Marriage of Mitchell CA4/2 ( 2015 )


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  • Filed 12/7/15 Marriage of Mitchell 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    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 This opinion has not been certified for publication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
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re the Marriage of CHRISTINE M. and
    DAVID P. L. MITCHELL.
    CHRISTINE M. MITCHELL,
    E060112
    Respondent,
    (Super.Ct.No. IND1201277)
    v.
    OPINION
    DAVID P. L. MITCHELL,
    Appellant.
    APPEAL from the Superior Court of Riverside County. Otis Sterling III, Judge.
    Affirmed.
    Iris Joan Finsilver for Appellant.
    Sheila A. Williams and Laura J. Fuller for Respondent.
    1
    Appellant David P. L. Mitchell appeals from an order denying his application for
    temporary spousal support and attorney fees in an action for dissolution of marriage
    initiated by his now ex-wife, Christine M. Mitchell.1 We conclude the family court did
    not abuse its discretion by denying David’s requests and affirm.
    I.
    FACTS
    Christine initiated this dissolution action in July 2012. Almost one year later,
    David filed a request for temporary spousal support from Christine (according to the
    family court’s guidelines), and for $15,000 in attorney fees and costs. In a supporting
    declaration, David stated he was unable to pay his living expenses and was forced to live
    on credit cards and withdrawals from retirement accounts. In his income and expense
    declaration, David stated his monthly gross income from retirement funds was $7,741.63,
    and Christine’s monthly gross income was $20,000. David estimated his average
    monthly expenses were $9,118, which included $1,200 in out-of-pocket medical
    expenses and $1,867 for payments on a home equity line of credit and a home owner’s
    insurance policy for the community home.
    In her response, Christine consented to an award of spousal support (according to
    the family court’s guidelines), but argued each party should pay their own attorney fees.
    Christine requested an order directing the lines of credit on the home be paid from two
    1 To avoid confusion, we will refer to the parties by their first names. We mean
    no disrespect. (See In re Marriage of Honer (2015) 
    236 Cal.App.4th 687
    , 689, fn. 1.)
    2
    community E*TRADE equity accounts with a combined balance of $143,000. Christine
    stated David removed $75,000 from his retirement accounts in the months before he filed
    his request for spousal support, and David had been living above his means since the
    marital separation. Christine declared her average monthly gross income was $14,974,
    and her average monthly expenses were $13,056.
    David replied Christine’s monthly income was much higher than she reported
    because she received a $55,408 bonus, and he declared Christine’s true average monthly
    income was $20,639.27.
    At the hearing on the request for temporary spousal support and attorney fees, the
    family court stated its intention of determining whether an award should be made by
    looking at the parties’ income and expense declarations, “subject to reallocation at a later
    date.” David’s attorney argued the court should look beyond Christine’s income
    declaration and consider her bonus. “My feeling would be that the Court [should]
    amortize the total gross amount of $172,496 over a 12-month period because that really
    reflects what her true income is.”
    Christine’s attorney argued the court should not consider the bonus in determining
    temporary spousal support payments in the future because it was speculative whether she
    would earn another bonus the next year. Instead, counsel argued the family court should
    retain jurisdiction and make adjustments in the future should Christine earn another
    bonus. Moreover, counsel argued David’s true monthly income, when factoring in his
    withdrawals from retirement accounts, was $14,574. Because David’s monthly income
    was equal to Christine’s, counsel argued an order of spousal support would be unfair.
    3
    David’s attorney responded the family court should not consider David’s withdrawals
    from retirement accounts when determining his monthly income because, assuming those
    retirement funds were later characterized as community assets, Christine would be
    credited for those withdrawals when the community’s assets are divided.
    The family court inquired into Christine’s allegations that David absconded with
    valuable coin and wine collections, and that he purchased a $60,000 vehicle despite
    Christine’s offer that he use one of the three community vehicles. David denied taking
    the coin collection, and explained he only took some of the wine collection, which
    Christine conceded. With respect to the purchase of the vehicle, David denied that
    Christine offered him one of the community vehicles, and he told the court he purchased
    the vehicle on credit with no money down. The court concluded David had access to
    sufficient assets to live on temporarily and make an expensive vehicle purchase, so it
    denied his request for temporary spousal support and attorney fees. The court retained
    jurisdiction to make a permanent determination of support at trial, at which time the court
    could take into consideration any additional bonus earned by Christine.
    With respect to the line of credit on the home and the insurance payments,
    Christine’s attorney argued the fairest solution was to liquidate the community
    E*TRADE investment account and use it to pay off the line of credit and, further, to
    direct David to continue paying the insurance policy until the final division of assets.
    David’s attorney responded Christine continued to live in the community home and
    therefore she should make payments on the line of credit and the insurance policy. The
    4
    court directed the E*TRADE account be liquidated to pay off the line of credit, and that
    Christine pay off the remaining amount owed.
    David timely appealed.
    II.
    DISCUSSION
    A.      The Family Court Did Not Abuse Its Discretion by Denying David’s
    Request for Temporary Spousal Support
    1.     Applicable Law and Standard of Review
    During the pendency of a proceeding for marital dissolution, the family court may
    order temporary spousal support in “any amount that is necessary for the support of the
    other spouse.” (Fam. Code,2 § 3600.) “Temporary spousal support allows the parties to
    maintain living conditions and standards pending trial and division of the community
    property and obligations. [Citation.] It results from the mutual duty of support inherent
    in marriage. (§§ 720 [spouses have obligations of mutual support] & 4300 [spouses shall
    support each other].)” (In re Marriage of Jacobsen (2004) 
    121 Cal.App.4th 1187
    , 1192.)
    An order on a request for temporary spousal support is immediately appealable.
    (In re Marriage of Samson (2011) 
    197 Cal.App.4th 23
    , 26, fn. 2.) A temporary spousal
    support order is reviewed for abuse of discretion. (In re Marriage of MacManus (2010)
    
    182 Cal.App.4th 330
    , 337.) “‘Subject only to the general “need” and “the ability to pay,”
    the amount of a temporary spousal support award lies within the court’s sound discretion,
    2   All further statutory references are to the Family Code.
    5
    which will only be reversed on appeal on a showing of clear abuse of discretion.
    [Citations.]’” (In re Marriage of Lim & Carrasco (2013) 
    214 Cal.App.4th 768
    , 773.)
    2.     Failure to Use Guidelines
    David contends the family court erred by not awarding temporary spousal support
    according to the court’s guidelines. We disagree.
    The appellate courts have generally supported the use of temporary spousal
    support guidelines adopted by family courts. “The use of such guidelines ‘should be
    encouraged to help lawyers and litigants predict more accurately what temporary support
    order would be issued if the case proceeded to a contested hearing. . . . They promote
    consistency in the temporary orders issued in a department with a busy domestic relations
    motion calendar, and are especially valuable in achieving comparable orders under
    similar financial facts . . . .’” (In re Marriage of Winter (1992) 
    7 Cal.App.4th 1926
    ,
    1933, quoting In re Marriage of Burlini (1983) 
    143 Cal.App.3d 65
    , 69.)
    However, when ruling on a request for temporary spousal support, the family court
    is not bound by any statutory guidelines or locally adopted support guidelines. (In re
    Marriage of Wittgrove (2004) 
    120 Cal.App.4th 1317
    , 1327 [“The court is not restricted
    by any set of statutory guidelines in fixing a temporary spousal support amount”];
    Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2015) ¶ 5:163,
    p. 5-85 [“Although concededly a ‘valuable tool,’ standardized temporary spousal support
    schedules are only guidelines and, therefore, are not binding on the court”].) An award of
    temporary spousal support is correct as long as it properly reflects the supported spouse’s
    need and the supporting spouse’s ability to pay, and as long as the award achieves the
    6
    “benchmark” of spousal support—maintaining the status quo pending a final division of
    property and a permanent support order. (In re Marriage of Wittgrove, at p. 1328.)
    Although both parties here agreed to an award of temporary spousal support
    according to the family court’s guidelines, the family court was justified in departing
    from the guidelines given the somewhat unusual facts in this case. (In re Marriage of
    Burlini, supra, 143 Cal.App.3d at p. 70 [“Although the adoption of guidelines for
    temporary support is to be encouraged, it should be emphasized that they are only
    guidelines to be utilized in cases with no unusual facts or circumstances”].) As will be
    discussed in the following sections, the family court was tasked with determining need
    and ability to pay based on evidence of David’s withdrawals from retirement accounts,
    his recent purchase of an expensive vehicle, and Christine’s bonus. The court did not
    abuse its discretion by departing from the guidelines.
    3.       David’s Retirement Accounts
    David argues the family court abused its discretion by considering his retirement
    accounts as available income when determining his need for temporary spousal support.
    According to David, this was erroneous because the court essentially directed him to
    invade a community asset that would have to be divided in a final decree.3 We find no
    abuse of discretion.
    David does not challenge the family court’s order directing the community
    3
    E*TRADE accounts be liquidated to pay off the line of credit on the community home.
    7
    David concedes there is no precise definition of income for purposes of temporary
    spousal support, but he suggests this court look to section 4058. That section defines
    income solely for purposes of child support, and David cites no authority for the
    proposition that application of section 4058 to temporary spousal support would be
    appropriate. (Cf. In re Marriage of Blazer (2009) 
    176 Cal.App.4th 1438
    , 1445-1446
    [questioning the relevance of § 4058 to an award of permanent spousal support under
    § 4320].) As noted, the family court is not bound by any statutory guidelines or
    definitions when awarding temporary spousal support. (In re Marriage of Wittgrove,
    supra, 120 Cal.App.4th at p. 1327.)
    “[I]n exercising its broad discretion, the court may properly consider the ‘big
    picture’ concerning the parties’ assets and income available for support in light of the
    marriage standard of living. [Citation.] . . . ‘Ability to pay encompasses far more than
    the income of the spouse from whom temporary support is sought; investments and other
    assets may be used for . . . temporary spousal support . . . . [Citations.]’” (In re Marriage
    of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) If a family court may properly consider
    investments for purposes of determining a spouse’s ability to pay temporary spousal
    support, we see no reason why the court may not consider those forms of assets—
    including retirement accounts—when determining a spouse’s need for temporary spousal
    support.
    David’s reliance on In re Marriage of Reynolds (1998) 
    63 Cal.App.4th 1373
    (Fourth Dist., Div. Two) does not persuade us otherwise. There, this court held a family
    court may only order a supporting spouse to use income from vested retirement accounts
    8
    to pay support payments, and may not require the supporting spouse to invade the
    principal of those investments. (Id. at p. 1380.) Here, the family court did not require
    David to pay Christine with his retirement accounts, but to continue using them to
    supplement his own regular retirement income.
    David also contends the family court ignored the policy of preserving community
    assets until the time of trial. But that policy is not absolute. For example, upon service
    of the summons and petition for dissolution of marriage, both spouses are automatically
    restrained “from transferring, encumbering, hypothecating, concealing, or in any way
    disposing of any property, real or personal, whether community, quasi-community, or
    separate, without the written consent of the other party or an order of the court, except in
    the usual course of business or for the necessities of life, and requiring each party to
    notify the other party of any proposed extraordinary expenditures at least five business
    days before incurring those expenditures and to account to the court for all extraordinary
    expenditures made after service of the summons on that party.” (§ 2040, subd. (a)(2),
    italics added.) “Besides being a matter of common sense, these qualifiers [in the
    language from section 2040, subdivision (a)(2) we italicized] are mandated by a
    formidable body of constitutional law precluding the summary deprivation of property
    without due process, i.e., without notice and hearing.” (Gale v. Superior Court (2004)
    
    122 Cal.App.4th 1388
    , 1392.)
    As long as David’s use of community assets was limited to paying for necessities
    of life and not for extraordinary expenditures, and as long as the family court credited
    Christine for the reduction of community assets in the final decree, the court did not err
    9
    by requiring David to continue dipping into his retirement accounts to supplement his
    normal retirement income.4
    4.     David’s Purchase of a Vehicle
    According to David, the family court erred by placing great weight on his
    purchase of an expensive vehicle when determining his need for temporary spousal
    support. This portion of David’s brief consists almost entirely of quotes from the record,
    and one paragraph of argument without any citation to relevant authority. The argument
    is therefore waived. (In re Marriage of Falcone & Fyke (2008) 
    164 Cal.App.4th 814
    ,
    830; Cal. Rules of Court, rule 8.204(a)(1)(B) [every brief must “support each point by
    argument and, if possible, by citation of authority”].)
    Even if David did not waive this argument, it is unpersuasive. Although the
    family court spent some time discussing David’s purchase of an expensive vehicle, we
    cannot say on this record that the family court placed excessive weight on that one factor.
    Moreover, the court was permitted to consider the “‘big picture’” when determining
    David’s need for temporary spousal support (In re Marriage of Wittgrove, supra, 120
    Cal.App.4th at p. 1327), which certainly included David’s ability to purchase a vehicle on
    credit. We find no abuse of discretion.
    4  For the same reasons, we reject David’s argument the family court erred by
    directing him to live off his retirement accounts before those assets were classified as
    community or separate property, and without considering that Christine would have to be
    credited for David’s withdrawals in a final decree. The family court did recognize it
    would have to make a “reallocation” in the final decree.
    10
    5.     Christine’s Bonus
    Finally, David contends the family court erred by not considering a bonus
    Christine earned when determining her ability to pay temporary spousal support. Again,
    we find no abuse of discretion.
    David cites decisions which held salary bonuses are properly considered when
    determining the amount of permanent spousal support under section 4320. (See, e.g., In
    re Marriage of Mosley (2008) 
    165 Cal.App.4th 1375
    , 1387; In re Marriage of Ostler &
    Smith (1990) 
    223 Cal.App.3d 33
    , 46-50.) However, he concedes no published appellate
    decision has extended that practice to awards of temporary spousal support, and we have
    doubts whether it should. Temporary and permanent spousal support orders serve very
    different purposes. Whereas temporary spousal support serves to maintain the status quo
    of the party’s lifestyle during the marriage pending a final decree, “‘the purpose of
    permanent spousal support is not to preserve the preseparation status quo but to provide
    financial assistance, if appropriate, as determined by the financial circumstances of the
    parties after their dissolution and the division of their community property.’ [Citations.]”
    (In re Marriage of Murray (2002) 
    101 Cal.App.4th 581
    , 594.)
    Even if potential, future salary bonuses are properly considered when determining
    ability to pay temporary spousal support, a family court should treat a potential bonus as
    it does imputed income. “In an appropriate case, the trial court may take into account
    either party’s earning capacity as well as his or her actual income in fixing temporary
    spousal support . . . but subject to the same limitations on imputing income that apply in
    adjudicating ‘permanent’ spousal support—i.e., there must be competent evidence that
    11
    the party sought to be charged with imputed income has both the ability and opportunity
    to earn the imputed income amount [citation].” (Hogoboom & King, Cal. Practice
    Guide: Family Law, supra, ¶ 5:159.5, p. 5-83.)
    In this case, David presented no competent evidence that Christine was likely to
    earn another salary bonus, and the family court prudently deferred consideration of any
    future bonus until a final decree and award, if any, of permanent spousal support.
    B.     The Family Court Did Not Abuse Its Discretion by Denying David’s
    Request for Attorney Fees
    David contends the family court abused its discretion by denying his request for
    pendente lite attorney fees. As he did in the context of temporary spousal support, David
    contends the evidence clearly showed Christine’s income far exceeded his own, and that
    the family court erred by considering his withdrawals from retirement accounts as income
    and by considering his purchase of an expensive vehicle when determining David’s need.
    We find no abuse of discretion.
    An order denying a request for pendente lite attorney fees is immediately
    appealable. (In re Marriage of Tharp (2010) 
    188 Cal.App.4th 1295
    , 1311.) “Under
    sections 2030 and 2032, a family court may award attorney fees and costs ‘between the
    parties based on their relative circumstances in order to ensure parity of legal
    representation in the action.’ [Citation.] The parties’ circumstances include assets, debts
    and earning ability of both parties, ability to pay, duration of the marriage, and the age
    and health of the parties. [Citation.] . . . The family court has broad discretion in ruling
    on a motion for fees and costs; we will not reverse absent a showing that no judge could
    12
    reasonably have made the order, considering all of the evidence viewed most favorably in
    support of the order. [Citation.]” (In re Marriage of Winternitz (2015) 
    235 Cal.App.4th 644
    , 657.)
    David appears to argue the family court erred by not making all the necessary
    findings when it denied his request for attorney fees. When ruling on a request for
    attorney fees, the family court must determine: (1) whether an award of fees is
    appropriate; (2) whether there is a disparity between the parties’ access to funds to retain
    counsel; and (3) whether one party has the ability to pay for both parties’ legal
    representation. (§ 2030, subd. (a)(2); In re Marriage of Sharples (2014) 
    223 Cal.App.4th 160
    , 168 [Fourth Dist., Div. Two].) David did not object that the family court failed to
    make all the necessary findings. Moreover, as long as they are supported by substantial
    evidence, we may affirm the family court’s implied findings. (E.g., In re Marriage of
    Cohn (1998) 
    65 Cal.App.4th 923
    , 928.)
    David contends the family court erred by denying his request for attorney fees
    based solely on his retirement account withdrawals and purchase of an expensive vehicle.
    “Instead,” David argues, “the trial court is required to determine how to apportion the
    overall cost of the litigation equitably between the parties under the relative
    circumstances.” But the family court is only required to equalize the cost of litigation if it
    first determines there is a disparity between the parties’ ability to access funds to retain
    counsel. (§ 2030, subd. (a)(2).) Here, the family court concluded, properly, that David
    had at his disposal sufficient funds to live on temporarily and to pay his attorney.
    Because the family court properly concluded David had access to sufficient funds to pay
    13
    his attorney, it was not required to equalize his and Christine’s litigation costs. In sum,
    the family court did not abuse its discretion by denying David’s request.
    III.
    DISPOSITION
    The spousal support and attorney fees orders are affirmed. Respondent Christine
    M. Mitchell shall recover her costs on appeal.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    McKINSTER
    Acting P. J.
    We concur:
    KING
    J.
    MILLER
    J.
    14
    

Document Info

Docket Number: E060112

Filed Date: 12/7/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021