Marr. of Ficke

Filed 6/12/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of JULIE A. and GREG A.
FICKE.
JULIE A. FICKE,
G046263
Appellant,
(Super. Ct. No. 08D006901)
v.
OPINION
GREG A. FICKE,
Respondent.
Appeal from a judgment of the Superior Court of Orange County, Ronald
P. Kreber, Judge. Affirmed in part, reversed in part and remanded.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. McCall
for Appellant.
Masson & Fatini and Richard E. Masson for Respondent.
* * *
INTRODUCTION
In this dissolution action, the trial court awarded custody of a couple‟s two
teenage children to the mother 95 percent of the time. The court found the father makes
$8,088 a month, including $4,112 net from two separate property rentals. The mother, by
contrast, had an income of $251 a month from a start-up business. Ordinarily, in such
circumstances, the father would pay much more than the $1,368 a month in child support
he was ordered to pay. The reduction in child support, however, was effected by
imputing $13,333 in monthly income to the mother. But the net support paid to the
mother was then further reduced by the trial court‟s order to award spousal support to the
father from the mother. The trial court entered an order making the mother pay the father
$700 in spousal support. The total net support for the mother ended up at $668 a month.
The mother has appealed from these orders. We hold:
(1) As to child support, the trial court abused its discretion in imputing
income to the mother without an express finding supported by substantial evidence that
the imputation would benefit the children. (See In re Marriage of Cheriton (2001) 92
Cal.App.4th 269, 301-302; In re Marriage of Mosley (2008) 165 Cal.App.4th 1375,
1379-1380; In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051, fn. 3.) We do
not say, of course, that a court may never impute income to a “custodial” parent, but we
do say, as does the Family Code itself, that if it does so, any imputation must be
supported by substantial evidence that the imputation is in the children‟s interest. (Fam.
Code, § 4058, subd. (b).1)
(2) As to spousal support, the trial court abused its discretion in making a
spousal support award running from the mother under the particular circumstances of this
case. The economic circumstances of the parties after the divorce did not support making
the mother support the father. Specifically, the father has a hard money income of $8,088
1 All statutory references in this opinion will be to the Family Code.
2
a month while the mother‟s income is only $251 a month, and the father walked away
from the divorce with somewhere around $1.7 million to $2 million in assets, while the
mother wound up with assets of around $1 million. Independent of any imputation based
on the mother‟s “earning capacity” is the simple fact that the father is self-supporting and
doesn‟t need any additional help from the mother. The trial judge was duly impressed by
the father‟s ability to support himself, noting his excellent skills, good assets, good
employment, good health, and good career.
Accordingly, we reverse both the child and spousal support orders and
remand both the child and spousal support issues for further proceedings consistent with
this opinion. However, we affirm two other aspects of the judgment challenged on
appeal. Both involve calculations of community and separate interests in discrete items
of property (specifically, one of the noncustodial parent‟s two rental properties and the
custodial parent‟s severance pay). The judgment is supported by substantial evidence as
to each of those items.
BACKGROUND
Julie and Greg Ficke were married in spring 1993, and they separated in
midsummer 2008, so the marriage lasted just a little more than 15 years. During that time
they had two children, a boy and a girl, who, by the time of the judgment in November
2011, were 17 and 16 respectively.
At the time of the marriage, Julie worked for Beckman Instruments as a
product planning manager for capillary electrophoresis and liquid chromatography
equipment (to 1994), later as a marketing director for a manufacturer of sterilizers for
surgical equipment (1994 to 2004). She then took a job as vice-president of marketing
for a manufacturer of dental implants and other dental products in Yorba Linda. During
her tenure with the dental implant manufacturer (2004 to 2008) she succeeded in
doubling the company‟s total worldwide sales, and her final salary was about $200,000
annually, plus bonuses – and those bonuses, at least in the heady years of the mid-aughts,
3
could be very big indeed. Julie‟s 2007 W-2 from the dental implant manufacturer
showed total compensation of just over $729,000. Even so, Julie was terminated in
spring 2008. Her explanation to a vocational examiner was that a new CEO “came on
board and wanted a male in the job.” She received a severance package of 12 months
base salary ($201,226), but was required, in return for the severance package, to sign an
agreement giving up any civil rights claims she might have against the firm.
In the three months after her layoff, Julie conducted a job search which
eventually yielded one offer: a marketing management job for a biotech company at
$125,000. She declined that job because, when the offer arrived, she had already started
a pet healthcare membership insurance program modeled after a similar business run by
her mother in Arizona, and because the job would require considerable travel and not
allow her to be home evenings with the two children. At least the start-up pet insurance
business would allow her to do that.
The evidence is uncontroverted that Julie has worked full time at her pet
insurance business since its inception, “probably working very hard” as the trial judge put
it. The business, however, has not yet made any money; Julie has been living off loans
from her mother and past savings. Thus, at the time of trial, Julie‟s hard money income
was only $251 month. However, Greg presented evidence in the form of a vocational
examination report that Julie was highly marketable and employable in the marketing end
of various biotech industries, and could have (at least as of November 2010) found
employment in marketing management in such industries at low, mid and high ranges of
$120,000, $155,000, and $185,000 a year, respectively.
Meanwhile, Greg worked as a real estate broker for a large realty company
(Cushman & Wakefield) and successfully ran for the city council of Aliso Viejo. He also
received income from two rental properties. One was a house in Los Angeles called by
the parties “Monte Mar,” the other a condo in Redwood City called “Boardwalk.” The
judgment confirmed both Monte Mar and Boardwalk as Greg‟s separate properties, but
4
found there was a community interest in Boardwalk valued at $231,500, because in 2003
community funds were used to pay off the remaining mortgage balance.
Greg‟s total monthly income at the time of trial was found to be $8,088.
That $8,088 consists of $483 from Greg‟s pay as a city council member of the City of
Aliso Viejo, a monthly net average of $3,493 from Cushman and Wakefield, net rental
income of $2,701 from Monte Mar and net rental income of $1,411 from Boardwalk.
The $8,088 figure is not challenged by either party in this appeal.
Since Monte Mar is Greg‟s separate property and Boardwalk is about half
separate property, there is no question Greg came away with far more assets after the
divorce than Julie. The total net community property divided was valued at about $2.1
million, with each spouse receiving about $1 million in the division of community assets.
But of course on top of the $1 million Greg also would end up possessing all of the equity
in Monte Mar, because it was completely his separate property, plus his separate interest
in Boardwalk. As to the value of these separate interests – the only valuation that appears
in the record is one Greg himself put on it, in a schedule of assets filed in October 2008
that showed Monte Mar having a fair market value of $1 million, without any
encumbrance. (We hasten to add that fair market value in October 2008, just as the great
recession was getting started, is obviously not necessarily representative of fair market
value by the time of trial over the course of 2010 and 2011. But even so, it is almost
impossible to imagine, given Monte Mar‟s large net rental income at the time of trial that
its fair market value is anything less than $500,000.2) In addition, Greg‟s separate
property component in Boardwalk was found to be worth $201,500.3 Thus it is safe to
say that in the aftermath of the divorce Greg had over $1.7 million in assets, and perhaps
2 The evidence at trial showed Monte Mar was netting $2,701 to Greg. That pencils out to $32,412
a year. An investor looking for 4 percent return – great by today‟s standards – could pay $800,000 for the property
and still have a little left over. And even an investor who desired a return of 6 percent would still consider Monte
Mar a bargain at $500,000.
3 The court found the community interest in Boardwalk to be $231,500, using figures from Julie‟s
forensic accountant. That calculation, in turn, placed a fair market value on the property of $433,000.
5
closer to $2 million given his own initial valuation of Monte Mar – that is, somewhere
between 50 percent more and about double what Julie had.4 Greg also received the
family home (net equity $455,465) despite the children‟s living elsewhere in a rented
townhome with Julie.
Julie received her half of the community property mostly in the form of
liquid or monetary assets while Greg received the family home. Highlights of Julie‟s
assets included some $98,000 in Johnson & Johnson stock, $381,000 in a Charles
Schwab account, and another $375,000 in pension and retirement assets. But Greg did
not do too poorly by way of liquid assets either. His total included about $233,000 in
stocks and bonds, almost $19,000 in savings accounts, and $49,000 in pension and
retirement funds.
The couple, during the good years of their marriage, had employed a nanny.
That ended with their separation. While the initial custody arrangement had been 50/50,
sometime afterwards the children made it clear they wanted to be with their mother.
Greg does not challenge the fact the court awarded Julie physical custody of the children
95 percent of the time, a fact which certainly undermines any idea he should be getting
support from mother.
To read the trial judge‟s statement of decision after trial, one would think
that much of it was laying the foundation for a spousal support award for Julie from
Greg. The description of Greg is downright glowing about his prospects: Greg “has
excellent skills . . . owns two houses, and . . . does not have periods of unemployment.”
His “assets . . . are good.” He “has good employment, and he has income from three
sources.” His age is “good.” He has “good health” and a “good career[].” His is “self-
sufficient” and “would remain so.”
4 And that‟s assuming a lowball value of $500,000 on Monte Mar (i.e., an investor seeking a 6
percent return). The actual calculations used by the trial court and incorporated into the judgment, sans Monte Mar,
showed Greg receiving $1,129,667, while Julie received $1,019,030, hence an equalization of $55,319 from Greg to
Julie.
6
Concomitantly, the statement of decision, while including Julie in the
descriptions of having a good “age” good “health” and a “good career[],” and being “self-
sufficient,” expressed at least some negative perceptions of Julie‟s situation: “The ability
of [Julie] to pay spousal support is not easy, because [Julie] is working in a start-up
company and her earnings are down at this time.”
Even so, the court imputed a whopping $13,333 a month income to Julie.
The figure was based on the “income she would have earned had she taken the position
that was offered to her.”5 The statement of decision justified the imputation by saying,
without elaboration, that imputation was “a fair method to use for these calculations.” In
open court, when Julie‟s trial counsel challenged the imputation, the trial judge seemed
apologetic about using “phantom” income but did not attempt to justify the imputation.6
Nowhere in the statement of decision or the trial judge‟s remarks do we
find any reference to the interests of the children. And while the statement of decision
goes through a number of the section 4320 factors from the Family Code, the tenor of the
5 Our review of the record reveals that the only job Julie actually turned down was the one with the
marketing management job with the biotech company for $125,000, and Greg‟s respondent‟s brief certainly does not
mention any other one. But $125,000 a year works out to less than $10,417 a month, not $13,333, and Julie‟s only
hard income at the time of trial was $251 a month. The figure could possibly be justified by reference to the
vocational examiner‟s report, which showed the mid range of marketing managers in the biotech field to be
$155,000 ($12,917 a month) and the high range to be $185,000 ($15,417 a month), but that was not the basis given
in the statement of decision.
6 Here‟s the totality of the remarks after the challenge. We pick up the dialog just after Julie‟s
counsel had argued Julie “deserves” a “shot” at not “having to support a man who this court already says has three
sources of income.” The trial judge responded:
“The answer to that is no. I did have problems with the phantom income, and I went back and
forth, weighed the factors, and that‟s where it‟s going to stand. And if I‟m wrong, I‟m wrong.”
“But I do think that she has a lot of ability, and I know that [husband] has sources of – from three
incomes, but I just think with the funds that are at [wife‟s] investment portfolio – the court did not go into that. The
court thought that would be wrong to come up with some equation there. And normally when we impute a – an
amount of money, we‟re usually imputing $1,387. That‟s the minimum wage. We‟re far beyond that in this case.
“But the lifestyle of the parties was with a nanny, and they‟re trying to give their children – both
of them, both parents – are trying to give their children the best they can present to the children.
“So I know there‟s been probably a struggle in the working out of agreements here, but I think
both people are probably pretty good parents. It‟s just that they have a different style of doing things.”
The court then responded to Julie‟s trial counsel‟s point that Greg had no need for any spousal
support. While the trial judge acknowledged that (obvious) point, he did not explain why some other consideration
outweighed it; the discussion was now over: “I considered that also, and I gave that great weight. That will be the
order . . . .”
7
trial judge‟s characterizations does not lead to the conclusion a lower-hard-money-
income custodial parent should pay support to a self-sufficient noncustodial parent – with
the exception of his “fairness” evaluation. Based on the judge‟s recitation of factors, one
would naturally assume there‟d be no spousal support, or, at most, a modest amount
running from Greg to Julie, not the other way around. We quote that recitation in this
footnote, to illustrate our difficulty in understanding his final order.7
Based on the imputation of monthly income of $13,584 to the custodial
parent in light of the noncustodial parent‟s monthly income of $8,088 and a 95 percent
7 Here is the entirety of the statement of decision‟s section 4320 discussion. Any ellipses are for
matters that are different from the evaluation of the factors as such (e.g., how to calculate arrears). Readers should
also note that, when it comes to section 4320, subdivision (l) – which in the statute states the legislative “goal that
the supported party shall be self-supporting” – is glossed over so as to avoid confrontation with that express goal.
We reproduce verbatim, including the irregular number and letter headings:
“4320 factors
“1. Respondent has excellent skills He is on the City Council in Orange Co City. Long time
employment; own 2 houses free and clear.
“2. Respondent does not have periods of unemployment.
“B. this issue does not apply, Respondent did not help petitioner with her career.
“C the Ability of petitioner to pay spousal support, it is not easy because she is working in a
startup company. Her earnings are down at this time.
“d. The standard of living will continue
“E. assets by supported person are good. He had two homes free and clear.
“F. this is a long term marriage.
“G. supported person has good employment; he has income from 3 sources.
“h. The age of the parties is good both in good health and great career ahead for each of them.
“I. domestic violence, the court will not consider as the charge was dropped by agreement.
“J No tax issue
“There should be no hardship for either party.
“L. each party is self sufficient and will remain so.
“m. No conviction.
“n. Other factors: This was a family living a very high life style and it will continue as both
parties are motivated to continue this life style. The court would order that petitioner is to pay spousal support to
respondent the amount of $700 per month and this amount is to be paid on the 15th of the month and to begin on
June 14th 2011 and every month thereafter or until one party dies or there is a change by operation of law. This
amount of support that respondent receives would place his income near $9000 a month. This would include his
City Council amount, his rent from his two houses and his employment. The spousal award arrears to begin at the
time the OSC was filed and petitioner to pay an added amount of $500 to be paid every month until the complete
arrears sum is paid in full. This amount will also include an interest of 10% on the arrears.
“. . . .
“Also the court adopted the assessment of the total community value of 874 Boardwalk Place,
Redwood City, Ca to be $231,650
“. . . .
“The court had difficulty in using a phantom amount of income for petitioner as she is working
and probably working very hard. It is not like she was offered a high paying position and turned it down and would
not work, but the court found this to be a fair method that was used in these calculations.”
8
time share factor, child support was figured at $1,368 a month. However, in light of the
trial court‟s imputation of – to use its own word – “phantom” income to the custodial
parent of $13,333, the trial court imposed a spousal support award of $700 a month in
favor of the noncustodial parent. The difference between the two meant that Greg would
owe Julie, net, $668 a month.
DISCUSSION
A. The Imputation of Income to the Custodial Parent
There are very few – “a handful” overstates it – published appellate
decisions which have upheld the imputation of income to custodial parents. (In re
Marriage of Ackerman (2006) 146 Cal.App.4th 191, 208-209; In re Marriage of LaBass
& Munsee (1997) 56 Cal.App.4th 1331, 1339; In re Marriage of Paulin (1996) 46
Cal.App.4th 1378, 1384.) The reason is pretty obvious. Since the child support statutes
expressly state the purpose of California‟s guideline child support system is to
“place the interests of children as the state‟s top priority,” (§ 4053, subd. (e)), it is
counterintuitive – often counterproductive – to impute income to a custodial parent,
because the objective effect of such an imputation will be to reduce the money otherwise
available for the support of any minor children. Accordingly, the court in Cheriton
observed that no imputation of income should be made to a custodial parent unless it
benefited the children. Said the Cheriton court: “But no authority permits a court to
impute earning capacity to a parent unless doing so is in the best interest of the children.
By explicit statutory direction, the court‟s determination of earning capacity must be
„consistent with the best interest of the children.‟ (§ 4058, subd. (b).)” (Italics added.)
(Cheriton, supra, 92 Cal.App.4th at p. 301.) The Cheriton court rejected a noncustodial
parent‟s argument on appeal that it was an abuse of discretion for the trial court not to
impute income to the custodial spouse.
Two opinions subsequent to Cheriton have read it to require a finding that
any imputation be in the best interests of children. (See Mosley, supra, 165 Cal.App.4th
9
at p. 1389; Cryer, supra, 198 Cal.App.4th at p. 1051, fn. 3.) We follow suit and also so
hold. Significantly, two of the three existing published cases upholding imputation to a
custodial parent, LaBass and Paulin, were pre-Cheriton, and did not have the benefit of
Cheriton’s recognition that section 4058, subdivision (b) limits a trial court‟s power to
impute income to custodial parents. Cheriton itself noted that neither LaBass nor Paulin
justified imputation in terms of the best interests of the children.8
The third published case to allow imputed income to the custodial parent,
In re Marriage of Ackerman, supra, 146 Cal.App.4th at page 211, involved an express
finding the imputation of income was in the best interests of the children, plus the
imputation was comparatively modest under the circumstances. It was not predicated on
the idea the custodial parent should have been out earning income, but merely imputed a
rate of return on certain assets. (See id. at pp. 210-211.) Moreover, the diminution in
money payable as child support to the custodial parent in Ackerman obviously could have
no effect on the children‟s actual support. It only made a difference, as this court quoted
the trial court as noting, whether the custodial parent would be able to continue to employ
“„two nannies, a cook, and a couple of babysitters,‟ as well as a personal assistant.” (Id.
at pp. 208-209.)
For our part, we observe that Paulin can be described as imputation lite. It
was essentially a hardship modification case, where the noncustodial parent sought a
downward modification based on the birth of twins to his present wife. The custodial
parent had quit a stressful nursing position and didn‟t show up for the modification
8 See Cheriton, supra, 92 Cal.App.4th at page 302, footnote 19: In “In re Marriage of LaBass &
Munsee, supra, 56 Cal.App.4th at page 1334, the trial court granted the father a modification, which decreased his
child support obligation from $567 to $342 per month as a result of imputing income to the mother. The Court of
Appeal affirmed, without discussing how the decrease in support was in the best interests of the children. Similarly,
in In re Marriage of Paulin, supra, 46 Cal.App.4th at pages 1384-1385, the court reduced the father‟s child support
obligation, after allowing the father a hardship deduction and imputing income to the unemployed mother based on
the salary she had previously earned. Again, however, there was no explanation of how the reduced support
payment was in the best interests of the children.” (Italics added.)
10
hearing. Income was imputed to her based on her previous nursing position, but that
imputation was expressly without prejudice to her coming back to court and proving her
abandonment of the nursing job was “justifiable.” (Paulin, supra, 46 Cal.App.4th at p.
1384.) The Paulin court‟s main point, emphasized in a footnote, is that the trial court
simply had to have some equitable discretion to prevent a custodial parent from
unilaterally shifting the burden of child support to the noncustodial parent – and we agree
that is an excellent equitable principle – but the case did not confront the problem of
children facing objectively reduced support. (See Paulin, supra, 46 Cal.App.4th at p.
1385, fn. 5.)
LaBass, on the other hand, was a case where the trial and appellate courts
were very much unimpressed by the custodial parent‟s dilettantism. When the couple
divorced, the parties expressly contemplated the custodial parent‟s right to move out of
the area “for employment purposes” – or to pursue a Ph.D in English literature. (She
already had her master‟s degree.) (LaBass, supra, 56 Cal.App.4th at p. 1335.) But she
didn‟t pursue her Ph.D., instead opting to get yet another master‟s degree – this one in
fine arts – and taking “occasional” part-time teaching jobs at community colleges. (Ibid.)
Besides expecting the noncustodial parent to subsidize her perpetual studenthood, the
custodial parent in LaBass was downright vindictive in her attitude toward her ex-spouse.
At one point she said, “I don‟t have a job, I won‟t work, and so you‟re going to have to
pay my attorney‟s fees no matter how costly they are.” (Ibid.) Perhaps precisely because
of the custodial parent‟s vindictiveness, there is a passage in LaBass in which the court
minimized the benefit the children received from the extra time gained from the custodial
parent‟s part-time work.9
9 “While Catherine may choose to pursue her education and spend more time with her children she
may not use this choice to avoid her obligation to contribute financially to their support, unless the court finds that
such decision is in the best interests of the minor children. (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630,
1639.)” (LaBass, supra, 56 Cal.App.4th at p. 1339.)
11
Let us simply say here that we do not share any inference that might be
arguably extracted from the brief passage in LaBass to the effect that time spent with a
parent is not, all else being equal, a good thing. Time spent with children is to be valued.
First, there is a body of law that says so. (In re Marriage of Everett (1990) 220
Cal.App.3d 846, 862 [“The trial court‟s task is more delicate than simply deciding that
because a parent might be able to earn more money, additional income should be imputed
to that parent”]; Mosley, supra, 165 Cal.App.4th at p. 1390 [if the custodial parent
“contributed to the support of the children” the noncustodial parent “would be able to
spend more time with the children himself”]; In re Marriage of Bardzik (2010) 165
Cal.App.4th 1291, 1311 [“There may be times, however, when „the best interests of the
children‟ are promoted when parents leave stressful, time-consuming, albeit high paying
jobs, so as to be able to spend more time with their children.”]; Wilson v. Shea (2001) 87
Cal.App.4th 887, 895 [recognizing “the Legislature‟s announced public policy in favor of
visitation with the noncustodial parent, the benefits of such contact noted in the social
science research, and the detriment to the child‟s personality development that results
from its lack”]; e.g., In re Marriage of Lim and Carrasco (2013) 214 Cal.App.4th 768,
777-778 [justification for upholding trial court determination to use income based on 80
percent work schedule included evidence “reduced work schedule would allow” attorney
mother “more time to care for her young children”]; accord In re Marriage of Simpson
(1992) 4 Cal.4th 225, 234-236 [importance of moderation in working hours].) Second,
the Legislature itself has plainly placed a high value on time with children. (§ 3020,
subd. (b) [“it is the public policy of this state to assure minor children frequent and
continuing contact with both parents after the parents have separated”].) All that said,
ironically enough, we think the result in LaBass was correct because the imputation there
It is significant to note that the authority cited, Ilas, supra, 12 Cal.App.4th 1630, did not involve a
custodial parent at all. Ilas is a much more common example of a noncustodial parent who quits work and then
seeks a modification downward in light of his or her new divested circumstances.
12
could easily have been justified as benefiting the children in that the payor parent needed
the money to travel from Sacramento to Southern California for visitation.
More than a decade and about 100 volumes of the California Official
Appellate Reports passed after LaBass before Justice Moore‟s insightful opinion in
Mosley, supra, 165 Cal.App.4th 1375 recognized the best reason to take the otherwise
counterintuitive course of imputing income to a custodial parent: To allow the
noncustodial parent to spend more time with the children: “However, we agree with
Paul‟s assertion that, here, the trial court did not consider all of the evidence before it in
evaluating the best interests of the children. The court stated there was a „total lack of
evidence‟ that Dawn‟s returning to work would be in the children‟s best interests.
However, Paul testified that if Dawn contributed to the support of the children, he would
not need to spend as much time at work trying to maximize his bonus and would be able
to spend more time with the children himself. We cannot disagree with his assertion that
it is in the best interests of the children to receive nurturing from both parents. Indeed,
sometimes „the “best interests of the children” are promoted when parents [reduce their
work hours] so as to be able to spend more time with their children.‟” (Mosley, supra,
165 Cal.App.4th at p. 1390, quoting In re Marriage of Bardzik, supra 165 Cal.App.4th at
p. 1311, first italics added.)
In the case before us now, however, there was no finding imputation would
be in the children‟s best interests. Nor was there any finding Greg needs any monetary
break to increase his visitation time. And in fact, what evidence there is all points to an
affirmative detriment to the children resulting from imputation. First, obviously,
imputation has the objective effect of making less money available for the children.
Second, imputation under the circumstances of this case means giving the custodial
parent an incentive to leave two teenagers alone on evenings and weekends. Here, Julie
turned down the job with the biotech firm because she knew it would involve travel and
lost evenings, which would be costs in time that she would not have to incur running a
13
nascent pet insurance firm. The trial judge gave Julie an incentive to go back to the high
pressure world of being a corporate marketing director, which would have meant less
time with the children, particularly in the high learning curve early months of any new
job. While there might have been abstract justice in penalizing Julie for not putting her
own time to its most monetarily efficient Gradgrindian use, there was – to use a monetary
metaphor – no “percentage” in it for the children. It did not prioritize the needs of the
children, and therefore, with regard to child support, does not pass muster under section
4058, subdivision (b).
B. Spousal Support to a Self-Supporting Spouse
Child support is one thing, spousal support quite another. (In re Marriage
of Blazer (2009) 176 Cal.App.4th 1438, 1446, fn. 3 [“Child support and spousal support
serve different purposes, implicate different policies, and are governed by different
rules.”]; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218, fn. 2 [“different
policy considerations” govern spousal support than child support].)
For one thing, the statutory basis for imputation of income to the payor
litigant is different. For child support, the basis for imputation is section 4058,
subdivision (b), which hastens to the best interests of the children in the next breath. By
contrast, for spousal support, the basis for imputation is but one factor among many,
embedded in a reference to “earning capacity” in subdivision (a) of section 4320, and that
factor itself is quickly put into the context of possibly impaired earning capacity due to
periods of unemployment during the marriage to devote time to “domestic duties.”
(§ 4320, subd. (a)(2).)
For another, while the child support guideline statutes reflect the explicitly
high priority the Legislature has placed on the support of children (§ 4053, subd. (e)),
there is, as commentators have noted, no one single legislative purpose behind spousal
support. (See Hogoboom & King, supra, ¶ 6:822, p. 6-302.5 [“Whereas child support
awards facilitate a uniform purpose . . . spousal support necessarily serves varying
14
functions, depending on the parties and the underlying facts and circumstances.”]; In re
Marriage of Smith (1990) 225 Cal.App.3d 469, 480 [“Some members of the bench and
bar have been critical of the Legislature, contending it has failed to specify the purpose of
spousal support. . . . The purposes of spousal support inevitably vary from case to case,
depending upon the parties and the facts and circumstances of the case.”].)
But a spousal support award cannot undercut the child support statutes.
(See Mosley, supra, 165 Cal.App.4th at p. 1390 [rejecting argument that “impact on the
children is utterly irrelevant in the spousal support context”]; In re Marriage of Rosan
(1972) 24 Cal.App.3d 885, 899 [noting interrelation between child and spousal support].)
We read statutes as part of a consistent whole, not in isolation. (E.g., Pineda v. Williams-
Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 530.) Implicit in the high priority given the
best interests of the children in the child support statutes is the Legislature‟s intent there
be no legerdemain on the spousal support side to take with one hand what the child
support statutes give with the other.
Moreover, an examination of the spousal support statute, section 4320,
shows it to be not just a mélange of factors, but an expression of several affirmative
policy preferences. To be sure, one set of policy preferences, expressed in subdivisions
(i) and (m) – which are aimed at criminal behavior and violence – has no application to
the case before us. But others do. The most obvious appears to be in subdivision (l),
which expresses the goal each party will be “self-supporting within a reasonable period
of time.” One can also detect policy preferences that seek to equitably account for the
value of “domestic” work, even if it means the impairment of formal job market skills, in
subdivisions (a)(1) [requirement to consider need for retraining] and (a)(2) [impairment
by “periods of unemployment. . . incurred during the marriage . . . to devote time to
domestic duties”]. The same policy preference also crops up in subdivision (b),
recognizing the contribution of a homemaker spouse to the job skills of the supporting
spouse.
15
By contrast, the Legislature has not expressed any preference that the
“standard of living established during the marriage” be maintained for its own sake. The
statute, in subdivision (d), uses the marital standard of living simply as a baseline for the
“needs of each party.”
Applying these considerations to the instant matter, we first note Greg has
excellent skills, political connections, two houses free and clear, no periods of
unemployment, good assets, good health, a great career, and is self-sufficient. By the
trial court‟s own reckoning, Greg is pretty much the last divorcing spouse who should
receive spousal support. Not only does the spousal support order cut against the express
grain of subdivision (l) [Greg is already self-supporting], it is also impliedly inconsistent
with subdivisions (d) [Greg has no need]; (e) [Greg has plenty of assets for his own
support]; (g) [Greg has plenty of ability to engage in his own employment]; and (h) [Greg
is in good health and is in the prime of life].) It is pretty clear from an examination of the
totality of factors enumerated by the Legislature in section 4320 that spousal support was
meant for ex-spouses like the one in Rosan, supra, 24 Cal.App.3d 885 [reversing support
order as too low and too short in light of 17-year marriage during which supported spouse
was not employed outside the home], not self-sufficient spouses like Greg.
Concomitantly, most of the factors that might arguably support a Julie-to-
Greg support award are greatly attenuated: the marital standard of living (subdivision
(d)) – obviously a high one – is not a desideratum in and of itself, and certainly cannot
stand against the diminution of support for the children. The length of the marriage
(subdivision (f)) was, at 15 years, one that typically involves some support, but that‟s
when, as impliedly shown in subdivisions (a), (b), (c), (d), (e), (g) and (h), there‟s real
inequality between the spouses, with the supported spouse being at an otherwise
significantly lower level economically than the supporting spouse, not the other way
around. And the only arguably strong factor supporting a Julie-to-Greg order, Julie‟s raw
earning capacity, is itself undercut by the extra time the children receive from her
16
pursuing a humane work schedule. The record indicates Julie only makes the big bucks
by working evenings and traveling. That is, the money comes at the cost of time with the
children.
We do recognize, of course, that Julie‟s preference for a full-time job that
actually allows her to be with the children on weeknights and weekends does, under
Paulin, represent, to some degree, a unilateral shift of monetary child support costs from
her to Greg. But unilateral shift theory is an equitable factor that might arguably, under
the child support statutes (see § 4057, subd. (b)(5) [special circumstances make
application of child support formula unjust]) allow Greg to get a break on his child
support order. Nothing we say in this opinion is intended, on remand, to prevent Greg
from making that argument in the context of child support. But it cannot, in light of the
legislative priority given children, be the reason for a spousal support order undercutting
a child support order. In sum, even tested on a traditional abuse-of-discretion review of a
spousal support award, this support award is untenable.
C. Miscellaneous Property Allocations
1. The Boardwalk House
Julie‟s expert calculated the community interest in Greg‟s separate
Boardwalk property two ways: In the first, he assumed the only community contribution
was confined strictly to the amount used to pay off the mortgage in 2003. That approach
meant the community‟s interest in Boardwalk was valued at $231,500. The other way,
the expert assumed that all mortgage payments on the property made after marriage were
also community. Under that approach the community‟s share was calculated at
$379,112. While the judge used the actual calculations made by Julie‟s expert, he found
true the assumption most favorable to Greg, namely that the only community contribution
was the 2003 mortgage payoff. Hence, the community interest in Boardwalk was
determined, as mentioned above, to be $231,500.
17
On appeal now, Julie argues the judge erred and should have used the
assumption most favorable to her, i.e., that all mortgage payments after the marriage
came from community property, so the proper number would have been $379,112. Her
theory is that Greg was required to produce specific records (e.g., bank account
statements) which would have shown the rents from Boardwalk were used to make the
mortgage payments, and that absent such specific documentation, the court was
necessarily required to assume the mortgage payments came from community property.
We disagree. The need for specific record tracing arises when there is a
commingled account. As this court explained in In re Marriage of Stoll (1998) 63
Cal.App.4th 837, 841, the need for specific records, as it originated in the “granddaddy”
case of See v. See (1966) 64 Cal.2d 778, is the product of two factors: (1) the
combination of commingling of separate and community funds and (2) the general
presumption that property acquired during marriage is community. A burden of
recordkeeping logically arises out of the very act of commingling funds during marriage
so the general community property presumption is not thwarted. (Stoll, supra, 63
Cal.App.4th at p. 841, citing and quoting See, supra, 64 Cal.2d at pp. 783-784.)
The need for specific records and documents to trace funds is thus
predicated on the existence of a commingled account. See, and the two cases on which
Julie mainly relies, In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322 and In re
Marriage of Braud (1996) 45 Cal.App.4th 797, all involved the undisputed existence of
commingled accounts.10
10 In See, The husband had two accounts, into both of which he deposited his personal (community)
earnings. (See See, supra, 64 Cal.4th at p. 782 [noting “personal account” and “Security Account” into which the
husband deposited salary and earnings income].) In Higinbotham, the rents from a property that was acquired
before marriage were paid into one of two community accounts. (Higinbotham, supra, 203 Cal.App.3d at p. 327.)
And in Braud, a spouse claimed credit for $10,000, taken from his inheritance, allegedly used for improvements to
the community house (e.g., for lumber purchases). His problem, a la Higinbotham, was that the $10,000 had been
deposited into a community account – the account into which paychecks were deposited. (Id. at p. 822-824.)
18
In the case before us, however, there was substantial evidence there was
never a commingled account in the first place. Greg purchased Boardwalk in 1991 –
prior to the 1993 marriage. Greg testified all rents from the property were used to pay the
mortgage, Boardwalk was rented 95 percent of the time, the rent itself was $1,200 a
month, and that rent would have covered the mortgage, which was also about $1,200 a
month. Greg testified he maintained the same separate account for both the Boardwalk
and the Monte Mar property and that the combined income from both properties was
around $3,600 to $3,800 a month. And it was undisputed that Monte Mar had no
encumbrances, so the trial court could easily conclude there was a large surplus of
separate property rents coming into Greg available for use on the Boardwalk mortgage
payments.
There was some evidence from Julie to the contrary. She asserted (very
generally) that the community made payments “to the mortgage” of Boardwalk going
back to 1993. She conceded she didn‟t have any document to support that assertion.11
And she did not identify, in her testimony, any commingled account into which separate
property rents from Boardwalk and Monte Mar would have been combined with
community earnings.
The evidence before the trial judge as to whether there was a commingled
account from which mortgage payments had been made (e.g., an account into which both
rents and salary had been deposited), or alternatively, a community account from which
mortgage payments were made, was in conflict. Based on Greg‟s testimony alone, the
trial court was perfectly entitled to believe Greg rather than Julie, and impliedly find
there was no commingling or payments from a community account. (In re Marriage of
11 There was also evidence the couple did not acknowledge any of the income from either the
Boadwalk or Monte Mar rentals on their tax returns. Julie testified that part of the tax return was Greg‟s
responsibility. The trial judge was tasked with deciding issues between the couple, not between the couple and IRS,
so was not compelled to find the existence of community payments on a separate mortgage simply because of the
nonexistence of rental income on tax returns.
19
Mix (1975) 14 Cal.3d 604, 614 [testimony of a single witness, even a party in a divorce
case, may constitute substantial evidence of tracing]; In re Marriage of Alexander (1989)
212 Cal.App.3d 677, 682 [“notwithstanding Carolyn‟s contrary testimony, the court‟s
finding of no extrinsic fraud was supported by substantial evidence, consisting of
Patrick‟s testimony and declaration”].) The trial judge got it right; this was a case where
the recordkeeping requirements found in See, Higinbotham, and Braud simply did not
apply.
2. The Severance Payment
Julie received about $200,000 in severance pay from the dental implant
maker in the last few months of the marriage, and the trial court held all the money
constituted community property. On appeal, Julie argues roughly $170,000 of that
severance package represented consideration for a non-compete agreement. She reasons
that since the non-compete agreement represents her promise not to work against her
erstwhile employer after marriage, i.e., represents compensation for her post-separation
efforts (or more precisely, her forbearance of post-separation efforts), the trial court erred
in characterizing the amount as community property. The answer to this is that the non-
compete agreement applies only to the dental implant industry, and there was substantial
evidence that Julie has plenty of experience in biotech areas outside of dental implants,
including surgical sterilizers, capillary electrophoresis equipment, DNA sequencers,
protein synthesizers and microbiology supplies. In short, the trial court could reasonably
conclude that, given the breadth of Julie‟s experience, the value of the non-compete
clause was de minimis in relation to the rest of the agreement. Moreover, given the
evidence Julie may indeed have been terminated for a reason in violation of civil rights
statutes, the trial court could also reasonably have concluded that most of the value of the
severance package was in settlement of valuable anti-discrimination claims possessed by
Julie which arose during the marriage. Again, we find the court‟s conclusions
unassailable.
20
DISPOSITION
The child and spousal support orders are reversed, and those issues are
remanded to the trial court for further proceedings consistent with this opinion. The
judgment is otherwise affirmed. Though this is technically a split decision in terms of
issues raised on appeal, on balance the child and spousal support issues far outweigh the
two property issues in terms of both public and personal import. Therefore we conclude
that Julie is the prevailing party and should receive her costs on appeal.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
THOMPSON, J.
21