Marriage of Martinez CA2/3 ( 2024 )

Filed 2/29/24 Marriage of Martinez CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of RAUL D. B320256
MARTINEZ, JR., and SABRINA
MARTINEZ. Los Angeles County
Super. Ct. No. 21STFL00605
RAUL D. MARTINEZ, JR.,
Appellant,
v.
SABRINA MARTINEZ,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Elizabeth Scully, Judge. Affirmed.
Rudy Aguirre for Appellant.
Pamela Rae Tripp for Respondent.
_________________________
Raul D. Martinez, Jr., appeals from the trial court’s order
awarding temporary child and spousal support to his wife
Sabrina Martinez.1 He contends the court abused its discretion
in calculating the award without first granting Raul a
continuance to present more current information about his
income. Raul also contends the court abused its discretion by
basing the temporary spousal support award on the income
analysis prepared by the parties’ joint forensic expert because
it did not include Raul’s income from 2021. Finding no
prejudicial error, we affirm.
BACKGROUND
The statement of the case in Raul’s opening brief contains
no citations to the record. Several paragraphs in the statement
of facts also lack citation to the record. “Each and every
statement in a brief regarding matters that are in the record
on appeal, whether factual or procedural, must be supported by
a citation to the record. This rule applies regardless of where the
reference occurs in the brief.” (Lona v. Citibank, N.A. (2011) 202
Cal.App.4th 89, 96, fn. 2; Cal. Rules of Court, rule 8.204(a)(1)(C).)
Sabrina agrees the opening brief accurately recites the
procedural posture of the case and “does not dispute that
[Raul] has laid out true facts.” Nevertheless, we do not consider
assertions of fact that are not part of the record on appeal.
(See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29 [“It is
axiomatic that an appellant must support all statements of fact
in his briefs with citations to the record [citation] and must
confine his statement ‘to matters in the record on appeal.’ ”].)
1 We refer to the parties by their first names for the
sake of clarity.
2
Raul and Sabrina were married in June 1995 and
separated more than 24 years later in October 2019. Raul
filed for divorce on January 20, 2021. As Raul’s payment of child
and spousal support would be an issue in the case, the parties
stipulated to the appointment of a forensic accountant as the
court’s expert under Evidence Code section 730. The court
entered the order appointing the expert under the stipulation
on May 11, 2021. The expert was to determine (1) Raul’s income
available for child and spousal support based on an analysis
of Raul’s income from January 1, 2017 through April 30, 2021,
or any other later dates on which the parties agreed; and
(2) the community’s interest in Raul’s businesses. Raul agreed
to pay the expert’s fees.
Based on the stipulation and order, Raul promptly was
to give the expert all documents and information he requested.
The expert was to give counsel a copy of the written reports he
prepared “as soon as they [were] available.” The parties agreed
that, within 30 days of receiving a report, they would give the
expert, in writing, any objections to his findings and conclusions
and any “additional factual information” they believed he should
consider. The parties also agreed the expert’s reports would
“be admissible into evidence at any hearing or trial in this
proceeding without any further foundation, subject to the
right to cross examination by counsel.”
On August 13, 2021, Sabrina filed an FL-150 form
income and expense declaration (I&E), dated July 29, 2021.
A community property business employed Sabrina. Her last
month’s income from wages or salary was $12,000, and her
average monthly income from wages or salary was $13,000.
Sabrina declared her average monthly “proposed needs” were
3
$26,771.91 a month. She estimated Raul’s gross monthly income
was $249,917.75 based on his I&E filed March 4, 2021 and its
attachments.
Along with her I&E, Sabrina filed a request for order (RFO)
for child and spousal support, as well as for attorney fees and
costs.2 She asked for guideline child support for the couple’s
minor son—then 16 years old—and guideline spousal support,
retroactive to May 1, 2021. Sabrina’s spousal support declaration
described the standard of living established during the marriage
as “very high.” Among other things, the family went on
expensive vacations, the couple drove expensive cars, Raul
had bought Sabrina expensive jewelry and gifts, she shopped
at designer retailers, and they owned two homes worth millions
of dollars, as well as rental properties. Sabrina described Raul
as a “high earner,” who earned “millions each year between
compensation and perquisites.”3
2 Sabrina’s request for attorney fees is not an issue in this
appeal.
3 Raul’s March 4, 2021 I&E attached to Sabrina’s RFO stated
he was paid $37,500 (gross) a month as president and CEO for
King Taco Restaurant, Inc. He stated his last month’s income
from salary or wages was $32,692.32, with an average monthly
income of $183,794.08 from salary or wages. He also received
$66,123.49 in average monthly self-employment income from his
property management business, RDM Investments, Inc./RDM
Capital LLC. What appear to be W-2 forms for 2020 show Raul
received $2,189,182.82 in salary from King Taco, and $16,346.18
from RDM Investments, Inc. The 2020 profit and loss statement
for RDM Investments lists total year to date income as
$5,378,501.24. RDM Capital LLC’s 2020 profit and loss
statement shows net income of $319,141.93. Raul’s I&E and
4
Sabrina declared Raul “gave” her a paycheck once a week
that she used to pay for groceries, her car expenses, clothes,
and other basic necessities. She declared she would be unable
to pay her living expenses without spousal support, while Raul
earned sufficient income to support both parties at the marital
standard of living. The hearing on Sabrina’s RFO was set for
November 23, 2021.
In the interim, Sabrina apparently filed an updated I&E
on November 9, 2021. It is not part of the record, but counsel
and the court referred to it at the November 23 hearing.4 On
November 17, 2021, Raul also filed an updated I&E. He stated
his last month’s and average monthly income from salary or
wages was $35,143, and his last month’s and average monthly
self-employment income from RDM Investments/RDM Capital
was $12,115. Paystubs from RDM Investments and King Taco
show Raul’s gross earnings were $5,769.24 and $8,173.08,
respectively, for the one-week period from October 25 to
October 31, 2021. Raul also attached a supplemental income
and loss statement for 2020 showing a net loss on four rental
properties for that year.
On that same date, Raul filed a responsive declaration to
Sabrina’s RFO. He asked for a child and spousal support order
schedule of assets listed assets (stocks, bonds, accounts, and real
and personal property) worth millions of dollars.
4 Raul asserts Sabrina’s updated I&E listed her estimated
monthly expenses as $116,764. He cites his responsive
declaration in support of this assertion, but his declaration
does not include this figure. We do not consider it. (Pierotti v.
Torian, supra, 81 Cal.App.4th at p. 29.)
5
based on his year-to-date wages and salary. Raul agreed Sabrina
accurately described the marital standard of living but declared
it “was on a significant decline since approximately three years
ago.” He declared Sabrina’s estimate of his gross monthly income
was based on his 2020 income, which included a substantial
bonus for work performed in 2019 that he would not receive in
2021.5 Raul averred his total income for 2021 was “significantly
lower than it was in earlier years due to the pandemic.” He
stated he had been paying for the monthly expenses for the
family residence since the date of separation. He declared that,
if the court ordered the support payments Sabrina requested,
he would not have sufficient cash flow to pay other community
debts he currently paid. Raul attached a DissoMaster6 report
to his responsive declaration based on 2021 monthly wages
and salary of $52,980 and $692 in other taxable income.
At the November 23 hearing, Sabrina’s counsel ensured
the court had Sabrina’s updated I&E, filed November 9, 2021,
and noted the joint forensic expert’s report was attached to it.7
In discussing the income figure to use to calculate support, the
court confirmed with Sabrina’s counsel that he wanted the court
to use the report’s “significantly higher” total monthly income
5 Raul’s December 29, 2020 paystub from King Taco—
attached to Sabrina’s RFO—is for $250,000 in “Bonus Pay.”
6 DissoMaster is a computer program courts use to calculate
guideline support. (In re Marriage of Schulze (1997) 60
Cal.App.4th 519, 523, fn. 2.)
7 As with Sabrina’s November 2021 I&E, the joint forensic
report is not part of the appellate record.
6
figure—$397,600—for Raul’s income rather than the figure
Raul had proposed in his DissoMaster. When asked why the
court shouldn’t use the parties’ joint forensic expert’s numbers,
Raul’s counsel said the report was based on “stale” numbers from
December 2020. Raul’s counsel conceded Raul had not given the
expert his 2021 income information because Raul “hadn’t filed
[taxes] for 2020 yet.”8 The court asked if there was any evidence
before it showing Raul’s “2021 income is drastically different
from the 2020 income.” In response, Raul’s counsel said Raul’s
paystubs filed with his November 17 I&E were the only evidence.
The court noted the joint forensic report included
information about wages and also investment income, trust
income, rental, and other income. Sabrina’s counsel argued
Raul’s November I&E—which Raul had not given to the forensic
expert—was “defective” because it didn’t include “any profit
and loss of the business,” which was “substantially different from
the forensic [report].”9 Counsel noted the forensic expert had
8 When describing this exchange in his opening brief—
without citation to the record—Raul states, “the 2021 income
tax return had not been fi[le]d yet.” We do not know if, at the
hearing, counsel mistakenly said 2020 instead of 2021, intended
to refer to the 2020 tax return, or if the reporter’s transcript
contains a typographical error.
9 Sabrina’s counsel also argued Raul’s response to the RFO
was late, depriving Sabrina of the opportunity to file a reply.
Raul’s counsel asserted Sabrina’s counsel knew Raul was out of
the country and unable to file a timely response. He represented
they had discussed continuing the matter, and Sabrina’s counsel
had said, “[W]e’ll talk with the court.” Raul’s counsel did not
7
looked at Raul’s historical income over five years from 2016
through 2020: $6.8 million in 2016; $8.7 million in 2017;
$4.6 million in 2018; $5.7 million in 2019; and $5 million in 2020.
The court articulated its understanding of Sabrina’s counsel’s
argument: “So in terms of [Raul’s] staleness argument being that
something about looking at past income might not be predictive,
you want me to understand that the work that the joint forensic
did was based on an average of past years at least with regard
to the wages.” Sabrina’s counsel added that Raul’s 2020 income
“was a down year” due to the pandemic, so Sabrina believed it
likely would go up in 2021. Raul’s counsel responded that the
bonus Raul received in 2020 was for work performed in 2019.
Raul’s counsel asked the court to continue the matter
“so we can get the updated information so we can get the court
[an] accurate number [of] what my client’s current income is
available for support.” The court verified with counsel that he
was basing his request for a continuance on the ground “that
the joint forensic hasn’t been provided 2020 information yet.”10
Sabrina’s counsel argued the parties had received the joint
forensic report more than three weeks earlier and—based on the
stipulation and order—Raul’s counsel “was supposed to file any
objections or have a conference with [the expert],” rather than
just come to court. Reading from paragraph six of the stipulation
object to the court looking at Sabrina’s proposed DissoMaster
that her counsel had brought to the hearing, however.
10 Again, it is unclear if the court intended to say “2021
information” or was referring to the 2020 tax returns. Raul’s
brief suggests the former.
8
and order, the court clarified counsel was referring to the
provision that stated, “within 30 days of receipt of written report,
the parties agreed to provide the expert in writing with any
and all objections or factual information they believe the expert
should consider.”
The court denied Raul’s counsel’s request for a continuance
and stated it would be making interim, temporary pendente lite
support orders. Because the court had to “wrap up,” it continued
the hearing to December 8, 2021 for the sole purpose of
announcing its ruling. On December 8, the court ruled. The
court adopted the income analysis from the joint forensic report,
dated October 26, 2021. The court ordered Raul to pay Sabrina
guideline child support in the amount of $23,720 per month
beginning January 1, 2022. The guideline calculation was
based on a stipulated 10 percent custodial timeshare for Raul,
wages and salary of $183,800 per month for Raul and $14,500
per month for Sabrina, self-employment income of $194,148
per month for Raul, and other taxable income of $23,652
per month for Raul and $1,500 per month for Sabrina.
The court also granted Sabrina’s request for temporary
spousal support. The court noted temporary spousal support
“is to maintain the party’s living conditions and standards in
as close to the status quo position as possible pending trial and
the division of their assets and obligations.” The court stated it
did not use the guidelines to calculate temporary spousal support.
The court explained:
“The court focused instead on the supported
party’s needs as set forth in the two income
and expense declarations that she submitted[,]
which the court notes differ quite dramatically
9
from one another; but the law is that subject
to the ability to pay, the court may order any
amount necessary to support the other spouse
at the accustom[ed] marital lifestyle.”
The court ordered Raul to pay Sabrina temporary
spousal support in the amount of $45,000 per month beginning
January 1, 2022. The court reserved jurisdiction to determine
retroactivity of the temporary child and spousal support
payments from May 1 through December 31, 2021.
On January 7, 2022, the court filed its findings and order
after hearing. Raul filed a timely notice of appeal on March 4,
2022.
DISCUSSION
1. Standards of review
We review child and spousal support orders for an abuse
of discretion. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th
1317, 1327 (Wittgrove).) “ ‘To the extent that a trial court’s
exercise of discretion is based on the facts of the case, it will
be upheld “as long as its determination is within the range of
the evidence presented.” ’ ” (In re Marriage of Blazer (2009) 176
Cal.App.4th 1438, 1443; see also In re Marriage of Ciprari (2019)
32 Cal.App.5th 83, 104 [on appeal from modification of temporary
spousal support award, reviewing court “determine[s] whether
factual findings are supported by substantial evidence, and if so,
affirm[s] if any reasonable judge could have made such an
order”].) Nor will we reverse a court’s order based on its denial
of a continuance absent a showing of an abuse of discretion
and prejudice. (People v. Doolin (2009) 45 Cal.4th 390, 450.)
“ ‘An abuse of discretion occurs “where, considering all the
relevant circumstances, the court has exceeded the bounds of
10
reason or it can fairly be said that no judge would reasonably
make the same order under the same circumstances.” [Citation.]’
We ‘ “must accept as true all evidence tending to establish the
correctness of the trial judge’s findings, resolving all conflicts
in the evidence in favor of the prevailing party and indulging
in all legitimate and reasonable inferences to uphold the
judgment.” ’ ” (In re Marriage of Bower (2002) 96 Cal.App.4th
893, 898–899 (Bower).)
“[I]t is a fundamental principle of appellate procedure that
a trial court judgment is ordinarily presumed to be correct and
the burden is on an appellant to demonstrate, on the basis of
the record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) “Stated
another way, all presumptions are indulged to support the trial
court order or judgment ‘on matters as to which the record is
silent, and error must be affirmatively shown.’ ” (Smith v.
Ogbuehi (2019) 38 Cal.App.5th 453, 473.)
2. The court did not abuse its discretion in denying
Raul a continuance
Raul argues the court’s denial of his request for a
continuance was a prejudicial abuse of discretion because—
had the court granted the continuance—he could have presented
current financial information that reasonably would have
changed the guideline calculation of child support and possibly
the court’s calculation of temporary spousal support.11
11 Sabrina argues the denial of a continuance is not a directly
appealable order, and we thus should not consider this issue.
(See Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527
11
Generally, trial courts have broad discretion in
deciding whether to grant a continuance. (Freeman, supra,192 Cal.App.4th at p. 527.) “[A]ny error in failing to grant a
request for a continuance . . . is reversible only if it is tantamount
to the denial of a fair hearing. [Citations.] There is no
presumption of prejudice. [Citations.] Instead, the burden to
demonstrate prejudice is on the appellant.” (Id. at pp. 527–528.)
We may not disturb the trial court’s exercise of its discretion,
“in the absence of a clear abuse thereof appearing on the record.”
(Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) The
complaining party bears the burden to demonstrate from the
record that an abuse of discretion has occurred. (Id. at p. 985.)
Raul has not demonstrated he was denied a fair hearing.
Nothing in the record suggests he did not receive sufficient notice
of the hearing on Sabrina’s RFO. We also presume Sabrina
timely served the I&E she filed November 9, 2021, two weeks
before the November 23 hearing. In any event, Raul does
not contend he did not timely receive Sabrina’s filings.
Raul also had the opportunity to be heard. Although filed
late, Raul’s responsive declaration, updated November 2021 I&E,
(Freeman) [ruling on a motion for continuance is not an
appealable order].) We do not construe Raul’s appeal as from
the court’s denial of his request for a continuance. Rather, Raul
has appealed from the court’s order awarding temporary support
to Sabrina—a directly appealable order. (See ibid. [failure to
grant continuance “is reviewable on appeal from the judgment”];
Marriage of Gruen (2011) 191 Cal.App.4th 627, 637–638 (Gruen)
[temporary support order is “ ‘substantially the same as a
final judgment in an independent proceeding’ ” and directly
appealable].)
12
and proposed DissoMaster calculation were before the court.
Nothing in the record indicates the court did not consider those
materials—including the evidence Raul’s counsel said showed
Raul’s 2021 income was significantly different from his 2020
income. Quite the opposite, the court directly referenced those
documents during the hearing. The court also heard argument
about the income analysis in the joint forensic expert’s report
as compared to the numbers from Raul’s November 2021 I&E
and proposed DissoMaster. The court specifically noted the
$397,600 monthly average income the report attributed to Raul
was “significantly higher” than that reflected in Raul’s proposed
DissoMaster attached to his responsive declaration.
Raul nevertheless contends he was denied a fair hearing
because the joint forensic expert’s report—on which the court
relied—did not include his income from January 1, 2021 to
April 30, 2021, as provided in the parties’ stipulation and court’s
order. Raul’s counsel agreed with the court’s assessment that he
sought a continuance on the ground “that the joint forensic hasn’t
been provided 2020 information yet.” (We will assume the court
meant Raul’s 2021 income information.) We cannot conclude
the court abused its discretion by denying Raul a continuance to
provide that information to the expert or to the court, however.
Raul’s counsel did not dispute Sabrina’s counsel’s
representation that the parties had received the joint forensic
report, dated October 26, 2021, more than three weeks before
the November 23 hearing. Although the time to object to the
report apparently had not expired yet, Raul could have given
the forensic accountant his income information from January
through April 2021 well before the hearing on Sabrina’s RFO,
if not before the expert completed the report. And, as the report
13
apparently was attached to Sabrina’s November 9 I&E, Raul
could have filed an objection to its purported incompleteness
with his responsive declaration.
Critically, Raul’s counsel admitted Raul had not provided
his 2021 income information to the expert—the very information
Raul contends makes the analysis incomplete—because he had
not filed his taxes yet. Thus, the expert could not have included
that information in his analysis. Nothing in the record suggests
a brief continuance would have enabled Raul to file his taxes
so that he could provide the expert, or the court, with his 2021
income information (or 2020 tax returns). Nor did Raul explain
why he could not have given the expert his 2021 paystubs or
monthly profit and loss statements for his businesses before
filing his taxes.
In any event, Raul has not demonstrated how the January
through April 2021 income information likely would have made
a difference to the expert’s analysis or the court’s ruling. The
expert based his income analysis on a five-year historical
average.12 Raul did not demonstrate how adding four months
of lower wages would have substantively changed that analysis
or affected the court’s findings. And, as Sabrina argues, Raul
did not provide evidence to explain why his income purportedly
had dropped so dramatically.
Moreover, the court’s orders were interim, temporary
orders pending a final adjudication of the issues. As we discuss
12 That is how Sabrina’s counsel described the expert’s
analysis to the court. As Raul’s counsel did not object to that
characterization—and the report is not part of the record—
we presume it is accurate.
14
below, temporary spousal support serves a different purpose than
permanent spousal support and is subject to change. (See Gruen,
supra, 191 Cal.App.4th at p. 637 [“ ‘There are fundamental
differences in the functions and purposes of pendente lite support
and permanent support orders.’ ”]; In re Marriage of Pletcher
(2021) 68 Cal.App.5th 906, 913 (Pletcher) [“ ‘Temporary support
. . . usually is higher than permanent support because it is
intended to maintain the status quo prior to the divorce.’ ”].)
The court’s order did not preclude Raul from presenting
additional evidence for the court to consider before making its
final determinations as to Raul’s payment of child and spousal
support.13 (See Fam. Code, § 3603 [support orders made during
pendency of proceedings “may be modified or terminated at any
time, except as to an amount that accrued before the date of
filing” of motion or order to show cause to modify or terminate].)
Indeed, as Raul’s counsel stated at the hearing, the joint forensic
report was an interim one. The expert had not yet prepared
his final analysis of Raul’s income available for support. In any
event, Raul could have asked the court to modify the temporary
orders after giving the expert his tax returns, once filed, and/or
information about his income for 2021.
For the first time on appeal, Raul argues a continuance
would have enabled him to object to the joint forensic expert’s
report as incomplete, and to cross-examine the expert on his
findings, under the terms of the parties’ stipulation and the
13 The trial court also reserved jurisdiction on the issue of
retroactivity of the temporary support order from May 1 through
December 31, 2021, and any credits to be given Raul for
voluntary payments.
15
court’s order. But Raul never asked the court for a continuance
to allow his counsel to cross-examine the expert—either in his
responsive declaration or through counsel during the hearing.
He has forfeited the issue. (Johnson v. Greenelsh (2009) 47
Cal.4th 598, 603 [“ ‘issues not raised in the trial court cannot
be raised for the first time on appeal’ ”]; Ochoa v. Pacific Gas
& Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [“It is
axiomatic that arguments not asserted below are waived and
will not be considered for the first time on appeal.”]; see also
Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 698 (Meridian) [“ ‘the parties must call the [trial] court’s
attention to issues they deem relevant’ ”].) And, as discussed,
Raul could have filed an objection to the joint forensic report with
the expert or the court, even though the 30-day objection period
had not expired. He did not.
Raul also argues his counsel “was not prepared to address
the issue of the contents of the stipulation regarding the joint
forensic’s report” because the parties’ counsel had agreed to
continue the hearing. He claims his counsel thus did not have
a copy of the stipulation with him at the hearing. Raul argues
that, had his counsel had the stipulation with him, he would
have “pointed out” to the court that his time to object to the
joint forensic report “had not yet expired,” and the report was
admissible without further foundation subject to counsel’s
cross-examination.
Raul’s point is not well-taken. First, there is no evidence
in the record of an agreement between counsel to continue the
16
hearing.14 In any event, the court had a copy of the stipulation
and order in front of it. Indeed, the court read aloud from
the provision about the parties having 30 days after receipt of
the report to submit written objections. And, although the court
may have had to cut the hearing short, the court confirmed with
counsel the basis for Raul’s continuance request—counsel never
said he wanted a continuance to cross-examine the expert.
Accordingly, on this record, we cannot conclude the court
acted “arbitrarily, capriciously, or beyond the bounds of reason”
in denying Raul a continuance. (Aghaian v. Minassian (2021)
64 Cal.App.5th 603, 619.)
14 At the hearing, Raul’s counsel represented Sabrina’s
counsel was aware Raul was out of the country, the two attorneys
had “discussed continuing the matter,” and Sabrina’s counsel
had said, “[W]e’ll talk with the court.” That discussion does
not demonstrate counsel agreed to continue the matter. Raul’s
opening brief recounts an email exchange between counsel.
Raul’s counsel purportedly asked for a brief continuance the
day before Raul’s responsive declaration was due, as Raul was
out of the country. Sabrina’s counsel apparently responded
the next day to inform him the next available hearing date was
not until February, which was too long for Sabrina to wait for
support. According to Raul’s brief, Sabrina’s counsel suggested
counsel file Raul’s I&E and appear at the hearing to see if the
court had a December date. This email exchange is not part of
the record. Nor did Raul’s counsel file—with Raul’s responsive
declaration—his own declaration attesting to the exchange.
The details of counsel’s discussion were not before the court.
We do not consider them. (Meridian, supra, 67 Cal.App.5th
at p. 684 [parties to an appeal “must provide citations to the
appellate record directing the court to the evidence supporting
each factual assertion” and “may not refer to matters outside
the record on appeal”].)
17
3. Raul has failed to show the trial court erred in
basing temporary spousal support on the joint
forensic report’s analysis
The trial court has statutory authority to order temporary
spousal support during the pendency of a marital dissolution
action. (Fam. Code, § 3600.) In contrast to permanent spousal
support, the trial court “is not restricted by any set of statutory
guidelines in fixing a temporary spousal support amount.”
(Wittgrove, supra, 120 Cal.App.4th at p. 1327 [permanent
spousal support is designed to provide financial assistance after
dissolution and division of community property, while temporary
spousal support is used to maintain the parties’ standards
of living pending trial and division of the parties’ assets and
obligations].) Rather, “ ‘[t]he trial court has broad discretion to
determine the amount of temporary spousal support, considering
both the supported spouse’s need for support and the supporting
spouse’s ability to pay.’ ” (Pletcher, supra, 68 Cal.App.5th at
p. 913; see also Wittgrove, at p. 1327 [“Generally, temporary
spousal support may be ordered in ‘any amount’ based on the
party’s need and the other party’s ability to pay.”].)
The goal of temporary support “ ‘is to maintain the living
conditions and standards of the parties [and their children]
as closely as possible to the status quo, pending trial.’ ” (Gruen,
supra, 191 Cal.App.4th at p. 637.) “A temporary order is
intended to allow the supported spouse and children to live in
their ‘ “accustomed manner” ’ pending the ultimate disposition
of the action. [Citation.] ‘The order is based on need and is not
an adjudication of any of the issues in the litigation.’ ” (Ibid.)
Thus, “[i]n exercising its broad discretion, the court may properly
consider the ‘big picture’ concerning the parties’ assets and
18
income available for support in light of the marriage standard
of living.” (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
“ ‘Ability to pay encompasses far more than the income of the
spouse from whom temporary support is sought; investments and
other assets may be used for . . . temporary spousal support.’ ”
(Ibid.) “Trial courts may properly look to the parties’ accustomed
marital lifestyle as the main basis for a temporary support
order.” (Ibid.)
Raul contends the trial court erred in calculating
temporary spousal support based on the joint forensic expert’s
analysis rather than the evidence of his current income.
He argues the expert’s analysis was incomplete, “based on a
twelve-month period that ended some eleven months earlier.”
The record supports the court’s implicit finding that Raul had
the ability to pay the $45,000 ordered in monthly temporary
spousal support.
First, we do not conclude the court erred in using the joint
forensic expert’s total average monthly income figure of $397,600
in calculating temporary spousal support. As the court confirmed
during the hearing, the expert assessed Raul’s available total
income based on a historic average over a five-year period from
2016 through 2020. Thus, it appears the expert did not consider
Raul’s 2020 income alone. But even if he had, Raul’s total income
for 2020—$5 million—was representative, indeed, it was the
second lowest, of Raul’s historical earnings during that five-year
period, which ranged between $4.6 and $8.7 million. (Cf.
Pletcher, supra, 68 Cal.App.5th at pp. 914–915 [where husband’s
income had “significant fluctuation” from year to year, court
abused its discretion in calculating support based “on a single
year of income, which happened to be [husband’s] highest
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grossing year on record”].) In fact, the $397,600 average monthly
income figure adds up to $4,771,200 per year—less than the
$5 million Raul apparently earned in 2020—based on the joint
forensic report, as recounted in the reporter’s transcript. As the
report is not part of the appellate record, we presume it supports
the court’s order.
Moreover, as discussed, the expert did not include Raul’s
income from January to April 2021 in his analysis because Raul
admittedly did not give the expert that information. Having
failed to do so, he cannot now complain the expert’s report
was incomplete. Finally, as stated, the orders here were for
temporary, not permanent, support. They were subject to change
when—or even before—the expert completed his final analysis.
Raul notes Sabrina’s estimate of his total monthly income
—based on his March 2021 I&E—was $249,917.75, about
$147,682 less than the expert’s figure. As the reporter’s
transcript shows, the expert calculated the $397,600 average
total monthly income figure based on sources of income beyond
wages: “investment income, trust income, rental and other
income.” Sabrina’s figure was based on the sum of Raul’s
average monthly salary income of $183,794 and average monthly
self-employment income of $66,123, reflected in his March 2021
I&E. It thus does not appear to account for other sources of
income the expert considered.
Nor did Raul’s updated November 2021 I&E compel the
trial court to find he would be unable to pay $45,000 per month
in temporary spousal support. The November I&E reflected
Raul’s average monthly income from wages had dropped to
$35,143 from the $183,794 stated in his March 2021 I&E.
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His I&Es also indicate a drop in his average monthly self-
employment income from $66,123 in March 2021 to $12,115 in
November 2021. As Sabrina notes, Raul did not explain the
drop in his income. He merely stated his “total income for 2021
[was] significantly lower than it was in earlier years due to the
pandemic,” and he would not receive the substantial bonus he
had been paid in 2020. The only evidence Raul gave the court to
“indicate that [his] 2021 income [was] drastically different from
[his] 2020 income” were his paystubs for a week’s worth of wages
earned a few weeks before the hearing.
We can infer the court did not find this evidence sufficient
to demonstrate Raul’s total available income had dropped so
significantly to render him unable to pay the ordered temporary
spousal support. Moreover, the evidence shows the community
had significant investments, savings, and real estate holdings,
all of which we can infer the court considered in assessing Raul’s
ability to pay temporary spousal support. (Wittgrove, supra,
120 Cal.App.4th at p. 1327 [court may consider investments
and other assets available to pay temporary spousal support].)
Accordingly, we cannot conclude the court erred in relying on
the report—along with the declarations and other evidence
the parties submitted—in determining Raul had the ability
to pay the temporary spousal support ordered.
Ample evidence also shows Sabrina was in need of support
to maintain the “very high” marital standard of living. The
record demonstrates the court properly considered Sabrina’s
needs and the parties’ expensive and lavish lifestyle in setting
temporary spousal support. Sabrina’s August 2021 I&E stated
her average monthly “proposed needs” were $26,771.91—about
$18,228 less than the amount the court awarded. Her updated
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I&E filed November 9, 2021, however, apparently claimed a
significantly greater amount of expenses. In setting monthly
temporary spousal support at $45,000, the court stated it focused
on Sabrina’s needs as set forth in both her August and November
2021 I&Es. The court acknowledged the expense declarations
“differ[ed] quite dramatically from one another” but noted
“the law is that[,] subject to the ability to pay, the court may
order any amount necessary to support the other spouse at the
accustom[ed] marital lifestyle.”
Citing his declaration, Raul argues Sabrina’s November
2021 I&E included “exaggerated amounts for maintenance of
[the family] home, groceries, food eating out, utilities, clothing,
savings and entertainment,” and included the cost of elective
surgery as a necessary monthly expense. We can infer the court
credited both of Sabrina’s I&Es—and the November 2021 I&E
supported the court setting temporary spousal support at
$45,000 rather than the lower number in the August 2021 I&E.
The disparity in the parties’ respective incomes and Sabrina’s
declaration describing the family’s high standard of living also
substantially support the court’s implied finding that $45,000
in temporary spousal support would “ ‘maintain’ ” the parties’
standards of living “ ‘as closely as possible to the status quo,
pending trial.’ ” (Gruen, supra, 191 Cal.App.4th at p. 637.) Raul
nevertheless argues the court did not make any findings about
the parties’ lifestyle before separation. We can infer, however,
the court credited Sabrina’s declaration and implicitly found
the couple’s standard of living was as Sabrina described. Indeed,
Raul agreed Sabrina described their standard of living accurately
but said it had significantly declined over the past three years.
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In short, on the record before us, we cannot conclude
that no judge reasonably could have made the same order as to
temporary spousal support. (Bower, supra, 96 Cal.App.4th at
p. 899.) The trial court did not abuse its discretion in ordering
temporary spousal support in the amount of $45,000.
DISPOSITION
The trial court’s findings and order after hearing, filed
January 7, 2022, are affirmed. Sabrina Martinez is to recover
her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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