 payment of $2,000 and had a remaining balance of
$3,500. On the other hand, on a Citibank
card appellant had made a December 2011 payment of only $250 and had a
remaining balance of $25,000.
The
trial court ordered appellant to pay respondent's attorney fees at a rate of
$850 per month beginning March 1, 2012.
The trial court could have reasonably concluded that, by stretching out
his monthly payments on the Chase and Discover cards, appellant could afford to
pay $850 per month in attorney fees.
Appellant presented no evidence that he was required to pay $5,000 per
month on these two cards. In his Income
and Expense Declaration filed in June 2011, appellant stated that he had made a
May 2011 payment of $104 on his Chase card and had a remaining balance of
$5,204. Since respondent had no income
other than monthly spousal support of $3,000, we cannot conclude that " '
" 'no judge could reasonably make the order made.' " ' " (In re
Marriage of Dietz, supra, 176
Cal.App.4th at p. 406.)
The orders appealed from are
affirmed. Respondent shall recover her
costs on appeal.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
John
W. Smiley, Judge
Superior
Court County of Ventura
______________________________
Stephen Loveman, in pro
per, Respondent and Appellant.
Diane L. Rowley, for Respondent
and Petitioner.
title="">[1] The DissoMaster program is "a
privately developed computer program which was intended to be used to calculate
temporary support." (
Cal.App.4th 519, 522.)
name="_ftn2" title="">[2] Unless otherwise stated, all statutory references are
to the Family Code.
