Marriage of Ciprari ( 2019 )

Filed 2/6/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of B272039, B278187
DOROTHY and JOSEPH
CIPRARI. (Los Angeles County
Super. Ct. No. BD530229)
DOROTHY CIPRARI,
Appellant,
v.
JOSEPH CIPRARI,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Juhas, Judge. Affirmed in part;
reversed in part, and remanded with directions.
California Appellate Law Group, Sarah K. Hofstadter,
Robert A. Roth, and Kelly Woodruff for Appellant.
Elkins Kalt Weintraub Reuben Gartside and Thomas P.
Dunlap for respondent.
_________________________
INTRODUCTION
Dorothy (“DeeDee”) and Joseph (“Joe”) Ciprari married on
September 16, 1995.1 The trial court fixed the date of separation
as August 13, 2010, the date DeeDee commenced this marital
dissolution proceeding. The marriage terminated pursuant to a
judgment entered March 18, 2016, which attached the court’s
final statement of decision.
On appeal from that judgment, DeeDee principally
challenges the trial court’s characterization of a majority of the
cash and securities held in commingled accounts as Joe’s
separate property. As discussed more fully below, she attacks a
detailed tracing analysis performed by Joe’s expert witness, upon
which the trial court relied. We conclude the tracing is valid and
constitutes substantial evidence in support of the judgment.
DeeDee also challenges the trial court’s findings that Joe
did not breach fiduciary duties when he used community property
funds to establish an irrevocable life insurance trust for the
benefit of Marie and Molly, and to fund tax-advantaged Internal
Revenue Code section 529 college savings accounts (529 accounts)
for the two girls. We conclude these findings also are supported
by substantial evidence.
1 We refer to the parties and their children, Marie (born
June 1998) and Molly (born November 2001), by their first names
only, for the sake of clarity and brevity.
2
In addition, DeeDee seeks to overturn the trial court’s
temporary and permanent child and spousal support awards.2
We affirm that part of the judgment awarding permanent child
support, and the trial court’s temporary child and spousal
support awards for two periods in 2015. But, we hold the trial
court abused its discretion when it retrospectively modified 2014
pendente lite child and spousal support, because it based the
modification on the parties’ 2013 tax returns, rather than their
2014 tax returns, which were then available. We reverse that
part of the judgment, and remand for the limited purpose of
recalculating the 2014 awards in light of the 2014 tax returns.
We also reverse the permanent spousal support award and
remand for recalculation of that amount as well.
Finally, in a second, consolidated appeal, DeeDee contends
the trial court erred in denying her an award of additional
attorneys’ fees. We reverse that postjudgment order.
DISCUSSION
I. Characterization of Assets.
The parties stipulated Joe entered the marriage with
$2,053,573 of separate property. Of that amount, $873,953 was
held in two Wells Fargo Bank accounts. The trial court found the
money held in the bank accounts was “essentially ‘gifted’ to the
community,” a finding neither party contests. (See See v. See
(1966) 64 Cal. 2d 778, 785 [In the absence of an agreement to the
2 As is customary, we use the word “permanent” to refer to
postjudgment child and spousal support, even though such
awards may be modified, have limited duration, or be terminated.
3
contrary, the use of separate property to meet community living
expenses is a gift to the community.].)
On the date of the parties’ marriage, Joe held the balance
of his separate property ($1,179,620) in a brokerage account at
PaineWebber. As is typical, the brokerage account had a cash
component and an investment component. The account held
$295,856 in cash and securities then valued at $883,764.3
In February 1996, Joe received a $244,696 bonus from his
employer for work performed during the prior year. Because the
parties had married during 1995, the bonus was partly separate
property and partly community property. Nevertheless, Joe
deposited the entire amount in his PaineWebber brokerage
account. This was the first time that community and separate
funds became commingled in the account. But it was far from the
last. Throughout the marriage, Joe indiscriminately deposited
portions of his salary (which was community property) into the
PaineWebber account4 and other commingled investment
accounts he later opened. By the end of 2014, the combined
balances in these commingled investment accounts equaled
$6,910,568.
How much, if any, of that sum was Joe’s separate property,
and how much was community property, is known as a
“characterization” issue, and is the central issue in this case.
“Characterization . . . refers to the process of classifying property
as separate, community, or quasi-community.” (In re Marriage of
3 DeeDee’s separate property amounts are not at issue.
4The PaineWebber account became a UBS account after
UBS acquired PaineWebber.
4
Haines (1995) 33 Cal. App. 4th 277, 291 (Haines), disapproved on
another point in In re Marriage of Valli (2014) 58 Cal. 4th 1396.)
It “is an integral part of the division of property on marital
dissolution.” (Ibid.)
Family Code section 7605 states the basic presumption
that, except as otherwise provided by statute, all property
acquired by a married person during marriage, while domiciled in
California, is community property. Each spouse has a “present,
existing and equal” interest in the community property. (§ 751.)
On the other hand, property acquired before marriage, or after
separation, or at any time by gift, bequest, devise, or descent, is
separate property. (§§ 770, subd. (a), 771). And the “rents,
issues, and profits” of separate property also are separate
property, whether earned before, during, or after marriage.
(§ 770, subd. (a)(3).) “Except as otherwise provided by statute,
neither spouse has any interest in the separate property of the
other.” (§ 752.)
“Thus, there is a general presumption that property
acquired during marriage by either spouse other than by gift or
inheritance is community property unless traceable to a separate
property source. [Citation.] This is a rebuttable presumption
affecting the burden of proof; hence it can be overcome by the
party contesting community property status. [Citation.] Since
this general community property presumption is not a title
presumption,6 virtually any credible evidence may be used to
5 Further statutory references are to the Family Code
unless otherwise indicated.
6 Joe opened all the investment accounts in his name only,
so no joint title presumptions are relevant.
5
overcome it, including tracing the asset to a separate property
source, showing an agreement or clear understanding between
the parties regarding ownership status and presenting evidence
the item was acquired as a gift.” (Haines, supra, 33 Cal.App.4th
at pp. 289−290, fn. omitted); In re Marriage of Bonvino (2015) 241
Cal. App. 4th 1411, 1423 (Bonvino); see also See v. See, supra, 64
Cal. 2d 778, 783; Hogoboom & King, Cal. Practice Guide: Family
Law (The Rutter Group 2018) ¶¶ 8:361 8:363, pp. 8-137−8-139
(Hogoboom & King).)
“Of course, mere commingling of separate property and
community property funds does not alter the status of the
respective property interests, provided that the components of
the commingled mass can be adequately traced to their separate
property and community property sources. But if the separate
property and community property interests have been
commingled in such a manner that the respective contributions
cannot be traced and identified, the entire commingled funds will
be deemed community property pursuant to the general
community property presumption of section 760.” (In re Marriage
of Braud (1996) 45 Cal. App. 4th 797, 822−823 (Braud); see also In
re Marriage of Cochran (2001) 87 Cal. App. 4th 1050, 1057
(Cochran); Bonvino, supra, 241 Cal.App.4th at p. 1423.)
A. Joe’s Tracing
At trial, Joe’s forensic accountant testified he had
conducted a detailed and comprehensive tracing of all the
accounts, analyzing every transaction, including all deposits,
purchases, payments of interest or dividends, transfers, and
withdrawals. Although the tracing was lengthy and detailed—
listing approximately 17,000 account entries in 23 accounts over
6
almost 20 years, and consisting (along with various schedules) of
547 pages—it employed straightforward and readily
understandable methods.
Joe’s accountant first gathered and reviewed all brokerage
statements for each account, so he could list and analyze all
transactions. For each account, he determined whether each
deposit or transfer into the account was separate property or
community property (or some combination). If unknown, he
treated the funds deposited as community property. Consistent
with section 760’s presumption that assets acquired during
marriage are community property, Joe’s accountant characterized
all purchases of securities as community property, to the extent
community property funds were available in the cash portion of
the account to make the purchase. (See In re Marriage of Frick
(1986) 181 Cal. App. 3d 997, 1010 [“Where funds are paid from a
commingled account, the presumption is that the funds are
community funds.”].) Only when the community funds in the
cash portion of the account were exhausted did he characterize an
investment as separate property. If some community property
cash remained in an account, but was insufficient to purchase the
entirety of the securities acquired, he characterized the
investment as part community and part separate property, in
proportion to the amount of each used to purchase the
investment. If he characterized the investment as, for example,
65 percent community property and 35 percent separate
property, he allocated any interest or dividends from that
investment using the same ratio. When and if the asset was sold,
he divided the proceeds in the same ratio. If the proceeds were
used for subsequent investments, Joe’s accountant traced them in
7
the same manner. He used the same process to trace and
characterize all assets in all accounts.
The bottom line is the community was credited with any
securities purchased in an account to the extent that community
funds were available in that account for their purchase. To the
extent community funds were not available in the account at the
time an asset was purchased, the asset was characterized as
separate property. And the community received the benefit of
any investment, including dividends, interest, and the sale
proceeds, to the same extent it owned the asset.
Cash withdrawals, which are discussed further below, were
deposited in the couple’s community bank accounts, or—after
separation—into an account Joe opened in his name. The
withdrawals were treated by Joe’s accountant as community
property and there is no evidence that the proceeds were used for
any purpose other than family living expenses or community
investments other than securities.
Joe’s accountant concluded that, at the end of 2014, the
combined account balance in the investment accounts was
approximately $6.9 million, of which $3,791,653 was Joe’s
separate property and $3,118, 916 was community property.7
The trial court ruled Joe’s tracing “is an appropriate
tracing” and Joe carried his burden of proof to trace his separate
7 Joe’s accountant corrected his tracing to revise the
treatment of certain GE stock. The trial court found the
accountant’s method of accounting for the GM stock and
dividends was acceptable, and did not invalidate the tracing.
DeeDee does not challenge this adjustment on appeal, beyond her
challenge to the tracing itself.
8
property through the commingled accounts. The trial court also
adopted the findings contained in the tracing and associated
schedules.
Before trial, through one or more stipulations and/or
stipulated orders, the parties divided approximately $6.9 million
of assets and additional funds were frozen. They also agreed to
temporary child and spousal support payments without prejudice
to retroactive adjustment after trial. Joe’s accountant prepared a
reconciliation and reimbursement schedule indicating how the
previously allocated assets should be reallocated based on his
tracing. The trial court adopted it and attached it to the
judgment. DeeDee does not challenge the mathematics of the
reconciliation, just the tracing on which it was based.
The net result, including proceeds from sale of the family
residence, was that Joe exited the marriage with total assets of
$10,620,363, while DeeDee received $5,250,231.
B. Standard of Review and Applicable Law
On appeal, we presume the judgment is 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’ ” by the appellant. (Denham v. Superior
Court (Marsh & Kidder) (1970) 2 Cal. 3d 557, 564.) “In general, in
reviewing a judgment based upon a statement of decision
following a bench trial, ‘any conflict in the evidence or reasonable
inferences to be drawn from the facts will be resolved in support
of the determination of the trial court decision. [Citations.]’
[Citation.] In a substantial evidence challenge to a judgment, the
appellate court will ‘consider all of the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
9
reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.]’ [Citation.] We may not reweigh the
evidence and are bound by the trial court’s credibility
determinations. [Citations.] Moreover, findings of fact are
liberally construed to support the judgment.” (Estate of Young
(2008) 160 Cal. App. 4th 62, 75−76.)
“The substantial evidence standard applies to both express
and implied findings of fact made by the superior court in its
statement of decision rendered after a nonjury trial.” (SFPP v.
Burlington N. & Santa Fe Ry. Co. (2004) 121 Cal. App. 4th 452,
462.) “The court’s statement of decision is sufficient if it fairly
discloses the court’s determination as to the ultimate facts and
material issues in the case.” (Golden Eagle Ins. Co. v. Foremost
Ins. Co. (1993) 20 Cal. App. 4th 1372, 1380.) “ ‘Where [a]
statement of decision sets forth the factual and legal basis for the
decision, any conflict in the evidence or reasonable inferences to
be drawn from the facts will be resolved in support of the
determination of the trial court decision.’ ” (In re Marriage of
Ruelas (2007) 154 Cal. App. 4th 339, 342.)
A party may avoid implied findings in favor of a judgment,
and preserve perceived error in a statement of decision, by
making specific objections to the statement of decision. Code of
Civil Procedure sections 632 and 634 prescribe a two-step process
for doing so. “[F]irst, a party must request a statement of
decision as to specific issues . . . ; second, if the court issues such
a statement, a party claiming deficiencies therein must bring
such defects to the trial court’s attention to avoid implied findings
on appeal favorable to the judgment.” (In re Marriage of
Arceneaux (1990) 51 Cal. 3d 1130, 1134.)
10
Here, after the trial judge announced his tentative decision,
DeeDee filed a request for a statement of decision on certain
identified issues, and following the issuance of the court’s
statement of decision, filed objections thereto. The impact of
those filings, if any, will be discussed below.
“The presumption that all property acquired by either
spouse during the marriage is community property may be
overcome. [Citations.] Whether or not the presumption is
overcome is a question of fact for the trial court.” (In re Marriage
of Mix (1975)14 Cal. 3d 604, 611−612 (Mix).) “ ‘Where funds are
paid from a commingled account, the presumption is that the
funds are community funds. [Citations.] In order to overcome
this presumption, a party must trace the funds expended to a
separate property source. [Citation.] This issue presents a
question of fact for the trial court and its finding will be upheld if
supported by substantial evidence.’ ” (In re Marriage of
Higinbotham (1988) 203 Cal App.3d 322, 328; see also, Braud,
supra, 45 Cal.App.4th at pp. 822−823; Cochran, supra, 87
Cal.App.4th at pp. 1057−1058.)
As discussed below, DeeDee argues California law permits
only two methods of tracing to overcome the presumption that
property acquired during marriage is community property:
“direct tracing” and “exhaustion tracing.” She contends that
“[t]he trial court’s adoption of a tracing method that failed to
meet the requirements of either established standard was
erroneous as a matter of law.” Because this is a legal issue, or a
mixed question of law and fact, in which the legal issue
predominates, we review it de novo. (See In re Marriage of
Rossin (2009) 172 Cal. App. 4th 725, 734.)
11
C. The Trial Court Did Not Err by Adopting Joe’s
Tracing
DeeDee doesn’t dispute any of the factual elements of the
tracing prepared by Joe’s accountant. As she says in her reply
brief, “Here, there simply are no material contested facts.”
Instead, she contends the tracing is invalid as a matter of law
because (1) it differs from what she asserts are the two
“exclusive” methods of tracing under California law: direct
tracing and exhaustion tracing; (2) Joe did not prove he intended
to use separate property funds to purchase any particular asset;
and (3) Joe’s accountant assumed assets were purchased with
separate property funds whenever no community funds were
available in the account in question, but Joe did not prove that
community funds were not available in some other account. We
disagree with her conclusion that Joe’s tracing method was
invalid as a matter of law.
DeeDee correctly notes that previous reported cases have
described two tracing methods:
1. “Direct tracing” can be used to demonstrate a
spouse’s separate property was used to purchase an asset, even
though the purchase is made with funds from a commingled
account containing both separate and community property. It
requires (a) documentary proof that sufficient separate property
funds were available in the account at the time of purchase; and
(b) proof that the spouse making the purchase intended to use
separate, rather than community, funds. (See, e.g., Mix, supra,
14 Cal.3d at p. 612; In re Marriage of Frick, supra, 181
Cal.App.3d at pp. 1011−1012.)
12
2. “Exhaustion tracing” is sometimes also called
“Recapitulation,” “Family expense,” “Family living expense,” or
“Family income exhaustion” tracing. Whatever the name, it
attempts to trace a payment or purchase from a commingled
mass to separate property funds by process of elimination; i.e., by
showing that—because all community property funds were
exhausted at the time the purchase or payment at issue was
made—separate property funds necessarily must have been used.
(See v. See, supra, 64 Cal.2d at p. 783.) This approach presumes
that available community property funds are used for family
expenses before separate property funds are used for that
purpose. (See, e.g., Marriage of Frick, supra, 181 Cal.App.3d at
p. 1018, fn. 11.)
As discussed below, we disagree with DeeDee’s assertion
that Joe’s tracing method is wholly unprecedented. But even if,
as DeeDee asserts, the two methods described above were the
only ones previously described in the reported cases, that would
not mean—as DeeDee repeatedly asserts—that they are the only
methods permissible under California law. DeeDee cites no
authority, and we are aware of none, holding that California law
precludes trial courts from relying on any tracing method other
than the two just described.
The closest she comes is her citation of a passage from In re
Marriage of Stoll (1998) 63 Cal. App. 4th 837, 841 (Stoll): “It is
hornbook California family law that tracing is done either
directly, or by a process of elimination whereby a spouse shows
the exhaustion of available community funds at the time of
acquisition.” She also cites Mix, supra, 14 Cal. 3d 604, 612, which
employs similar language: “post-marital property can be
established to be separate property by two independent methods
13
of tracing. The first method involves direct tracing . . . . The
second method involves consideration of family expenses.”
The leading treatise currently says, “Generally, either of
two tracing methods may be used to characterize disputed
property interests—‘direct tracing’ or ‘family living expense
tracing.’ ” (Hogoboom & King, supra, ¶ 8:526 at p. 8-200, first
italics added.) But it does not say use of other methods is
prohibited. And neither Stoll nor Mix prohibits variations in
tracing methods to account for varied factual scenarios. These
courts simply did not consider the propriety of any alternative
tracing method, including Joe’s method. The issue was not before
them.
We see no reason to straightjacket trial courts by adopting
DeeDee’s prohibition of tracing methods other than the two she
identifies. Tracing is simply a method of proof. As noted above,
trial courts have the flexibility to consider any credible evidence
and to evaluate alternative tracing methods to determine
whether the proponent of the tracing carries his or her burden of
proof. The tracing method may vary depending on the facts.
Thus, trial courts are free to consider and credit reasonable, well-
supported, and nonspeculative expert testimony, when
determining whether the proponent has successfully traced
commingled assets to a separate property source. (See Sargon
Enterprises, Inc. v. University of Southern California (2012) 55
Cal. 4th 747, 753, 771−772.)
Moreover, in reality, Joe’s method of tracing separate
property to, and characterizing the activity within, a particular
commingled account is not unprecedented. In Cochran, supra, 87
Cal. App. 4th 1050, a husband sought to trace his separate
14
property funds paid out of a commingled bank account. The
husband deposited $77,395.14 from his profit-sharing plan into a
bank account. (Id. at pp. 1054−1055.) Because these funds were
part community and part separate property, the account was
commingled. At the time of the deposit, $43,061.24 was separate
property and $34,405.51 was community property. (Id. at
p. 1055.) The husband then wrote three checks. The first, for
$34,192.15, paid off the balance due on a community property
debt. The court concluded, based on the presumption that
community living expenses are paid out of community rather
than separate property, and because this was the first
expenditure, that community funds were used to pay this debt.
(Id. at p. 1058.) Thus, the first check “exhausted the community
property funds in the account, with the exception of $213.” (Id. at
p. 1054.)
The husband wrote a second check in the amount of
$32,950 as earnest money for obtaining a loan for the family
home (a community debt). “It can be presumed under the family
expense presumption that the remaining $213 in community
property funds was used first to pay for the subsequent home
construction loan earnest money since the loan was for building
the family home, a community asset.” (Cochran, supra, 87
Cal.App.4th at pp. 1058−1059.)
The husband wrote a third check to pay certain fees
required to obtain a building permit for the family home (also a
community debt). (Cochran, supra, 87 Cal.App.4th at
pp. 1058−1059.) The court concluded, by process of elimination
(there being only $213 of community property funds left in the
bank account), the husband’s separate property funds were used
15
for all but $213 of the second and third payments, and he was
entitled to reimbursement. (Id. at p. 1058.)
The trial court knew Joe’s tracing did not fit neatly into
either of the two categories described above, and it combined
some aspects of each. And Joe’s tracing was far more complicated
than the tracing in Cochran. Nevertheless, the trial court found
the tracing was “appropriate,” “sufficiently traced the accounts,”
and that “Respondent carried his burden of proof with respect to
the marital tracing.”
The trial court correctly concluded that, unlike in a
traditional direct tracing, the presumption employed by Joe’s
accountant, that all investments were community property until
no more community cash remained in the account, rendered Joe’s
intent irrelevant. The tracing “gave” the investment opportunity
first to the community, by characterizing all investments as
community property whenever sufficient community property
funds were available in the account to purchase the securities.
But, whenever the community property funds in an account had
been exhausted, by process of elimination Joe’s accountant
characterized the remaining funds as separate property, because
only separate property remained in the account. Thus, he
characterized investments made from those separate property
funds as separate property. This is consistent with Cochran,
supra, 87 Cal. App. 4th 1050.
DeeDee asserts Joe was required to demonstrate no
community funds were available in any account before a
purchase could be characterized as separate property, but that
confuses the nature of Joe’s tracing with a traditional
“exhaustion” tracing. The two are not the same, as the trial court
16
recognized, and their requirements differ. In this case, the
commingled funds were in a number of separate, identifiable
investment accounts. Joe had the burden to trace his separate
property through each of those various accounts. That there may
have been community funds available elsewhere—whether in
another investment account or in one of the couple’s community
bank accounts—was irrelevant to the tracing because it would
not have altered the characterization of the funds inside any
given account. And unlike community living expenses, which are
presumed to have been made with community funds if any such
funds are available anywhere, Cochran teaches us there is no
reason to presume an investment made from a commingled fund
is a community asset if, through tracing, it can be demonstrated
that all community funds in the account were exhausted before
the investment was made.
Here, as reflected in the statement of decision, after
considering the entirety of the evidence, the trial court found Joe
carried his burden of proof with respect to the marital tracing
and the court adopted Joe’s tracing. We conclude substantial
evidence supports the trial court’s findings. The findings are
consistent with the rule, discussed above, that separate property
that has been commingled with community property does not lose
its separate property status, so long as it can be traced back to a
separate property source.
The statement of decision also contains the trial court’s
finding that “[t]he tracing proves that $3,791,653 of the
remaining assets of the marital estate are [Joe’s] separate
property and that there are reimbursements due [Joe] in the
amount of $1,389,288, for a total separate property due to [Joe] in
the amount of $5,180,941.” The trial court adopted Joe’s
17
accountant’s characterization of the parties’ assets as of the date
of separation, as reflected in exhibit E to the statement of
decision, and his schedule of known assets/liabilities and
proposed division as reflected in exhibit F. These findings also
are supported by substantial evidence.
DeeDee raises three other issues relating to the tracing,
none of which requires reversal.
First, she contends “every instance in which [Joe’s
accountant] characterized an investment as Joe’s separate
property when community funds held in other accounts were
available . . . would constitute an ‘appropriation of a partnership
opportunity’ and a mismanagement of the community assets that
Joe was holding in trust for the community—a clear violation of
Joe’s fiduciary duties of loyalty and care” under section 721,
subdivision (b).8
8 Section 721, subdivision (b) provides:
“(b) Except as provided in Sections 143, 144, 146, 16040
and 16047 of the Probate Code, in transactions between
themselves, spouses are subject to the general rules governing
fiduciary relationships that 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 Section 16403,
16404, and 16503 of the Corporations Code, including, but not
limited to, the following:
18
But this argument lacks evidentiary support. DeeDee has
pointed to no evidence demonstrating Joe’s separate funds and
the community were in competition for unique investment
opportunities. The investment accounts contained primarily
publicly traded stocks and bonds, available to all investors. (Joe
also invested in real estate, but DeeDee does not cite to evidence
in the record demonstrating the real estate was a particularly
unique and advantageous opportunity). A married person is free
to invest his or her separate property. (§ 770, subd. (b); Somps v.
Somps (1967) 250 Cal. App. 2d 328, 336 [“The fact that the
husband purchased the . . . property with his separate funds, as
the trial court found, is not evidence of taking undue advantage
nor is it a breach of a fiduciary relationship which would invoke a
presumption of fraud or undue influence.”].) Nor has DeeDee
cited evidence that would support a conclusion that Joe
mismanaged community funds. On the contrary, she concedes
that Joe’s investments were quite successful. The trial court’s
“(1) Providing each spouse access at all times to any books
kept regarding a transaction for the purposes of inspection and
copying.
“(2) Rendering upon request, true and full information of
all things affecting any transaction that concerns the community
property. Nothing in this section is intended to impose a duty for
either spouse to keep detailed books and records of community
property transactions.
“(3) Accounting to the spouse, and holding as a trustee, any
benefit or profit derived from any transaction by one spouse
without the consent of the other spouse that concerns the
community property.
19
rejection of this breach of fiduciary duty claim is supported by
substantial evidence.
Second, she objects that the tracing made no allocation to
the community for the value of Joe’s labor in managing his
separate property investments. But she identifies no evidence in
the record quantifying the amount of time Joe devoted to
managing the investments, other than to point out he was
otherwise unemployed for some period, nor does she cite any
evidence offered by either party attempting to quantify the value
of Joe’s services. “An apportionment of profits” may be required
when one spouse “invests separate funds in real estate or
securities,” but not when the spouse “expended only minimal
effort and the [other spouse] introduced no evidence attributing a
value” to the services. (Estate of Neilson (1962) 57 Cal. 2d 733,
740.)
Finally, DeeDee objects to Joe’s accountant’s treatment of
cash withdrawals—totaling over $1,000,000—from the traced
accounts. With respect to cash withdrawals, the accountant
debited the community’s cash balance in the account first, only
debiting Joe’s separate property cash if there was insufficient
cash to cover the withdrawal. DeeDee appears to concede that
this treatment would be appropriate if the cash withdrawals were
used for a family expense or community investment. But, she
complains the tracing does not indicate the final use to which
these particular withdrawals were put. And, she argues further,
if the withdrawals were not used for community purposes, the
ratio of separate to community property remaining in the account
would be inaccurate, causing the tracing and characterization
based on the tracing to also be inaccurate.
20
Her argument is a non sequitur. Joe’s accountant’s
treatment of the withdrawn cash as community property is
wholly consistent with the basic rule that funds in a commingled
account are community property unless successfully traced to a
separate property source. This is the same legal presumption
upon which DeeDee stakes her claim to all of the assets in the
investment accounts. The rule does not change just because
funds are withdrawn from an account. (Braud, supra, 45
Cal.App.4th at pp. 822−823.)
If DeeDee had alleged and proved at trial that Joe had
misappropriated the withdrawn funds for some noncommunity
purpose, she might have a breach of fiduciary duty claim. She
would bear the burden of proof on such a claim, however. But
neither DeeDee nor her forensic accountant attempted at trial to
show that any of these withdrawals was used for other than
community purposes. Nor have we been pointed to anything in
the record indicating that Joe’s accountant or Joe was ever asked
about how the withdrawn cash was ultimately used.9 Joe’s
accountant did testify, however, that Joe generally kept cash
invested in a brokerage account until needed, before moving it to
one of the couple’s checking accounts to pay community expenses.
DeeDee notes that postseparation Joe opened a separate checking
account into which some of the withdrawals were deposited, but
does not attempt to show the funds were not used for family
expenses.
The trial court’s statement of decision does not specifically
address the issue of cash withdrawals. DeeDee does not indicate
9 Joe does not address the issue at all in his respondent’s
brief.
21
that she ever squarely raised the issue with the trial court, and
she did not raise it in her request for a statement of decision or in
her objections to the statement of decision.
For all the foregoing reasons, we affirm the trial court’s
findings that Joe’s tracing was adequate to meet Joe’s burden of
proving his separate property, as set forth in the schedules
appended to the judgment.
II. Claims of Breach of Fiduciary Duty Based on Joe’s
Funding of the Children’s 529 Accounts and
Establishment of a Life Insurance Trust for the
Benefit of the Children.
DeeDee asserts Joe breached his fiduciary duties under
section 1100, subd. (b): (1) by depositing a total of $160,000 of
community funds into the children’s pre-existing 529 accounts in
March and August, 2010, and (2) by establishing a life insurance
trust, with the children as the sole beneficiaries and his brother
as the sole trustee, and in May 2010, using $245,000 of
community funds to pay the premiums on a whole life insurance
policy that would fund the trust in the event of his death, all
without first obtaining her written consent to do so.
Section 1100, subd. (b) provides:
“A spouse may not make a gift of community personal
property, or dispose of community personal property for less than
fair and reasonable value, without the written consent of the
other spouse. This subdivision does not apply to gifts mutually
given by both spouses to third parties and to gifts given by one
spouse to the other spouse.” (§1100, subd. (b), italics added.)
Violation of this subdivision is a breach of fiduciary duty.
(Fields v. Michael (1949) 91 Cal. App. 2d 443, 448 [applying
22
predecessor statute].) Joe focuses on the last sentence of section
1100, subd. (b), arguing that the 529 account contributions and
life insurance premium payment were “gifts mutually given by
both spouses” to their children as part of an agreed upon estate
plan.
The trial court rejected DeeDee’s claims. It confirmed both
529 account contributions as gifts, and held the life insurance
policy was purchased as part of an estate plan. Moreover, it
found no breach of fiduciary duty. The trial court retained
jurisdiction over the 529 accounts and the life insurance policy.
We review a judgment on claims of a spouse’s breach of
fiduciary duty for substantial evidence (Bono v. Clark (2002) 103
Cal. App. 4th 1409, 1430), and conclude that substantial evidence
supports the trial court’s rulings.
Joe testified he discussed estate planning with DeeDee
toward the end of 2009, including a will, creating 529 accounts
for the children, and obtaining life insurance for the children’s
benefit, so the children would have money for themselves
regardless of what might happen to Joe and DeeDee. According
to Joe’s testimony, DeeDee was “fine with” the 529 accounts.
With respect to the life insurance trust, Joe initially proposed to
DeeDee that the policy be on DeeDee’s life because—as a woman
who was younger than he—it would be cheaper than insuring his
own life. She preferred that he obtain a policy on his own life,
which is what he did.
DeeDee testified inconsistently about the 529 accounts and
the life insurance policy. Ultimately, she conceded she agreed
with Joe’s plan to set up 529 accounts for the children, was aware
of (and participated in) some initial contributions, and thought
23
they were a good idea. As she put it, “[i]t sounded great for the
kids. Anything for the kids.” She claimed, though, that she was
unaware of the disputed 529 account contributions and creation
of the life insurance trust until after the fact.
On appeal, DeeDee asserts there is no evidence in the
record she and Joe agreed on the particulars of the challenged
529 account contributions (e.g., the timing and amount of the
contributions) or the particulars of the insurance policy trust.
But, as she testified, throughout their marriage, Joe handled the
finances and she trusted him to do so. Joe confirmed that
DeeDee was uninvolved in the family’s finances. It is undisputed
there is no evidence she gave written consent to either the
disputed college fund contributions or the purchase of the life
insurance policy.
We infer that the trial court impliedly found the 529
account contributions and life insurance were “gifts mutually
given by both spouses,” and section 1100, subdivision (b)
therefore is inapplicable. Substantial evidence supports the
conclusion that—in making the contributions and funding the life
insurance trust—Joe was merely executing on a mutually agreed
estate plan of gifting to the children. The deposits into the 529
accounts are consistent with the parties’ agreed plan to fund the
children’s college education through the 529 accounts. Given the
upward trend in college tuition, additional contributions were
necessary to meet that goal. And the insurance trust is
24
consistent with the parties’ mutual plan to make sure the
children have funds available if their parents predecease them.10
III. Child and Spousal Support
DeeDee filed a request for order on December 5, 2013,
seeking, among other things, to modify temporary child and
spousal support. For reasons the parties’ briefing does not
reveal, the trial court did not act on that request before trial. It
did, however, rule on that motion after trial. Its judgment,
entered March 18, 2016, retrospectively modified child support
and temporary spousal support for three prior periods: calendar
year 2014; January 1, 2015−May 31, 2015; and June 1,
2015−December 31, 2015. Also, the trial court set permanent
child and spousal support for January 1, 2016 forward. DeeDee
seeks reversal of all of these determinations. For the reasons set
forth below, we reverse the trial court’s pendente lite spousal and
child support awards for 2014, and the permanent spousal
10 We are not precluded from inferring this implied
finding. With respect to the 529 accounts and life insurance trust
issues, DeeDee only requested a statement of decision on whether
she was “aware of and consented in writing” to use of the
community funds for those purposes. (Italics added.) Because
neither party contended DeeDee had given written consent, there
was no reason to include that issue in the statement of decision.
Her later objection that the statement of decision omitted any
ruling on whether she had consented “in writing or otherwise”
was insufficient to bar application of the doctrine of implied
findings. (See In re Marriage of Arceneaux, supra, 51 Cal.3d at
p. 1134 [Code Civ. Proc., §§ 662 and 664 require both a request
for a statement of decision on an issue and a pertinent objection
to preclude inference of implied findings on that issue].)
25
support award. We remand for further proceedings consistent
with this opinion.
A. Standard of Review and Law Applicable to
Modification of Temporary Child and Spousal
Support
Subject to exceptions not applicable here, a court may order
temporary spousal support in “any amount” during the pendency
of a dissolution proceeding, based on the moving party’s need and
the other party’s ability to pay. (§ 3600.) The purpose of
pendente lite spousal support is to maintain the parties’
standards of living in as close as possible to the preseparation
status quo, pending trial. In fixing temporary spousal support,
trial courts are not restricted by any set of statutory guidelines.
The amount of the award lies within the trial court’s sound
discretion, and is reversible only on a showing of clear abuse of
discretion. (In re Marriage of Wittgrove (2004) 120 Cal. App. 4th
1317, 1327.)
“The trial court has broad discretion to decide whether to
modify a temporary spousal support order. [Citation.] On
appeal, we review the trial court’s modification decision for abuse
of discretion.” (In re Marriage of Tydlaska (2003) 114
Cal. App. 4th 572, 575.) We determine whether factual findings
are supported by substantial evidence, and if so, affirm if any
reasonable judge could have made such an order. (In re Marriage
of Alter (2009) 171 Cal. App. 4th 718, 730−731; In re Marriage of
Wittgrove, supra, 120 Cal. App.4th at p. 1327.)
A court’s discretion in setting pendente lite and permanent
child support awards is constrained by the statutory scheme, as
courts must adhere to the algebraic uniform state child support
26
guidelines in section 4050 et seq. As stated in section 4052, “The
court shall adhere to the statewide uniform guideline and may
depart from the guideline only in the special circumstances set
forth in this article.” (Italics added.) To the limited extent
permitted by statute, the court may exercise discretion to adjust
awards where fairness so requires. (In re Marriage of Fini (1994)
26 Cal. App. 4th 1033, 1043−1046; Hogoboom & King, supra,
¶ 6:151 at p. 6-105.)
B. Use of 2013 Rather Than 2014 Tax Returns to
Modify Temporary Child and Spousal Support
for 2014 Requires Reversal and Remand
In modifying temporary child and spousal support awards
for January 1 through December 31, 2014, the trial court
exclusively used the parties’ 2013 tax returns to determine their
income, on the theory that “trailing year figures are the most
appropriate figures to use” in calculating support. 11 DeeDee
agrees tax returns are “presumptively correct” for purposes of
support calculations. (See In re Marriage of Loh (2001) 93
Cal. App. 4th 325, 332.) But she contends the court abused its
discretion by using only 2013 tax returns, because 2014 tax
returns were in evidence at the time the modifications were
made, and the 2014 returns would have been more reliable
indicators of actual 2014 income.12
11Utilizing the Dissomaster guideline calculator, the
court awarded DeeDee temporary child support of $1,077 per
month and temporary spousal support of $655 per month.
12 2015 tax returns were not yet available at the time of
trial.
27
Moreover, she argues she was disadvantaged by the use of
her 2013 income to calculate the awards because in 2013 she had
a nonrecurring capital gain of approximately $229,000 as a result
of the parties’ stipulated pretrial distribution of assets. The
capital gain resulted in a much higher income figure for her in
2013 than 2014; consequently, use of her 2013 income lowered
monthly child and spousal support payments to her. She raised
this issue with the trial court in an objection to the court’s
tentative statement of decision. It responded that “[c]apital gains
are income for purposes of support, nonrecurring or not,” and
noted her 2013 capital gains would have been available to her for
purposes of support in 2014.
We conclude the trial court abused its discretion when it
used the parties’ 2013 taxable income as the sole measure of their
respective incomes when modifying 2014 temporary child and
spousal support, when 2014 tax returns were in evidence.
When a court initially fixes child and spousal support, it is
required to use past income figures to project likely future
income. Because no court has a crystal ball, it must rely on past
income data to project future income, and income tax returns
usually are the most reliable source. The relevant statutes
appear to create a presumption that, under ordinary
circumstances, the most recent annual income tax return would
be an appropriate source for predicting future income. (See In re
Marriage of Riddle (2005) 125 Cal. App. 4th 1075, 1083−1084
[“annual” income in §§4059−4060 as a benchmark for calculating
“net monthly disposable income” makes sense in most cases and
corresponds with income taxes which are calculated on an annual
basis.].) Of course, in cases where a spouse’s annual income
fluctuates, a longer period might be more appropriate. (Id. at
28
p. 1084.) Modification of a temporary “spousal support order may
be made only on a showing of a material change in
circumstances,” and where the modification involves payment of
support into the future, a party seeking modification must
provide current income and expense data from which the court
can predict future needs and ability to pay. (In re Marriage of
Tydlaska, supra, 114 Cal.App.4th at p. 575.)
Because the trial court was engaged in a retrospective
modification of past support awards, governing 2014 only, no
guesswork was required, however. Reliable 2014 income data
was contained in the parties’ 2014 tax returns.
We are guided by In re Marriage of Rosen (2002) 105
Cal. App. 4th 808, 824−827. In that case, at the time of trial in
January 1999, the trial court erroneously calculated the
husband’s prospective income based on trial exhibits and expert
testimony proving the husband’s cash flow in 1996. The husband
testified to a much lower income in 1998, and that testimony was
corroborated by the husband’s 1998 federal tax return.
Nevertheless, the trial court based spousal support on the higher
1996 figure. The Court of Appeal reversed, and ordered the trial
court, on remand, to use the husband’s 1998 taxable income when
recalculating spousal and child support awards for the period up
to January 31, 1999 (approximately the time of the first trial).
For the period January 31, 1999 to the date on which the trial
court, on remand, determined the new amount of support,
however, the trial court was ordered to consider evidence of the
husband’s “ability to pay during that time period.” (Id. at p. 827,
italics in original.) Presumably that would include 1999 and
later tax returns, to the extent available.
29
Accordingly, we remand for the limited purpose of
recalculating pendente lite 2014 child and spousal support. The
court should consider 2014 income as established by 2014 tax
returns or other authoritative evidence in the record of 2014
income. We recognize that, “[i]n practice, the precise definition of
a party’s ‘gross’ and ‘net’ income is subject to considerable court
discretion (exercised within legal lines).” (Hogoboom & King,
supra, at ¶ 6:196, p. 6-128.) On remand, the trial court may
exercise its discretion, and “may properly consider the ‘big
picture’ concerning the parties’ assets and income available for
support in light of the marriage standard of living. [Citation.]”
(In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
“ ‘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.]’ ” (Ibid.) Similar information is relevant when
assessing the supported spouse’s needs. Thus, in modifying the
temporary spousal and child support orders on remand, the trial
court may include other relevant factors in addition to income
shown on the parties’ 2014 tax return, including DeeDee’s 2013
capital gain and other assets available to the parties at the time,
if deemed appropriate by the trial court. But it must also
consider 2014 income, as revealed by the 2014 tax returns.
30
C. Joe’s “Rental Income”
DeeDee asserts the trial court erred by failing to include
Joe’s “rental income” in its child and spousal support orders,
requiring reversal of all child and spousal support orders. She
points to evidence indicating Joe had received, or anticipated
receipt of, income from real estate investments in 2014 and 2015.
For the reasons discussed above, it was appropriate for the
trial court to use the most recent annual tax return when fixing
support. Thus, the court used Joe’s 2014 income tax return (trial
exhibit 158) to calculate support figures for January 1, 2015 to
May 31, 2015; June 1, 2015 to December 31, 2015; and January
2016 forward. The trial judge included Joe’s interest income,
dividends, and payments Joe received from DoubleLine (for
whom he served as a director), as revealed by the tax return. For
the second period, the trial judge permissibly took into account
that Joe had received an increase in compensation from
DoubleLine (even though it was not reflected on the 2014 return).
The court’s order does not mention rental income for Joe.
But that is not surprising, because Joe’s 2014 tax return does not
separately call out any significant income from real estate
investments. The summary included in trial exhibit 158 lists
only $126 in income from rent, royalty, partnership, S Corp., or
trust sources, but lists approximately $210,400 in interest income
and $39,100 in dividends.
As noted above, tax returns are presumptively correct, and
provided substantial evidence of Joe’s income. Thus, the trial
court was well within its discretion to rely on Joe’s 2014 tax
return (adjusting for the DoubleLine raise) in calculating Joe’s
income for the relevant periods. The court had discretion to
31
include additional income, to the extent proven, but we will not
substitute our discretion for that of the trial judge.
D. Joe’s Investment Return on Divided Assets
DeeDee also asserts that, in calculating the child support
award for January 2015 forward, the trial judge should have
imputed an investment return on additional assets assigned to
Joe as part of the division of assets included in the judgment.
The short answer is, as discussed above, the trial court based its
support award on presumptively correct tax returns from the
prior year. It made an adjustment for the increased
compensation from DoubleLine. It had discretion to consider
other sources of income not included in the previous year’s tax
return, but was not required to do so. Also, income from most of
the assets already was reflected in Joe’s taxable income. Joe did
receive half of the proceeds from the sale of the couple’s home,
and an equalizing payment that was paid from a portion of
DeeDee’s share of the house sale. But we have not been directed
to evidence in the record concerning whether these sums were
used to purchase another residence or to generate income. And
DeeDee did not point to any evidence in the record from which
the trial judge reasonably could predict and quantify anticipated
additional income to Joe based on the property division.
E. The Permanent Spousal Support Award
The trial court awarded DeeDee permanent spousal
support of $5,000 per month, commencing January 1, 2016.
DeeDee complains this amount is too low, when compared to the
marital standard of living and Joe’s ability to pay more, arguing
“reversal is required.” We agree.
32
“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.” (In re Marriage of Blazer (2009) 176 Cal. App. 4th 1438,
1442−1443, citing § 4320, subds. (c)-(e), (n); see In re Marriage of
Ackerman (2006) 146 Cal. App. 4th 191, 207.)
“ ‘In making its spousal support order, the trial court
possesses broad discretion so as to fairly exercise the weighing
process contemplated by section 4320, with the goal of
accomplishing substantial justice for the parties in the case
before it. “The issue of spousal support, including its purpose, is
one which is truly personal to the parties.” [Citation.] In
awarding spousal support, the court must consider the
mandatory guidelines of section 4320.’ ” (In re Marriage of
McLain (2017) 7 Cal.App.5th 262, 269.)
“ ‘In balancing the applicable statutory factors, the trial
court has discretion to determine the appropriate weight to
accord to each. [Citation.] But the “court may not be arbitrary; it
must exercise its discretion along legal lines, taking into
consideration the applicable circumstances of the parties set forth
in [the statute], especially reasonable needs and their financial
abilities.” [Citation.] Furthermore, the court does not have
33
discretion to ignore any relevant circumstance enumerated in the
statute. To the contrary, the trial judge must both recognize and
apply each applicable statutory factor in setting spousal support.”
(In re Marriage of Nelson (2006) 139 Cal. App. 4th 1546, 1559.)
In this case, the court discussed its consideration and
application of the section 4320 factors and circumstances, to the
extent applicable, in its statement of decision:
“After the division of assets set forth herein, the Court
finds that neither party will have any debt. Additionally, both
parties will have a significant asset base. The Court finds,
however, that [Joe] will have more assets than [DeeDee]. In
[DeeDee’s] October 2015 Income and Expense Declaration, she
indicates monthly expenses of $36,700 including almost $5000 in
obvious children expenses. The Court has reviewed many of the
other categories, and it is apparent that the children’s costs are
factored in those categories as well. Additionally, [DeeDee]
includes expenses to maintain her separate property
condominium she co-owns with her sister, ‘pocket money’ and a
housekeeper. It appears to the Court that [DeeDee’s] expenses
are inflated. As a result, the Court does not find her FL-150
[form] reliable. The support award [of $5000/month] is sufficient
to meet her needs in light of [DeeDee’s] assets and income from
those assets.
“ Spousal [s]upport clearly was not the focus of this case.
The Court finds that the parties spent little time presenting
evidence on or arguing the mandated . . . section 4320 factors.
Based upon the evidence actually presented, the Court finds that
the parties had an upper-class life style [sic]. [Joe] made
significant amounts every year; [DeeDee] did not work outside
34
the home. The parties easily paid off a multi-million dollar house
and there did not appear to be any real spending curbs in place
for either party. The parties enjoyed several country club
memberships (one in Georgia), travel, luxury automobiles and
extensive investments. There is no doubt [Joe] currently has the
ability to pay a spousal support award. Both parties are in good
health from an employment perspective. The Court finds that
[DeeDee] has had some health challenges in the past, but there is
no evidence that they currently prevent her from working.
Regarding the other section 4320 factors, the Court finds that
there is little evidence concerning them. The Court finds there
are no special circumstances in this long term marriage; there
are no unusual tax considerations. There is no documented
history of domestic violence or the criminal conviction for
domestic violence; to the extent that there was any domestic
violence it did not impair in any way [DeeDee’s] ability to work.
[DeeDee] worked until the birth of her children and has not
worked for several years. [DeeDee] clearly supported [Joe’s]
career and stayed at home raising the children. There is no
evidence that care for these two older children impair in any way
either party’s ability to work; in fact, they currently enjoy a 50/50
custodial arrangement, thus, freeing [DeeDee] to seek and
maintain employment. Neither children nor either party have
any special needs that causes the Court to consider an increased
spousal support award. The Court does not impute an income to
[DeeDee] but does recognize she has significant investment
income. Capital gains are income for purposes of support,
nonrecurring or not. The Court further finds that the $884,305
that [Joe] received was a return on equity, not income. It is not a
35
taxable income amount. The Court took no further factors into
consideration in rendering the support award . . . .”13
For purposes of determining the permanent spousal
support award, the trial court found (based on Joe’s 2014 tax
return) that Joe’s taxable monthly income (from his work at
DoubleLine and investment return on his assets) was $47,040.
The court found DeeDee’s taxable monthly income (consisting
entirely of investment returns and rental income) was $20,790.
DeeDee criticizes the trial court’s findings on a number of
grounds. First, she contends the trial court did not make a
finding concerning what her section 4320, subdivision (d) needs
actually are. The “marital standard of living,” which (as noted
above) the trial court did describe, is “a general description of the
station in life the parties had achieved by the date of separation,”
rather than a “mathematical standard.” (In re Marriage of Smith
(1990) 225 Cal. App. 3d 469, 491 (Smith).) “Section 4330 does not
make ‘marital standard of living’ the absolute measure of
reasonable need. ‘Marital standard of living’ is merely a
threshold or reference point against which all of the statutory
factors may be weighed. [Citation.] It is neither a floor nor a
ceiling for a spousal support award.” (In re Marriage of Nelson,
supra, 139 Cal.App.4th at p. 1560.) After weighing the marital
standard of living against the other statutory factors, “the court
may ‘fix spousal support at an amount greater than, equal to or
less than what the supported spouse may require to maintain the
marital standard of living, in order to achieve a just and
reasonable result under the facts and circumstances of the case.’ ”
13 The trial court also issued a Gavron warning to DeeDee.
(In re Marriage of Gavron (1988) 203 Cal. App. 3d 705.)
36
(In re Marriage of Williamson (2014) 226 Cal. App. 4th 1303,
1316.)
DeeDee’s principal complaint about the $5,000 per month
permanent spousal support award is that it is disproportionately
low when compared to Joe’s income and ability to pay,
particularly considered in light of the “upper class” marital
standard of living described by the trial court. “[W]e review
spousal support orders under the deferential abuse of discretion
standard. [Citation.] We examine the challenged order for legal
and factual support. ‘As long as the court exercised its discretion
along legal lines its decision will be affirmed on appeal, if there is
substantial evidence to support it.’ [Citations.] ‘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 justified by the evidence presented.” ’ ” (In re Marriage
of Blazer, supra, 176 Cal.App.4th at p. 1443; In re Marriage of
Ackerman, supra, 146 Cal.App.4th at p. 197.)
Here, the trial court did not explain why it was just and
reasonable to fix DeeDee’s support award at $5,000 per month
when (1) Joe’s expected monthly income was $47,040, and (2)
$5,000 per month in support, even when combined with DeeDee’s
monthly income of $20,790 would not support a standard of living
equivalent to the marital standard of living described by the
court. Having apparently disregarded DeeDee’s FL-150 expense
calculator, we are left to guess what evidence, if any, supported
the trial court’s determination that the support award is
sufficient to meet DeeDee’s “needs.” Nor did the trial court relate
the amount of the award to the marital standard of living. We
therefore reverse the permanent spousal support award and
remand for recalculation and clearer findings.
37
IV. The Trial Court Abused Its Discretion When It
Declined to Award DeeDee Additional Attorneys’
and Accountants’ Fees
Finally, DeeDee contends the trial court erred when it
denied her posttrial motion for an award of additional attorneys’
and accounting fees. We agree.
In its written order denying her fee request, the trial court
observed DeeDee had by that time incurred slightly over $1
million in fees. According to that order, DeeDee previously had
received a fee contribution of $67,500 and sanctions in the
amount of $18,150 from Joe, for a total of $85,000 in fees. Joe
had incurred approximately $1.2 million in professional fees,
with about half of that amount being spent on his accountant’s
tracing analysis.
Having presided over the dissolution trial, the trial judge
was knowledgeable about the parties’ respective assets and
incomes. As stated by the trial court, “Under a need and ability
to pay standard, clearly [Joe], who is substantially gainfully
employed and has a greater asset base, is better positioned than
[DeeDee]. It is also true that [DeeDee] has a significant asset
base from which to draw fees, but she is not employed and has no
current employment prospects as far as the court is aware.”
DeeDee’s “significant asset base from which to draw fees,”
however, is no bar to a need-based fee award. By mandatory
consideration of the parties’ relative circumstances, section 2032
authorizes a need-based fee award even if DeeDee could pay her
own attorneys’ fees. (See In re Marriage of Drake (1997) 53
Cal. App. 4th 1139, 1167; In re Marriage of O’Connor (1997) 59
Cal. App. 4th 877, 883−884.)
38
Need-based fee awards in dissolution proceedings are
governed by sections 2030 and 2032, as well as section 4320 (as
incorporated by § 2032, subd. (b)). Under section 2030,
subdivision (a)(1), “the court shall ensure that each party has
access to legal representation . . . to preserve each party’s rights
by ordering, if necessary based on . . . income and needs
assessments, one party . . . to pay to the other party . . . whatever
amount is reasonably necessary for attorney’s fees and for the cost
of maintaining or defending the proceeding . . . .” (Italics added.)
In addition, “the court shall make findings on whether an award
of attorney’s fees and costs . . . is appropriate, whether there is a
disparity in access to funds to retain counsel, and whether one
party is able to pay for [the] legal representation of both parties.”
(§ 2030, subd. (a)(2), italics added.) Moreover, “[i]f the findings
demonstrate disparity in access and ability to pay, the court shall
make an order awarding attorney’s fees and costs.” (Ibid., italics
added.) The word “shall” has been italicized to emphasize the
mandatory nature of these provisions. (See In re Marriage of
Morton (2018) 27 Cal.App.5th1025, 1050 [230 Cal. Rptr. 3d 407,
425−426](Morton).)
We interpret the trial court’s order as impliedly finding
there was a disparity in access to funds to retain counsel and Joe
was able to pay for the legal representation of both parties. This
implied finding was supported by substantial evidence. Thus, an
award of “reasonably necessary” fees and costs to DeeDee was
mandatory. (§ 2030, subd. (a)(1), (2); Morton, supra, 27
Cal.App.5th at pp. 1052−1053 [238 Cal.Rptr.3d at pp. 428−429].)
Notwithstanding the parties’ relative economic
circumstances, an award under section 2030 et seq. is properly
denied if a case has been overlitigated or if the fees otherwise
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were not “reasonably necessary.” (§ 2030, subd. (a)(1); In re
Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1524; In re
Marriage of Keech (1999) 75 Cal. App. 4th 860, 870−871.) Indeed,
it is an abuse of discretion to award fees “without making any
inquiry into the reasonableness of those fees.” (In re Marriage of
Keech, supra, 75 Cal.App.4th at p. 870.)
The trial judge was in a position to assess whether or not
the case was overlitigated and the fees reasonably incurred. Well
before trial, a different judge who was then presiding over the
case had noted the case was being overlitigated, and predicted if
the overlitigation continued DeeDee’s attorneys’ fees through
trial would be $350,000 and accountants’ fees would be $100,000.
Nevertheless, fees well exceeded that estimate. The trial court
found, “[t]he amount of fees expended on this matter was
unreasonable. Balancing all of the fees expended against each
other and taking into consideration the financial positions of the
parties, it appears to the court that an order requiring all parties
to pay their own fees is appropriate.”
The trial court noted with apparent approval that almost
half of the $1.2 million in professional fees incurred by Joe was
spent on his accountant’s tracing. The tracing, the court
concluded, “was lengthy, expensive, and needed to be done in
order for the respondent to carry his burden. For example, had
[Joe] not carried his burden of proof through the tracing, [he]
would not have been able to recoup his clearly separate property
as it was hopelessly commingled.” In contrast, the trial court
criticized the accounting fees incurred by DeeDee as not
reasonably necessary, primarily because DeeDee’s forensic
accountants “basically reviewed and relied on [Joe’s accountant’s]
work.”
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But the trial court appears to have overlooked one critically
important factor. Significant amounts of both parties’ fees were
incurred because Joe “hopelessly commingled” assets. Had he
followed the more prudent course of segregating his separate
property, much of the litigation cost—and concomitant
dissipation of marital assets—would have been avoided. DeeDee
cannot be faulted for requiring Joe to trace his separate property
and for incurring professional fees to review and litigate the
issue. Nor can she be denied mandatory fees for doing so. We
are concerned, also, that the trial court painted with too broad a
brush when it characterized all of DeeDee’s fees as unreasonable.
A much more nuanced and granular inquiry is required when
assessing reasonableness in this context. For that reason, we
reverse the postjudgment order denying DeeDee’s request for
additional attorneys’ fees, and remand for reconsideration in light
of this opinion.
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DISPOSITION
The judgment is reversed with respect to the modification
of the 2014 pendente lite child and spousal support awards, and
the permanent spousal support award, and remanded for the
limited purpose of recalculating those awards consistent with this
opinion. In all other respects, we affirm the judgment. We
reverse and remand the postjudgment attorneys’ fee order.
Petitioner Dorothy Ciprari is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION
CURREY, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
____________________________________________________________
* Associate Justice of the Court of Appeal, Second Appellate
District, Division Four, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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