Marriage of Portener CA4/2 ( 2014 )

Filed 12/9/14 Marriage of Portener CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of Susan and David
Portener.
SUSAN E. PORTENER,
E057562
Appellant,
(Super.Ct.No. IND100454)
v.
OPINION
DAVID B. PORTENER,
Respondent.
APPEAL from the Superior Court of Riverside County. J. Michael McCoy and
Gregory J. Olson, Temporary Judges. (Pursuant to Cal. Const., art VI, §21.) Affirmed.
Sheila A. Williams and Laura J. Fuller, for Appellant.
No appearance for Respondent.
1
On May 25, 2010, appellant Susan E. Portener (Susan) filed a petition for
dissolution of marriage to respondent David B. Portener (David). Susan and David had
one adult child. Susan sought spousal support, attorney fees, and the determination of
rights to the community property.
A court trial was held on the disputed issues as relevant here: [A] determination
of the value of the business owned by Susan and David called Palm Springs Desert
Media (PSDM); value of a residence they owned in Palm Desert; Susan’s attorney fees;
and Susan’s allegation that David had breached his fiduciary duty. On September 7,
2012, an eight-page statement of decision was signed by the trial court. No objections
were filed by either party and the dissolution judgment was final on September 19, 2012.
Susan contends on appeal as follows: (1) the trial court failed to use accepted
business valuation principles and practices when ruling on the business valuation of
PSDM; (2) the trial court erred in awarding David negative equity in the marital
residence; (3) David breached his fiduciary duty to her; and (4) David should have been
ordered to pay the full amount of her attorney fees.
We provide a brief procedural background and examine the facts and law relating
to each of these contentions separately.
2
I
PROCEDURAL BACKGROUND
David has not filed a respondent’s brief. California Rules of Court, rule
8.220(a)(2), provides that when a party fails to file a responsive brief “the court may
decide the appeal on the record, the opening brief, and any oral argument by the
appellant.” “The rule we follow in such circumstances ‘is to examine the record on the
basis of appellant’s brief and to reverse only if prejudicial error is found. [Citations.]’
[Citations.]” (Lee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1192, fn. 7.)
According to the petition filed by Susan, she and David were married on
November 24, 1989, and had separated on May 18, 2010. They had no minor children.
David filed a response which stated he was self employed at PSDM. Prior to trial, in
September 2010, Susan and David agreed that she would pay all of the household
expenses, she would live in their home in Palm Desert, and David would live in the
recreational vehicle (RV) they owned.
Susan and David reached another agreement on April 13, 2011 (4/11 agreement).
According to the 4/11 agreement, David would have exclusive use and possession of the
Palm Desert home and would have exclusive control of PSDM. David would continue to
run PSDM to the best of his ability and send Susan monthly financial reports. David
would pay the household debts and PSDM debts. Beginning on May 1, 2011, PSDM
would pay Susan $3,000 per month. There was no agreement as to payment of attorney
fees. The trial court signed the order on April 29, 2011.
3
A trial on the disputed issues began on June 6, 2011. The trial court initially heard
the matter of sanctions requested by Susan under Family Code section 271. After the
hearing, the trial court denied sanctions finding both parties were equally at fault for how
they dealt with each other.
The remaining issues were heard over eight days in August 2012. The trial court
issued an eight-page statement of decision on September 7, 2012. There were no
objections to the decision. On September 19, 2012, the decision was final. In pertinent
part and as will be discussed in more detail, post, the trial court ruled as follows: (1)
PSDM was valued at $320,000 and awarded to David; (2) Susan was to receive spousal
support of $4,500 each month until her death or remarriage; (3) David was to pay an
equalization payment of $23,800 to Susan from the sale of their vacation home in
Canada; (4) David was to sell both their car and RV and split the proceeds with Susan;
(5) the Palm Desert house was awarded to David and was valued at $420,000 with
$391,460 mortgage debt for a total award of $28,540; (6) David was given negative
equity of $299,940 for home equity line of credit (HELOC) debt on the Palm Desert
house; and (7) David was to obtain a life insurance policy in the amount of $500,000 with
Susan as the beneficiary. The trial court split the remaining assets equally. Susan was
awarded a portion of her attorney fees. The trial court also found that there had been no
breach of fiduciary duty by David. The trial court found that the marital standard of
living was upper middle class with an annual income ranging from $150,000 to $200,000.
Susan filed a notice of appeal on November 15, 2012, pursuant to Code of Civil
Procedure section 904.1, subdivision (a)(1).
4
II
VALUATION OF FAMILY BUSINESS
Susan claims that the trial court erred in its valuation of PSDM. She insists that
PSDM should have been valued at $508,000 rather than $320,000.
A. Valuation of Businesses
Generally, the family court is obliged to divide the community estate equally. (In
re Marriage of Duncan (2001) 90 Cal. App. 4th 617, 631 (Duncan).) “In this regard, the
court has broad discretion to determine the manner in which community property is
divided and the responsibility to fix the value of assets and liabilities in order to
accomplish an equal division. [Citations.] The trial court’s determination of the value of
a particular asset is a factual one and as long as that determination is within the range of
the evidence presented, we will uphold it on appeal. [Citations.]” (Id at pp. 631-632.)
“A family court’s discretion in dividing marital property includes the authority to award a
marital business to one spouse as a means to achieve equity in the division of property.
[Citations.]” (In re Marriage of Gréaux and Mermin (2014) 223 Cal. App. 4th 1242,
1251.)
In Duncan, supra, 90 Cal. App. 4th 617, the court discussed that it was difficult to
give a value to a closely held corporation for purposes of allocating it to the parties.
(Duncan, at p. 632.) It noted that in exercising that discretion, the court “‘makes an
independent determination of value based upon the evidence presented on the factors to
be considered and the weight given to each. The trial court is not required to accept the
opinion of any expert as to the value of an asset.’ [Citations.] Differences between the
5
experts’ opinions go to the weight of the evidence. [Citations.] Rather, the court must
determine which of the recognized valuation approaches will most effectively achieve
substantial justice between the parties. [Citation.]” (Ibid.)
One court has determined that “[T]he fair market value of a marketable asset in
marital dissolution cases is the highest price on the date of valuation that would be agreed
to by a seller, being willing to sell but under no obligation or urgent necessity to do so,
and a buyer, being ready, willing and able to buy but under not particular necessity for so
doing.” (In re Marriage of Cream (1993) 13 Cal. App. 4th 81, 89.) The court in Cream
emphasized it was the trial court’s duty to value the asset, no matter how difficult. (Id. at
pp. 89-90.)
“‘Questions of fact concern the establishment of historical or physical facts; their
resolution is reviewed under the substantial-evidence test.’ [Citation.]” (Bono v. Clark
(2002) 103 Cal. App. 4th 1409, 1421.) A trial court’s exercise of discretion “will be
disturbed only for clear abuse. . . ” (Denham v. Superior Court (1970) 2 Cal. 3d 557,
564.) Moreover, it is well-established that the “trial court’s judgment is presumed to be
correct on appeal, and all intendments and presumptions are indulged in favor of its
correctness. [Citation.]” (In re Marriage of Nichols (1994) 27 Cal. App. 4th 661, 670.)
B. Evidence and Findings
David and Susan purchased PSDM in 2002 for $40,000. PSDM was a distributor
of a bimonthly magazine that was placed in hotels and other tourist attractions. PSDM
sold advertisements and sometimes also took trade with restaurants or other companies
but did not report the trades as income.
6
In 2009, David was away from the business for one year while he worked for
another company. At that time, Susan and David hired a manager, Bob Marra, to run the
business. David negotiated an option for Marra to purchase PSDM for $800,000. Marra
never exercised the option. In an effort to possibly settle the dissolution, both Susan and
David hired Adam Ochoa to do a valuation of PSDM. He provided a valuation of PSDM
as of December 31, 2009. Ochoa only performed a limited determination of value. He
concluded that the fair market value at that time was $404,881. He based this on an
average of an asset-based approach to valuation, an income-based approach to valuation,
and a market value approach.
At trial, both parties presented experts as to the value of PSDM. Susan’s expert,
Lynne Bushore, stated that the value of PSDM was $508,000 and the discretionary cash
flow for 2011 was $16,936 and for the first half of 2012 was $19,215. She based her
value on three different approaches: asset approach, income approach and market
approach. She used tax returns and accounting from PSDM. For the market approach,
she used “Bizcomps” which was a compilation of other businesses sold which she
determined averaged $431,000 (which included one business that was sold in Las Vegas
in 2005 for $292,000) and also the $800,000 option to purchase signed by Marra.
David’s expert, Ochoa, did a second valuation of the business as of December 31,
2011. He also used an average of the asset-based approach, the income-based approach
and market approach to reach the final value as $258,327 and discretionary cash flow as
$5,974. In the market value approach, he referred to a sale of a business in Las Vegas in
2005 for $290,000.
7
Both experts criticized the calculations used by the other expert. Bushore
complained Ochoa misstated the income numbers and did not include the accounts
receivable in the assets. Ochoa explained that he did not include the accounts receivable
because they were old and likely not recoverable. He insisted the $800,000 option to
purchase should not have been included in the market value. There was also testimony
presented that PSDM was a distributorship of a magazine and such distributorship
franchise was worth $60,000.
In its statement of decision, the trial court discussed the evidence that Susan and
David started PSDM in 2002 for $40,000. The business was the primary income for the
family. They purchased a house in Palm Desert, a vacation home in Canada, a boat, two
cars, and an RV. They paid for vacations and their son’s college education. It also
referred to evidence that in 2009, David took a job in Dallas and earned $150,000.
During that time, the parties employed Marra to run PSDM. Marra was given an option
to buy the company for $800,000 but he never exercised the option. The only year that
the business did not make a profit was 2009. The trial court also referred to the 4/11
agreement which gave David exclusive control over PSDM. It also stated that David
used the PSDM income to pay his attorney and to pay his bills.
The trial court then noted, “Both sides presented accounting experts in regard to
valuation of PSDM . . . ; Lynne Bushore for the Petitioner and Adam Ochoa for the
Respondent. Ms. Bushore stated that the value of PSDM was $508,000 . . . Mr. Ochoa
stated that the value of PSDM was $258,327 through 2011 . . . Ms. Bushore testified that
she used three different approaches in order to get a value for PSDM; the asset approach,
8
the income approach and the market approach. The asset and income approaches both
used numbers available from the business’ accounting books and tax returns. The market
approach compared like-business sale values. As it regards to the market approach, Ms.
Bushore said it was difficult to find a sale of a business that was like PSDM, finding only
one in Las Vegas for $292,000 in 2005. Ms. Bushore also averaged in the $800,000
arms-length price from the 2009 Portener/Marra option to buy contract. Ms. Bushore
considered the trade-in-kind ($2,600 a month) that PSDM received as income when
determining value and cash flow and specifically stated that Adam Ochoa’s cash flow
was incorrect by not including it as income. Ms. Bushore also pointed out that Mr.
Ochoa’s report had misstated the income numbers for PSDM for 2007-2011 which he
used in his calculations, including not including accounts receivable. Mr. Ochoa, who
used the three approaches used by Ms. Bushore, in turn argued that Ms. Bushore was
wrong in adding into the calculations the $800,000 2009 option-to-buy figure; as it was
not a market determined value, had not been optioned and was therefore valueless and
her ending valuation was too high. Mr. Ochoa also argued that the trade-in-kind did not
have value and should not be used as income for cash flow purposes. Mr. Ochoa also
stated that the accounts receivable were not recoverable because of their age and
therefore should not be added as income to any valuation of the business.”
The trial court then made the following findings: “The Court finds that both CPA
reports are faulty when it determines business value. The Court finds that Ms. Bushore’s
use of the non-optioned $800,000 in her valuation of PSDM is not justified and her
overall valuation of the business in [sic] over-inflated. On the other hand, the Court is
9
highly suspicious of Mr. Ochoa’s 2011 business valuation, especially when it starkly
contradicts his 2010 valuation. Mr. Ochoa’s failure to include accounts receivable is also
a concern. The Court finds that his 2011 valuation is undervalued. To buy a distributor
franchise today would cost between $30,000 and $60,000. The Court finds that the 2005
of like-business sale used in both market approaches is helpful in determining value.
Even though it is seven years old, the $292,000 represents a true sale for comparison and
occurred right before PSDM’s best income years, 2006-8, and before the economy took a
turn for the worse. It is also helpful to the Court that Ms. Bushore pointed out that for the
first half of 2012, with the Respondent in charge, PSDM income was showing signs of
going back to the 2006-2008 income numbers. The 2005 like-business sale, best
represents what the market value of PSDM is today.” The trial court’s final ruling was
that PSDM was worth $320,000 and awarded the business to David.
C. Analysis
We conclude the trial court’s determination of the value of PSDM, and the
underlying reasons for it, given the broad discretion afforded to the court to determine the
value of community assets as long as its determinations are within the range of the
evidence presented, was proper. (In re Marriage of Nichols, supra, 27 Cal.App.4th at p.
670.) As set forth, ante, both parties presented competing experts on the value of PSDM.
Both experts employed three different approaches to reach an average: Ochoa
determined based on looking at three different approaches the average value of $258,327
and Bushore determined it was $508,000. The trial court expressed its concerns as to
both valuations. However it was bound to reach a decision on value. (In re Marriage of
10
Cream, supra, 13 Cal.App.4th at pp. 89-90.) It relied on a like-business that was sold
during a similar economic time. A final determination of $320,000 cannot be deemed an
abuse of the trial court’s vast discretion.
Susan assumes that the trial court only relied on the market approach and the
market value was improper because there was no way to determine the actual market
value of PSDM. She insists the market value approach was improper because “[t]here
were insufficient comparisons to use that approach exclusively.” Susan provides no case
law that supports her claim that the trial court’s determination was not the fair market
value. “An appellant must provide an argument and legal authority to support [her]
contentions. This burden requires more than a mere assertion that the judgment is wrong
. . . .” (Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 852.) The
evidence presented supported the fair market value as determined by the trial court.
Susan argues that there was an offer for the business from Audrey Weber of
$500,000 that should have been considered as the fair market value. The trial court’s
statement of decision did not include this evidence. However, Susan made no objections
to the statement of decision. As such, we can imply the trial court properly disregarded
this testimony and find that Susan has waived her right to complain that the trial court
disregarded this evidence by failing to object to the statement of decision. (See In re
Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1132, 1138.)
11
Susan’s reliance on In re Marriage of Hewitson (1983) 142 Cal. App. 3d 874 is
misplaced. In that case, the reviewing court held that an expert’s evaluation of a business
– which was held by stocks – failed to constitute substantial evidence, as the record
demonstrated that the expert applied a defective method or made factually unfounded
assumptions. The court concluded that the trial court could not compare a closely-held
small company to a larger, publicly-held corporation. (Hewitson, supra, at pp. 884-886.)
This case does not involve the same error. There is no evidence to support that the Las
Vegas business was unlike PSDM. Susan provides no relevant legal authority to support
that the trial court could not use the one business to show the value.
Based on the foregoing, the trial court did not abuse its discretion by valuing
PSDM at $320,000.
III
NEGATIVE EQUITY IN MARITAL RESIDENCE
Susan contends that the trial court should have either considered the Palm Desert
house and the HELOC on the house as zero equity, or forced a short sale of the house in
order to maximize the estate. She insists that a “zero value” would maximize the value to
the estate. She also insists the court could have ordered a short sale or had the parties
sign a deed in lieu of foreclosure in favor of the lender.
The parties stipulated that their Palm Desert residence was worth $420,000. The
first mortgage debt on the house was $391,460. Prior to separation, the parties took
$135,000 from the HELOC to remodel. After they separated, Susan took out $27,000 to
pay her attorney fees and other items. David took out $10,000 for a community property
12
debt to pay an attorney who had represented both David and Susan in a lawsuit, and
$10,500 to pay a community tax consequence. After David found out about the
withdrawals by Susan, he took out the remaining amount on the HELOC totaling
$116,000. He used that amount to pay his attorney fees and household debts.
In its division of property, the trial court gave the Palm Desert house to David and
he was given the equity of $28,540. He then was given all of the HELOC debt on the
Palm Desert house which totaled $299,940. He was then awarded all of PSDM, to divide
the remaining property equally and was ordered to pay an equalization payment of
$23,800. Additionally, Susan would receive $4,500 each month in spousal support.
Susan provides an argument with irrelevant legal authority regarding the award of
the HELOC “negative equity” to David. (Craddock v. Kmart Corp. (2001) 89
Cal. App. 4th 1300, 1307 [“We need not consider an argument so poorly articulated.
[Citation.]”.)
We can surmise that Susan’s argument is that since David created the debt in the
HELOC he should not benefit from having been awarded all of the value of PSDM to
equalize the estate. However, as set forth ante, part of the HELOC was incurred while
they were still married, part was due to her withdrawals for her attorney, and other
amounts were used to pay community debts. This argument relies upon David having
breached his fiduciary duty by taking out the remaining $116,000 after the 4/11
agreement. However, as will be set forth, post, the trial court did not err by finding that
David did not breach his fiduciary duty. Moreover, David will be required to pay back
13
this entire debt and the order stated, that “each party will indemnify and hold the other
harmless from the debts awarded to the other pursuant to the property division sheet, and
to defend the other at their own expense, against any claim, action, or proceeding that is
hereafter brought seeking to hold the other party liable on account of debts assigned to
the other party, including reasonable attorney fees incurred by the other of such claim,
action or proceeding.” Susan will have no liability on the HELOC debt even if David
defaults on the debt.
As previously stated, the family court is obligated to divide the community estate
equally. (Duncan, supra, 90 Cal.App.4th at p. 631.) “[T]he court has broad discretion to
determine the manner in which community property is divided and the responsibility to
fix the value of assets and liabilities in order to accomplish an equal division.
[Citations.]” (Id at pp. 631-632.) The trial court did not abuse its discretion by awarding
both the house and PSDM to David, and then requiring him to pay all of the HELOC
debt.
IV
BREACH OF FIDUCIARY DUTY
Susan claims that David breached his fiduciary duty to her based on three theories.
Initially, she claims he breached the general presumption of a fiduciary duty. She also
claims he violated Family Code section 721 which required a fiduciary duty for the
management and control of community property. Finally, she claims that David breached
his post-separation fiduciary duties as stated in Family Code section 2100 through 2113.
14
A. Fiduciary Duty
Family Code section 721, subdivision (b) provides in pertinent part: “[A] husband
and wife are subject to the general rules governing fiduciary relationships which control
the actions of persons occupying confidential relations with each other. This confidential
relationship imposes a duty of the highest good faith and fair dealing on each spouse, and
neither shall take any unfair advantage of the other. This confidential relationship is a
fiduciary relationship subject to the same rights and duties of nonmarital business
partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code.”
“[Family Code s]ection 721, subdivision (b) . . . , makes clear that the duty to disclose
relevant information concerning transactions affecting the community property is an
affirmative and broad obligation.” (In re Marriage of Prentis-Margulis & Margulis
(2011) 198 Cal. App. 4th 1252, 1269 (Margulis).)
“The fiduciary duty of the parties under the Family Code is to make ‘a full and
accurate disclosure of all assets and liabilities in which one or both parties have or may
have an interest.’ (§ 2100, subd. (c).) The disclosure ‘must be made in the early stages
of a proceeding for dissolution of marriage . . . regardless of the characterization as
community or separate, together with a disclosure of all income and expenses of the
parties.’ [Citation.] The duty of disclosure is ongoing and requires each party to update
and augment any prior disclosures fully and accurately. [Citation.]” (In re Marriage of
Tharp (2010) 188 Cal. App. 4th 1295, 1319.)
15
“Taken together, these Family Code provisions impose on a managing spouse
affirmative, wide-ranging duties to disclose and account for the existence, valuation, and
disposition of all community assets from the date of separation through final property
division. These statutes obligate a managing spouse to disclose soon after separation all
the property that belongs or might belong to the community, and its value, and then to
account for the management of that property, revealing any material changes in the
community estate, such as the transfer or loss of assets. This strict transparency both
discourages unfair dealing and empowers the nonmanaging spouse to remedy any breach
of fiduciary duty by giving that spouse the “information concerning the [community's]
business” needed for the exercise of his or her rights . . . “ (Margulis, supra, 198
Cal.App.4th at pp. 1270-1271.)
Section 2107, subdivision (c) requires the imposition of monetary sanctions and
reasonable attorney fees if a party does not “comply with any portion of the chapter of the
Family Code that deals with a spouse’s fiduciary duty of disclosure during dissolution
proceedings, i.e., sections 2100 to 2113.” (In re Marriage of Feldman (2007) 153
Cal. App. 4th 1470, 1477 (Feldman).) The statute provides, ‘“[s]anctions shall be in an
amount sufficient to deter repetition of the conduct or comparable conduct, and shall
include reasonable attorney's fees, costs incurred, or both, unless the court finds that the
noncomplying party acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.’ [Citation.]” (Ibid.)
16
We review the factual findings regarding sanctions under a sufficiency of evidence
standard and the rejection of sanctions under an abuse of discretion standard. (Feldman,
at pp. 1478-1479.)1
B. Evidence and Findings
As previously discussed, prior to April 2011, Susan and David worked together to
run PSDM, or Susan ran PSDM. Starting in April 2011, David took over the household
expenses and running PSDM. David gave Susan monthly accountings of PSDM. David
admitted moving money from PSDM to his personal account — which was anywhere
from $3,000 to $15,000 each month — to pay household expenses. David also admitted
paying his attorney fees with his credit card. The RV had an additional 10,000 miles put
on it after their separation. After the 4/11 agreement, Susan withdrew $27,000 from the
Palm Desert HELOC and $9, 990 from the HELOC for the Canada house. David took
$116,000 from the Palm Desert HELOC to pay household expenses. Susan testified she
had no idea that David was spending so much on his credit cards but did receive notice of
the monthly withdrawals from PSDM.
The trial court made the following findings as to breach of fiduciary duty: “Even
though the court takes notice that the Respondent took higher personal draws than the
Petitioner, and paid personal credit card bills through the business after 4/11, no evidence
1 In her opening brief, Susan states in the standard of review portion of her
brief that the breach of fiduciary duty is subject to de novo review because it involves an
interpretation of the statutes. However, in her argument she does not contend the trial
court erroneously interpreted the statutes but rather that the evidence supported the
sanctions. Review is not de novo.
17
was presented in court that demonstrated that the payments were inconsistent with the
Respondent’s obligations under the 4/11 stipulation. On cross-examination, the
Respondent showed that the personal credit card bills were for the son’s school expenses,
medical and insurance bills, attorney’s fee and business expenses. The $116,000 taken
out of the PD HELOC was in response to the Petitioner’s own previous withdrawals, and
there was no showing that the business has been left with a burdensome debt that would
impede income production. The miles put on the RV are insignificant and the court notes
that certain amount of wear and tear on a recreational vehicle is to be expected. The
mileage put on by parties during the two year period is not unreasonable and did not
depreciate the values of the RV substantially. The 4/11 stipulation entered into by the
parties and their attorneys was vague and did not clearly demarcate each party’s rights
and responsibilities. The Respondent thought he had been granted exclusive use and
control of PSDM and acted reasonably per the terms of the 4/11 agreement. The
Petitioner reasonably thought the 9/10 agreement was still in effect as to payment [of]
attorney’s fees because the 4/11 agreement didn’t specifically deal with attorney’s fees.”
The trial court ruled, “Court finds that within the context of the stipulations between the
parties, no one party acted in bad faith and does not find any breach of financial duty.”
C. Analysis
Susan essentially argues that David breached his fiduciary duty by spending an
enormous amount of money after April 2011. She insists the money was used to pay
David’s personal credit cards and expenses. She complains David did not notify her of
the expenses between April 2011 and August 2012 or that he had taken money from the
18
Palm Desert HELOC. She claims, “David’s mismanagement of PSDM after the April,
2011 agreement violated his duty of care to Susan. David’s refusal to disclose monthly
accountings to Susan upon her request violated his duty to disclose.”
Initially, Susan has failed to provide this court with the monthly accounting that
David gave to Susan despite the fact that they were admitted as exhibits. Susan argues
that although these monthly accountings listed the payments of household expenses, they
were too “broad.” The trial court found that David had accounted for the household
expenses. David testified that he was paying the household expenses and his attorney
fees with the draws from PSDM. Moreover, Susan admitted that the monthly statements
showed the draws that David was taking out of PSDM. On appeal, we presume the trial
court’s order to be correct and indulge all intendments and presumptions to support it
regarding matters as to which the record is silent. (Denham v. Superior Court, supra, 2
Cal.3d at p. 564.) It is the defendant’s burden to show error by an adequate record. (In
re Kathy P. (1979) 25 Cal. 3d 91, 102.) Based on the record before this court, the trial
court did not abuse its discretion by finding that David had accounted for all of the
expenses.
It is clear that David did not advise Susan he withdrew the $116,000 from the
Palm Desert HELOC. He used that money to pay household expenses. While this may
have violated his duty to disclose, it was proper for the trial court to consider that Susan
had engaged in the identical conduct. She had withdrawn over $50,000 from the Palm
Desert and Canada HELOCs and had provided no explanation or an accounting to David.
19
Clearly, based on the actions of both parties, the imposition of any sanction under these
circumstances would be “unjust.” (Feldman, supra, 153 Cal.App.4th at p. 1477.)
Additionally, as found by the trial court, the stipulation between the parties
provided that David had exclusive control over PSDM and paying the household
expenses. Susan signed the agreement. David acted with “substantial justification” in
using PSDM funds to pay household expenses and the HELOC when that was
insufficient. (Feldman, supra, 153 Cal.App.4th at p. 1477.) Finally, we note that David
filed income and expense declarations throughout the proceedings.
Based on the foregoing, substantial evidence supported the trial court’s findings
and it did not abuse its discretion by denying sanctions.
V
ATTORNEY FEES
Susan contends that David should have been ordered to pay $75,000 of her
attorney fees as requested in the trial court.
Initially, we note that in her argument Susan does not make one citation to the
record in this case to support her argument. For lack of citation to the record, we deem
her argument to be forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Miller v. Superior
Court (2002) 101 Cal. App. 4th 728, 743 [failure to cite to the record waives the claim of
error].) Record citations in the defendant’s statement of facts are insufficient to meet the
requirement for pertinent record citations in the record. (City of Lincoln v. Barringer
(2002) 102 Cal. App. 4th 1211, 1239, fn. 16.) As such, Susan has forfeited her claim on
20
appeal. Even if we were to consider the claim, we cannot conclude that the trial court
abused its discretion.
A. Attorney Fees
Family Code section 2030, subdivision (a)(1) provides that in a marital dissolution
proceeding, the court “shall ensure that each party has access to legal representation . . .
to preserve each party’s rights by ordering, if necessary based on the income and needs
assessments, one party . . . to pay to the other party, or to the other party’s attorney,
whatever amount is reasonably necessary for attorney's fees and for the cost of
maintaining or defending the proceeding during the pendency of the proceeding.”
Subdivision (b) of Family Code section 2030 provides that “Attorney’s fees and costs
within this section may be awarded for legal services rendered or costs incurred before or
after the commencement of the proceeding.”
Family Code section 2032, subdivision (a) provides: “The court may make an
award of attorney’s fees and costs under Section 2030 or 2031 where the making of the
award, and the amount of the award, are just and reasonable under the relative
circumstances of the respective parties.” Family Code section 2032, subdivision (b)
provides: “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 party’s 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 attorney’s fees and costs has resources from which the party could pay the party’s own
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attorney’s 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.”2
“On appeal, we review an attorney fee award under section 2030 for an abuse of
discretion. [Citation.]” (In re Marriage of Sorge (2012) 202 Cal. App. 4th 626, 662.)
“‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed
most favorably in support of its order, no judge could reasonably make the order made.
[Citations.]’ [Citation.]” (In re Marriage of Keech (1999) 75 Cal. App. 4th 860, 866.)
B. Evidence
Susan withdrew $27,000 from the Palm Desert HELOC to pay her attorney fees.
Susan filed a declaration on June 7, 2012, that her attorney, Barbara Kristal, would no
longer take her case because she owed her $39,000. On June 14, 2012, David was
ordered to pay $25,000 for Susan to hire a new attorney. The parties were ordered to sell
the Canada home, and when that occurred, they would split the proceeds minus $25,000
for attorney fees given to Susan. Susan obtained a new attorney, Sheila A. Williams, on
June 28, 2012. Susan owed over $120,000 in total attorney fees for four different
attorneys. David incurred over $55,000 in attorney fees and did not seek reimbursement.
2 Susan also claims attorney fees should have been awarded under Family
Code section 271 as a sanction based on David’s conduct during the litigation. We have
found no unseemly conduct by David. No fees under section 271 were warranted.
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In addressing attorney fees, the trial court ruled, “The Respondent does have the
ability to reimburse the Petitioner for some of her attorney’s fees. The Court is also not
unaware of the disparity of attorney fees between the parties. After the 4/11 stipulation,
the Petitioner was effectively left without an adequate source to pay her attorney’s fees.
She also couldn’t help the fact that one of her attorneys, Ms. Krystal, left abandoned her
on the eve of trial. Additional attorney’s fees would to [sic] be expected. The Court does
note also that pursuant to the Court’s order of June 2012, the Respondent did give the
Petitioner $25,000 for attorney fees, subject to reimbursement. However, the $25,000
came out of the business, not the Respondent’s personal account, and the Petitioner does
have a community interest in that $25,000.” It then ruled, “The Respondent has the
ability to reimburse the Petitioner for Attorney’s fees and is ordered to do so in the
following manner: The Respondent was awarded the Palm Desert HELOC debt, $27,000
of which was done by the Petitioner to pay her attorney. The Court orders the
Respondent not to be reimbursed for the $25,000 advance he gave the Petitioner for
attorney’s fees after the sale of the Canada house.”
We cannot conclude this ruling was an abuse of discretion. The trial court
exhaustively reviewed the factors in section 4320 that required it to consider the earning
capacity of both spouses, the needs of each party based on the standard of living during
the marriage, the obligations and assets of each party, and the balance of hardships to
each party. It ordered spousal support to Susan in the amount of $4,500. David bore the
cost of his own attorney fees and Susan was effectively awarded $52,000 towards her
attorney fees. David was ordered to pay all of the debt on the HELOC and Susan was not
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given any debt. Susan has failed to show that “considering all of the evidence viewed
most favorably in support of its order, no judge could reasonably make the order made.”
(In re Marriage of Keech, supra, 75 Cal.App.4th at p. 866.)
VI
DISPOSITION
The judgment is affirmed. Appellant to bear her own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
KING
J.
MILLER
J.
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