Marriage of Cherinka CA3

Filed 1/17/23 Marriage of Cherinka CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
In re the Marriage of PATRICIA M. and JOHN D. C094647
CHERINKA.
PATRICIA M. CHERINKA, (Super. Ct. No. S-DR-
0045142)
Appellant,
v.
JOHN D. CHERINKA,
Respondent.
When Patricia M. and John D. Cherinka separated after over 42 years of marriage,
they agreed John would pay Patricia one-half of his total income in spousal support, or no
less than $2,500 per month.1 John retired four years after the parties separated, and he
asked the trial court to modify spousal support due to a change in circumstances—
1 As is customary in marital dissolution cases, we refer to the parties by their first names.
1
namely, his reduced income in retirement. The trial court granted the request, and
modified spousal support to $1,600 a month, retroactive to the date the request was filed.
It also granted Patricia’s request for spousal support arrears, but awarded her only
$31,388, which was much less than she sought. Finally, it awarded her $6,000 in
attorney’s fees, which, again, was much less than she sought. Patricia challenges all three
orders. We affirm the trial court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties’ Separation and Marital Settlement Agreement
Patricia and John separated in 2014 after over 42 years of marriage. Patricia filed
a petition for legal separation on April 1, 2014, which John did not contest. Patricia was
60 at the time, was not employed, and had not worked outside the home for most of the
marriage. John was 65 and worked for the El Dorado County Sheriff’s Department as a
detention aide. John was also receiving (1) Department of Veterans Affairs (VA)
disability benefits and (2) a federal pension (he had previously worked for the federal
government for approximately 32 years).
In January 2015, Patricia and John executed a marital settlement agreement
(MSA) that determined spousal support and the division of their assets. The MSA
provided for spousal support as follows: “[Husband] shall pay to [Wife] for spousal
support 1/2 his total income which include[s]: Federal Retirement, VA Disability and El
Dorado County Income or a sum no less than $2,500.00 per month . . . , commencing on
March 31, 2014 and continuing . . . [¶] . . . [u]ntil either party’s death, the remarriage of
the party receiving spousal support, or modification or termination by further court order,
whichever comes first. [¶] In addition, [Husband] to equally split the Social Security
Benefit when received and shall file for this benefit prior to [Wife’s] 62nd birthday, May
2015.” Exhibits attached to the MSA reiterate, “Spousal support to [Wife] [is] no less
than the amount of $2,500.00 per month. Amount to be equal to 1/2 of Husband’s
income/retirement/VA benefits.”
2
The MSA also provided John would maintain coverage for Patricia under the
health insurance provided through his employment, and stated, “At present husband
carries two P.P.O. insurances through his retirement and current employer.”
The MSA also addressed the allocation of John’s retirement benefits: “Based on
Husband’s employment during marriage, a community interest has arisen which include
the following: Benefits from Federal Retirement, VA benefits, CalPERS. [¶] The
parties agree and shall cooperate in the preparation of the Qualified Domestic Relations
Order or retirement benefits order for each plan, which proposed order(s) shall set forth
the respective community interest of the parties and govern the disposition of benefits
upon qualification by the plan(s).” A qualified domestic relations order, or QDRO, is an
order directing a retirement plan to pay a portion of an employee participant’s retirement
benefits directly to the employee’s former spouse. (See In re Marriage of Oddino (1997)
16 Cal.4th 67, 71.)
Finally, the MSA divided the parties’ assets and obligations. Among other things,
the parties agreed that each would retain one of their two cars; insurance premiums on
Patricia’s car would be paid by John and the amount deducted from spousal support. The
parties also split the balance on their Visa credit card (approximately $15,651), and
agreed that Patricia’s “portion ($100) for the Visa payment . . . shall come from the
Spousal Support amount.”
The court entered a judgment of legal separation on February 18, 2015, ordering
spousal support and the division of assets as set forth in the MSA, which was
incorporated into the judgment.
B. The California Public Employees’ Retirement System QDRO
In February 2018, John began thinking about retiring from his job with the
sheriff’s department, and the California Public Employees’ Retirement System
(CalPERS) was joined as a party to the proceedings. On June 15, 2018, the court entered
a “Stipulated Domestic Relations Order Re: Division of California Public Employees’
3
Retirement System Benefits” (hereafter the QDRO). The QDRO awarded Patricia an
interest in John’s CalPERS retirement benefits pursuant to a mathematical formula.
C. John’s Request to Modify Spousal Support and Patricia’s Request for Spousal
Support Arrears
On July 25, 2018, John filed a request for order (RFO) modifying spousal support
based on changed circumstances. In support of the RFO, John stated he was 69 years old,
had significant health issues, and was currently on medical leave from his job with the
sheriff’s department pending retirement. He stated his income would go down when he
retired, and he would no longer be able to pay Patricia $2,500 per month, as provided by
the MSA. He stated he lived with his son, Brandon, and Brandon’s wife, in a house that
he and Brandon co-owned, and his income and expense declaration (I&E) showed his
monthly expenses were around $3,200, which included a $925 mortgage payment.
Patricia opposed the RFO, and contended John should be required to continue
paying spousal support as provided in their MSA. She stated she had tried to find
employment since the separation, and had “submitted applications to numerous locations,
some more than two or three plus times. Places such as Kohl’s, Sam’s Club, Black Bear
Diner, Best Buy, RC Willey, Home Depot, Ashley Furnishings, Trader Joe’s and others.
I have never been called for an interview. There is not a market for a 65 year old woman
with little to no working skills.” She stated she had sold the house she and John had lived
in and purchased a new house. According to her I&E, her monthly expenses were around
$4,700, and included a $2,283 mortgage payment.
On October 30, 2018, Patricia filed her own RFO for an “[a]ccounting of and
arrears of spousal support,” and for attorney’s fees. In support of the RFO, she stated
John had recently begun paying her less than $2,500 per month, and “should be required
to provide an accounting . . . and pay arrearages of spousal support per the judgment.”
4
D. Patricia Begins Receiving CalPERS and Social Security Benefits
John retired effective September 15, 2018, and his monthly retirement benefit
from CalPERS was $1,711. Pursuant to the formula in the QDRO, Patricia was entitled
to $646, which left John with $1,065. CalPERS began making these payments directly to
both parties upon John’s retirement.
Also around this time, Patricia began receiving what the parties describe as
“derivative” Social Security benefits of $158 a month. Under the Social Security Act, the
divorced spouse of an individual who is entitled to receive Social Security benefits may
be entitled to receive a divorced spouse’s benefit equal to one-half the eligible spouse’s
benefit, and we presume the $158 Patricia receives from Social Security is her divorced
spouse’s benefit. (42 U.S.C. § 402(b).)
E. The Parties’ Statement of Issues
John and Patricia agreed both RFO’s would be tried together, and a trial was
scheduled for January 30, 2019. Prior to trial, both parties filed a statement of issues.
In her statement of issues, Patricia contended John had marketable skills and could
still work, while she had limited earning capacity because she had never worked outside
the home and was thus totally reliant on what she received in spousal support. She
contended John should be required to pay her a minimum of $2,500 a month.
In his statement of issues, John acknowledged that Patricia did not work outside
the home during their marriage. He noted that he and Patricia were both currently retired,
and that, as a result, neither party had any realistic earning capacity beyond his retirement
income. He stated his current monthly retirement income was $4,391,2 and he argued it
was unreasonable to expect him to pay Patricia $2,500, or 57 percent of this amount. He
2 This number appears incorrect because, by the time of trial, the parties had stipulated to
John’s income, and that stipulation shows his gross monthly income in retirement was
never less than $5,600 a month.
5
asked the court to reduce spousal support to $1,285 per month,3 or, in the alternative, to
“no more than 50% of his monthly income, redacting the $2,500 (or greater)
requirement.”
F. The Trial
For reasons that need not concern us, the trial was continued numerous times, and
was not held until March 2021.
On February 26, 2021, the court entered what we will refer to as a pretrial order,
which confirmed the trial would be limited to the three issues raised by the two RFOs:
(1) modification of spousal support; (2) spousal support arrears; and (3) attorney’s fees.
The court also adopted and signed a stipulation by the parties that identified the following
amounts for each year from January 1, 2015, to August 31, 2020:
(1) John’s gross income, broken down to show amounts received from:
(a) wages; (b) pensions; (c) VA disability; and (d) Social Security.
(2) The amount deducted from John’s federal pension (paid by CSRS, or the
Civil Service Retirement System) to pay for health insurance that covered
both John and Patricia.
(3) The amount of spousal support John paid Patricia.
(4) The gross amount Patricia received from CalPERS, and the amount CalPERS
deducted for survivorship benefits.
(5) The amount Patricia received from Social Security.
3 This amount was calculated using the CalSupport program, which appears to be a
computer program of a type that is “regularly utilized to determine temporary spousal
support in most family law courts.” (In re Marriage of Olson (1993) 14 Cal.App.4th 1,
5-6, fn. 3, italics added.) Using such a program to fix permanent spousal support,
however, is “inappropriate,” although it might be appropriate to use such a program “to
obtain a rapid calculation of the tax effects of each amount to each party and determine
the resulting net spendable income each party would have at different levels of permanent
spousal support.” (Ibid.)
6
The stipulation provided the court would determine the amount of spousal support
arrears and ongoing spousal support based on the amounts contained in the stipulation,
with the caveat that the parties disagreed about how the deduction for health insurance
and the CalPERS survivorship benefits were to be treated. The court excluded from trial
all other evidence regarding the amounts agreed to in the stipulation.
To get some perspective on how much money we are talking about, in 2020, John
received the following gross monthly income:
CSRS $3,352
CalPERS $1,064
VA Disability $979
Social Security $363
TOTAL $5,758.00
John paid Patricia $1,850 a month in spousal support, which effectively left him
with $3,908 a month (before taxes). In addition, he paid $665 a month for health
insurance, which was automatically deducted from his CSRS payment. Patricia received
the following gross monthly income:
CalPERS $655
Social Security $158
Spousal Support 1,850
TOTAL $2,663.00
Patricia also paid $140 a month for her CalPERS survivorship benefit, which was
automatically deducted from her CalPERS payment.
In the pretrial order, the court tentatively ruled that John’s CalPERS benefits
constituted income to him within the meaning of the MSA, and must be included when
calculating the amount of spousal support he owed.
7
Trial was held on March 16 and 17, 2021. Much of the court’s ruling was given
from the bench. Following the trial, on June 24, 2021, the court also issued a short
“Ruling on Submitted Matter,” which we will refer to as the final ruling, and which
addressed a few outstanding issues. The court also issued a judgment on September 23,
2021.
Both during the trial, and in the final ruling, the court affirmed its tentative ruling
regarding the CalPERS benefit, commenting, “I think the MSA is pretty clear. It says
half of [his] gross income.” This ruling meant that, pursuant to the MSA, Patricia was
entitled to one-half of John’s CalPERS benefit, and all of her CalPERS benefit.4 The
court made a similar ruling regarding Social Security benefits—namely, that the amount
John received from Social Security was considered his income, and, pursuant to the
MSA, Patricia was entitled to one-half of that amount.
Both parties offered limited testimony at trial about their current living situation.
As noted above, John lived with his son Brandon and Brandon’s wife in a house that he
and Brandon had purchased together after the parties’ separation. In late 2019, Patricia
threatened to put a lien on the house as security for her spousal support arrears and
attorney’s fees, and John responded by quitclaiming his interest in the house to Brandon.
According to John’s pretrial statement of issues, he gave Brandon his interest in the
house as an early inheritance, and, in exchange, Brandon agreed John could live in the
house until he died. At the time of trial, Brandon thus owned the house, and John
4 It appears neither party interpreted the MSA the same way the court did. Patricia’s
position appears to be that her share of John’s CalPERS benefit should be calculated by
adding what she received from CalPERS and what John received from CalPERS, and
then dividing that amount in half, and having John make up the difference, with the net
effect being that they both end up with one-half of the total benefit, or $860. John’s
position is that his CalPERS benefit “should not be included in the spousal support
calculation as it was already divided by QDRO and [Patricia] is receiving her share of the
benefits directly.”
8
testified he paid Brandon around $900 a month to cover a portion of household expenses
and food.
In or around 2017, Patricia sold the house she and John had lived in, and she
purchased a new house. By the time of trial, she had sold that house as well, and was
living in a rented apartment. It is unclear how much she made on the sale, but according
to her most recent I&E, she had $40,000 in the bank, which represented what was left of
her equity in the house. In a statement attached to the I&E, she noted, “The equity I got
from the house I’ve had to use along with my support of $1,850.00 per month to pay my
bills and live.” Also according to the I&E, she paid $1,750 a month in rent, and her total
monthly expenses were around $4,300. What we might call her bare-bones monthly
expenses (i.e., rent, food, and utilities) were around $2,500.
i. Modification of Spousal Support
The court found John’s retirement and his subsequent drop in income constituted a
change of circumstances that justified modifying spousal support.
The court then made the following findings pursuant to Family Code section
4320.5 The parties had a very long-term marriage. During the marriage they had a
middle class lifestyle, “maybe even slightly below the midrange of middle class,” but
there was not enough money postseparation to allow both parties to maintain that
lifestyle, or, as the court put it, “everyone agrees -- these are not people of great means,
and there is not a whole lot of money in the pot, and I [have] to decide how it gets
divvied up.” Realistically, neither party was able to work. John was retired and had
medical problems. Patricia had effectively never worked outside the home and it would
be difficult for her to find a job now at the age of nearly 68. As a result, the court found
5 Further undesignated statutory references are to the Family Code.
9
it was not reasonable to believe Patricia could become self-supporting. Neither party had
significant assets.
The court also found the tax consequences of modifying spousal support would hit
John harder than Patricia, stating a “[b]ig change in this case is the shift in tax liability.
That alone requires a substantial change because the tax liability is shifting from
[Patricia] to [John]. [¶] . . . [¶] The shift is that [spousal support payments] used to be
deductible [to John] and taxable to [Patricia]. Now it’s tax free to her, and it’s not a
deduction for him.” We presume the court was referring to a change in federal tax law
brought about by the Tax Cuts & Jobs Act of 2017. (Hogoboom & King, Cal. Prac.
Guide: Family Law (The Rutter Group 2022) ¶ 6.925.) Prior to the change, spousal
support payments were deductible by the payor spouse (John), and included as income by
the receiving spouse (Patricia). (Id., ¶¶ 6.925, 10.15.) Effective January 1, 2019,
however, spousal support payments are no longer deductible by the payor, or included as
income of the recipient. (Ibid.)
Finally, the court found that, although the separation had caused financial
hardships to both parties, “The hardships are a little bit more on [Patricia’s] side. Reason
being, if there were to be further financial decline, [John], I don’t think Brandon is going
to throw him out if he couldn’t fund the whole $940, or whatever that number is. I think
that he would still have a viable living situation at Brandon’s place, particularly since he,
essentially, made a gift of $20,000 to him, if not more. [¶] [Patricia], on the other hand, I
think if she can’t meet her obligations, I think she’s out on the street. I think that’s true.”
After making these findings, the court then announced its ruling as follows:
“Taking all of this into account and the final financial condition of the parties, spousal
support . . . will be . . . $1,600” a month.
Using the amounts in the parties’ stipulation, the court’s order means that, going
forward, Patricia will receive $1,600 per month in spousal support from John, and will
keep all of her CalPERS and Social Security benefits. Because spousal support is not
10
taxable to her, she will likely owe little to nothing in taxes (because her remaining,
taxable, income is less than the standard deduction). After CalPERS deducts $140 for
survivor benefits, Patricia will end up with $2,273 to cover her living expenses. John will
continue to receive around $5,758 per month in gross monthly income, he will owe
Patricia $1,600, and he will owe $665 for health insurance, leaving him with $3,493.
John will also owe taxes on his income and will no longer be able to deduct spousal
support.
The court also ruled that the modification to spousal support was retroactive to
July 25, 2018, the date John filed his RFO.
ii. Spousal Support Arrears
Calculating spousal support arrears began with a stipulation between the parties
that we will call the “arrears stipulation.” The arrears stipulation identified spousal
support arrears for each year from 2015 through February 2021 (i.e., the month before
trial) under three different scenarios labeled A, B and C. The parties stipulated that the
amounts shown in each scenario were correct, but disagreed on which scenario applied.
Initially, the different scenarios reflected the fact that CSRS deducted from John’s
federal retirement benefit the cost of health insurance that covered both John and Patricia.
The parties disagreed about how this deduction affected the amount of spousal support
that John owed Patricia. In Scenario A, John’s total income is divided by one-half, with
no deduction for the cost of health insurance, and he owed that amount in spousal
support. In Scenario B, the cost of health insurance is deducted from John’s total income,
and he owed one-half that amount in spousal support. Finally, in Scenario C, one-half the
cost of health insurance is added back into John’s total income, and he owed one-half that
11
amount in spousal support. John argued Scenario B should apply, and Patricia argued
Scenario C should apply. The court adopted Scenario A. 6
In 2018, things got more complicated, and each scenario now had three subparts
(e.g., A1, A2 and A3) to reflect the fact that Patricia began receiving payments directly
from CalPERS. The parties disagreed about how those payments affected the amount of
spousal support that John owed Patricia. As noted above, the court ruled that Patricia
was entitled to one-half of John’s CalPERS benefit, and Scenario A1 reflected this ruling.
Total spousal support arrears pursuant to Scenario A/A1, with interest, was $95,326.7
The amounts in the arrears stipulation were calculated pursuant to the MSA, and
were thus based on spousal support equaling one-half of John’s income. Because the trial
court ruled that the modification to spousal support was retroactive to the date the RFO
was filed, or to July 25, 2018, that meant the amounts shown on the arrears stipulation
had to be further modified. For the first seven months of 2018 (i.e., January through
July), arrears would be calculated pursuant to the MSA (i.e., John owed Patricia one-half
his income), and for the last five months of 2018 and thereafter, arrears would be
calculated based on the modified spousal support order (i.e., John owed Patricia $1,600 a
month). Applying the modification retroactively, total arrears was reduced to $44,034.8
6 Although the court did not explain its ruling, presumably it is because the MSA
provides John “shall maintain [insurance] coverage” for Patricia, and does not provide he
may deduct the cost of insurance when calculating spousal support.
7 The arrears stipulation did not include interest. Both parties filed posttrial briefs that
calculated interest. In her posttrial brief, Patricia calculated total arrears and interest
utilizing Scenario C, which the court did not adopt. John calculated total arrears and
interest utilizing Scenario A/A1, and the trial court adopted John’s calculation. Patricia
does not contest John’s calculation, and we thus assume it is correct.
8 The calculation is shown in John’s posttrial brief, which was adopted by the trial court.
Again, Patricia does not contest the calculation (she contests the retroactivity), so we will
assume it is correct.
12
This amount was then further reduced by $12,646 to account for Visa and car
insurance payments that John made on Patricia’s behalf, plus interest thereon. With the
Visa and car insurance payments deducted, the trial court awarded Patricia $31,388 in
spousal support arrears.
iii. Attorney’s Fees
Finally, the court addressed attorney’s fees. John requested fees pursuant to
section 271, which provides: “[T]he 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. An
award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”
The court awarded John $2,000 in attorney’s fees incurred opposing a motion to continue
the trial date that Patricia had filed on the eve of trial. The court noted, “There was
essentially no purpose for [the] motion to continue,” and “there was a pointless
expenditure of attorney’s fees for [John].”
Patricia requested attorney’s fees pursuant to the MSA, which provides the
prevailing party in any action to enforce the MSA is entitled to recover reasonable
attorney’s fees. Regarding the amount of fees, Patricia’s attorney stated, “The
approximate number . . . is $34,000,” Patricia added, “Plus two for today,” and Patricia’s
attorney then stated, “$36,000.” John’s attorney argued any breach of the MSA on his
part was unintentional because he believed he was meeting his support obligations at all
times. Patricia’s attorney responded that the fact the court ordered John to pay spousal
support arrears established there was a breach of the MSA, and intent was not relevant.
The court awarded Patricia $6,000 in fees, explaining its reasoning as follows:
“[T]he MSA is a disaster. It’s horribly written. Extremely unclear. It’s the MSA that
caused all of this. [¶] [Patricia] is asking for . . . contractual attorney’s fees. One of the
factors that the Court has taken into account in determining what’s called the Lo[d]e Star
13
Calculation is . . . the complexity of the issues. The complexity of the issues in this case
was driven by the MSA [and] authorship [of the MSA] is attributed to [Patricia].[9 ]
Because . . . if there [are] ambiguities, they get construed against the person who drafted
the agreement or who had it drafted for him or her. Likewise, the complexity of this case
here in the last three years nearly, since this RFO was filed, was driven almost entirely by
this disaster of an MSA. [¶] [Patricia’s] request for attorney’s fees is granted in the
amount of $6,000, less the $2,000 payable to [John], net order of $4,000 payable from
[John] to [Patricia].”
Judgment was entered on September 23, 2021, and this appeal followed.10
DISCUSSION
I
Standard of Review
“The modification of a spousal support order is reviewed on appeal for abuse of
discretion. In exercising its discretion the trial court must follow established legal
principles and base its findings on substantial evidence. If the trial court conforms to
these requirements its order will be upheld whether or not the appellate court agrees with
it or would make the same order if it were a trial court.” (In re Marriage of Schmir
(2005) 134 Cal.App.4th 43, 47, fn. omitted.) “ ‘Whether a modification of a spousal
support order is warranted depends upon the facts and circumstances of each case, and its
propriety rests in the sound discretion of the trial court the exercise of which this court
will not disturb unless as a matter of law an abuse of discretion is shown.’ [Citation.] An
abuse of discretion occurs ‘where, considering all the relevant circumstances, the court
9 Patricia testified the MSA was drafted by “[m]y document assistant.”
10Patricia filed a premature notice of appeal on August 20, 2021, after the final ruling
was entered but before the judgment was entered. She also filed a notice of appeal on
November 17, 2021, after the judgment was entered. We find her appeal was timely.
14
has exceeded the bounds of reason or it can fairly be said that no judge would reasonably
make the same order under the same circumstances.’ ” (In re Marriage of Olson (1993)
14 Cal.App.4th 1, 7.) A trial court also abuses its discretion if its findings are wholly
unsupported by the evidence, “ ‘since a consideration of the evidence “is essential to a
proper exercise of judicial discretion.” ’ ” (In re Marriage of Swain (2018)
21 Cal.App.5th 830, 836-837.)
Attorney’s fee awards in marital dissolution cases are also reviewed for an abuse
of discretion. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166.)
II
A Note on Patricia’s Brief
We note at the outset that both parties are proceeding in propria persona. A pro.
per. litigant, however, is entitled “to no greater privilege or advantage than that given to
one represented by counsel.” (Deauville v. Hall (1961) 188 Cal.App.2d 535, 547.)
“[I]in electing to represent himself ‘he assumes for all purposes connected with his case,
and must be prepared to be treated as having, the qualifications and responsibilities
concomitant with the role he has undertaken; he is not entitled either to privileges and
indulgences not accorded attorneys or to privileges and indulgences not accorded
defendants who are represented by counsel.’ ” (Ibid.)
There are problems with Patricia’s brief that we shall address. “It is the
responsibility of the appellant . . . to support claims of error with meaningful argument
and citation to authority. [Citations.] When legal argument with citation to authority is
not furnished on a particular point, we may treat the point as forfeited and pass it without
consideration. [Citations.] In addition, citing cases without any discussion of their
application to the present case results in forfeiture. [Citations.] We are not required to
examine undeveloped claims or to supply arguments for the litigants. [Citations.]”
(Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Patricia does not support
15
her arguments with citation to, or discussion of, the legal authorities that are applicable to
this case.
In the argument section of her opening brief, Patricia cites just two legal
authorities—section 760, which defines community property as “all property, real or
personal, wherever situated, acquired by a married person during the marriage while
domiciled in this state,” and the United States Constitution’s equal protection clause.
Here is the entirety of her discussion of these authorities: “[The trial court] just ridiculed
the MSA as a poorly written document and used that as an excuse to make a ruling totally
contrary to the MSA, and California community property laws. Ca. Fam code section
760. The United States constitution 14th amendment section 1 states: ‘nor shall any
State deny any person within its jurisdiction, the equal protection under the law.’
California community property laws state that each party owns 50% of the community
property retirement income, regardless of which party worked at a job. This judgment
was unfair, unjust, and not equal treatment under the laws of California which include
contract law, and family law.” That is all.
“A court need not consider an issue where reasoned, substantial argument and
citation to supporting authorities are lacking. [Citations.] The mere assertion of a
statutory or constitutional violation, followed by simply a citation to the statute or
constitutional provision, does not merit a judicial response.” (Woods v. Horton (2008)
167 Cal.App.4th 658, 677.) “[P]arties are required to include argument and citation to
authority in their briefs, and the absence of these necessary elements allows this court to
treat appellant’s sanction issue as waived.” (Interinsurance Exchange v. Collins (1994)
30 Cal.App.4th 1445, 1448.) “[I]t is not this court’s role to construct theories or
arguments that would undermine the judgment and defeat the presumption of correctness.
Rather, an appellant is required to present a cognizable legal argument in support of
reversal of the judgment. ‘When an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the reviewing court is
16
unnecessary.’ [Citation.] ‘Issues do not have a life of their own: if they are not raised or
supported by argument or citation to authority, [they are] waived.’ [Citation.]” (Okorie
v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 600, disapproved on
another ground in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012, fn. 2.)
Patricia’s brief cites a few other legal authorities. In the “conclusion” section, she
cites Civil Code sections 3300-3302 and 3353-3360—albeit with no discussion of how
those statutory provisions are relevant to this case. Those sections deal with damages for
breach of contract, but this is not a breach of contract case. Patricia’s opening brief also
includes a table of authorities, but she does not actually discuss those authorities in her
brief, or explain how they are applicable.11
Finally, we note that Patricia’s brief does not contain headings or subheadings
summarizing each point, as required by rule 8.204 of the California Rules of Court.
That “ ‘[t]he briefs must present each point separately, under an appropriate heading,
showing the nature of the question to be presented’ was designed to lighten the labors of
the appellate tribunals by requiring the litigants to present their cause systematically and
so arranged that those upon whom the duty devolves of ascertaining the rule of law to
apply may be advised, as they read, of the exact question under consideration, instead of
being compelled to extricate it from the mass. An appellant’s brief which fails to comply
is equally confusing to the respondent, who labors under an unwarranted handicap in
attempting to understandingly reply.” (Landa v. Steinberg (1932) 126 Cal.App. 324,
11 In addition to the code sections already mentioned, the table of authorities includes:
section 2024 (which deals with notices required in a petition and judgment for legal
separation); section 761 (which deals with community property that is transferred in
trust); 26 Code of Federal Regulations part 1.4-3 (which deals with husband and wife
filing separate federal tax returns); sections 720-721 (which deal with obligations spouses
owe each other); and Penal Code section 368 (prescribing criminal penalties for elder
abuse). Patricia’s reply brief adds two new statutes to the table of authorities: Penal
Code sections 503 (which defines embezzlement), and 487 (which defines grand theft).
17
325.) Indeed in this case, the respondent appropriately expresses uncertainty about how
to respond to an opening brief that does not comply with this rule. “Failure to provide
proper headings forfeits issues that may be discussed in the brief but are not clearly
identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
III
Modification of Spousal Support
We start with some blackletter law. First, section 3651 provides that “a [spousal]
support order may be modified . . . at any time as the court determines to be necessary.”
(§ 3651, subd. (a).) As particularly relevant here, section 3651 also provides, “This
section applies whether or not the support order is based upon an agreement between the
parties.” (§ 3651, subd. (e).) Finally, section 3651 provides a limited exception to the
rule allowing modification of spousal support orders: “An order for spousal support may
not be modified . . . to the extent that a written agreement . . . specifically provides that
the spousal support is not subject to modification.” (§ 3651, subd. (d).)
Here, the parties’ MSA does not “specifically provide[] that the spousal support is
not subject to modification.” (§ 3651, subd. (d).) Instead, it expressly contemplates that
spousal support is subject to modification, because it states John must pay Patricia one-
half of his total income or at least $2,500 a month “commencing on March 31, 2014 and
continuing . . . [¶] . . . [u]ntil . . . modification . . . by further court order.” (Italics added.)
That means that spousal support in this case is subject to modification “as the court
determines to be necessary,” (§ 3651, subd. (a)), even though the parties agreed when
they executed the MSA that spousal support would be equal to one-half of John’s total
income or not less than $2,500 a month. That also disposes of the suggestion throughout
Patricia’s brief that the parties are forever bound by the spousal support provisions in
their MSA. Section 3651 establishes that they are not, and that the court may modify
spousal as it determines to be necessary.
18
Second, “Where the [marital settlement] agreement permits modifications, those
modifications require a showing of a change in circumstances.” (In re Marriage of
Aninger (1990) 220 Cal.App.3d 230, 238; see also In re Marriage of Khera & Sameer
(2012) 206 Cal.App.4th 1467, 1475 [“ ‘Modification of spousal support, even if the prior
amount is established by agreement, requires a material change of circumstances since
the last order’ ”].) “Change of circumstances means a reduction or increase in the
supporting spouse’s ability to pay and/or an increase or decrease in the supported
spouse’s needs. [Citations.] It includes all factors affecting need and the ability to pay.”
(In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.)
Third, the supporting spouse’s retirement can constitute a change in circumstances
that justifies the modification of spousal support. “[N]o one may be compelled to work
after the usual retirement age of 65 in order to pay the same level of spousal support as
when he was employed.” (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373,
1378.) “[I]n the instance of a bona fide retirement, a supporting spouse should not be
forced to continue working. Under those circumstances, the trial court may determine
that there has been a material change in circumstances to justify a modification of
support. [Citations.] Just as a married couple may expect a reduction in income due to
retirement, a divorced spouse cannot expect to receive the same high level of support
after the supporting spouse retires.” (Id. at p. 1379; see also In re Marriage of Sinks
(1988) 204 Cal.App.3d 586, 594 [“Certainly, we recognize the bona fide retirement of a
supporting spouse warrants an examination by the trial court to determine if there has
been a material change of circumstances to justify a modification in support”].)
Here, John retired at age 69, and there is no suggestion his retirement was
anything other than bona fide. According to the parties’ stipulation, in 2015, which is the
year the judgment of separation was entered, John earned an average of around $3,517 a
month from his job with the sheriff’s department, and right before he retired in 2018, he
filed an I&E stating he earned around $3,400 a month from his job. After he retired, he
19
received a CalPERS retirement benefit of $1,711 a month, which is about half of what he
earned while he was working. This was a substantial decrease in income, and supports
the trial court’s finding that John’s retirement and resulting decrease in income
constituted a material change of circumstances.
The trial court’s finding is also supported if we look at John’s total income from
all sources, not just from the sheriff’s department/CalPERS. Using the numbers in the
parties’ stipulation, John’s gross income decreased from around $8,019 a month in 2015
(the year the judgment of separation was entered), to around $5,600 a month in 2019 (the
first full year after his retirement), and around $5,750 a month in 2020 (the year before
the trial). This is a reduction of almost 30 percent. Again, this supports the trial court’s
finding that John’s retirement, and the resulting decrease in his income, was a material
change in circumstances.
Finally, we note that, after John retired, CalPERS began paying Patricia’s share of
his retirement benefit directly to her. Also around this time, Patricia began receiving her
divorced spouse’s Social Security benefit. This is another material change in
circumstances, because it meant that Patricia now received over $800 a month directly
from CalPERS and Social Security, and was thus no longer 100 percent dependent on
spousal support to meet her living expenses.
Having properly found that a change in circumstances justified modifying spousal
support, the trial court had to determine the amount. There is no formula that is used to
determine the amount of spousal support. (See In re Marriage of Olson, supra,
14 Cal.App.4th at pp. 5-6, fn. 3.) Instead, section 4330, subdivision (a), provides the
court may order spousal support in “an amount . . . that the court determines is just and
reasonable, based on the standard of living established during the marriage, taking into
consideration the circumstances as provided in . . . Section 4320.” Section 4320, in turn,
requires the court to consider a long list of circumstances when setting or modifying
spousal support. (See In re Marriage of Swain, supra, 21 Cal.App.5th at p. 836 [when
20
modifying spousal support “the trial court considers the same criteria set forth in section
4320 as it was obligated to consider in making the initial support order”].) Those
circumstances include: (1) “The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the marriage,” (2) “The
extent to which the supported party’s present or future earning capacity is impaired by
periods of unemployment that were incurred during the marriage to permit the supported
party to devote time to domestic duties,” (3) “The extent to which the supported party
contributed to the attainment of an education, training, a career position, or a license by
the supporting party,” (4) “The ability of the supporting party to pay spousal support,
taking into account the supporting party’s earning capacity, earned and unearned income,
assets, and standard of living,” (5) “The needs of each party based on the standard of
living established during the marriage,” (6) “The obligations and assets, including the
separate property, of each party,” (7) “The duration of the marriage,” (8) “The ability of
the supported party to engage in gainful employment without unduly interfering with the
interests of dependent children in the custody of the party,” (9) “The age and health of the
parties,” (10) “The immediate and specific tax consequences to each party,” (11) “The
balance of the hardships to each party,” (12) “The goal that the supported party shall be
self-supporting within a reasonable period of time,” and (13) “Any other factors the court
determines are just and equitable.” (§ 4320.)
Although its findings were brief, it appears to us that the court made findings on
all of these circumstances, and Patricia does not suggest otherwise. Indeed, Patricia
never mentions section 4320, much less specifically attacks any of the court’s findings on
the section 4320 circumstances. She thus gives us no reason to hold that any of those
findings are not supported by the evidence.
Instead, Patricia appears to argue that the trial court should have required John to
continue to abide by the terms of the MSA, because, even in retirement, he makes over
$5,000 a month and can thus afford to pay her one-half his income or not less than $2,500
21
a month. Even if we assume John could afford to pay Patricia one-half his income,
however, “ability . . . to pay spousal support” is only one of the circumstances
enumerated in section 4320, and a trial court would abuse its discretion if it considered
only that circumstance “to the exclusion of all others.” (In re Marriage of Smith (1990)
225 Cal.App.3d 469, 483; see id. at p. 486.)
We also reject Patricia’s suggestion that John can easily afford to pay her one-half
his income. After the deduction for health insurance that covers Patricia,12 John receives
around $5,095 a month from all sources. He also pays taxes, and although we do not
know the precise amount, we do know that taxes will reduce the amount of income he has
available to pay either spousal support or his own living expenses. According to John’s
most recent I&E, his monthly expenses are around $3,200, and do not appear
extravagant. If he must pay Patricia one-half of his income in spousal support, he will
not have enough left to pay his monthly expenses. Moreover, if John must pay Patricia
one-half his total income, while Patricia gets to keep all of her CalPERS and Social
Security benefits, Patricia will end up with $3,688 a month to John’s $2,875—which
hardly seems “just and reasonable.” (§ 4330, subd. (a).)
Finally, Patricia appears to contend she is legally entitled to one-half of John’s
current total income, because that income is community property. This is incorrect
because not all of John’s current income is community property. “The earnings . . . of a
spouse . . . after the date of separation of the spouses, are the separate property of the
12 And we find no abuse of distribution in considering this deduction when determining
the amount of spousal support. We recognize that the MSA provides John shall maintain
health insurance for Patricia and does not provide he may deduct the cost of this
insurance from his total income for purposes of determining child support. However, the
trial court may modify this as it deems necessary based on John’s diminished income in
retirement. Simply put, John has much less income in retirement, and the amount he pays
for Patricia’s insurance is money he does not have available to pay either spousal support
or his own living expenses.
22
spouse.” (§ 771, subd. (a), italics added; see also § 772 [“After entry of a judgment of
legal separation of the parties, the earnings or accumulations of each party are the
separate property of the party acquiring the earnings or accumulations”].) According to
the petition for legal separation, the parties separated on March 31, 2014. That means
John’s earnings after that date, and retirement benefits accrued after that date, are his
separate property. (See In re Marriage of Wilson (1974) 10 Cal.3d 851, 854
[“Retirement pay is part of the consideration earned by the employee. [Citations.] Only
the consideration earned by an employee during marriage is community property”];
Garfein v. Garfein (1971) 16 Cal.App.3d 155, 158-159 [earnings after date of separation
are separate property].) The most commonly used method of apportioning the
community property portion of an employee spouse’s retirement benefits is the “time
rule,” pursuant to which “the community interest in the retirement benefits is determined
‘to be that fraction of retirement assets, the numerator of which represents the length of
service during the marriage but before the separation, and the denominator of which
represents the total length of service by the employee-spouse.’ ” (In re Marriage of
Bowen (2001) 91 Cal.App.4th 1291, 1295, italics added.) That is the formula that was
used in the QDRO to apportion John’s CalPERS retirement benefits to Patricia, and,
utilizing that formula, CalPERS calculated Patricia’s community interest in John’s
retirement benefit is 37.79 percent. Patricia states the QDRO was “done wrong,” but she
does not explain what is wrong about it, and in any event, the QDRO is not at issue in
this appeal.
Social Security and VA disability benefits are treated differently. “Although
retirement benefits are generally community property under California law, federal law
mandates that Social Security is separate property.” (In re Marriage of Peterson (2016)
243 Cal.App.4th 923, 930.) That means John’s Social Security benefit is his separate
property, and Patricia’s divorced spouse’s Social Security benefit is her separate
property. (Hogoboom & King, Cal. Prac. Guide: Family Law, supra, ¶ 8.256.)
23
Similarly, VA disability benefits are not divisible as community property in state court
dissolution proceedings, although once they are paid, they may be considered by state
courts when ordering spousal support. (Mansell v. Mansell (1989) 490 U.S. 581, 594-
595; Rose v. Rose (1987) 481 U.S. 619, 635; In re Marriage of Stanton (2010)
190 Cal.App.4th 547, 551; In re Marriage of Smith (2007) 148 Cal.App.4th 1115, 1121.)
What the above discussion shows is that California community property laws do
not entitle Patricia to one-half of John’s current income. Although the MSA provides
Patricia is entitled to one-half of John’s total income or no less than $2,500 a month, the
court modified that amount based on a material change in circumstances, which the law
permits it to do. The question in this case is whether Patricia has demonstrated the trial
court abused its discretion in setting spousal support at $1,600 a month. In deciding this
question, we reiterate how deferential the standard of review is: “The test is not what
order we would have made if one of us had been the trial judge. [¶] ‘Our role as an
appellate court is not that of factfinder; that is the role of the trial court.’ [Citation.] The
role of the appellate court is not to second-guess the trial judge. Reading a typed
reporter’s transcript does not enable us to view the witnesses, determine credibility or
determine which conflicting evidence is to be given greater weight. [¶] ‘We therefore
heed “the well admonished rule of appellate review which finds a presumption that the
[trial] court performed its duties in a regular and correct manner absent a clear showing to
the contrary.” [Citation.] “[T]he fact that a more liberal award might have been
supported is not the proper test. [Citation.]” ’ [Citation.]” (In re Marriage of Smith,
supra, 225 Cal.App.3d at pp. 493-494.) Moreover, “It is a fundamental rule of appellate
review that a judgment is presumed correct and the appealing party [here, Patricia] must
affirmatively show error.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th
at p. 1484.) It thus does not matter that we might have set spousal support at more than
$1,600 a month if we had been the trial judge. It also does not matter that the evidence
would have supported an amount higher than $1,600. Instead, the sole question is
24
whether Patricia has affirmatively shown the trial court’s order “ ‘has exceeded the
bounds of reason or it can fairly be said that no judge would reasonably make the same
order under the same circumstances.’ ” (In re Marriage of Olson, supra, 14 Cal.App.4th
at p. 7.) She fails to make such a showing.
We note that, “In most instances, it is impossible at separation for either party to
have sufficient funds to continue to live in the same life-style enjoyed during the
marriage. After separation the parties have two households rather than one, and with
California’s high housing costs this represents a significant increase in living expenses.”
(In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 488-489.) So, too, in this case.
We also reiterate what we stated above, namely, that “[j]ust as a married couple may
expect a reduction in income due to retirement, a divorced spouse cannot expect to
receive the same high level of support after the supporting spouse retires.” (In re
Marriage of Reynolds, supra, 63 Cal.App.4th at p. 1379.) Here, particularly following
John’s retirement, neither party can afford to maintain the standard of living they enjoyed
during their marriage. John now lives with his adult son, and Patricia lives in a rented
apartment. John’s current monthly expenses are around $3,215, and Patricia’s are over
$4,000. Between the two of them, their total gross income from all sources is around
$6,600, and that is before taxes and various deductions. Mathematically, there is not
enough money to allow both parties to pay their current living expenses, much less to
maintain the same standard of living they enjoyed during their marriage. We find that
Patricia has failed to meet her burden of affirmatively demonstrating the trial court’s
order setting spousal support at $1,600 a month “ ‘exceeded the bounds of reason or it
can fairly be said that no judge would reasonably make the same order under the same
circumstances.’ ” (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 7.) She thus has
not demonstrated an abuse of discretion that would justify reversal.
25
IV
Spousal Support Arrears
The court awarded Patricia $31,388 in spousal support arrears. Patricia challenges
this award, but it is not clear on what basis. As noted above, the argument section of her
brief has no headings, and she cites no legal authority, so it is difficult to parse out her
arguments about arrears. If the trial court had not made modified spousal support
retroactive to the date the RFO was filed, then arrears up through the time of trial would
have been calculated as specified in the MSA and using the amounts shown on Schedule
A/A1, and total arrears, with interest, would have been $95,326. This amount, however,
was subject to two reductions—and it appears it is these two reductions that Patricia
challenges.
The first, and biggest, reduction was caused by the court’s ruling that modified
spousal support of $1,600 a month was retroactive, because this ruling effectively meant
that John was overpaying Patricia almost every month from August 2018 onward, that he
thus owed no arrears for that time period, and that he was actually entitled to a cred it on
total arrears owed. Once this credit is factored in, arrears dropped to $44,034 (and as
noted above, Patricia does not challenge the calculation, she challenges the retroactivity).
Patricia complains about the “injustice with a retroactive ruling which wiped out
most of my arrears,” and she asserts the retroactive ruling “stole my community property
income, to which I was contractually entitled under the terms of the MSA, and California
community property income laws.” As discussed above, however, not all of John’s
current income is community property, and section 3651 expressly allows the court to
modify the MSA as it determines to be necessary based on a change in circumstances.
Moreover, the law expressly provides, “An order modifying . . . a support order may be
made retroactive to the date of the filing of the” RFO. (§ 3653, subd. (a).) To the extent
Patricia argues it was improper for the court to make the order retroactive, we disagree,
because section 3653 expressly authorizes the court to make the order retroactive.
26
“No explicit statutory standards control the retroactivity decision. Rather, the
matter lies within the trial court’s sound discretion.” (Hogoboom & King, Cal. Prac.
Guide: Family Law, supra, ¶ 17.94b; see also In re Marriage of Cheriton (2001)
92 Cal.App.4th 269, 312.) In ordering that modified spousal support was retroactive, the
trial court found “that the delays and long pendency of the instant [RFO] were largely, if
not mostly, driven by [Patricia],” and Patricia does not challenge this finding. She thus
fails to convince us that the trial court abused its discretion in making modified spousal
support retroactive.
The second reduction to the amount of arrears was a $12,646 credit to John for
Visa and car insurance payments that he made on Patricia’s behalf. It is unclear whether
Patricia challenges the reduction itself, the amount of the reduction, or both. In the
argument section of her brief, she suggests the reduction for Visa payments is based on a
“deliberate lie” that John told to the court (although we are not clear on what the alleged
lie is). She never mentions the insurance payments. More important than her lack of any
cogent argument on this issue, however, is the fact that Patricia’s attorney acknowledged
at trial that (1) John was entitled to deduct from spousal support arrears amounts he paid
on Patricia’s behalf for Visa and car insurance, (2) exhibit Nos. 14 and 15 accurately
showed those amounts, and (3) those amounts should “be credited back” to John. The
amounts shown on exhibit Nos. 14 and 15 total $12,646. Patricia’s attorney also filed a
pretrial statement of issues that included these two exhibits as attachments, and that
acknowledged the amounts shown thereon “should be deducted from the support arrears.”
Having acknowledged in the trial court that John was entitled to a credit of $12,646,
Patricia cannot now argue on appeal that he is not entitled to that credit. “It is axiomatic
that arguments not asserted [in the trial court] are waived and will not be considered for
the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th
1480, 1488, fn. 3.) Similarly, “ ‘As a general rule, theories not raised in the trial court
cannot be asserted for the first time on appeal; appealing parties must adhere to the theory
27
(or theories) on which their cases were tried. This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change of theory on
appeal.’ ” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332,
1344.) The trial court thus did not err in reducing arrears by $12,646.
Patricia thus fails to convince us that the court erred in awarding her $31,388 in
arrears.
V
Attorney’s Fees and Costs
The court awarded Patricia $6,000 and John $2,000 in attorney’s fees, leaving a
net total of $4,000 owing from John to Patricia. Patricia does not argue the trial court
erred in awarding $2,000 to John, so we will assume she does not challenge his fee
award. Instead, she only challenges her fee award.
Patricia’s argument, both here and in the trial court, is that she is entitled to
attorney’s fees pursuant to section 15 of the MSA, which states, “The prevailing party in
any action or proceeding to enforce the terms, covenants or conditions of this Agreement
. . . shall be entitled to recover and be awarded her (his) (its) reasonable attorney fees and
costs incurred in connection with such proceedings or efforts.” Patricia contends her
RFO seeking spousal support arrears was an action to enforce the terms of the MSA, and
she prevailed on her RFO as evidenced by the fact the court awarded her significant
arrears. The trial court clearly agreed, because it awarded her $6,000 in attorney’s fees.
It thus appears that the only issue is the amount of the award.
Patricia contends she is entitled to $36,000 in attorney’s fees, and the court erred
in awarding her only $6,000. We note at the outset that we have no idea where this
amount come from, other than the following snippet of testimony from the trial:
PATRICIA’S ATTORNEY: “[S]he is seeking . . . her attorney’s fees under the
MSA.
28
“THE COURT: In the amount of?
“[ATTORNEY]: In the amount of -- I believe we --
“[PATRICIA]: It was -- to begin with, it was 38 something, and then John has
paid almost $3,636 from an award I had from Judge Curry on March 11th of 2020 for the
last year, and then I’ve had to retain [my attorney] a few times since then, and since
today, yesterday I have to as well pay more to that.
“[ATTORNEY]: The approximate number, Your Honor, is $34,000.
“[PATRICIA]: Plus two for today.
“[ATTORNEY]: $36,000.”
That is all. Patricia does not point us to any documentation substantiating her
request for $36,000 in attorney’s fees. “[T]he fee setting inquiry in California ordinarily
begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by
the reasonable hourly rate. ‘California courts have consistently held that a computation
of time spent on a case and the reasonable value of that time is fundamental to a
determination of an appropriate attorneys’ fee award.’ ” (PLCM Group, Inc. v. Drexler
(2000) 22 Cal.4th 1084, 1095.) Fee requests are also generally supported by evidence
substantiating the amount sought (i.e., billing or time records, a declaration from counsel
estimating hours spent, etc.). (See id. at p. 1096, fn. 4 [“maintaining contemporaneous
records by . . . counsel of hours spent on a case . . . would facilitate accurate calculation
of the lodestar and minimize possible inaccuracies in reconstructing time spent on a
matter months or even years after the fact”]; Taylor v. County of Los Angeles (2020)
50 Cal.App.5th 205, 207, 213-214 [noting it may be possible to award fees based on
lawyer’s testimony about hours devoted to case, but “contemporaneous time records are
the best evidence of lawyers’ hourly work. They are not indispensable, but they eclipse
other proofs”]; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1586-1587 [declaration
29
from counsel stating hourly rate and total fees incurred, and describing work done,
sufficient to support fee award].) Here, Patricia points to no evidence showing the
number of hours her attorney spent litigating her RFO (as opposed to opposing John’s
RFO), and no evidence about her attorney’s hourly rate. The trial court may well have
concluded that a substantial amount of the time spent on this case was spent opposing
John’s request to modify spousal support, and not Patricia’s request for spousal support
arrears. (See Modglin v. Modglin (1966) 246 Cal.App.2d 411, 416.)
Moreover, and assuming Patricia contends she is automatically entitled to all of
the attorney’s fees she incurred litigating her RFO, we note that the MSA’s plain
language limits her to recovering “reasonable” attorney’s fees. (Italics added.)
“Whether an award of attorney fees is based on statutory or contractual provisions,
‘ “[t]he trial court has broad discretion to determine the amount of a reasonable fee, and
the award of such fees is governed by equitable principles.” ’ [Citations.] ‘This
determination is necessarily ad hoc and must be resolved on the particular circumstances
of each case.’ [Citation.] [¶] ‘ “The ‘experienced trial judge is the best judge of the
value of professional services rendered in his court, and while his judgment is of course
subject to review, it will not be disturbed unless the appellate court is convinced that it is
clearly wrong’ ”—meaning that it abused its discretion.’ [Citations.] The appellant
challenging the award ‘bear[s] the burden of affirmatively establishing that the trial court
abused its discretion.’ [Citation.] As with most trial court orders, we ‘ “presume the trial
court’s attorney fees award is correct.” ’ [Citation.]” (In re Marriage of Minkin (2017)
11 Cal.App.5th 939, 954.) We thus start with the presumption that the trial court’s fee
award is correct, and Patricia has the burden of affirmatively establishing the award is
clearly wrong. With almost no argument from Patricia on this issue, and with no
evidence documenting the amount of fees sought, she fails to meet her burden.
30
VI
Miscellaneous Arguments
Patricia mentions two other things in her brief that we briefly address—what
happened to the house John purchased with Brandon, and a life insurance policy.
As noted above, after the parties separated, John and Brandon purchased a house
together, and John later quitclaimed his interest in the house to Brandon after Patricia
threatened to put a lien on it. Patricia contends this transfer was “fraudulent.” On
June 30, 2020, almost nine months before the trial, Patricia filed an RFO asking the court
to order John to disclose information about the transfer, arguing it could materially
reduce John’s equity in the house, which would, in turn, frustrate her ability to foreclose
on the home in order to enforce his spousal support obligations. The court ordered John
to produce documentation regarding the transfer and refinance.
In her brief on appeal, Patricia states John never provided this documentation. She
also complains the trial court “refused to hear testimony from son Brandon Cherinka
regarding the quit claim of [John’s] half ownership of their home to Brandon, and the
refinance of the loan. [¶] Brandon and [John] were subpoenaed to testify about this
fraudulent transfer of [John’s] equity asset in the house to avoid a lien being placed on
the house. This lien would secure payment of arrears and attorney’s fees, which he knew
he owed me . . . . Judge . . . in his Feb 26, 2021, pretrial ruling, that was actually my
RFO to the court, denied Brandon’s testimony, and he denied me getting the court
ordered quit claim and refinance information. [John’s] home equity was critical
information to prove he could pay his debt to me.” Patricia does not support these
statements with any citation to the record. Presumably, however, she is referring to the
trial court’s February 26, 2021 pretrial order, in which it ruled that discovery compliance
issues (i.e., John’s alleged failure to provide documentation about the transfer) must be
adjudicated as provided in the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.),
and would not be adjudicated at trial. To the extent Patricia challenges this ruling, she
31
fails to convince us it was erroneous because we agree that trial is not the appropriate
venue to adjudicate discovery disputes.
The trial court also ruled that it “decline[d] to join the issue of the transaction
between [John] and the parties’ son Brandon to the trial issues. Brandon has not been
joined as a party to the action, and the court therefore lacks jurisdiction to adjudicate his
right, title, and interest in the property.” Again, assuming Patricia challenges this ruling,
we find no abuse of discretion. (See People v. Young (2019) 7 Cal.5th 905, 931 [trial
court’s decision to exclude evidence reviewed for abuse of discretion, and will be upheld
unless it acted in arbitrary, capricious, or absurd manner resulting in a miscarriage of
justice].) Patricia complains in her brief that John was “hiding his equity in the house,”
and she appears to fault the trial court for “fail[ing] to order [John’s] name back on the
deed/loan before and at trial.” We are aware of no legal authority (and Patricia cites
none) that would allow the trial court to order John’s name back on the deed or that
would require the trial court to adjudicate John’s interest in the house as part of a trial on
spousal support. Finally, to the extent Patricia complains the trial court would not allow
Brandon to testify, she fails to explain what testimony he would have provided that was
relevant to any of the issues at trial (i.e., modifying spousal support, spousal support
arrears, and attorney’s fees). We also note Patricia’s attorney never tried to call Brandon
to testify during the trial.
Patricia also appears to have some type of complaint about John cashing out a life
insurance policy, but we are unable to ascertain precisely what her complaint is. It may
have to do with the fact that, in 2020, John received a form 1099 from the Protective Life
Insurance Co. showing a “[g]ross distribution” of $22,997.97, and a “[t]axable amount”
of $12,417.17. John’s accountant testified that she included the $12,417 taxable amount
in John’s total income on his 2020 tax return. John’s attorney then stated, “[John] didn’t
receive any funds from the life insurance policy, they were all solely for the benefit of
wife,” and Patricia’s attorney responded, “I do not dispute that statement.” With no
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cogent argument from Patricia on this issue, we are unable to ascertain what complaint, if
any, she has about the distribution on the life insurance policy.
DISPOSITION
The judgment is affirmed. Each side to bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
EARL, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.
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