Marriage of Irons and Napodano CA4/2

Filed 6/17/14 Marriage of Irons and Napodano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of LEE RENEE IRONS
AND JOHN JOSEPH NAPODANO.
LEE RENEE IRONS,
E055950
Respondent,
(Super.Ct.No. SWD023394)
v.
OPINION
JOHN JOSEPH NAPODANO,
Appellant.
APPEAL from the Superior Court of Riverside County. Robert W. Nagby,
Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.
Law Offices of Catherine A. Vincent, Catherine A. Vincent and Matthew M.
Vincent, for Appellant.
Serenity Legal Services and Arnold H. Wuhrman for Respondent.
1
John Joseph Napodano (John) appeals from a judgment following the dissolution
of his marriage to respondent Lee Renee Irons (Lee). John challenges the portions of the
judgment ordering spousal support and awarding attorney fees to Lee. He contends the
trial court erred in a variety of respects, including: 1) improperly considering the income
of John’s current significant other in determining spousal support; 2) making a finding
regarding Lee’s gross income that is unsupported by substantial evidence; 3) making
findings pursuant to Family Code1 section 4320, subdivisions (a)(1), (a)(2), and (h) that
are unsupported by substantial evidence2; 4) ordering spousal support in an amount that
constituted an abuse of discretion in light of the court’s own findings under section 4320,
subdivisions (b), (c), (d), (e), (g), and (i); and 5) awarding Lee attorney fees pursuant to
sections 2030 and 2031, even though John would not have sufficient income to satisfy the
order after paying his other obligations, including child support and spousal support.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on September 25, 1992, and at the time of trial had one
minor child, born June 9, 1994. They separated on October 8, 2008. Lee filed her
petition for dissolution of marriage on November 15, 2010.
1 Further undesignated statutory references are to the Family Code.
2 As discussed more fully below, in his reply brief, John abandons his assertion
that the trial court’s findings pursuant to section 4320, subdivision (a)(2), are unsupported
by substantial evidence, but maintains that the trial court nevertheless abused its
discretion, in light of those findings.
2
After trial, the petition for dissolution of marriage was granted, with marital status
terminating effective November 18, 2011. In addition to ruling on other matters not
relevant to the present appeal, the court awarded Lee $1,641 per month in child support,
which was to cease when the child either turned 19, or had turned 18 and was no longer a
full-time high school student—the second of these alternative triggers for cessation of
child support at the time of the court’s ruling was expected to occur by June 2012. The
court also awarded Lee $3,200 per month in spousal support, and $3,500 in attorney fees.
The court’s order with respect to attorney fees permits John to make payment of the
$3,500 in installments of $100 per month beginning January 1, 2012, with $50 due on the
first and fifteenth of each month, until the amount is paid in full.
We discuss the facts underlying the court’s orders regarding spousal support and
attorney fees below, as necessary to address John’s specific claims of error.
II. DISCUSSION
A. Standard of Review
We review the court’s orders on spousal support and attorney fees for abuse of
discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 [amount and duration
of spousal support rests within trial court’s broad discretion]; In re Marriage of Keech
(1999) 75 Cal.App.4th 860, 866 [motion for attorney fees and costs in dissolution action
is addressed to trial court’s discretion].) “‘An abuse of discretion occurs “where,
considering all the relevant circumstances, the court 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.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96
3
Cal.App.4th 893, 898-899 (Bower).) The appealing party bears the burden to
affirmatively show error. (Id. at p. 898.)
Additionally, “‘[a] judgment or order of a lower court is presumed to be correct on
appeal, and all intendments and presumptions are indulged in favor of its correctness.
[Citations.]’ [Citation.]” (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 829
[Fourth Dist., Div. Two].) “As an aspect of the presumption that judicial duty is properly
performed, we presume . . . that the court knows and applies the correct statutory and
case law [citation] and is able to distinguish admissible from inadmissible evidence,
relevant from irrelevant facts, and to recognize those facts which properly may be
considered in the judicial decisionmaking process. [Citations.]” (People v. Coddington
(2000) 23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.)
B. Analysis
1. John’s Income
John objects to the trial court’s findings with respect to his income in several,
partially-overlapping respects. First, he contends that the trial court improperly took
account of his nonmarital partner’s income in determining his income. Second, he
contends the trial court erred with respect to its findings pursuant to section 4320,
subdivision (c), regarding his ability to pay spousal support. Although John’s income is
one of several factors to be considered with respect to his ability to pay, his arguments
with respect to his nonmarital partner’s income are sufficiently distinct that we address
that issue first, and separately, from others raised regarding his ability to pay.
4
(a) John’s nonmarital partner’s income
John contends that the trial court’s statements on the record while making its
findings and orders after trial demonstrate that it improperly took his nonmarital partner’s
income into account in determining the award of spousal support to Lee. He further
argues that the court’s award of spousal support itself demonstrates that the court must
have taken the nonmarital partner’s income into account. Our review of the record
reveals no such error.
Subdivision (b) of section 4323 provides as follows: “The income of a supporting
spouse’s subsequent spouse or nonmarital partner shall not be considered when
determining or modifying spousal support.” In In re Marriage of Romero (2002) 99
Cal.App.4th 1436 (Romero) [Fourth Dist., Div. Two], this court interpreted section 4323,
subdivision (b) to require the trial court, in determining a supporting spouse’s ability to
pay spousal support, to eliminate from consideration not only “new mate income,” but
also “all additional expenses resulting from the remarriage [or nonmarital partnership].”
(Romero, supra, at p. 1445.) “In other words, the court must consider only husband’s
part of the shared expenses.” (Ibid.)
To prevail here, therefore, John would have to overcome the presumptions of
correctness noted above by demonstrating that the trial court’s reasoning in determining
the award of spousal support cannot be reconciled with the mandate of section 4323,
subdivision (b), as that statute is interpreted in Romero. He has not done so.
In John’s income and expense declaration, he reported $5,268.45 in average
monthly household expenses. That household includes not only himself, but also his
5
current nonmarital partner, her adult daughter, and her infant grandson. At trial, John
testified that his nonmarital partner “gives [him] a thousand dollars a month” as a
contribution towards household expenses, an amount that is reflected in his income and
expense declaration. The income and expense declaration also discloses that John’s
nonmarital partner has a gross monthly income of $5,000.
In announcing its findings after trial, the court noted that “Respondent co-habits
with a significant other who has a monthly income of approximately $5,000.” The court
described the import of this fact with respect to the spousal support award as follows:
“Although the income of the respondent’s significant other is not considered in these
calculations for the purpose of ordering permanent spousal support, this income is
considered only for the purpose that the amounts would be available to contribute to the
respondent’s, rather, household expenses and for no other purpose. [¶] The testimony of
the respondent during the trial, and included in his income and expense declaration, was
that the respondent’s significant other does contribute $1,000 per month as to the average
monthly household expenses.” Later, when discussing John’s ability to pay under section
4320, subdivision (c), the court stated: “First, with regard to the incomes, [the] Court did
state the income. The Court did consider the incomes of both parties and then also
considered—just again for the purposes of the expenses, the moneys contributed by the
significant other.”
The quoted statements by the trial court are not a model of clarity. Nevertheless,
viewed in the favorable light required here, the statements do not manifest a violation of
section 4323, subdivision (b). The trial court did not say that in determining spousal
6
support, it had generally considered, either directly or indirectly, the $5,000 monthly
income of John’s nonmarital partner, as expressly forbidden by section 4323, subdivision
(b). Indeed, the court specifically disavows any such consideration of her income.
Rather, the court indicates that it considered the $1,000 she pays to John monthly in
determining John’s part of the shared expenses of their household—a determination that
it was required to make under Romero. (Romero, supra, 99 Cal.App.4th at p. 1445.) In
other words, the court assumed that all of the household expenses declared by John were
attributable to his part of the shared expenses except for $1,000 per month, based on the
apparent agreement between John and his nonmarital partner that such an amount is a
reasonable estimate of her part of those shared expenses. Such reasoning does not violate
the mandate of section 4323, subdivision (b), as that statute is interpreted in Romero.
In addition to his arguments based on the statements by the court, John contends
the spousal support award itself demonstrates that the court must have taken the $5,000
monthly income of his nonmarital partner into consideration, in violation of section 4343,
subdivision (b). The gravamen of this argument is that after payment of child support
and spousal support, John’s net income is less than Lee’s, so the court must have
“substantially considered and utilized” John’s nonmarital partner’s income in
determining the spousal support award. John further asserts that “without his significant
other’s contribution to his monthly expenses he would be unable to pay the support
orders . . . .”
7
John’s reasoning is flawed in several respects. First, John assumes that the court
was trying to award spousal support in an amount that would leave him a net income
roughly equal to Lee’s, after taking into account his payment of child support and spousal
support; working from that assumption, he reasons that the court could only have made
the spousal support order it made if it factored in the nonmarital partner’s income. But
there is no basis for that foundational assumption: “equality of postseparation income is
not an element of section 4320 in setting spousal support.” (In re Marriage of Ackerman
(2006) 146 Cal.App.4th 191, 209.)
Second, the entirety of the difference in net income after payment of support is
attributable to a factor other than consideration of John’s nonmarital partner’s income,
namely, child support. The court found that Lee bears the vast majority of the burden of
caring for the parties’ minor daughter, setting John’s timeshare with the child at only two
percent. The court’s award of child support to Lee appropriately reflects this allocation
of the burden of caring for the child.3 Once the award of child support expired—as
3 The argument, raised in John’s reply brief, that the court should have reduced
spousal support by the amount of child support for the duration of the child support
award, is unsupported by authority, and for good reason: there is no authority requiring a
court to offset an award of spousal support by any amount of child support awarded. The
obligations of each party are factors to be considered by the trial court in making an
award of spousal support. (§ 4320, subd. (e).) But nothing requires the court to give
John’s other obligations, including the obligation to pay child support, the dispositive
weight that he would prefer.
8
noted, an event which was expected to occur in June 2012—John’s net income after
payment of spousal support would actually slightly exceed Lee’s.4
Third, the record demonstrates that John in fact has sufficient income to pay the
awarded child support and spousal support, his protestations to the contrary
notwithstanding. His after-tax monthly income is $8,266, more than enough to pay the
ordered $3,200 in spousal support and $1,641 in child support with a substantial
remainder available for his own expenses. The remainder may be somewhat less than
John’s portion of his current shared household expenses. But a supporting party’s
standard of living is only one of many factors to be considered under section 4320. There
is no legal requirement that an award of spousal support and child support must leave a
supporting party sufficient net income, after payment of support, to continue that party’s
current level of other expenses without any additional economization. To the contrary,
courts have acknowledged that “child support almost inevitably reduces the payor’s
standard of living . . . .” (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353,
1361.) Here, after the cessation of child support, but while John still paid spousal support
in the amount ordered, his net income would substantially exceed his portion of his
current shared monthly household expenses, and indeed would roughly equal the total
household expenses he declared, even setting aside the $1,000 per month that he testified
he receives from his nonmarital partner towards those expenses.
4 This is true under both parties’ calculations of net income, which differ slightly.
9
In short, John has failed to demonstrate any violation of the prohibition codified in
section 4323, subdivision (b), regarding consideration of the income of a supporting
spouse’s subsequent partner in determining spousal support.
(b) John’s ability to pay
John contends that the trial court erred with respect to its findings pursuant to
section 4320, subdivision (c), regarding John’s ability to pay. Specifically, he disputes
the trial court’s calculation of his base monthly salary and other taxable income. 5 We
find no abuse of discretion.
Section 4320, subdivision (c) requires the court, in ordering spousal support, to
consider “[t]he 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.”
The court found that John had total monthly income of $11,576, including a base
salary of $6,475, and other taxable income in the amount of $5,101. As reported on his
income and expense declaration, John’s only “other taxable income” is money earned
from working overtime. The amount found by the court is substantially less than the
average income for the previous year reported by John ($12,832.72, including $6,371 in
5 John also apparently contends that the trial court erred in its consideration of his
assets and the marital standard of living. But he fails to articulate how exactly the court
might have erred in this regard: he recites the court’s findings, but raises no specific
objection, other than the conclusion that “on balance, $3,200 per month in spousal
support payable to Lee was excessive and was an abuse of discretion.” In the absence of
any authority or logical reason why the court was required to weigh evidence differently
than it did, John fails to demonstrate any error. (See Bower, supra, 96 Cal.App.4th at p.
898.)
10
base salary and 6,461.72 in overtime), but a few dollars more than the amount John
reported as his previous month’s income ($11,491.10, including $5,412 in base salary and
6,079.10 in overtime). The court’s decision to use the amount that it did took into
account John’s testimony that his income had been declining.
On appeal, John argues, in essence, that the court abused its discretion by failing
to calculate John’s base income and other taxable income solely on the basis of his most
recent bi-weekly paystub. Such an analysis would yield a base income of $5,861 per
month, and other taxable income of $4,934 per month, for a total of $10,795. John
argues that this total is more appropriate to use, given John’s testimony that his income,
and particularly his income from overtime, was declining. He articulates no reason,
however, other than his own ipse dixit, why the court was bound to accept his testimony
regarding declining income, or account for it in precisely this manner. Moreover, as
noted above, a court may abuse its discretion by using a small, non-representative sample
as a baseline for estimating average income. (See In re Marriage of Riddle (2005) 125
Cal.App.4th 1075, 1083 (Riddle).) Here, John’s proposed baseline is not even
representative of a full month. The court was acting well within its discretion to reject
John’s proposed method of calculation, and to conclude as it did.
In his reply brief, John expands on and cites several cases in support of an
argument he only suggests in passing in his opening brief: that the trial court’s findings
regarding his income effectively subject him “to a life of servitude that extends beyond
the ‘norms’ in order to meet his obligations to his ex-spouse and then to himself,”
because it includes his overtime “as a substantial basis for support.” The case law he
11
cites, however, confirms that income from overtime work should not be disregarded in
determining spousal support, and “how it is to be considered in a particular case is within
the discretion of the trial court.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469,
493, fn.15.) John presents no compelling reason why the manner in which the trial court
considered his overtime income here—by acknowledging and taking into account John’s
argument that his total income, and overtime income in particular, was declining, albeit
not giving those facts quite as much weight as John would have preferred—represents an
abuse of the trial court’s discretion.
In re Marriage of Simpson (1992) 4 Cal.4th 225, cited by John, does not compel a
different result. In that case, the trial court relied on a husband’s earning capacity to
determine spousal support, rather than actual income, because the court found the
supporting spouse had reduced his income—moving from higher compensated work to
lower compensated work, and reducing his hours—in an attempt to shirk his family
obligations. (Id. at pp. 233-234.) The Supreme Court found that the trial court erred by
basing its calculations of earning capacity on a work regimen that involved “substantial,
continuous overtime” (italics omitted) rather than the amount the husband could earn
based on a “reasonable work regimen”—which may or may not include some overtime—
in the higher compensated line of work. (Id. at pp. 235-236.) Here, in contrast, the trial
court made no findings about John’s earning capacity separate from its findings of his
actual income, and explicitly took into account the recent reduction in his income.
Neither does In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, also cited
by John, require a different result. That case involved a father seeking to modify a child
12
support order. The mother had retired early, and the father sought to impute to her
income she would have made, had she not retired, in determining support. (Id. at p.
1295.) The appellate court upheld the trial court’s decision not to impute such
hypothetical income to her. (Ibid.) Bardzik thus is another case involving calculation of
earning capacity, not actual income, and is inapposite here.
In short, we find no abuse of discretion with respect to the trial court’s calculation
of John’s ability to pay.
2. Lee’s Income and Marketable Skills
John contends that the trial court erred regarding various findings relating to Lee’s
income and ability to work. Among other things, he argues that there is no substantial
evidence to support its findings regarding her income from her current employment or
her marketable skills. We disagree, for the reasons stated below.
(a) Lee’s current income
John contends that no substantial evidence supports the trial court’s finding that
Lee’s average monthly income is $1,776 per month. We are not persuaded that the
finding was an abuse of discretion.
The trial court found that Lee had a base salary from her primary employment of
$1,535 per month. This figure is supported by the year-to-date information from her
paycheck stub, indicating that she had made $15,340.88 for the first 10 months of 2011.
The court further found that Lee earned an additional $241 per month on average from
other taxable income. This amount reflects income Lee earned working as a substitute
teacher: $241 is the monthly average she reported in her income and expense
13
declaration. No evidence introduced at trial establishes that her declared monthly
average income from substitute teaching is inaccurate. The total of $1,535 and $241 is
the average monthly income of $1,776 utilized by the court.
John would have preferred that the court calculate Lee’s monthly income
differently, arguing that her income was actually higher than was found by the trial court,
so the spousal support award should have been lower. In particular, he focuses on Lee’s
testimony that in the time period immediately before trial, she had earned somewhat more
per month than the average of $241 from her position as a substitute teacher. Indeed, the
amount of income Lee declared for the previous month from substitute teaching was
$490. Her testimony at trial, however, was that this higher level of income was the result
of specific efforts over the previous 30 days. There is no evidence in the record
establishing that this higher level of work could continue—Lee works as a substitute
teacher on a “when needed” basis. A trial court is not bound to use higher, extraordinary
months—even if recent—as a baseline in calculating a spouse’s average monthly income,
rather than the average over a longer period of time. To the contrary: using a smaller
sample size of nonrepresentative recent months may itself constitute an abuse of
discretion in some circumstances. (See Riddle, supra, 125 Cal.App.4th at p. 1083 [abuse
of discretion to base determination of husband’s income on prior two months, where
information regarding longer, more realistic time samples was available].)
John’s arguments regarding Lee’s base salary are no more persuasive: his
estimate of her base salary is actually lower than the amount calculated by the trial court
from her pay stubs. We find no abuse of discretion.
14
(b) Lee’s marketable skills
John contends that no substantial evidence supports the trial court’s findings
pursuant to section 4320, subdivision (a)(1) regarding Lee’s marketable skills. John
objects in particular to the trial court’s finding that Lee is employable at “‘nominal
remuneration,’” and the trial court’s failure to give more weight to the circumstance that
Lee is only working part time, but theoretically could be working full time. We are not
persuaded that the trial court’s findings constitute an abuse of discretion.
Subdivision (a) of section 4320 requires that the trial court, in ordering spousal
support, consider various factors relating to the “extent to which the earning capacity of
each party is sufficient to maintain the standard of living established during the
marriage . . . .” Subdivision (a)(1) describes some of these factors: “The marketable
skills of the supported party; the job market for those skills; the time and expenses
required for the supported party to acquire the appropriate education or training to
develop those skills, and the possible need for retraining or education to acquire other,
more marketable skills or employment.” (§ 4320, subd. (a)(1).)
In making its findings after trial, the court specifically discussed each of the
factors listed in section 4320, subdivision (a)(1). With respect to the issues now raised on
appeal by John, the court stated that Lee “continues to be employable in a clerical
position and really at nominal remuneration,” noting that “she’s never been a high wage
earner . . . .” In context, the phrasing to which John objects, “nominal remuneration,” is
no more than a general reference to the relatively modest level of pay that Lee receives
from her current work. There is no evidence supporting a contrary conclusion—that she
15
has been, is, or reasonably could become a high wage earner—in the record, and John
does not argue otherwise. John’s bald assertion that “there was no substantial evidence to
show that Lee could only be employable at a ‘nominal remuneration,’” therefore, is
without merit.
John further argues that “there was evidence that Lee could earn more and that she
could work full time,” and recites various bits of evidence he contends support that
conclusion. Even assuming there is evidence supporting that conclusion, however,
reversal would not be justified here. The issue is not whether there is evidence that could
have supported different findings; rather, it is whether the findings the trial court did
make exceed the bounds of reason. They do not. The court specifically considered the
evidence presented regarding the availability of other jobs, including a jobs list that John
provided to Lee and introduced at trial. The court found that other, better positions were
likely not to be available to Lee, because of her age and the state of the current job
climate. Moreover, although Lee’s current work is part time and “on the lower side” with
respect to remuneration, the court found that it came with “some very positive benefits
including CALPERS retirement and other retirement as well,” that may not be available
with other positions. John presents no compelling reason why the court was required to
make a different finding.
In short, the trial court’s findings pursuant to section 4320, subdivision (a)(1)
reflect reasoned deliberation, so we are not permitted to substitute our judgment, even if
we were inclined to do so. (See Bower, supra, 96 Cal.App.4th at p. 898.)
16
3. Age and Health of the Parties
John objects to the trial court’s findings regarding his health, pursuant to section
4320, subdivision (h). He contends that the trial court erred because no substantial
evidence supported the trial court’s conclusions, and asserts that this, together with the
trial court’s other purported errors, renders the award of spousal support an abuse of
discretion. We find no abuse of discretion.
Section 4320, subdivision (h), requires the court to consider, in awarding spousal
support, “[t]he age and health of the parties.” Here, the court considered the evidence
presented, and determined that both parties were both generally in good health. The court
acknowledged John’s testimony regarding certain medical issues, but concluded that they
do not amount to more than “an age appropriate, physical deterioration.” In the end, the
court found there were no “apparent physical infirmities of either person” that needed to
be factored into its spousal support order.
John contends there was no substantial evidence to support the court’s findings
regarding the parties’ age and health, and that the court abused its discretion in
concluding this factor should not weigh in his favor. We disagree. There was evidence
that John and Lee are approximately the same age, with John being 49 at the time of trial,
and Lee 48. Lee testified that she and John are both in “good” health. Though John
testified that he suffers from various maladies as a result of being “in the construction
industry for 31 years,” he also conceded that his health currently interferes with his
ability to work only “[t]o a small extent.” John presented no evidence establishing that
he is currently seriously ill in any respect that is material to his ability to pay spousal
17
support. There was substantial evidence, therefore, in support of the trial court’s
conclusions regarding the health and age of the parties.
John points to his own testimony supporting the notion that his “body’s just about
had it”: he has undergone three knee surgeries, one shoulder surgery, and has been
putting off another surgery for “total knee replacement”; also, his “left shoulder is going
bad,” and his “right hip is going bad.” But he presents no compelling reason why the
court should be required to give this evidence dispositive weight. (Cf. In re Marriage of
Teegarden (1986) 181 Cal.App.3d 401, 409-410 [trial court’s findings not supported by
evidence because, inter alia, such a finding required “wholesale disregard of all the
testimony before the court” regarding husband’s serious and disabling illness, including
testimony of husband, wife, and caregiver].) As such, John has demonstrated no abuse of
discretion. (See Bower, supra, 96 Cal.App.4th at p. 898.)
4. Domestic Violence
John agrees with the trial court’s factual finding, pursuant to section 4320,
subdivision (i), that there is no documented evidence of any history of domestic violence
between the parties or against the parties’ child. (See § 4320, subd. (i).) He contends,
however, that in light of this finding, the trial court abused its discretion by awarding “the
maximum amount of support (i.e. $3,200 per month).” Nevertheless, he neither cites any
authority, nor articulates any logical connection, between the premises of this argument
and its conclusion. As such, John has demonstrated no abuse of discretion.
Moreover, John appears to be fundamentally misguided about the purpose of
section 4320, subdivision (i). He in essence suggests, by asserting that this factor weighs
18
in his favor, that a supporting party should get a discount on the amount of support owed
for having refrained from committing domestic violence during the marriage. That is not
the law. Section 4320, subdivision (i), embodies (together with section 4325) the
principle that an award of spousal support to a party who has engaged in domestic
violence is disfavored. (See In re Marriage of MacManus (2010) 182 Cal.App.4th 330,
335-336 [discussing history of section 4320, subdivision (i), and section 4325].) Here, as
the trial court found, that principle has no application: neither party had committed
domestic violence against the other. Thus, the factor properly weighs in favor of neither
party, and it appears from the record this is exactly how the trial court treated it.
5. Other Section 4320 Factors
John also asserts, with respect to a number of other factors to be considered in
awarding spousal support under section 4320, that the trial court made the correct
findings, but abused its discretion in light of those findings (and together with the trial
court’s other purported errors) by making the award of spousal support that it did. He
makes this form of argument with respect to the earning impairment of the supported
party (section 4320, subd. (a)(2))6; the supported party’s ability to work (section 4320,
subd. (g)); the supported party’s contribution to the supporting party’s education,
training, career position, or a license (section 4320, subd. (b)); the needs of each party
6 This is the argument John makes in his reply brief; in his opening brief, he
argued that the trial court’s findings with respect to earning impairment of the supported
party are unsupported by substantial evidence. We take the opening brief’s argument to
be conceded; in any case, our review of the record reveals it to be without merit.
19
based on the standard of living established during marriage (section 4320, subd. (d)); and
the obligations and assets of the parties (section 4320, subd. (e)).
In each case, however, John fails to make any reasoned argument connecting the
finding and the purported abuse of discretion, for example, by citing authority or
presenting some logical reason showing that the court was required to weigh the factor
differently than it did. John has failed, therefore, to demonstrate any error with respect to
these factors. (See Bower, supra, 96 Cal.App.4th at p. 898.) Nor has our independent
review of the record revealed any abuse of discretion.
6. Award of Attorney Fees to Lee
John contends that the trial court abused its discretion by awarding $3,500 in
attorney fees to Lee, pursuant to sections 2030 and 2031. He argues that, after payment
of child support and spousal support, he had “no money left to pay such an award,” so the
award was “unjustly punitive and no reasonable Judge could have made such an order.”
We disagree.
In a dissolution action, a court may order that one party pay some or all of the
other party’s legal fees and costs. (§ 2030 et seq.) “In making an award, the trial court
must determine what is just and reasonable under the circumstances, taking into
consideration the parties’ needs and ability to pay and the conduct of each party.
[Citation.]” (In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1319; § 2032,
subds. (a) & (b).)
We find no abuse of discretion with respect to the trial court’s determination of
what award of attorney fees, if any, would be just and reasonable in the circumstances of
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this case. John has not demonstrated that he in fact had “no ability to pay,” as he asserts
in his briefing. As noted, he has net income after taxes of $8,266 per month before
payment of spousal support and child support. There is evidence, therefore, that even
after paying $1,641 per month in child support and $3,200 per month in spousal support,
he has funds available to pay installments of $100 per month towards the fee award, as
permitted under the court’s order. (Cf. In re Marriage of Schulze (1997) 60 Cal.App.4th
519, 531-532 [finding it “unreasonable” for the court not to have allowed husband to pay
attorney fee order “in manageable installments, consistent with the income he had left
after he paid the family support order”].) Once his child support payments ceased, when
the child turned 18 and had graduated high school—an event that was expected to occur
in June 2012—those funds, too, would become available for payment of the attorney fee
award. In other words, John fails to show that the court could not reasonably have
concluded he had the ability to pay the attorney fees awarded, despite his other
obligations.
Moreover, “[f]inancial resources are only one factor for the court to consider in
determining how to apportion the overall cost of the litigation equitably between the
parties under their relative circumstances.” (§ 2032, subd. (b).) John’s arguments—
addressing solely the issue of financial resources, and his purported inability to pay in
particular—fail to demonstrate that, taking all the relative circumstances of the parties
into account, no judge could reasonably make the order made.
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III. DISPOSITION
The judgment is affirmed. Lee shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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