Marriage of Taylor CA2/4 ( 2014 )

Filed 10/27/14 Marriage of Taylor CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Marriage of STEVEN L. and B253616
GINA TAYLOR.
(Los Angeles County
Super. Ct. No. SD023272)
STEVEN L. TAYLOR,
Respondent,
v.
GINA TAYLOR,
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
David J. Cowan and Matthew C. St. George, Temporary Judges. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
L. Walker Van Antwerp III for Appellant.
Marcia J. Brewer for Respondent.
________________________________
INTRODUCTION
Gina Taylor (Wife) appeals from a judgment setting forth the trial court’s
rulings on certain matters relating to the dissolution of her marriage with Steven L.
Taylor (Husband). Finding no reversible error, we affirm.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
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The parties were married June or July 14, 1991. They separated September
19, 2005. On September 29, 2005, Husband filed a petition for dissolution of
marriage from Wife. He sought joint custody of their daughter, and requested that
Wife pay him spousal support and pay his attorney fees and costs. He also
requested a statement of decision regarding termination of the court’s ability to
award spousal support to Wife, and a determination of the community property.
Concurrently, Husband filed a community and quasi-community property
declaration, listing three real estate properties: a house in West Hills, California,
which he valued at $550,000; a condominium in Santa Monica, California, which
he valued at $450,000; and a house in Peru, which he valued at $60,000. Husband
also listed a 2004 Volkswagen Jetta, valued at $22,000; a Toyota truck, valued at
$1,000; and a life insurance policy with a cash value of $12,000.
On October 27, 2006, Wife filed a response. She requested legal and
physical custody of their daughter with reasonable visitation rights for Husband.
She also sought spousal support, termination of the court’s ability to award spousal
support to Husband, and a determination of the community’s property. Wife did
not provide a declaration of the community and quasi-community property.
1
According to Husband, they were married July 14, 1991. According to
Wife, they were married June 14.
2
On August 21, 2006, Husband obtained a temporary restraining order
against Wife. On November 13, 2006, the court denied Husband’s request for a
restraining order without prejudice, finding that “the issues that gave rise to the
issuance of the temporary restraining [order] have been resolved.”
On June 8, 2007, Wife filed an application for an order requiring Husband to
show cause (OSC) why she should not be entitled to spousal support in the amount
of $3,000 per month from Husband, and attorney fees in the amount of $5,000. In
support of the OSC, Wife stated that until April 9, 2007, she lived in the West Hills
residence and Husband was paying the mortgage on the residence. However, she
was no longer living there and had to pay rent for her current residence. Wife
stated that she needed spousal support to maintain the standard of living
established during the marriage and to pay the substantial debt she had to service.
She further stated that during their marriage, she lived in the Santa Monica
condominium. The family would go out to eat about three times a week to good
restaurants. Additionally, she and their daughter would vacation two months a
year in Peru. Wife stated that her earnings as a homecare companion would not
allow her to enjoy the same standard of living and to pay her attorney fees.
Wife also filed an income and expense declaration, stating that she worked
30 hours per week at $10 per hour. Wife had $648 in cash or checking accounts,
and estimated that her real property was worth $589, net of debts. She stated her
monthly rent was $575, monthly debt service was $1,580, and all other monthly
expenses totaled $753. Of the $2,908 total monthly expenses, $1,800 was being
paid by “others.” She listed six credit cards with a total balance of $47,196.62.
Wife also stated that to date, she had paid her attorney $5,000, charged to a credit
card. She also had $3,205 in medical bills and an outstanding $5,000 loan. Wife
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attached two paystub printouts showing her employment income for March 10
through March 14 (five days), which totaled $550 gross.
On June 28, 2007, Husband filed a response. In an attached declaration,
Husband stated that Wife did not live at the West Hills residence until April 2007.
Rather, she lived at the residence of the person for whom she provided homecare
approximately three to five days a week. He was unsure where she lived the
remainder of the week, but speculated that she was living with her boyfriend Juan
Cabrera or her brother Julio. Husband acknowledged that during the marriage, the
family lived at the Santa Monica condominium. However, Wife had recently
“signed the house over” to Cabrera. Husband stated that he cooked approximately
90 percent of the meals, and the family would occasionally go to El Pollo Loco or
Pizza Hut restaurants. They went to more expensive restaurants only for birthdays
or other special occasions. Husband acknowledged that Wife and their daughter
vacationed in Peru, but asserted that the vacations were cost-effective as they
owned a house in Lima, Peru. Moreover, much of the time was spent visiting
family in Peru. According to Husband, he had been financially responsible for all
community property debt during their marriage, and had been paying the mortgage
and property taxes since the date of separation. Husband further stated that he had
been paying rent from when Wife “denied” him and their daughter access to the
West Hills residence. Finally, Husband stated that their daughter lived with him
100 percent of the time, and that he bore sole responsibility for her education,
extracurricular activities and everyday expenses.
Following a bench trial on October 24, 2012, the trial court issued the
following rulings in a “Judgment on Reserved Issues.” The court awarded no
permanent spousal support to either party, finding that maintaining the parties’
standard of living was not feasible due to the substantial drop in Husband’s
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income. However, it retained jurisdiction to award spousal support to either party
in the future. The court also ordered Husband to pay $300 per month in arrearages
on previously ordered spousal support. Husband was awarded the West Hills
house, including any encumbrances thereon, and Wife was awarded the Santa
Monica condominium and the Peru house. Husband was awarded the ING
retirement account cashout and the cashout on a life insurance policy, but he was
obligated to pay Wife half of the ING cashout and half of the insurance policy
cashout. Wife was awarded the Jetta, and the oral transcript of the court’s ruling
indicates that the Toyota truck also was awarded to Wife. The court ordered
Husband to reimburse Wife $750 for her share of premarriage tax debt incurred by
Husband. Finally, the court ordered that each party pay its own credit card debts
and attorney fees.
Wife filed a timely notice of appeal from the judgment.
DISCUSSION
On appeal, Wife challenges eight separate rulings of the superior court. “A
judgment or order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its correctness.” (In re
Marriage of Arceneaux (1990) 51 Cal. 3d 1130, 1133.) To overcome this
presumption, an appellant must provide an adequate record that demonstrates error.
(Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295.) Moreover, appellant forfeits any
contention not supported by argument or citation to authority. (Okasaki v. City of
Elk Grove (2012) 203 Cal. App. 4th 1043, 1045, fn. 1; 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 701, pp. 769-770.) Finally, “the finding of the trier of fact that
property is separate or community, if based upon substantial evidence, even though
there be evidence in conflict therewith, or if based upon evidence from which
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conflicting inferences may be drawn, is binding and conclusive upon an appellate
court.” (Estate of Baer (1947) 81 Cal. App. 2d 830, 833.) We apply this standard
of review to the challenged rulings.
A. Line of Equity
Wife contends the trial court should have ordered Husband to “compensate”
her for drawing over $90,000 on a line of credit secured by the West Hills
residence. Wife appears to be seeking half of the $90,000, as she argues the line of
credit was secured by a community asset. Wife’s contention would have merit
were she responsible for repaying the cash drawn on the line of equity. However,
the record demonstrates that Wife was under no such obligation. The West Hills
residence was awarded to Husband, and Husband agreed to pay any encumbrances
thereon. At trial, Wife’s counsel conceded there was no equity in the West Hills
residence, and evidence was submitted that Wife had transferred any interest she
had in the West Hills residence to her boyfriend Cabrera. On this record, there was
no error in the trial court’s ruling.
B. Life Insurance Policy
Wife contends that the trial court should have ordered Husband to pay her
half of the surrender value on a second life insurance policy. At trial, the parties
agreed that Husband had a second insurance policy which, in 2004, had a cash
surrender value of $8,636.58. The evidence was inconclusive as to when the
policy was surrendered and how the proceeds from the surrender were used. The
court orally ruled that “if the policy was cashed out post date of separation,
[Husband] is ordered to reimburse [Wife] one half of it. If it was cashed [out]
predate of separation, there’s no order for reimbursement.” The written judgment
made no mention of the second policy. On appeal, Wife claims that in the face of
“proof” that the policy was cashed out postseparation, the court was compelled to
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include an order directing husband to make an equalization payment on the second
policy.
We disagree. Wife’s argument is predicated on the assertion that the trial
record contained uncontradicted evidence that the policy was surrendered
postseparation. The record, however, demonstrates that the evidence was in
conflict. The court was thus under no obligation to find Wife entitled to an
equalization payment. To the extent Wife now complains that the written order did
not mention the second policy, we note that she failed to object to the proposed
statement of decision. (In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-
1134 [failure to object and seek correction in statement of decision waives
challenge to lack of specificity in decision].) Finally, the record reflects the court
was prepared to order an equalization payment in the face of proof that the policy
had been surrendered postseparation. Absent such evidence, the court was under
no obligation to order such a payment in its written judgment.
C. Community Debt
Wife contends Husband also should have been ordered to pay half of her
credit card debt, which she asserted totaled $17,000 at the time of separation. At
trial, Wife produced a credit card statement showing a $2,900 balance at the time
of separation. As to the remaining credit card statements, Wife’s counsel stated
that while Wife could “see them on the computer . . . [, she] has not been able to
print them out.” Husband’s counsel made an offer of proof that Husband had
substantial credit card debt at the time of separation, which greatly exceeded
$2,900. Husband’s counsel acknowledged that Husband had discharged the debt in
a subsequent bankruptcy. Although both parties had stated they were ready to
proceed on the issue of credit card debts, neither side had evidence of its total
credit card debt at the time of separation. Both parties submitted the issue for the
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court’s final resolution, and the court ordered each party to pay its own credit card
debt.
“[C]ommunity property assets and community property debts must be
divided equally when the community assets exceed the community obligations.”
(In re Marriage of Marx (1979) 97 Cal. App. 3d 552, 557.) Moreover, the fact that
Husband had discharged his credit card debt in bankruptcy does not alter the
amount of community property debt that must be divided between the parties, as
both parties were able to file for bankruptcy. (See In re Marriage of Cohen (1980)
105 Cal. App. 3d 836, 843 [no error in not taking into account Husband’s pursuit of
a discharge in bankruptcy with respect to his liability for community debts]; cf. In
re Marriage of Williams (1984) 157 Cal. App. 3d 1215, 1221 [“Despite the obvious
inequities of permitting one spouse who has assumed a share of the community
property debts incident to a dissolution to subsequently discharge those debts and
leave the nonbankrupt spouse liable, in apparent derogation of the otherwise equal
division of community property, the practice is well recognized and not one easily
circumvented by the trial courts.”].) Wife has not demonstrated that the court’s
ruling on the community’s credit card debt was erroneous. It was undisputed that
both parties had credit card debt at the time of separation; the amount was
uncertain, but both parties agreed to submit the issue to the court for final
resolution. On this record, no error in the court’s ruling has been shown.
D. Property Transferred into Joint Bank Account
Wife contends she is entitled to the entirety of a September 16, 2005 deposit
of $19,965 from Peru into the community’s bank account, as she contends the
deposit consisted entirely of her separate property. Although Husband’s
community property declaration listed a Peru house as community property, at
trial, Wife’s counsel made an offer of proof that the house was transferred into
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Wife’s name as a gift by her brother during the marriage. According to Wife’s
counsel, Wife then took out a loan on the property to purchase a golf course
property. The golf course property was sold, and the proceeds were wired into the
joint bank account. Eventually, the joint account was emptied, but Husband
testified he made no large withdrawals from the account shortly before they
separated. He also denied withdrawing money from the joint account to pay his
divorce attorney, explaining that he retained his attorney with funds drawn on the
line of equity. Based on the evidence presented, the court determined that Wife
had not overcome the presumption that the deposit was community property and
that it was withdrawn for community use. The court denied reimbursement.
On appeal, Wife contends the only possible inference from the evidence is
that Husband used the $19,965 deposit to pay his attorney to file the divorce
petition. We disagree. No documentary evidence was produced showing that
Husband withdrew money from the joint account. Husband denied withdrawing
money from the account to pay his divorce attorney, and the trial court was entitled
to credit his testimony. Accordingly, Wife has failed to demonstrate the trial court
erred in denying reimbursement for the $19,965 deposit.
E. Tax Debt
Wife contends the court erred in determining that she should be reimbursed
only $750 for community funds used to pay Husband’s $18,703 separate tax debt.
Evidence presented at trial showed the Internal Revenue Service (IRS) had a
$33,751 tax lien for taxes due in 1988 (prior to the marriage), as well as in 1992
and 1996 (during the marriage). The specific amount due on the 1988 taxes was
$18,703. Husband’s counsel stated that to pay the tax debt, the IRS levied on a
whole life insurance policy that was originally Husband’s separate property.
Husband testified he entered into a compromise with the IRS to pay off “all of the
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tax obligations” for “around $3,000 something.” Husband further testified the levy
reduced the cash value of the whole life insurance policy to zero. He had used
community income to make payments on the life insurance policy. The court
found that the levy was for both separate tax debt and community tax debt, and that
half of the tax debt was not community debt. It ordered Husband to reimburse
Wife $750 for her community share of the property used to pay Husband’s separate
tax obligation.
On this record, we find no error in the court’s order. Although Wife now
contends the offer in compromise was made after the levy, Husband’s trial
testimony supported the court’s conclusion that the levy resulted from the offer in
compromise, that the levy was for both separate and community debt, and that the
levy was in the amount of $3,000. Likewise, substantial evidence supported the
court’s finding that half of the tax debt was community debt. As the parties were
married in 1991, $15,048 was community debt and $18,703 was Husband’s
separate tax debt. Based on the ratio of community debt to separate debt,
approximately half of the $3,000 levy, or $1,500, was Husband’s separate tax debt.
Thus, the court properly found that Wife should be reimbursed $750 for her share
of community property used to pay the separate tax debt. That was the trial court’s
ruling.
F. Medical Bills
At trial, Wife requested reimbursement for her medical bills, allegedly
incurred as a result of Husband’s violence against her after their separation. She
produced no evidence that Husband had been charged or convicted of domestic
abuse. Neither did she produce evidence -- such as a police report -- showing that
the medical bills were for injuries sustained during a domestic abuse incident.
Husband’s counsel argued that the matter was a civil issue between the parties.
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The court declined to award Wife reimbursement, finding no outstanding
restraining order obligated Husband to pay Wife’s medical costs. The court also
noted that Wife could seek restitution in criminal court.
On appeal, Wife contends she was entitled to reimbursement for her medical
bills as special damages under Civil Code section 1708.6. That section sets forth
the elements of the tort of domestic violence, and provides that damages for the
tort include special damages. While we agree that medical expenses incurred as a
result of domestic violence are recoverable pursuant to Civil Code section 1708.6,
nothing in the record compelled the trial court to find Husband responsible for
Wife’s injuries. Indeed, when ruling on spousal support, the court expressly found
that Husband had no history or pattern of domestic violence. Also, we note that
the only restraining order in the record was granted in favor of Husband and
against Wife. In short, Wife has failed to show the court erred in denying her
reimbursement for her medical bills.
G. Permanent Spousal Support
Although both parties requested spousal support, the testimony and
argument at trial was focused solely on Wife’s request. Wife argued the family
enjoyed a “middle-class lifestyle in [a] single-family residence” during the
marriage. Wife was making $10 per hour as a home caregiver. As detailed
previously, Wife submitted a declaration showing $2,908 in monthly expenses, of
which $1,800 was being paid by “others.” Husband testified that he was currently
doing market research making approximately $2,700 per month gross. His
monthly expenses were approximately $4,500. However, Husband was not paying
his mortgage, as he was working with his lender to modify his payments.
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As required by law, the trial court made findings on the factors enumerated
2
in Family Code section 4320, which governs the award of spousal support. The
trial court found that the marriage was a long-term marriage, that the parties had
lived a middle-class lifestyle during the marriage, that there was no evidence that
Wife had helped Husband acquire skills or receive an education, that their child
was an adult, that there was no documented evidence of domestic violence, that
Husband had no ability to pay from his present income or assets, that the parties
had comparable obligations, that the parties’ respective incomes were comparable,
and that Wife had become self-supporting. After balancing these factors, the court
held that no permanent spousal support would be awarded to either party. The
court stated that it could not award spousal support, as Husband lacked a present
ability to pay such support. The court further ruled it would retain jurisdiction to
award spousal support in the future.
On appeal, Wife contends she was entitled to permanent spousal support,
specifically challenging the court’s finding at the hearing that the parties had
comparable incomes. The trial court has broad discretion over spousal support,
and its exercise of discretion will not be disturbed on appeal unless, as a matter of
law, an abuse of discretion is shown. (In re Marriage of Smith (1990)
225 Cal. App. 3d 469, 479.)
We agree the parties’ gross incomes were not comparable, but there was
substantial evidence in the record that their net incomes were comparable.
Husband’s monthly expenses of approximately $4,500 exceeded his monthly gross
income by approximately $1,800. Even reducing his monthly expenses by the
approximately $2,000 monthly mortgage payment he was not paying, his expenses
left him with approximately $200 in monthly income. Once Husband resumed
2
All further citations are to the Family Code, unless otherwise stated.
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paying mortgage or rent, he would have a negative net income. Wife’s monthly
income was approximately $1,764, and her monthly expenses were approximately
$1,108, leaving her with $652. Should the $1,800 in financial assistance being
paid by others cease, she too would have a negative net income. On this record,
the trial court was entitled to find that the parties had comparable net incomes.
After considering the trial court’s findings on all of the other section 4320 factors,
we find no abuse of discretion in the court’s determination to award no spousal
support.
Wife contends that Husband could earn more than $2,700 per month, as he
earned $7,200 per month in 2010. (See In re Marriage of Ilas (1993)
12 Cal. App. 4th 1630, 1637-1638 [ability to pay of the supporting spouse
determined by earning capacity, earned and unearned income, assets, and standard
of living].) Wife produced no evidence that Husband could have earned more
money. She argued that he was working only 15 hours per week based upon
Husband’s full-time income in 2010, but at trial, produced no documentary
evidence about his work hours. Nor did she provide evidence of Husband’s
present potential earning capacity. On this record, the court was not compelled to
find Husband could earn enough to provide spousal support. To the extent Wife
acquires evidence of a future change in Husband’s earning capacity, she is free to
seek spousal support, as the trial court retained jurisdiction to award such support.
Wife also contends that she is entitled to spousal support to recreate the
middle-class lifestyle she enjoyed during the marriage. She ignores the court’s
express finding that “maintaining the standard of living of the parties is not feasible
. . . .” Moreover, there is no requirement that spousal support must meet the needs
of the supported spouse as measured by the marital standard of living. (In re
Marriage of Smith, supra, 225 Cal.App.3d at p. 488 [“The Legislature has never
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specified that spousal support must always meet the needs of the supported spouse
as measured by the marital standard of living. Indeed, it would be unwise to do so.
In most instances, it is impossible at separation for either party to have sufficient
funds to continue to live in the same life-style enjoyed during the marriage.”].) As
neither party was in a position to sustain the standard of living each had enjoyed
during the marriage, the court was not required to order spousal support designed
to return Wife to that standard.
H. Attorney Fees
Wife requested $5,000 for attorney fees. The court ordered each party to
pay its own attorney fees. On appeal, Wife contends she should have been
awarded attorney fees, based on her inability to pay for a middle-class lifestyle.
Although Wife cites no legal authority, we consider her argument in light of
sections 2030 through 2034, which control the award of attorney fees during the
pendency of a divorce petition. Section 2032 provides that the trial court may
make an award of attorney fees, but the court must consider the factors listed in
section 4320 to determine whether to make such award. As the preceding analysis
in Part G. demonstrates, when the section 4320 factors are considered, Husband
did not have the ability to pay Wife’s attorney fees, and no other equitable factors
compelled such an award. Accordingly, we find no abuse of discretion in the
court’s order that each party pay its own attorney fees.
I. Motion for Sanctions
Husband seeks attorney fees and costs as sanctions for Wife’s filing of this
appeal, contending that the appeal is frivolous. Although we ruled against Wife on
each of her claims, we do not find that the appeal is “totally and completely
without merit.” (In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650.)
Accordingly, we decline to award Husband attorney fees.
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DISPOSITION
The judgment is affirmed. Respondent Husband is entitled to his costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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