Marriage of Favela and Symon CA4/1 ( 2022 )

Filed 8/30/22 Marriage of Favela and Symon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of MAYRA
FAVELA and RONALDO D.
SYMON, JR.
D079319
MAYRA FAVELA,
Respondent, (Super. Ct. No. 17FL009835C)
v.
RONALDO D. SYMON, JR.,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Affirmed in part and reversed in part with
directions.
Ronaldo D. Symon, Jr., in pro per, for Appellant.
No appearance for Respondent.
After Mayra Favela (Wife) filed for divorce from Ronaldo D. Symon, Jr.
(Husband), the court held a trial to determine spousal support, property
division, attorney fees, and whether to award sanctions pursuant to Family
Code section 271.1 Husband appeals the trial court’s judgment, arguing the
court erred by: (1) imputing $60,000 per month in income to him in
determining the amount of spousal support, (2) improperly weighing some of
the factors set forth in section 4320 in deciding to award spousal support,
(3) finding the parties’ date of separation to be December 7, 2016, (4) failing
to divide the community property equally, and (5) violating his due process
rights by questioning witnesses at trial and denying him the opportunity to
present his case.2
We conclude that while the court did not abuse its discretion in
imputing income to Husband, there is no substantial evidence to support
imputed income in the amount of $60,000 per month. We therefore reverse
the spousal support orders and remand with instructions to redetermine the
amount of Husband’s imputed income and recalculate any spousal support in
a manner consistent with the principles discussed post. In all other respects,
the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pre-trial Proceedings
The parties were married in October 2012 and Wife filed for divorce in
August 2017. In November 2019, Wife requested an order seeking spousal
support and attorney fees and costs, as well as an order regarding
noncompliance with disclosure requirements. At a June 2020 hearing on the
request, Husband did not appear and the trial court ordered him to pay
monthly spousal support and arrears. The court also set the case for trial,
1 All further undesignated statutory references are to the Family Code.
2 Because Wife filed no brief, we determine the appeal based on the
record provided and Husband’s opening brief. (Cal. Rules of Court, rule
8.220(a)(2).)
2
ordered Husband to pay attorney fees and costs, and ordered him to produce
documents relating to the leasing of their Florida residence, Husband’s
businesses, and his retirement and investment accounts.
In September 2020 on the initial date set for trial, Husband sought and
was granted a continuance after the court found that he did not receive notice
of the June 2020 hearing. The court also vacated the June 2020 support
orders, but kept all discovery orders in place. On the subject of Wife’s request
for documents, Husband told the court that he never had tenants in their
Florida home, but that he could likely get $3,000 a month if he rented it out.
Husband claimed he had no documents relating to retirement or investment
accounts, and that he had provided all pertinent documents relating to the
businesses he owned during the marriage.
B. Trial Testimony
When the case proceeded to trial in December 2020, Husband
represented himself and Wife had legal counsel. At trial, the parties sought
resolution regarding the date of separation, spousal support, property
division, claims for credits and reimbursements, asset division, and attorney
fees.
After the parties married in October 2012, they bought a house and
lived together in Florida for a few years. Husband worked in marketing and
lead generation and formed his own company, Sojourn Advisory Group LLC
(Sojourn), during the marriage. Wife worked at a restaurant when they met.
After they married, she took classes while working as a photographer.
During their marriage, they took frequent trips, drove luxury vehicles, and
enjoyed fine dining.
In December 2015, Husband moved out of their home while they sought
marriage counseling and rented a nearby apartment. He believed the
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marriage was “likely to be over” at that point. In contrast, Wife believed they
would reunite and move forward in their marriage after completing therapy
and spending some time apart. In April 2016, Wife left their residence in
Florida to live with her family in Nevada for a couple of months before
returning to Florida in June 2016 to go to New York with Husband. She
returned to Nevada after their trip, and in November 2016, Husband invited
her to accompany him to Napa Valley for a business meeting and introduced
her as his wife to business associates.
Wife testified that around December 7, 2016, she decided that the
marriage was over after learning that Husband was having an extramarital
affair. She moved to San Diego and got a job working as a restaurant server
and Husband moved to Portland for a new business opportunity. On August
30, 2017, Wife filed for divorce.
Alex Shvarts, CEO of a business funding company named FundKite,
testified about his dealings with Husband and Sojourn. In March 2020,
Husband obtained funding from FundKite for Sojourn. Husband agreed to
sell Sojourn’s future account receivables to FundKite, and he represented
that Sojourn had projected annual sales of $5,000,000. Husband also
represented to FundKite that he had other companies generating income
aside from Sojourn. Husband defaulted on the funding terms when he sold
the same receivables he had sold to FundKite to another company. FundKite
brought suit against Sojourn and its guarantors.
C. The Parties’ Finances
Wife testified that she was making $3,000 per month as a waitress
before being laid off and had between $25,000 and $40,000 in savings. She
drove a 2014 Toyota Corolla and was making $200 monthly payments on the
car. After separation and up through June 2018, Wife used a credit card paid
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for by Husband for miscellaneous purchases totaling approximately $6,300.
Wife also made use of a joint account funded by Husband to pay $30,600 in
total rent between January 2017 and June 2020. At the time of trial, Wife
had no other debts except for her vehicle.
Husband’s finances are more complicated. In his 2017 tax returns,
Husband reported net income of about $150,000 from Sojourn. Husband
testified that he was Sojourn’s only employee, all of the company’s income
came to him, and that “[t]he company was [him].” According to Husband’s
income and expense declaration (I&E) signed under penalty of perjury in
March 2018, for the twelve months prior, Husband earned $10,000 a month
plus an average monthly bonus of $20,045 from a company called Trend
Capital. He claimed in the March 2018 I&E that his income from self-
employment through Sojourn was negative $2,000, but he also testified that
Sojourn paid $44,835 for his rent as a small business expense during that
same period. Sojourn also paid for his Corvette and Jaguar, all of his credit
cards, much of his travel, and his “entertaining” expenses. Husband received
business distributions from Sojourn in 2017 and 2018 totaling approximately
$316,000. And in 2018, Husband apparently paid $40,000 cash to buy a car
as a gift for a woman he was dating.
In a January 2020 I&E, Husband listed his monthly income as $45,549
and his total debt as $30,000 for the prior 12 months. A separate profit and
loss statement for Sojourn showed the company’s gross revenue in 2019 was
approximately $7.9 million. In the years leading up to 2019, Sojourn’s gross
revenue was between $400,000 and $990,000. Husband said that in 2019, he
left Trend Capital to focus solely on Sojourn, which experienced explosive
growth that year. However, Sojourn closed around the time it was sued by
FundKite in 2020.
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For spousal support purposes, in September 2020, Husband reported
zero income and said he had $400,000 in debt. But less than two weeks
before trial in December 2020, Husband paid about $3,000 for an expensive
sushi dinner and $350 for a helicopter ride for him and his friends to
celebrate his birthday. At trial, Husband reported being “close to filing for
bankruptcy,” but he also testified that he was still making enough money to
support his lifestyle. For example, he was paying $6,200 a month for rent in
Miami. Although he no longer had the Jaguar, he was still making $1,200
monthly payments on the Corvette and leasing a Lexus sports car for $2,000
per month. He said he paid about $500 a month for cell phone and utility
bills, and he estimated his monthly expenses were at least $15,000.
There were many gaps in Husband’s documentation of his finances.
For example, Husband did not disclose at least two of his bank accounts on
the March 2018 I&E. When asked about inconsistencies in his reported
income and expenses, Husband said that he had an accountant who
embezzled $545,000 from him for the last several months of 2019, and that
“the books were cooked” and unreliable. Husband also did not provide some
of his tax documents for 2019 or prior years, citing the embezzlement as the
reason they were not produced.
As for the parties’ Florida residence, Husband said he paid the
mortgage from December 2016 until about August 2020 in the amount of
$2,600 per month, but he provided no mortgage statements, claiming he had
none. Although the residence never had renters, the parties estimated the
property’s fair rental value was between $2,700 and $3,000.
D. Trial Court Findings
The trial court found the date of separation to be December 7, 2016,
and the duration of the marriage to be four years and one month. For
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purposes of calculating temporary spousal support, the court found Wife’s
income to be $3,000 per month. After noting that Husband’s income was
variable over the years and difficult to determine, the court ultimately
concluded that the stated monthly income of roughly $45,000 in his January
2020 I&E was understated and not credible. The court therefore imputed
$60,000 of monthly income to Husband based on his lifestyle and spending,
arriving at a guideline support amount of $13,223 per month for 13 months.
For permanent spousal support, the court found that the parties’
marital standard of living was upper class. The court cited its previous
findings regarding their respective incomes, and after analyzing other
considerations under section 4320, the court concluded that Husband should
pay Wife $14,000 per month in permanent spousal support for a period of 12
months.
Regarding the division of property, the court found that while Husband
was entitled to reimbursement for mortgage payments on the Florida
residence, Wife was also entitled to credit for her portion of the property’s fair
market rental value, and that those amounts “result in a wash.” The court
ordered that the residence be sold and the net proceeds split in half for each
party. The court also ordered Husband to pay Wife half of the value of a
retirement account that was acquired during the course of the marriage. The
court allocated Sojourn and all of its associated debts and liabilities to
Husband, along with Husband’s vehicles.
As for attorney fees, the court awarded Wife a $30,000 contribution
from Husband for her fees and denied her request for sanctions under section
271. Husband timely appealed the judgment.
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DISCUSSION
I
Husband takes issue with various aspects of the spousal support
orders, but his arguments boil down to a contention that the trial court erred
by imputing $60,000 of monthly income to him. We conclude that although
the court did not abuse its discretion in imputing income to Husband, there is
no substantial evidence in the record to support the imputed amount of
$60,000 per month.
A trial court’s decision to impute income to a spouse for support
purposes based on his earning capacity is reviewed under the abuse of
discretion standard. (See In re Marriage of Destein (2001) 91 Cal.App.4th
1385, 1393.) However, a decision on the specific amount of earning capacity
to be imputed is reviewed under the substantial evidence standard. (See In
re Marriage of Cohn (1998) 65 Cal.App.4th 923, 930.) The court’s decision
must be based on evidence that the spouse has the ability and the
opportunity to earn the amount of income imputed by the court. (Ibid.)
“ ‘Figures for earning capacity cannot be drawn from thin air; they must have
some tangible evidentiary foundation.’ ” (In re Marriage of Smith (2001)
90 Cal.App.4th 74, 82 (Smith).) The party seeking to impute income has the
burden of producing “competent evidence that [the other spouse] had both an
ability and an opportunity to earn the attributed income.” (In re Marriage of
Wittgrove (2004) 120 Cal.App.4th 1317, 1329.)
Here, the court did not abuse its discretion in finding that some amount
of income should be imputed to Husband. The court noted that Husband had
a recent history of high earnings, but he claimed he had zero income at trial
despite the fact that he continued to spend over $12,000 per month. Husband
gave conflicting reports about his finances, failed to provide key tax
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information, and funneled personal expenses through various businesses,
leading the court to conclude “that Husband has never fully disclosed his true
income.” Accordingly, the court found Husband “not credible with respect to
the amount of income he reported earning.” In these circumstances the court
acted well within its discretion in deciding to impute income to Husband.
(See In re Marriage of Barth (2012) 210 Cal.App.4th 363, 377 (Barth)
[concluding trial court “had no choice but to impute income” to husband
where he understated his income, included personal expenses as business
expenses, and was found not credible on “any issue relating to his finances”].)
However, the court did not cite specific evidence that Husband had the
ability and opportunity to earn $60,000 per month. Even Wife, who had the
burden of producing evidence of Husband’s earning capacity, only asked the
court to impute $45,000 of monthly income to Husband based on his January
2020 I&E. It is unclear how the court arrived at an amount $15,000 greater
than what Wife was seeking. There was no expert testimony, vocational
report, or other evidence regarding Husband’s earning capacity that would
explain that amount. (Cf. Barth, supra, 210 Cal.App.4th at pp. 375-376
[finding no abuse of discretion where court relied on expert testimony to
impute income to husband after finding husband’s testimony lacking in
credibility].) We are sympathetic to the fact that Husband’s failure to comply
with discovery orders3 and his inconsistent testimony were the primary
reasons for the lack of reliable information regarding his income. However,
even when a party’s noncompliance means that the only evidence regarding
income is his own testimony and his I&Es, a spousal support order cannot be
“eyeball[ed]” to produce an imputed amount without sufficient evidentiary
support. (See In re Marriage of Loh (2001) 93 Cal.App.4th 325, 327, 330
3 Wife did not move to compel discovery.
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(Loh) [concluding there was insufficient evidence to support income imputed
to husband where wife never moved to compel production of his tax
documents, and upward support adjustment could not serve as a de facto
discovery sanction].)
The court cited Husband’s lifestyle and extravagant spending,
including at least $12,500 in monthly expenses, as the basis for finding
$60,000 in imputable monthly income. But that spending is not necessarily
inconsistent with Husband’s January 2020 I&E stating he had a monthly
income of $45,000. And although the court also cited Husband’s discretionary
spending and the personal expenses he paid through Sojourn, it is unclear
how the court arrived at $60,000 as an accurate reflection of Husband’s
income, inclusive of that spending and those expenses.
While the record contains ample evidence that Husband was
understating his income, the imputed income amount still must have “ ‘some
tangible evidentiary foundation.’ ” (Smith, supra, 90 Cal.App.4th at p. 82.)
“It is possible, certainly, that [Husband’s] particular skills and experience
would make it likely that he could earn similar sums in the future, but that
probability must be evidenced, not merely suspected.” (In re Marriage of
Berger (2009) 170 Cal.App.4th 1070, 1079.) Moreover, evidence of lifestyle
cannot be a substitute for proper evidence of income, and Wife herself relied
on Husband’s January 2020 I&E in requesting that the court impute income
of $45,000 per month. (See Loh, supra, 93 Cal.App.4th at p. 327.)
Accordingly, we reverse the spousal support orders and remand with
instructions to redetermine the amount of Husband’s imputed income and
recalculate the amount of any spousal support in a manner consistent with
the principles discussed in this opinion.
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II
Husband also argues that the court failed to properly weigh some of the
factors set forth in section 4320 in determining spousal support. His
assertions appear to fall into two categories of argument: (1) that the trial
court “should have considered [Wife’s] voluntary marital standard of living”
post-separation in evaluating her “needs” pursuant to section 4320; and
(2) the court erred in considering the disparity in the parties’ standards of
living when making its spousal support determination.
Courts must consider the factors listed in section 4320, but so long as
the applicable factors are considered and weighed, the decision to award
spousal support will not be disturbed on appeal absent abuse of discretion
exceeding the bounds of reason. (See In re Marriage of McLain (2017)
7 Cal.App.5th 262, 271.) Section 4320, subdivision (d) requires that courts
consider the “needs of each party based on the standard of living established
during the marriage.” The marital standard of living 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.)
Here, the trial court found that the parties had an upper-class standard
of living during marriage because they “went on nice vacations, frequently
ate out, drove high end vehicles and lived very well.” The court also found
that based on Wife’s income and expenses at the time of trial, she was not
able to meet the standard of living maintained during marriage. The court’s
findings reflect that it weighed the parties’ needs based on the evidence
adduced at trial, which showed that the parties enjoyed luxuries during their
marriage that Wife, who took a job waitressing post-separation before being
laid off, could not sustain at the time of trial. The court’s decision to award
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some amount of spousal support to Wife based on its consideration of these
factors was well within the bounds of reason.
Husband argues that the court should have given more weight to the
fact that Wife could have improved her post-separation standard of living and
met her needs by using their joint account, which Husband alone funded.
But the trial court reasonably chose to rely instead on Wife’s employment
income (or lack thereof) to determine her ability to meet her needs, rather
than her short-term use of Husband’s separate property. As noted, if the
court’s consideration of section 4320, subdivision (d) was within the bounds of
reason, we will not reweigh the factors, and there is no basis for doing so
here. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 [trial
court has discretion to determine appropriate weight to accord each factor].)
Husband’s argument that the court erred in considering the disparity
in the parties’ standards of living is also meritless. Section 4320, subdivision
(k) requires the court to consider the balance of hardships to each party. The
court found that this factor weighed heavily in Wife’s favor because at the
time of trial, she was waiting to resume work as a waitress, driving an
inexpensive vehicle, and living modestly with very limited discretionary
spending. Meanwhile, Husband was living lavishly and residing in an
expensive high-rise condominium, spending thousands of dollars on dinner
shortly before trial, purchasing helicopter rides and an electric vehicle for
various women, and driving multiple luxury vehicles himself. Furthermore,
the court considered the marriage’s short duration and the goal that Wife
should eventually be self-sufficient by limiting the permanent spousal
support to 12 months’ duration. Accordingly, we affirm the trial court’s
decision to award spousal support to Wife based on its consideration of the
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section 4320 factors, although the amount of support must be adjusted as
discussed ante.
III
Husband next argues that the court erred in finding the date of
separation to be December 7, 2016. We disagree.
Section 70 defines the date of separation as the date when “a complete
and final break in the marital relationship has occurred,” as evidenced by one
spouse’s expression to the other of the intent to end the marriage, and
conduct by that spouse consistent with their stated intent. The statute
requires the court to consider “all relevant evidence” when it determines the
separation date. (Ibid.) “The date of separation is a factual issue established
by a preponderance of the evidence” and we review the trial court’s
determination for substantial evidence. (See In re Marriage of Lee & Lin
(2019) 41 Cal.App.5th 698, 702.) Under the substantial evidence standard,
we indulge all legitimate and reasonable inferences to uphold the trial court’s
decision, and the testimony of a single witness can provide substantial
evidence regardless of the amount of evidence to the contrary. (Ibid.; In re
Marriage of Mix (1975) 14 Cal.3d 604, 614.)
According to Husband, the proper date of separation was December 1,
2015, because that was when he first moved out of their Florida residence
and intended to end the marriage. The trial court disagreed, finding that
December 7, 2016, was the appropriate date of separation because up until
that point, the parties still traveled together and Husband introduced Wife as
his spouse on more than one occasion. The court noted that the parties
engaged in marital counseling after December 1, 2015, and the court gave
little credence to Husband’s explanation that the counseling was not intended
to repair the marriage. Wife testified that she believed they would reunite
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and move forward in their marriage after completing therapy and spending
some time apart. She further testified that it wasn’t until December 7, 2016
that she discovered Husband’s infidelity and decided the marriage was over.
Because this constitutes substantial evidence supporting the trial court’s
decision regarding the date of separation, we affirm the court’s finding.
IV
Husband next asserts that the trial court failed to divide the parties’
community property equally. We disagree.
“Generally, we review a ruling dividing property under the abuse of
discretion standard. [Citation.] Factual findings are upheld if supported by
substantial evidence.” (See In re Marriage of Dellaria & Blickman-Dellaria
(2009) 172 Cal.App.4th 196, 201.) Section 2640, subdivision (b) provides that
unless waived in writing, a party shall be reimbursed for their contributions
to the acquisition of the community property estate to the extent the party
traces the contributions to a separate property source. Section 2550 provides
that a court must “divide the community estate of the parties equally” unless
the parties agree otherwise.
Under those provisions, a spouse who uses separate funds to pay
community obligations, such as a mortgage on community property, is
usually entitled to reimbursement for those expenditures. (See In re
Marriage of Epstein (1979) 24 Cal.3d 76, 84.) Conversely, a spouse who has
exclusive use of community property such as a residence after the parties
have separated must reimburse the community for the use of the residence.
(In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978; In re
Marriage of Watts (1985) 171 Cal.App.3d 366, 374.) Combining those
principles, where community property is being financed, the spouse in
possession can satisfy his duty to compensate the community for use of the
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asset by making the monthly finance payments from his separate property.
(See Falcone & Fyke, at pp. 978–979.)
The parties agree that the Florida residence is community property,
and that Husband’s post-separation mortgage payments came from his
separate property. (See §§ 760, 771.) The court found Husband was entitled
to reimbursement for those mortgage payments, and it also found that Wife
was entitled to reimbursement for a portion of the fair market rental value
because Husband was letting people stay there rent-free.
Husband argues that “the record is absent any substantial evidence
regarding credits for rental income” and that the court abused its discretion
in finding that the credits were a “wash.” The court acknowledged there was
insufficient evidence to establish conclusively the amounts of the mortgage
payments and the property’s fair market rental value. But Wife testified that
she believed the fair rental value was between $2,700 and $3,000 per month,
and Husband also stated under penalty of perjury that he could likely collect
$3,000 a month in rent from the property. Husband provided no mortgage
statements, but he testified that the payments were $2,600.
We conclude the trial court did not abuse its discretion in awarding
reimbursements, and that substantial evidence supports its finding that the
parties’ reimbursements would be roughly equal, resulting in a “wash.” (See
In re Marriage of Braud (1996) 45 Cal.App.4th 797, 819 (Braud) [“the
decision to grant an offset for net fair rental value is a matter within the
equitable discretion of the trial court, to be decided on a case-by-case basis,
and will not be required in any particular amount if and when the trial court
determines it would be equitable to order such an offset”].) While Husband
was entitled to reimbursement from the community for his post-separation
mortgage contributions, the community was entitled to the property’s
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reasonable rental value it was deprived of by Husband allowing others to use
the property rent-free. (See In re Marriage of Mohler (2020) 47 Cal.App.5th
788, 796 (Mohler) [“the community may be compensated for its loss of rental
income due to [Husband’s] occupation” of the marital property post-
separation].)
Testimony from both parties showed that the property’s rental value
and Husband’s mortgage payments were roughly equal. In fact, the court
could have required Husband to reimburse the community for the difference
between the rental value of the property and his mortgage payments, since
there was evidence in the record that the former exceeded the latter. (See
Mohler, supra, 47 Cal.App.5th at p. 795 [the community is entitled to its
share of “the amount by which the rental value exceeded the expenses to
maintain and operate the property”].) We conclude that the trial court acted
well within its discretion in dividing the community property here. (See In re
Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1174 [“The family law
court is a court of equity and fairness.”]; cf. Braud, supra, 45 Cal.App.4th at
p. 819 [“The trial court was free to deny [Husband’s] request for an offset
altogether, at least as to his community property interest.”].)
V
Finally, Husband argues that his due process rights were violated
because he was given “little opportunity . . . to present his case.” He
specifically takes issue with the fact that the court engaged in active
questioning of the witnesses, denied Husband’s request to admit exhibits
after he rested his case, and allowed Wife’s attorney to recall him as a
rebuttal witness. We conclude that Husband’s arguments are meritless.
Evidence Code section 775 provides in relevant part that on its own
motion, the court “may call witnesses and interrogate them the same as if
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they had been produced by a party to the action, and the parties may object
to the questions asked and the evidence adduced the same as if such
witnesses were called and examined by an adverse party.” It is well-accepted
that “ ‘ “if a judge desires to be further informed on certain points mentioned
in the testimony it is entirely proper for him to ask proper questions for the
purpose of developing all the facts in regard to them. Considerable latitude is
allowed the judge in this respect as long as a fair trial is indicated [to both
parties]. Courts are established to discover where lies the truth when issues
are contested, and the final responsibility to see that justice is done rests
with the judge.” ’ ” (In re Emily D. (2015) 234 Cal.App.4th 438, 446-447
(Emily D.).)
Nothing in the record here is inconsistent with the proper role of a trial
court in contested proceedings. The trial was conducted over the course of
three days and both parties were given the opportunity to call witnesses,
cross-examine them, and present evidence where a proper foundation was
laid. Husband points to no evidence that the court had prejudged the facts,
exhibited bias, or was otherwise unfair in its questioning. (See Emily D.,
supra, 234 Cal.App.4th at p. 447.)
As for admitting evidence, pro per litigants are not given preferential
treatment. (Barton v. New United Motor Manufacturing, Inc. (1996)
43 Cal.App.4th 1200, 1210 [self-represented litigant “is to be treated like any
other party and is entitled to the same, but no greater consideration than
other litigants and attorneys”].) Husband attempted to introduce additional
exhibits after he rested his case, but he did so without first laying a proper
foundation for their admission through testimony, so the trial court properly
excluded them. Furthermore, Husband acknowledges that he was able to
admit evidence during his cross-examination of Wife. After he finished his
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cross, the trial court judge explicitly asked, “Anything further, Mr. Symon?”
Husband responded, “That is it, Your Honor.” The judge then asked, “Do you
rest?” And Husband responded, “I rest.” After Wife’s attorney called
Husband as a rebuttal witness and he concluded his testimony, the court
asked Husband again, “Mr. Symon, do you have any additional witnesses?”
and he responded, “No, Your Honor.” Husband thus had ample opportunity
to present his case within the bounds of the rules of evidence and civil
procedure.
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Lastly, Husband made no objection when Wife called him to testify as a
rebuttal witness, so he forfeited any argument that the trial court erred by
permitting his rebuttal testimony. (In re S.B. (2004) 32 Cal.4th 1287, 1293
[“a reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court. [Citation.]
The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected”].) Accordingly, we
conclude that the court did not overstep its role in adjudicating the parties’
disputes here.
DISPOSITION
The spousal support orders are reversed and remanded with
instructions to redetermine the amount of Husband’s imputed income and
recalculate the amount of any spousal support consistent with the principles
discussed in this opinion. On remand, the trial court may consider the
original trial record and any additional evidence presented by the parties,
including evidence of any changed circumstances. In all other respects, the
judgment is affirmed. The parties shall bear their own costs on appeal.
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
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AARON, J.
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