Marriage of Regalbuto CA2/3 ( 2022 )

Filed 9/16/22 Marriage of Regalbuto CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Marriage of SUSAN KAY B310897
REGALBUTO and MICHAEL (Los Angeles County
REGALBUTO. Super. Ct. No.
19STFL14890)
SUSAN KAY REGALBUTO,
Respondent,
v.
MICHAEL REGALBUTO,
Appellant.
In re Marriage of LOTTE VAN B310917
DER VEER and MICHAEL (Los Angeles County
REGALBUTO. Super. Ct. No. SD031662)
LOTTE VAN DER VEER,
Respondent,
v.
MICHAEL REGALBUTO,
Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Mark A. Juhas, Judge. Affirmed.
DLA Piper, Justin R. Sarno for Respondent Susan Kay
Regalbuto.
Law Office of Herb Fox, Herb Fox and Law Office of Katy
Graham, Katy Graham for Respondent Lotte Van Der Veer.
Linda T. Barney and The Law Office of Aaron Leetch,
Aaron Leetch for Appellant.
——————————
Appellant Michael Regalbuto challenges orders requiring
him to pay the attorney fees of respondent Lotte Van Der Veer
under Family Code sections 271 and 6344,1 and the attorney fees
of respondent Susan Kay Regalbuto under sections 2030 and
6344. Lotte and Susan are Michael’s former spouses. They
separately filed requests for attorney fees following a
consolidated trial of their domestic violence restraining orders
against Michael, both of which were granted.2 Michael contends
the trial court abused its discretion in finding he had the ability
to pay the $400,000 award to Lotte, due in annual installments of
$80,000, and the $60,000 award to Susan, due in installments of
$5,000 per quarter and a total of $20,000 per year. In particular,
Michael claims it was improper for the trial court to consider
financial contributions from Michael’s parents in determining his
ability to pay. Michael also asserts that the fee award to Lotte
1
All further undesignated section references are to the
Family Code.
2
Although Lotte and Michael do not share a last name,
Susan and Michael do. We refer to all parties by their first
names in the interest of clarity and intend no disrespect.
2
eliminates his ability to pay the fee award to Susan. We conclude
the trial court did not abuse its discretion in considering the
sums Michael received from his parents or in finding that
Michael has the ability to pay both fee awards. We therefore
affirm the trial court’s orders.
BACKGROUND
A. Parties
Lotte and Michael married in 2011 and divorced in 2013.
They have one daughter, J., who was born in 2012. Michael and
Susan married in 2016 and they have one son, M., born in 2017.
Michael and Susan separated in 2019 and Susan filed for divorce
in December of that year.
B. Domestic violence restraining order trial
In November 2019, Lotte and Susan filed separate requests
for domestic violence restraining orders (DVRO’s) against
Michael. Lotte sought protection for herself as well as J., her
current husband, and their daughter. Susan sought protection
for herself and M. Michael subsequently filed a request for a
DVRO against Susan, seeking protection for himself, M., and J.
The trial court ordered Lotte’s DVRO petition consolidated
with her divorce case and ordered the DVRO petition related to
petitions filed by Susan and Michael. The court tried the three
DVRO petitions together. Following an 11-day trial, the trial
court denied Michael’s request for a DVRO against Susan, noting
that “there’s no question in my mind that [Michael] would be the
primary aggressor,” and granted the restraining orders requested
by Lotte and Susan. The court remarked that “the way a case is
tried can be domestic violence,” and indicated Michael’s theory
that the mothers were “conspiring together” against him rose to
the level of abuse. The court further characterized the way the
3
case was tried as “a control mechanism from dad’s side to try to
control these two moms . . . because he desperately wants to run
the show.”
C. Lotte’s request for attorney fees
In August 2020, Lotte filed a request for attorney fees and
costs pursuant to sections 271 and 6344. She asked the court to
award all of her fees and costs, totaling $462,520.35, citing
Michael’s “manifest wrongdoing.”
Lotte argued Michael had the ability to pay these fees
based on Susan’s testimony at the DVRO trial that Michael
withdraws approximately $8,000 per month from the trust
account of his father, Joseph Regalbuto, as well as Joseph’s trial
testimony that he paid Michael’s attorney fees.3 Joseph had
testified that he did not recall how much he had paid towards
Michael’s fees in the matter, but it had been “a lot.” The trial
court later observed it was “really quite apparent” that Joseph
was paying his son’s attorney fees and that it was surprising that
Joseph referred to Michael’s attorney as “our attorney.”
Michael asserted in response that Joseph had lent him a
total of $138,141 over the past eight years (an average of
$17,267.63 per year) but had since denied Michael further
informal loans. However, Joseph continued to pay an average of
$2,000 a month towards Michael’s living expenses. Additionally,
Michael’s mother, Rosemary Regalbuto, had provided Michael
with $98,752 in “formal loans” backed by promissory notes
between August and October of 2020. Michael’s other forms of
3
Susan testified at trial that Michael had access to his
parents’ trust account in the form of a credit card and checkbook.
Further, they had used that account to pay for “everything,”
including “gym memberships, travel, food, eating out.”
4
income up to that point in the year included $12,500 earned
through his production company prior to the pandemic, $450 in
weekly unemployment compensation, and a one-time stimulus
payment of $2,900.
Michael declared that his personal expenses were $2,900
per month, his cash flow was $3,950, and that, beginning in
November 2020, he would owe his mother $1,957.11 per month
on the promissory notes. His cash flow would therefore be
$907.11 short of covering his expenses and loan obligations. 4 He
also disclosed that he has child and spousal support obligations
totaling $4,280 to Susan.
In her reply, Lotte contended that Michael was not
straightforward with the trial court regarding his income and
assets. During his divorce proceedings with Lotte in 2013,
Michael had claimed he had no interest in any real property.
However, Lotte filed grant and quitclaim deeds with the court
indicating Michael in fact held a 50 percent interest in the Santa
Monica condominium where he was residing at the time. In
2014, he transferred the 50 percent interest to his parents for no
consideration.5
In the reply and at the hearing on November 2, 2020,
Lotte’s counsel also asserted that Michael’s girlfriend had posted
4
Michael’s declaration erroneously states that his cash flow
is “$907.11 in excess of my $1,957.11 in debt obligations.” (Italics
added.)
5
The interest in the condominium was originally
transferred to Michael in 2007 from the Regalbuto Living Trust,
for which Joseph and Rosemary were identified as trustees. The
2014 quitclaim deed indicated the transfer was a “bonafide gift”
and the “grantor received nothing in return.”
5
on her blog about trips that she and Michael had taken together.
Michael testified that he and his girlfriend had gone on vacation
together and that he had paid $1,000 towards the trip.6
The trial court issued its order on November 9, 2020. It
found that Michael has substantial loans from his mother that
are documented by promissory notes, but observed that the notes
all bear zero or 2 percent interest and Michael had not provided
“a declaration from either his father or his mother concerning
these ‘loans.’ ” The court also found that Michael was able to
“fully fund his litigation through his parents” and that Susan
“testified that during their marriage the respondent had access to
a trust from his father and he was able to remove approximately
$8,000 per month,” though it acknowledged that Joseph denied
this. The court further emphasized that Michael had, until
recently, been living rent-free in his parents’ Santa Monica
condominium.7 At trial, the court had found the fair market
rental value of the condominium to be $5,000 per month.
The court noted “the respondent’s financial picture is
somewhat muddied,” referring to Susan’s testimony that in 2019,
Pesto Productions, a company owned by Joseph, paid her
$32,000, even though she had possibly done only one makeup job
6
The trial court sustained the objections of Michael’s
counsel to the admission of the blog entries and considered only
“those things that [Michael] agreed occurred.” The blog posts are
not in the record on appeal, but we likewise disregard any
representations made concerning their contents and consider only
Michael’s testimony.
7
At the time of the hearing, Michael had obtained
employment working on a film being produced out of state. He
was “staying [in Philadelphia] through the production.”
6
for the company. Susan testified the payment “was a way to pay
Michael and avoid being in a higher tax bracket” and “so that
Lotte would never know how much money that he was really
making to adjust support.” The trial court also cited evidence
that Michael had transferred his ownership interest in the
condominium to his parents during his divorce with Lotte, which
was “not explained.”
The trial court stated that “[n]either party in this case can
afford the fees that have been generated,” and the “fee award will
no doubt work a financial hardship on the respondent,” but found
the award would “not impose an unreasonable financial burden
on the respondent and it financially impacts the appropriate
party.” The court concluded, however, that Lotte “brought the
DVRO request and as a result would have had some amount of
fees in prosecuting the case” and therefore “does bear some
responsibility for her fees.”
The trial court ordered Michael to pay Lotte $400,000 for
her attorney fees, payable in annual installments of $80,000 per
year, beginning December 31, 2020. If Michael missed a
payment, the remaining balance “shall come due and payable
forthwith.”
Michael did not make the $80,000 payment due on
December 31, 2020. Lotte brought a contempt proceeding against
Michael in connection with his failure to pay. The court
dismissed the charge on the grounds that Lotte failed to prove
Michael’s knowledge of the due date for the payment beyond a
reasonable doubt since the clerk sent the order to the incorrect
email address for Michael’s counsel. Michael also did not make
the $80,000 payment due on December 31, 2021, though he and
7
his counsel acknowledged the trial court’s fee order was a valid
order.8
8
We grant Lotte’s Request for Judicial Notice No. 1 with
respect to exhibits E, F, and G, which reflect court records
relating to her contempt proceeding against Michael in the trial
court for failure to make the December 31, 2020 payment. (Evid.
Code, § 452, subd. (d).) We deny her request with respect to
exhibits A–D of her Request for Judicial Notice No. 1, which
reflect emails from her bank reflecting deposits made by Michael.
Even assuming that these records “are not reasonably subject to
dispute and are capable of immediate and accurate determination
by resort to sources of reasonably indisputable accuracy” (Evid.
Code, § 452, subd. (h)), we can take judicial notice only of their
existence and content, not the truth of any matters stated
therein. Because these emails are relevant only for the truth of
Lotte’s assertion that Michael failed to make the court-ordered
fee payment, judicial notice is inappropriate. (See Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882.) We also deny Lotte’s Request for Judicial
Notice No. 2, which requests that the court take judicial notice of
the dockets in two criminal cases in which Michael was convicted
of acts of violence. “[T]he appropriateness of a judicial notice
request depends on a showing of substantive relevance, as well as
procedural admissibility.” (Aquila, Inc. v. Superior Court (2007)
148 Cal.App.4th 556, 575.) The only issues before us on appeal
are (1) whether the appeal should be stayed or dismissed under
the disentitlement doctrine because Michael failed to make
payments ordered by the trial court and (2) whether there is
substantial evidence to support the trial court finding that
Michael is able to pay the fees awarded to Lotte and Susan.
Michael’s prior convictions are not relevant to these questions.
We grant Michael’s request for judicial notice of court records
from the Regalbuto matter. (Evid. Code, § 452, subd. (d).)
8
D. Susan’s request for attorney fees
In October 2020, Susan filed a request for attorney fees and
costs in the amount of $130,000. Susan asserted that fees were
appropriate under section 6344 and sections 2030 and 2032. In
accompanying declarations, Susan asserted that Michael has
access to his parents’ “$3,300,000+ trust account,” from which he
withdrew an average of $8,000 per month, whereas she had
received her last unemployment check several months prior and
intended to file for food stamps and welfare. Susan also stated
that Michael had failed to make child support and spousal
support payments. Additionally, Susan attached an income and
expense declaration from Michael that reported an average
monthly income of $2,052 from his production company, whereas
her income declaration reported an average monthly income of
$416.66 as a freelance makeup artist, though she was
unemployed as a result of the pandemic. Susan represented that
she intended to begin a job as a homecare worker once she
relocated to Oklahoma but did not disclose her anticipated
income.
In response, Michael argued Susan had failed to meet her
affirmative burden of demonstrating that she cannot afford her
own fees, citing the approximately $30,000 in loans she had
obtained from her mother, Michael’s monthly child and spousal
support payments to her totaling $4,280, and her claim that she
would soon be employed as a homecare worker. Alternatively,
Michael argued that, even if Susan could not afford her fees, he
also lacked the ability to pay. Michael challenged Susan’s
testimony that he withdrew $8,000 a month from the family
trust, but conceded that his father pays $2,000 towards his
expenses each month. Michael further argued that the $400,000
9
fee award in Lotte’s case eliminated his ability to make any
contribution to Susan’s fees.
Michael stated in a declaration that his sole sources of
income that year were $12,500 earned through his production
company prior to the pandemic, $450 in weekly unemployment
compensation, and a one-time stimulus payment of $2,900. He
represented that Joseph had refused to provide any more loans,
but Rosemary had extended a total of $120,397 in loans backed
by promissory notes. Michael stated his monthly expenses were
now $2,385 per month, and that with a cash flow of $3,950, he
was $392.11 short of meeting the $1,957.11 per month loan
payment he owed to Rosemary, which would increase to
$2,524.85 per month beginning in January 2021. Michael also
submitted an updated income and expense declaration in which
he stated that he made only an average of $1,130 per month
through his production company. He also disclosed that he
makes $500 child support payments to Lotte monthly.
Joseph and Rosemary also submitted declarations
concerning the money they had provided to Michael. Joseph
declared that, of the $138,141 he had loaned to Michael over
roughly the past eight years, $50,000 was for the payment of
attorney fees ($14,500 in 2019 and $35,500 in 2020). He also
stated he had informed Michael in July 2020 that, “despite what
[Michael] claimed his needs were, [Joseph] would not be willing
or able to loan him any further sums of money,” and he had not
loaned Michael any money since that time. However, he was
continuing to pay “an average of about $2,000” each month
towards Michael’s expenses and he did not expect to be repaid for
these contributions. Although Joseph represented that he
expected to be paid back for the loans totaling $138,141 “at some
10
point in the future,” he acknowledged that Michael had yet to
repay any part of the loans and Joseph had “created no formal
terms for him to do so as of this point.”
Rosemary stated in her declaration that, “[s]ince July 1,
2020, [she had] provided formal loans, evidenced by written
promissory notes,” and identified the purpose for which each of
the nine loans was made and the history of payments made on
each note. Five of the notes, totaling approximately $82,000,
were for the purpose of paying attorney fees, while the remaining
loans were made for the purposes of covering Michael’s support
payments and back-owed rent. Rosemary claimed she would
allow Michael to be 30 days late on a payment before taking
adverse action, but “[o]ther than this exception,” she would
require Michael to make the monthly payments stated in the
notes until they were repaid in full.
In reply, Susan argued that Michael had failed “to disclose
an honest accounting of his income and assets,” citing his
transfer of his 50 percent interest in the Santa Monica
condominium to his parents for no consideration, as well as the
payment of money from Joseph’s production company to Susan.9
Susan also noted that Michael, while claiming an inability to pay,
had taken a vacation with his new girlfriend.10
9
Susan attached the deed to the Santa Monica apartment
to her declaration, but the court sustained Michael’s objections
based on lack of foundation and hearsay.
10
As in Lotte’s case, the trial court refused to admit
Michael’s girlfriend’s blog entries in support of these assertions,
sustaining Michael’s objection on hearsay grounds.
11
On December 14, 2020, the trial court issued its tentative
ruling, in which it noted that “[m]any of the issues in the
Regalbuto matter are identical to the issues in the Van der Veer
matter.” The court explained that Susan sought fees under
sections 6344 and 2030, both of which “rely at least in part, on
the ability of [Michael] to pay and on [Susan’s] need for fees.”
The court found that Susan’s counsel had failed to put forward
the qualifications of each individual that billed in the case and
therefore it could award a maximum of approximately $77,000 in
fees and costs.
The court rejected Michael’s contentions that he “cannot
pay any more fees, especially in light of the fact that he owes a
significant sum to [Lotte]” and that a fee award in this matter
would be “punitive.” Rather, the court found that Michael was
able to fully fund the litigation through his parents while Susan
was unable to do the same. The court cited Susan’s testimony
that Michael was able to withdraw $8,000 from his father’s trust
(though it once again recognized that Joseph had denied it), and
observed that Michael “was, until very recently (and may still
be), living rent free in his parent[s’] Santa Monica condo.” The
trial court found that Michael’s “financial picture remains
somewhat muddied,” citing Susan’s testimony that she was paid
a salary during her marriage to Michael “to avoid tax
consequences and to hide income from [Lotte].” It also found
that, “[w]hile it is a relatively minor sum, [Michael] apparently
recently went to Mexico with his current girlfriend . . . while he
has not paid his child support to [Susan],” and that Michael
therefore “appears to have managed to maintain a lifestyle, while
[Susan’s] life has been upended.”
12
The trial court observed that Michael had sought a DVRO
despite there being “absolutely no evidence that would have
supported [his] filing,” and concluded that Michael “simply
cannot drive [Susan] to financial ruin through his actions and
trial strategy and then not pay for some or all of the fees.” The
court found that, “[a]s was true in Van der Veer, neither party
can afford the fees that have been generated,” and that the “fee
award will no doubt work a financial hardship on [Michael],” but
the “award will not impose an unreasonable financial burden on
[Michael] and it financially impacts the appropriate party,”
particularly as Susan “is virtually the sole financial and physical
support for [M].” However, the court recognized that Susan
brought the DVRO request and thus “does bear some
responsibility for her fees,” though she was “entitled to fees for
defending against [Michael’s] failed DVRO.” It ordered that
Michael pay Susan $60,000 in fees and costs at the rate of
$20,000 per year, beginning with $5,000 on March 31, 2021, and
with $5,000 due quarterly thereafter. If Michael failed to make a
payment, the remaining balance would “come due and payable
forthwith.”
At the hearing on Susan’s fee request, Michael requested a
statement of decision. On December 28, 2020, Michael filed his
“Objections to the Court[’]s Ruling of December 14, 2020
(Believed to Be Intended To Be the Court’s Tentative Statement
of Decision” and “Requests as to the Principal Controverted
Issues to Be Addressed by the Final Statement of Decision” under
Code of Civil Procedure sections 632 and 634. Michael objected to
the ruling on the grounds of omitted findings, including:
(1) “specific income, assets, and other financial resources” the
court found available to pay Susan’s fees as well as those
13
awarded to Lotte; (2) the financial terms on which Michael “can
borrow further sums from his parents in order to pay the court-
ordered attorney’s fees”; (3) whether the court found that “either
of [Michael’s] parents have an obligation to provide [Michael]
money to pay the Court-ordered fees to [Susan] when [Michael’s]
own income, assets, and other financial resources at his disposal
are insufficient to satisfy the Court-ordered payments”; and (4)
“the evidentiary basis for the Court’s finding that [Susan] does
not have the same ability to borrow from her mother that
[Michael] has to borrow from his parents.” Michael’s “Requests
as to the Principal Controverted Issues” likewise identified these
as the “four principal issues that are material to the Court’s
decision in its Ruling” and requested that it make findings with
respect to these issues. Michael also challenged the court’s
finding that Susan’s mother “does not have the same financial
ability as [Michael’s] parents” as unsupported. He requested
clarification of the “inherent conflict” between the court’s findings
that neither party could afford the fees that had been generated
and that the award would not impose an unreasonable burden on
Michael.
The court thereafter confirmed that the December 14, 2020
ruling was its “tentative ruling,” though it had originally
intended it as the final order. The court provided the parties an
additional opportunity to respond to the order before it would
consider the matter submitted.
In February 2021, the trial court adopted its tentative as
the final ruling and statement of decision with some
modifications. The court stated it was not obligated to identify
assets for the payment of fees, though it noted that Michael “has
been able to fund lengthy litigation, including an unnecessarily
14
long DVRO trial, with two attorneys, through borrowing from his
parents,” and that “the evidence before the court is that he
receives money from a trust.” The court found “[i]t is clear that
[Michael’s] parents have provided significant ongoing funding for
the litigation,” but declined to make any “ ‘findings’ as to the
terms of further loans as the court is unable to do so” and stated
it was “not aware of any legal obligation [Michael’s] parents have
to continue to pay their son’s attorney fees.” The court also
stated that there was no evidence that Susan’s mother “has the
financial ability to loan the significant attorney fee sums that
[Michael’s] litigation occasioned.” It concluded “[t]he attorney
fees in this matter are unreasonably high” and Michael’s “actions
toward his children and now former spouses caused this
expenditure.”
Michael timely appealed both orders. On our own motion,
we consolidated the appeals for purposes of oral argument and
decision.
DISCUSSION
I. Disentitlement doctrine
Both Lotte and Susan argue that Michael’s appeals should
be dismissed or stayed under the disentitlement doctrine for his
failure to make payments ordered by the trial court. We decline
to exercise our discretion to dismiss or stay the appeals on this
ground.
The disentitlement doctrine enables an appellate court to
stay or dismiss the appeal of a party who has refused to obey the
superior court’s legal orders. (Say & Say v. Castellano (1994) 22
Cal.App.4th 88, 94.) “Dismissal is not ‘ “a penalty imposed as a
punishment for criminal contempt. It is an exercise of a state
court’s inherent power to use its processes to induce compliance” ’
15
with a presumptively valid order.” (Ibid., quoting Stone v. Bach
(1978) 80 Cal.App.3d 442, 446.) Thus, the disentitlement
doctrine prevents a party from seeking assistance from the court
while that party is in “an attitude of contempt to legal orders and
processes of the courts of this state.” (MacPherson v. MacPherson
(1939) 13 Cal.2d 271, 277.) “The disentitlement doctrine ‘is
particularly likely to be invoked where the appeal arises out of
the very order (or orders) the party has disobeyed.’ ” (Ironridge
Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th
259, 265.)
Although an appellate dismissal under the disentitlement
doctrine typically comes on the heels of the trial court’s issuance
of a contempt order, a formal adjudication of contempt is not a
prerequisite. Rather, “[t]he principle permitting [an appellate]
court to . . . dismiss an appeal . . . ‘is based upon fundamental
equity and is not to be frustrated by technicalities,’ such as the
absence of a formal citation and judgment of contempt.” (Alioto
Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1683; accord,
Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1391
[appellant violated two postjudgment orders and appeal was
dismissed]; Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757–
758 [“No formal judgment of contempt is required under the
doctrine of disentitlement . . . . An appellate court may dismiss
an appeal where the appellant has willfully disobeyed the lower
court’s orders or engaged in obstructive tactics.”].)
Lotte invokes the doctrine in connection with the fee order
that is the subject of Michael’s appeal in her case. She argues the
appeal should be dismissed or stayed until Michael makes the
$80,000 payment that was due December 31, 2020. Lotte’s
contempt claim against Michael for his failure to make a
16
payment on December 31, 2020 was dismissed. She did not bring
contempt proceedings against him in connection with his
purported failure to make the payment due on December 31,
2021. Susan argues that Michael’s appeal should be dismissed
because he has failed to make child support payments, a separate
order from the one Michael appeals in her case. Although the
trial court’s order stated that Michael had failed to make
payments in its order awarding fees to Susan, the record before
us does not indicate whether Susan brought a contempt
proceeding concerning Michael’s failure to pay child support.
However, the absence of a formal contempt finding in both cases
does not end our analysis.
“Courts do not lightly apply the disentitlement doctrine. A
party’s obstruction of, or failure to comply with, trial court orders
must be willful.” (Findleton v. Coyote Valley Band of Pomo
Indians (2021) 69 Cal.App.5th 736, 756, accord, Tobin v. Casaus
(1954) 128 Cal.App.2d 588, 592 [“The right to an appeal must not
be lightly forfeited, and where a doubt exists as to a litigant’s
conduct being contumacious or willful, an appellate court will
tolerate temporarily the acts which were disruptive of the judicial
process.”].) We may have cause to doubt that Michael was
unaware of his obligation to make a fee award payment at the
time of the contempt proceeding, and Michael concedes that he
did not make the full payment owed. We also recognize that “the
merits [of the appeal] are irrelevant to the application of the
disentitlement doctrine.” (Ironridge Global IV, Ltd. v.
ScripsAmerica, Inc., supra, 238 Cal.App.4th at p. 266, citing
Stone v. Bach, supra, 80 Cal.App.3d at p. 448.) However, we can
neither overlook that the crux of these appeals is Michael’s
claimed inability to pay the fee awards, nor conclude without
17
doubt that Michael’s failure to make the fee payments owed to
Lotte was willful.
With respect to the child support payments owed to Susan,
Michael raises a factual dispute as to whether he was in violation
of the child support order at the time he went on vacation with
his girlfriend, as the trial court suggested in its order. He further
argues there is no evidence in the record that he was delinquent
in his payments after that point in time. On this ambiguous
record, we decline to take the drastic step of depriving Michael of
the right to an appeal.
Further, the cases on which Lotte and Susan rely that
dismissed an appeal under the disentitlement doctrine did not
rely entirely upon nonpayment of a money judgment or order to
pay money. These include, for example, United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, in which the
appellant had been found in contempt of court for failing to pay
sanctions and was also the subject of a bench warrant for his
arrest due to his failure to report to jail (id. at pp. 166–167), and
Stone v. Bach, supra, 80 Cal.App.3d 442, in which the appellant,
after the dissolution of a partnership, failed to deposit
partnership monies into a bank account or to directly pay one-
half to his former partner and was twice found to be in contempt
of court, including for refusing to be sworn for examination as a
judgment debtor. (Stone, at pp. 443–444.) While we do not
condone Michael’s failure to fulfill court-ordered obligations, his
conduct in these cases has not yet been so extreme.
We conclude this is not “ ‘one of the rare cases where
applying this doctrine is appropriate due to [the appellant’s]
flagrant[, repeated and continuous] violation of the [superior]
court’s orders’ ” (Findleton, v. Coyote Valley Band of Pomo
18
Indians, supra, 69 Cal.App.5th at p. 740, second and third
alterations in original), and therefore proceed to the merits of the
appeals.
II. Award of fees to Lotte under section 271
Michael contends the trial court abused its discretion in
awarding Lotte $400,000 for her attorney fees under section 271
because it improperly “imput[ed] income to Michael on the
assumption that Michael’s parents will provide him additional
financial assistance to pay Lotte’s attorney’s fees.” We conclude
that the court’s reliance on past financial contributions from
Joseph and Rosemary was not inappropriate and that substantial
evidence supports the court’s award of fees. We therefore find no
abuse of discretion.
A. Legal standard
Section 271, subdivision (a), provides that “the court may
base an award of attorney’s fees and costs on the extent to which
the conduct of each party or attorney furthers or frustrates the
policy of the law to promote settlement of litigation and, where
possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys.” Section 271 “is
aimed at conduct that frustrates settlement of family law
litigation. Expressed another way, section 271 vests family law
courts with an additional means with which to enforce this state’s
public policy of promoting settlement of family law litigation,
while reducing its costs through mutual cooperation of clients
and their counsel.” (In re Marriage of Tharp (2010) 188
Cal.App.4th 1295, 1318.)
A party moving for relief under section 271 need not “show
harm as a prerequisite to an award of sanctions.” (In re Marriage
of Feldman (2007) 153 Cal.App.4th 1470, 1480.) However, an
19
award of sanctions under section 271 must be “tethered to
attorney fees and costs.” (Menezes v. McDaniel (2019) 44
Cal.App.5th 340, 351.) Although the statute plainly requires that
the award be based upon attorney fees and costs related to a
party’s conduct that frustrates the policy of promotion of
settlement, “the party seeking sanctions pursuant to section 271
need not establish with great precision an amount directly caused
by the improper conduct. [Citation.] In part, this flexibility
exists because the misconduct may increase attorney fees in ways
that are indirect and difficult to prove.” (Sagonowsky v. Kekoa
(2016) 6 Cal.App.5th 1142, 1155–1156.)
Michael does not challenge the trial court’s determination
that his conduct at the DVRO trial was sanctionable under
section 271. Rather, Michael argues that he is unable to pay the
$400,000 sanction imposed.
Any order that requires a party to pay attorney fees under
the Family Code requires the court to “first determine that the
party has or is reasonably likely to have the ability to pay.”
(§ 270.) Section 271 requires the court to “take into consideration
all evidence concerning the parties’ incomes, assets, and
liabilities,” and prohibits the court from making an award “that
imposes an unreasonable financial burden on the party against
whom the sanction is imposed.” (§ 271, subd. (a).) In
determining ability to pay, a past or present cash deficit is not
controlling. (Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289,
297–298.) It is the appellant’s burden to show that the sanctions
created an unreasonable burden.
“Sanction orders under section 271 are . . . reviewed under
the abuse of discretion standard. [Citation.] Applying the abuse
of discretion standard, we consider de novo any questions of law
20
raised on appeal, but will uphold any findings of fact supported
by substantial evidence.” (In re Marriage of Smith (2015) 242
Cal.App.4th 529, 532 (Smith).) “Discretion is abused when its
exercise is arbitrary, whimsical, or capricious.” (In re Marriage of
Battenburg (1994) 28 Cal.App.4th 1338, 1343.) A trial court’s
order awarding sanctions pursuant to section 271 “ ‘ “will be
overturned only if, considering all the evidence viewed most
favorably in support of its order, no judge could reasonably make
the order.” ’ ” (In re Marriage of Burgard (1999) 72 Cal.App.4th
74, 82.)
B. The trial court did not err in considering funds
from Michael’s parents
Michael contends the trial court abused its discretion in
relying in part on past loans from his parents in determining his
ability to pay under section 270 because they have no obligation
to pay Lotte’s fees. We conclude the purported loans were
relevant “evidence concerning the parties’ incomes, assets, and
liabilities.” (§ 271, subd. (a).) The trial court did not err by
considering the payments from Michael’s parents in determining
whether he has an ability to pay.
Smith, supra, 242 Cal.App.4th 529, is instructive. Smith
addressed whether a court could consider funds paid on a
spouse’s behalf in determining the relative circumstances of the
parties when awarding attorney fees under section 2030. In
Smith, the trial court ordered the wife to pay the attorney fees of
the husband and the husband’s current wife, in an amount
exceeding $270,000, minus an unspecified offset to the husband.
(Id. at p. 531.) The wife’s father had paid all of her attorney fees
in the dissolution and child custody proceedings, which totaled
“ ‘close to $400,000.’ ” The father testified that he intended to
21
continue financing his daughter’s litigation. (Id. at p. 534.) The
trial court considered the funds the father paid to the wife’s
attorneys in deciding to award attorney fees and costs to the
husband and his current wife. (Id. at pp. 531–532.) The Court of
Appeal affirmed the order, concluding the trial court did not
abuse its discretion in considering the father’s “regular,
substantial infusions of cash as part of its determination of the
relative circumstances of the respective parties and their ability
to maintain or defend the proceedings,” even though the
payments “were characterized as ‘loans’ to [the wife] and
memorialized in promissory notes.” (Id. at p. 534.)
In response to the wife’s argument that she did not have
access to her father’s wealth for the purpose of paying anyone
else’s attorney fees, the court reasoned that “[t]his circumstance .
. . does not distinguish the funds [the wife] received from her
father from any other source of income: ‘ “Few, if any, sources of
income are certain to continue unchanged year in and year
out. . . .” . . . [¶] . . . It is irrelevant that there is no legal
obligation on the part of the donor to continue making the gifts
. . . .’ [Citation.]” (Smith, 242 Cal.App.4th at p. 535.) The court
therefore concluded that “[t]he trial court acted within its
discretion by rejecting [the wife’s] plea of poverty for purposes of
apportioning the overall cost of the litigation equitably between
the parties.” (Id. at p. 535.; see also Kevin Q. v. Lauren W. (2011)
195 Cal.App.4th 633, 647 [trial court did not abuse its discretion
in considering a party’s receipt of regular, recurrent monetary
gifts from her father in determining her need for attorney fees].)
This case similarly involves regular and substantial
infusions of cash from Michael’s parents. Joseph has provided
“informal loans” averaging $17,267.63 per year for eight years,
22
though the actual amount paid in any given year was not
disclosed in the record. Additionally, after Joseph purportedly
denied Michael any further loans around July 2020, he obtained
loans exceeding $98,000 from his mother, Rosemary, over a three-
month period in 2020. Though the Van der Veer record does not
include an explanation of what portion of these payments went
towards Michael’s fees, substantial evidence supports the
conclusion that Michael’s parents have contributed significant
sums for that purpose, including Joseph’s trial testimony and
promissory notes specifically titled “attorney fees.”
We recognize that the wife’s father in Smith, supra, 242
Cal.App.4th 529, 534, testified that he expected that “the ‘loans’
would be repaid, if at all, as an offset against [the wife’s]
inheritance,” and that there is no equivalent testimony from
Michael’s parents in this case. However, the trial court appeared
to discredit the evidence that the substantial amounts Michael
received from his parents were not gifts, referring to them as
“ ‘loans,’ ” and noting there were no declarations from Michael’s
parents concerning the loans. Michael concedes that the trial
judge’s use of quotations “impl[ied] that he was skeptical that
these were legitimate loans.” This skepticism is not unfounded.
Indeed, “[c]ourts are appropriately skeptical of transfers by the
parents of one of the parties in a divorce case. ‘There is an
incentive for both sides of the transfer, the parents making it and
the litigant receiving it, to conform their testimony to the
disadvantage of the other litigant. Transfers where the parents
would never have sought repayment, if the marriage had
remained intact, may be viewed from a different perspective
when the marriage falls apart.’ [Citation.]” (In re Marriage of
Williamson (2014) 226 Cal.App.4th 1303, 1313.) Though the
23
appeal before us is not from spousal and child support orders, as
in Williamson, there is a similar incentive here for Michael and
his parents to conform their testimony to the disadvantage of
Lotte and Susan. Viewing the record in the light most favorable
to the order, we presume that the trial court viewed the loans
either as gifts or as unlikely to be enforced on the terms set forth
in the promissory notes with Rosemary, similar to the loans in
Smith.
In re Marriage of Schulze (1997) 60 Cal.App.4th 519 does
not compel a different conclusion. In Schulze, the trial court
ordered a noncustodial father to pay his former wife’s attorney
fees in the amount of $7,500, “payable in full ‘forthwith.’ ” (Id. at
p. 530.) The Court of Appeal concluded the amount of the award
was appropriate given the relative circumstances of the parties,
but the provision for full and immediate payment was based on
an erroneous presumption that the father could obtain the money
from his parents because they previously “had lent him about
$8,000 to pay his own fees.” (Id. at p. 531.) In reversing the
attorney fee award, the court noted that “[c]harity, once
extended, is still not an entitlement.” (Id. at p. 532.) However,
Schulze involved a relatively small, one-time loan by the father’s
parents. In contrast, a parent’s “regular, substantial infusions of
cash” may properly be considered as part of the relative
circumstances of the parties for the purpose of determining an
attorney fee or cost award. (Smith, supra, 242 Cal.App.4th at p.
534.)
Finally, Michael also argues that Smith is distinguishable
because the court focused its analysis on whether it was
appropriate to award fees under section 2030, rather than section
271, and that the purpose of section 2030 “is distinct from the
24
purpose of [section 271].” This is true. The court in Smith stated
that “[m]uch of the reasoning above would, on its face, apply
equally to a section 271 analysis,” but recognized “that section
271 has a quite different purpose from that of section 2030, and
somewhat different language,” and therefore left “the question of
whether these differences make a difference for another day.”
(Smith, supra, 242 Cal.App.4th at p. 536.)
We find that the differences between awards under section
2030 and section 271 do not alter the analysis under the
circumstances of this case. “The purpose of section 2030 is to
ensure parity. ‘The idea is that both sides should have the
opportunity to retain counsel, not just (as is usually the case)
only the party with greater financial strength.’ ” (In re Marriage
of Cryer (2011) 198 Cal.App.4th 1039, 1056.) Section 271
“advances the policy of the law ‘to promote settlement and to
encourage cooperation which will reduce the cost of litigation.’ ”
(In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.)
The ability of a party to “ ‘litigate[ ] [the opposing party] out of
the case,’ by taking advantage of their disparate financial
circumstances” is as contrary to the purpose of encouraging
cooperation under section 271 as it is to the purpose of section
2030. (Smith, supra, 242 Cal.App.4th at p. 534.)11
11
Payment of an award under section 2030 may be ordered
“from any type of property, whether community or separate,
principal or income” (§ 2032, subd. (c)), whereas an award under
section 271 “is payable only from the property or income of the
party against whom the sanction is imposed, except that the
award may be against the sanctioned party’s share of the
community property.” (§ 271, subd. (c).) These differences have
little salience here.
25
C. Substantial evidence supported Michael’s
ability to pay
Michael also contends the record lacks sufficient evidence
to support the trial court’s determination that he had the ability
to pay. He asks us to discredit “questionable” and
“uncorroborated” evidence the trial court cited in its order. We
will not substitute our judgment for that of the trial court with
respect to the credibility of evidence and conclude substantial
evidence supported the trial court’s finding that Michael has an
ability to pay.
The loans from Joseph and Rosemary, described above,
were not the only evidence supporting the trial court’s conclusion
that Michael has an ability to pay. Michael acknowledges that
Joseph pays an average of $2,000 a month towards Michael’s
expenses, notwithstanding his refusal to extend further loans.
Michael also reported income from his production company,
unemployment payments, and a stimulus payment, totaling
approximately $17,000 as of October 2020.
The trial court also referenced the fact that Michael has
been able to live “rent free in his parent[s’] Santa Monica condo”
in the order. There was evidence that Michael has lived “on and
off, for seven, eight years” in a Santa Monica condominium owned
by his parents, for which he pays only the association fee of $540
per month, though the trial court found that its fair market
rental value was $5,000 per month. The trial court also cited
Susan’s testimony that Michael was able to withdraw
approximately $8,000 a month from his parents’ trust account to
cover the couple’s expenses. In a declaration filed below, Michael
denied that he had access to funds other than those specifically
listed, though he did not directly address Susan’s claims
26
regarding the trust. Joseph, on the other hand, affirmatively
disputed that Michael had “access to any of [his] accounts” at the
DVRO trial, as the trial court recognized in its order.12 Based on
its conclusion, however, we presume the trial court ultimately
found Susan’s testimony to be more credible. Such credibility
determinations are the exclusive province of the trial court.
(Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393
[credibility is the exclusive province of the trier of fact].)
Contrary to Michael’s suggestion, it was not an abuse of
discretion for the trial court to base its finding that Michael is
able to access these funds on Susan’s “uncorroborated” testimony.
“[T]he testimony of a single witness is sufficient to uphold a
judgment even if it is contradicted by other evidence, inconsistent
or false as to other portions.” (People v. Leigh (1985) 168
Cal.App.3d 217, 221.)
Michael also contends there was insufficient evidence to
support this finding because the trial court stated at the DVRO
trial that Susan’s testimony on the $8,000 per month trust
income was “not good solid evidence.” However, earlier in the
same sentence, the trial court stated, “I think the evidence of
$8,000 a month is probably by a preponderance I think it’s there
. . . .” Michael does not argue that a higher burden of proof than
preponderance of the evidence applied to the trial court’s
determination of ability to pay, nor do we find any support for
such a claim. (See Evid. Code, § 115 [“Except as otherwise
provided by law, the burden of proof requires proof by a
12
Joseph’s testimony was somewhat more equivocal with
respect to whether Michael had ever written a check from the
trust account. Joseph stated, “I have no idea. I doubt it. I don’t
see how he could do that.”
27
preponderance of the evidence.”].) Further, “[w]e presume the
trial court knew and properly applied the law absent evidence to
the contrary.” (McDermott Will & Emery LLP v. Superior Court
(2017) 10 Cal.App.5th 1083, 1103.) The “probably” or “I think” in
the trial court’s statement at the DVRO trial does not
demonstrate that the trial court relied on evidence that did not
meet the applicable burden of proof when deciding the fee order.
We also reject Michael’s contention that an award of this
size could only be the result of passion or prejudice. We do not
construe the trial court’s reference to Michael’s transfer of his
interest in the Santa Monica condominium to his parents during
his divorce with Lotte as an indication that it “includ[ed] the
value of Michael’s parents’ condominium as an asset from which
Lotte’s $400,000 in attorney’s fees can be paid.” As we have
noted, we presume the trial court applied the relevant law absent
evidence to the contrary. Thus, we will not conclude that the
court improperly found Michael was an owner of the
condominium without the requisite clear and convincing proof
(Evid. Code, § 662), and we do not rely on the value of the
condominium in concluding there was substantial evidence
supporting the trial court’s ruling. It appears the trial court
raised the transfer as evidence that led it to question the
credibility of Michael’s representations regarding his finances.
Indeed, immediately after referencing the transfer, the trial court
observed that Michael’s financial picture was “somewhat
muddied.”13
13
We similarly reject Michael’s contention that the order’s
mention of Susan’s testimony that she received a payment of
$32,000 from Joseph’s production company in 2019 as a means of
28
We recognize that a $400,000 award, payable in
installments of $80,000 per year, is substantial. The trial court
itself stated that “[n]either party in this case can afford the fees
that have been generated” and that “[t]his fee will no doubt work
a financial hardship on the respondent.” However, the trial court
was aware of and applied the relevant law, recognizing that an
award of fees under section 271 must take into account “the
ability of the respondent to pay.” Interpreting the court’s
observations in the light most favorable to the ruling, it is clear
that Michael would not be able to afford the expenses on his
employment and unemployment income alone. Nevertheless, as
discussed, the trial court was justified in taking into
consideration the substantial funds provided by both his parents,
Joseph’s regular contributions of $2,000 towards monthly
Michael’s expenses, and Michael’s ability to withdraw $8,000 per
month from the family trust. Although the trial court recognized
that the award is burdensome, it determined the “award will not
impose an unreasonable financial burden on the respondent.” We
cannot conclude that, “ ‘ “considering all the evidence viewed
most favorably in support of [the] order, no judge could
reasonably make the order.” ’ ” (In re Marriage of Burgard,
supra, 72 Cal.App.4th at p. 82.)
Having concluded that the trial court’s award of fees to
Lotte under section 271 was not an abuse of discretion, we need
providing money to Michael without Lotte’s knowledge was
“inflammatory but irrelevant surplusage.” As with the evidence
of the condominium transfer, this testimony was evidence
bearing on the credibility of Michael and his parents, and thus
relevant to the court’s conclusion. Nor do we find any implication
that the trial court assumed Michael would receive $32,000 on a
yearly basis, as Michael suggests in his reply brief.
29
not decide whether an award of fees would also be proper under
section 6344. (See Smith, supra, 242 Cal.App.4th at p. 536
[declining to decide whether fees were proper under § 271 where
it had determined they were proper under § 2030]; Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“[I]f a
judgment is correct on any theory, the appellate court will affirm
it regardless of the trial court’s reasoning.”].)
II. Award of fees to Susan under sections 2030 and 6344
Michael challenges the trial court’s award of attorney fees
to Susan under sections 2030 and 6344 on similar grounds as
Lotte’s award under section 271, though he further argues that
the fee award to Lotte eliminates his ability to pay Susan. We
conclude the trial court’s finding that Michael also had the ability
to pay the fee award to Susan was supported by substantial
evidence, and therefore affirm.
A. Legal standard
Section 6344 authorizes a court to award fees to the
prevailing party in a proceeding under the Domestic Violence
Protection Act (DVPA, §§ 6200–6219). Section 6344, subdivision
(b) provides: “In any action in which the petitioner is the
prevailing party and cannot afford to pay for the attorney’s fees
and costs, the court shall, if appropriate based on the parties’
respective abilities to pay, order that the respondent pay
petitioner’s attorney’s fees and costs for commencing and
maintaining the proceeding. Whether the respondent shall be
ordered to pay attorney’s fees and costs for the prevailing
petitioner, and what amount shall be paid, shall be determined
based upon (1) the respective incomes and needs of the parties,
and (2) any factors affecting the parties’ respective abilities to
pay.”
30
An award of fees may be made under section 2030 “[i]n a
proceeding for dissolution of marriage, nullity of marriage, or
legal separation of the parties.” (§ 2030, subd. (a).) However, an
award of fees under section 2030 entails substantially similar
considerations as an award under section 6344. “When a request
for attorney’s fees and costs is made, the court shall make
findings on whether an award of attorney’s fees and costs under
this section is appropriate, whether there is a disparity in access
to funds to retain counsel, and whether one party is able to pay
for legal representation of both parties. If the findings
demonstrate disparity in access and ability to pay, the court shall
make an order awarding attorney’s fees and costs.” (§ 2030,
subd. (a)(2); accord, In re Marriage of Ciprari (2019) 32
Cal.App.5th 83, 112 [“award of ‘reasonably necessary’ fees and
costs” to a party is mandatory if trial court finds disparity in
access to funds to retain counsel and other party can pay both
parties’ legal representation].) “Section 2030 is (and always has
been) controlled and supplemented by section 2032. Under
section 2032, ‘[t]he court may make an award of attorney’s fees
and costs under Section 2030 . . . where the making of the award,
and the amount of the award, are just and reasonable under the
relative circumstances of the respective parties.’ ” (Kevin Q. v.
Lauren W., supra, 195 Cal.App.4th at p. 640.)14
Because both section 2030 (as supplemented by section
2032) and section 6344 “require a comparative analysis of the
14
An additional difference between section 2030 and
section 6344 is that section 6344 requires a party be designated
as the prevailing party while section 2030 does not. However, the
record is clear that Susan is the prevailing party, and Michael
does not challenge that determination.
31
parties’ circumstances and/or needs and serve the common
purpose (shared by all the Fam. Code statutes that authorize
attorney fee awards) of ensuring, ‘to the extent possible, that the
litigating parties are on an equal footing in their ability to
present their cases,’ ” we examine the propriety of the award
under both statutes together. (Kevin Q. v. Lauren W., supra, 195
Cal.App.4th at p. 643 [court did not err in relying on § 2032 for
guidance with respect to other Fam. Code fee provisions that
focus on “ ‘respective incomes and needs’ ” and “ ‘respective
abilities to pay’ ”].) Under both, we review an award of fees for
abuse of discretion. (Loeffler v. Medina, supra, 174 Cal.App.4th
at p. 1509 [§ 6344]; In re Marriage of Bendetti (2013) 214
Cal.App.4th 863, 868 [§ 2030].)
We must also consider that the trial court issued a
statement of decision, which may affect the scope of appellate
review. “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. [Citations.] [¶] Sections 632
and 634 [of the Code of Civil Procedure] (both as amended in
1981) set forth the means by which to avoid application of these
inferences in favor of the judgment. When the court announces
its tentative decision, a party may, under section 632, request the
court to issue a statement of decision explaining the basis of its
determination, and shall specify the issues on which the party is
requesting the statement; following such a request, the party
may make proposals relating to the contents of the statement.
Thereafter, under section 634, the party must state any objection
he may have to the statement in order to avoid an implied finding
on appeal in favor of the prevailing party. The section declares
that if omissions or ambiguities in the statement are timely
32
brought to the trial court’s attention, the appellate court will not
imply findings in favor of the prevailing party. The clear
implication of this provision, of course, is that if a party does not
bring such deficiencies to the trial court’s attention, that party
waives the right to claim on appeal that the statement was
deficient in these regards, and hence the appellate court will
imply findings to support the judgment.” (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133–1134, fns. omitted.)
“Even where proper procedure under sections 632 and 634
has been followed punctiliously, ‘[t]he trial court is not required
to respond point by point to the issues posed in a request for
statement of decision. 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.’ [Citations.]
‘When this rule is applied, the term “ultimate fact” generally
refers to a core fact, such as an essential element of a claim.’
[Citation.] ‘Ultimate facts are distinguished from evidentiary
facts and from legal conclusions.’ [Citation.] Thus, a court is not
expected to make findings with regard to ‘detailed evidentiary
facts or to make minute findings as to individual items of
evidence.’ ” (Thompson v. Asimos (2016) 6 Cal.App.5th 970,
983.)15 Where an issue was not identified as controverted under
15
Michael requested a statement of decision at oral
argument on December 10, 2020, though the trial court had yet to
issue a tentative order. On December 28, 2020, Michael
simultaneously filed a request identifying the principal
controverted issues under Code of Civil Procedure section 632
and filed objections under section 634, thus collapsing the two
steps into one. However, as Susan has raised no objections to the
process and the trial court had “the opportunity to clarify or
33
Code of Civil Procedure section 632, the appellate court will
imply findings in favor of the judgment and will consider whether
substantial evidence supports those findings. (Id. at pp. 984–
985.)
B. The trial court did not abuse its discretion in
finding a disparity of access to funds
In comparing the parties’ access to funds, the trial court
found that Michael “has been able to fully fund his litigation
through his parents,” while Susan has left Los Angeles in part
“due to the fees expended in prosecuting and defending [the]
DVRO litigation,” for which she borrowed money from her
mother. The court further found that “[t]here is no evidence that
[Susan’s] mother has the financial ability to loan the significant
attorney fee sums that [Michael’s] litigation occasioned.” The
court also noted that Michael “apparently recently went to
Mexico with his current girlfriend,” which indicated to the court
that Michael has “managed to maintain a lifestyle, while
[Susan]’s life has been upended.” These findings are supported
by the record.
The record also indicates that, as of October 2020, Susan
had received her last unemployment check several months prior
and intended to file for food stamps and welfare. Additionally,
while Michael reported an average monthly income of $2,052
from his production company in July 2020 and of $1,130 in
November 2020, Susan reported an average monthly income of
supplement its statement of decision before losing jurisdiction”
(Thompson v. Asimos, supra, 6 Cal.App.5th at p. 983), we accept
that the procedure was appropriately followed and will not imply
findings as to the controverted issues specifically identified by
Michael.
34
only $416.66 as a freelance makeup artist, though she was
unemployed as a result of the pandemic. It is unclear what
Susan will earn as a homecare worker when she relocates to
Oklahoma.
“The fact that the party requesting an award of attorney’s
fees and costs has resources from which the party could pay the
party’s own attorney’s fees and costs is not itself a bar to an order
that the other party pay part or all of the fees and costs
requested. Financial resources are only one factor for the court to
consider in determining how to apportion the overall cost of the
litigation equitably between the parties under their relative
circumstances.” (§ 2032, subd. (b).) Though Susan has received
$29,500 from her mother in loans for living expenses and
attorney fees, there is a clear disparity between the sum Susan
obtained from her mother and the $236,893 Michael’s parents
have provided him over a period of years. Nor is there any
evidence in the record that Susan’s mother has regularly
contributed to her expenses as Joseph and Rosemary have for
Michael. The trial court did not abuse its discretion in finding
there was a disparity in the parties’ ability to pay,
notwithstanding the money Susan has received from her mother.
C. The trial court did not abuse its discretion in
finding that Michael has the ability to pay under
sections 2030 and 6344
Michael contends “[t]he simple math using the evidence in
the record most favorable to Susan establishes Michael does not
have the ability to pay this fee order along with the preceding one
in favor of Lotte and the child and spousal support orders the
same judge made in favor of Susan.” This is true only if the
equation does not consider Michael’s parents’ payment of his
35
attorney fees and other obligations. We conclude, as we did with
respect to the award to Lotte, that the trial court did not abuse
its discretion in considering these sums in awarding fees under
sections 2030 and 6344.
The record indicates that Michael’s financial situation at
the time of the second fee order was largely the same as at the
time of the first, with the notable exception of the $400,000
award to Lotte, payable in installments of $80,000 per year.
Taken together with the trial court’s fee award to Susan,
Michael’s yearly fee obligation is $100,000. Michael also has
spousal and child support obligations to Susan and Lotte
exceeding $50,000. When his monthly expenses of $2,385 are
also taken into account, Michael’s yearly expenses exceed
$180,000. Michael’s income from his parents’ trust, employment
income, unemployment payments, and the one-time stimulus
payment, plus Joseph’s monthly contributions of $2,000, total
approximately $140,000.16 Thus, whether the purported loans
16
Michael asserts that the $2,000 monthly payments from
Joseph should not be considered because they were not
referenced in the trial court’s statement of decision. As discussed
above, Michael identified as a controverted issue the “specific
income, assets, and other financial resources” available for the
payment of fees. The trial court stated that it was “not obligated
to identify assets for the payment of the fees,” and generally
described some of Michael’s resources, including financial
contributions from his parents and trust income. We agree that
the trial court was not required “to make findings with regard to
‘detailed evidentiary facts or to make minute findings as to
individual items of evidence.’ ” (Thompson v. Asimos, supra, 6
Cal.App.5th at p. 983.)
36
from Michael’s parents, which exceeded $150,000 in 2020, were
properly considered as part of his ability to pay is central to our
determination of whether the trial court abused its discretion in
finding Michael was able to pay both awards.
Though we concluded above that the trial court did not
abuse its discretion in considering those payments in connection
with the fee award to Lotte under section 270, Michael raises
additional challenges in connection with the award to Susan.
Michael contends that attorney fees paid on his behalf by
his parents cannot be counted as income because he is not free to
use that money towards other expenses, such as the fee award.
Michael cites M.S. v. O.S. (2009) 176 Cal.App.4th 548, in which
the appellate court held the trial court “abused its discretion by
including the tribe’s payment of [the support obligor’s] attorney
fees in his gross annual income under section 4058, subdivision
(a) for purposes of the guideline support calculation.” (Id. at
p. 557.) However, even in the child support context, courts have
rejected an “absolute rule” that “gifts are not income for purposes
of calculating support payments.” (In re Marriage of Alter (2009)
171 Cal.App.4th 718, 731.)
Moreover, unlike in M.S. v. O.S., supra, 176 Cal.App.4th
548, where the obligor received no benefit from the tribe unless
attorney fees were incurred (id. at p. 557), it appears that a
considerable portion of the money Michael has received from his
Michael further argues in his reply that it “would not make
sense that Michael’s father paid him $2,000 a month for living
expenses if Michael was also taking $8,000 from his parents’
trust.” Michael does not cite any authority for this position.
Regardless, whether the income attributed to Michael is
approximately $140,000 or approximately $120,000, as Michael
urges, the outcome is the same.
37
parents was not paid directly to his attorneys. According to
Joseph’s declaration in the Regalbuto record, Joseph directly paid
$50,000 to Michael’s lawyers, meaning that loans he provided to
Michael totaling more than $88,000 were unrelated to attorney
fees. Similarly, according to Rosemary’s declaration, four of the
nine promissory notes, totaling approximately $37,000, were for
purposes unrelated to attorney fees
Further, Michael does not argue that a child support award
under section 4058 has the same or a comparable purpose as an
attorney fee award under section 2030. Indeed, though he relies
on M.S. v. O.S., supra, 176 Cal.App.4th 548, Michael seeks to
undermine the ruling in Smith, supra, 242 Cal.App.4th 529, on
the ground that it relies in part on child support cases in
reaching its conclusion. (See Smith, at pp. 534–535.) We
acknowledge that the purposes underlying section 4058 and
section 2030 are distinct. (See Anna M. v. Jeffrey E. (2017) 7
Cal.App.5th 439, 451 [a “child support calculation . . . involves
policy objectives different from those involved in a fee award”].)
However, even if it relied on reasoning from the distinguishable
context of child support awards, we agree with the court in Smith
that excluding substantial attorney fee payments made by
Michael’s parents “from consideration would vitiate one of the
primary purposes of section 2030 and section 2032, to prevent
one party from being able to ‘litigate[] [the opposing party] out of
the case,’ by taking advantage of their disparate financial
circumstances. [Citation.]” (Smith, at p. 534.)
Unlike in the Van der Veer matter, where Michael conceded
that the trial court was skeptical about whether the loans were
legitimate, Michael argues with respect to the award to Susan
that the trial court affirmatively “found that the payment of
38
Michael’s attorney fees by his parents were loans rather than
gifts.” However, it is not clear that the trial court had shed its
skepticism, though it did not refer to the loans from Joseph and
Rosemary as “loans.” The trial court stated “[Michael] claims
that all the money he received from his parents are loans,” but
did not state that it accepted Michael’s characterization. Indeed,
the court noted the informality of the purported loans from
Joseph, and referenced the “very favorable rates” attached to the
sums from Rosemary. The trial court also subsequently stated,
“One thing is clear, [Michael] has had a constant source of fees
from his parents, loans or no.” (Italics added.) This language
suggests the trial court continued to doubt Michael’s
characterization of these funds, notwithstanding Joseph’s and
Rosemary’s declarations. The record supported such doubts.17
Viewing the court’s statements in the light most favorable to the
order, we conclude that the reasoning in Smith, supra, 242
Cal.App.4th 529, applies equally to Susan’s fee award as to
Lotte’s, particularly as the fee award to Susan was made under
section 2030, the same code section under which the award was
made in Smith.
17
For example, despite Michael’s disclosure in his October
2020 declaration that he expected to be $900 short of the monthly
loan payments due under the promissory notes beginning
November 2020, Rosemary provided him with additional loans
totaling $21,644 over the next month. In November 2020,
Michael represented that, by January 2021, his loan obligations
to his mother would reach $2,524.85, or nearly two-thirds of his
monthly cash flow of $3,950. The trial court might fairly question
why Rosemary would continue to extend loans under such
circumstances if she had a genuine expectation of repayment
under the terms of the promissory notes.
39
Michael also argues that the payments made by his
parents, other than Joseph’s monthly payments of $2,000, were
not a recurrent payment of a fixed amount, and thus should not
be considered income. He relies on In re Marriage of Williamson,
supra, 226 Cal.App.4th 1303, a case concerning spousal and child
support payments, in which the court found that payments the
husband’s parents made to him were not income because, for the
most part, they “were made upon request, depending upon the
family’s need.” (Id. at p. 1314.) The court distinguished these
payments from the monthly payments of $6,000 made by the
husband’s mother in In re Marriage of Alter, supra, 171
Cal.App.4th 718. (Williamson, at p. 1314.) However, “more
important[]” than this, in the Williamson court’s view, was that
“[the husband’s] parents are no longer making the advances,”
citing testimony of the husband’s father. (Id. at p. 1315.) As we
have noted, although Joseph declared he would not make any
further loans, Rosemary has continued to provide Michael with
large sums of money to cover his obligations and has not
indicated she is unwilling to continue to do so.
Further, there was no indication in Smith, supra, 242
Cal.App.4th 529, that the payments made by the wife’s father
were of a fixed amount. Rather, the court focused on the father’s
testimony that “on a monthly or bimonthly basis, [he] regularly
received a bill from [the wife’s] attorneys for her litigation
expenses.” (Id. at p. 534.) The declarations from Joseph and
Rosemary similarly reflect monthly and bimonthly payments of
fees and of support obligations on Michael’s behalf.
In sum, we conclude the trial court did not err in
considering Joseph’s and Rosemary’s payments as income to
Michael or as a circumstance significantly increasing his ability
40
to pay.18 We do not find that the trial court’s order was without
basis in the record or was punishment for Michael’s conduct and
the expense of the litigation, as Michael contends. We therefore
conclude there was no abuse of discretion in the trial court’s
analysis of Michael’s ability to pay under sections 2030 and 6344.
18
Though M.S. v. O.S., supra, 176 Cal.App.4th 548, is
distinguishable on the grounds discussed above, we note that the
appellate court in that case acknowledged that the tribe’s
payment of the obligor’s attorney fees was a factor that could
warrant an upward adjustment from the guideline amount, even
if it could not be considered as income. (Id. at p. 557.)
41
DISPOSITION
The orders are affirmed. Lotte and Susan are awarded
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ADAMS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
42