Marriage of Prunchunas CA2/2

Filed 8/21/23 Marriage of Prunchunas CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of B319493, B321105
EDWARD and ELBA
PRUNCHUNAS. (Los Angeles County
Super. Ct. No.
18 STFL12634)
EDWARD PRUNCHUNAS,
Respondent,
v.
ELBA PRUNCHUNAS,
Appellant.
APPEALS from judgments of the Superior Court of
Los Angeles County, Christine W. Byrd, Judge. Affirmed.
Bickford Blado & Botros and Andrew J. Botros for
Appellant.
Law Offices of James L. Keane, James L. Keane and Joy
Dracup Stanley for Respondent.
_______________________________________
Elba Prunchunas (Elba)1 appeals from separate judgments
entered in a bifurcated marriage dissolution proceeding with
Edward Prunchunas (Edward). From the judgment entered on
February 2, 2022, Elba appeals a permanent spousal support
award in her favor of $5,000 per month, to be reduced to zero
upon Edward’s retirement, and the denial of her request for
$693,977 in retroactive temporary spousal support for the period
from September or October of 2018 to February 1, 2020.
(B319493.) From the judgment entered on May 23, 2022, Elba
challenges a $100,000 attorney fees award against her as
sanctions under Family Code section 271.2 (B321105.) We affirm
both judgments.
BACKGROUND
The dissolution judgment
Elba and Edward were married on February 26, 1977, and
separated on September 30, 2018. They have one adult daughter.
Edward petitioned for dissolution of the marriage in October
2018. A judgment dissolving the marriage was entered on
January 30, 2020, with the family court reserving jurisdiction
over the remaining issues concerning division of property and
spousal support.
1 For clarity, we refer to the parties by their first names.
2 All further statutory references are to the Family Code.
2
Temporary support order
On December 11, 2019, Elba filed a request for temporary
support and for attorney fees and costs. At a July 6, 2020
hearing, the family court ordered Edward to pay Elba $150,000 in
attorney fees, costs, and forensic accounting fees. On October 9,
2020, the family court issued an order awarding Elba temporary
spousal support of $22,587 per month, commencing on
February 1, 2020. The court denied without prejudice Elba’s
request for temporary spousal support prior to February 1, 2020,
as Elba had not included that request in her moving papers.
Neither party appealed the October 9, 2020 order.
Trial, statement of decision, and judgment
The matter proceeded to a trial on issues concerning
division of property and permanent spousal support. The parties
filed a joint stipulation of undisputed facts stipulating, among
other things, that Elba is 76 years old and has not worked
outside the marriage since March 1989; that Edward is 71 years
old and the Chief Financial Officer of Cedars-Sinai Medical
Center where he continues to work past his retirement age of 65.
The parties further stipulated that Edward’s forensic accountant
determined the marital standard of living to be $39,157 per
month each, and Elba’s forensic accountant determined the
marital standard of living to be $45,492 per month each. Both
accountants included savings and investments in their respective
determinations.
Edward, Elba, and their respective forensic accountants
testified at a three-day trial. In November 2021, the trial court
issued a tentative proposed statement of decision, to which Elba
objected. On December 2, 2021, the trial court filed a final
Statement of Decision After Trial on Reserved Issues, stating it
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had modified its decision to address certain objections and
overruled other objections.
Temporary spousal support
The trial court denied Elba’s request for $693,977 in
retroactive temporary spousal support, noting that it was unclear
whether the court had the authority to do so. The trial court
went on to state: “Even if it could, however, doing so would not
meet the purpose of temporary spousal support. The purpose of
temporary spousal support is to allow the supported spouse to
continue to live in his or her accustomed manner while litigating
the dissolution.” The trial court found that after the parties
separated, Elba had unrestricted access to more than $2 million
in community funds and her expenditures at that time totaled
$337,000—half the amount she was seeking in retroactive
temporary spousal support. The court found nothing to indicate
that Elba had curtailed her lifestyle during that period, and
“[t]he only conclusion is that she continued to live in her
accustomed manner and that additional funds were not necessary
to maintain that lifestyle.” The trial court rejected Elba’s
argument that additional temporary support funds were needed
for investment and savings as part of the marital standard of
living: “While it is true that the parties had a pattern of saving
during the marriage (and now have a substantial community
estate for division), the retroactive temporary spousal support
that [Elba] is requesting now would serve only to increase her
separate property investment portfolio at the expense of
[Edward’s] separate property earnings. That is not the purpose
of temporary spousal support.”
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Permanent spousal support
As to permanent spousal support, the trial court
acknowledged that the parties’ respective forensic accountants
determined the marital standard of living to be $39,000 to
$46,000 per month. The trial court then summarized its
consideration of the factors specified in section 4320. As relevant
here, the court determined Elba’s expected monthly income to be
between $17,000 and $21,000, consisting of $1,614 in monthly
Social Security retirement benefits, a $573 monthly pension from
her prior employment, $7,366 in payments from community
retirement plans, and $8,000 to $12,000 in income from $2 to $3
million in cash (her share of the community liquid assets). The
trial court determined Elba’s monthly expenses to be
approximately $22,000, not including amounts for savings and
investments.
The court found that Edward, although eligible for
retirement, continued to work and earned approximately
$192,000 per month. That income would cease upon Edward’s
retirement, when his monthly income would be reduced to
between $19,000 to $23,000, consisting of $3,839 per month in
Social Security benefits, his share of the community retirement
funds, and $8,000 to $12,000 in income from his share of liquid
community assets. The trial court noted that Edward, while
employed, had significant income and the ability to pay spousal
support. Upon his retirement, however, Edward’s ability to pay
would be substantially reduced and would depend principally on
income from his share of the community retirement plans and
community assets. The court noted that Edward was 71 and
Elba was 76.
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The trial court concluded: “Having considered all the
evidence presented, including credibility, the marital standard of
living, and the factors identified under Fam. Code §4320 and
§4336, and in the exercise of its discretion, the Court finds and
orders that spousal support be in the amount of $5,000 per month
as of November 1, 2021, payable on the 1st day of each month,
and the amount shall automatically be reduced to $0 per month
effective on the 1st day of the month following the month of
[Edward’s] retirement.” The trial court retained jurisdiction over
the issue of spousal support. Judgment was entered on
February 2, 2022.
Section 271 sanctions
On January 28, 2022, Edward filed a motion under section
271 seeking $328,000 in attorney fees as sanctions against Elba.
In his motion, Edward argued that Elba’s conduct frustrated his
efforts to settle. Edward’s motion was supported by settlement
offers he had extended to Elba and communications between the
parties regarding those offers. Elba opposed the attorney fees
motion. The parties agreed to submit the issue to the trial court
on their respective briefs.
The trial court issued a tentative decision and proposed
statement of decision on February 22, 2022, awarding $100,000
in sanctions against Elba. The court reasoned that sanctions
were warranted given Elba’s refusal to accept three “highly
favorable” settlement offers Edward had extended over the course
of 15 months. Elba submitted objections to the proposed
statement of decision and asked the trial court to state its facts
and reasoning as to why the court considered Edward’s
settlement offers to be “highly favorable.” The court denied
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Elba’s request and on May 23, 2022, entered judgment on the
section 271 sanctions.
In the judgment, the trial court noted that after the July 6,
2020 hearing at which Elba was awarded her attorney fees, her
“conduct was contrary to the policy behind Section 271 to promote
settlement of litigation and to cooperate to reduce the cost of
litigation.” The court then stated the facts on which it based the
sanctions award: “During the next 15 months, until trial in
November 2021, [Edward] extended 3 highly favorable settlement
offers to [Elba] — on 10/30/2020, 4/20/2021, and 6/8/2021 — and
yet she refused to reach a settlement. Even after the trial in
November 2021, [Edward] offered to resolve the bifurcated issue
with each party paying his or her own fees, and [Elba] refused.
During the time period after the hearing of July 6, 2020,
[Edward] incurred over $356,000 in attorney’s fees and costs, of
which $208,000 was preparation for and conduct of the trial in
November 2021. Had [Elba] accepted any of the settlement
proposal[s], the need for trial would have been eliminated. By
refusing all settlement proposals, [Elba] caused [Edward’s] fees
to increase exorbitantly and, especially, forced the expense of
taking the case to trial. Given the fact that [Elba] had engaged
two different counsel during this time period and yet neither
were able to reach a settlement, it must be concluded that the
problem was [Elba] herself. Under the circumstances, sanctions
are appropriate.”
The trial court found sanctions in the amount of $208,000—
fees Edward incurred in preparing for trial and trying the case—
were appropriate. The court further found that sanctions in that
amount would impose an unreasonable financial burden on Elba
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and reduced the amount to $100,000, payable in two installments
of $50,000.
DISCUSSION
Elba contends the trial court erred by ordering permanent
spousal support in an amount below the marital standard of
living as determined by the parties’ respective forensic
accountants; by failing to account for the parties’ history of
savings and investment; and by reducing support payments to
zero upon Edward’s retirement. Elba further contends the trial
court erred by denying her request for retroactive temporary
spousal support and by ordering $100,000 in sanctions against
her under section 271.
I. Permanent Spousal Support
A. Applicable law and standard of review
Section 4330, subdivision (a) authorizes the court in a
marriage dissolution or separation proceeding to order one party
to pay for the support of the other, based on the marital standard
of living: “In a judgment of dissolution of marriage or legal
separation of the parties, the court may order a party to pay for
the support of the other party an amount, for a period of time,
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 Chapter 2
(commencing with Section 4320).” (§ 4330, subd. (a).)
Section 4320 sets forth the factors the court must consider
in ordering spousal support.3 These include, among other factors,
the marital standard of living.
3 Section 4320 states: “In ordering spousal support under
this part, the court shall consider all of the following
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circumstances: [¶] (a) The extent to which the earning capacity
of each party is sufficient to maintain the standard of living
established during the marriage, taking into account all of the
following: [¶] (1) 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. [¶] (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. [¶] (b) 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. [¶] (c) 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. [¶] (d) The needs of each
party based on the standard of living established during the
marriage. [¶] (e) The obligations and assets, including the
separate property, of each party. [¶] (f) The duration of the
marriage. [¶] (g) 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. [¶] (h) The age
and health of the parties. [¶] (i) All documented evidence of any
history of domestic violence, as defined in Section 6211, between
the parties or perpetrated by either party against either party’s
child, including, but not limited to, consideration of: [¶] (1) A plea
of nolo contendere. [¶] (2) Emotional distress resulting from
domestic violence perpetrated against the supported party by the
supporting party. [¶] (3) Any history of violence against the
supporting party by the supported party. [¶] (4) Issuance of a
protective order after a hearing pursuant to Section 6340. [¶] (5)
A finding by a court during the pendency of a divorce, separation,
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After considering the factors set forth in section 4320, a
trial court has broad discretion in setting the amount and
duration of a spousal support award. “ ‘In making its spousal
support order, the trial court possesses broad discretion so as to
fairly exercise the weighing process contemplated by section
4320, with the goal of accomplishing substantial justice for the
parties in the case before it. . . . In awarding spousal support, the
court must consider the mandatory guidelines of section 4320.
Once the court does so, the ultimate decision as to amount and
duration of spousal support rests within its broad discretion and
will not be reversed on appeal absent an abuse of that discretion.
[Citation.] “Because trial courts have such broad discretion,
appellate courts must act with cautious judicial restraint in
reviewing these orders.” ’ ” (In re Marriage of McLain (2017) 7
Cal.App.5th 262, 269.) An abuse of discretion occurs only “ ‘when
it can be said that no judge reasonably could have made the same
order.’ ” (In re Marriage of Meegan (1992) 11 Cal.App.4th 156,
161.)
B. Marital standard of living
Elba’s principal challenge to the permanent support order
is based on an incorrect premise—that the trial court was
or child custody proceeding, or other proceeding under Division
10 (commencing with Section 6200), that the spouse has
committed domestic violence. [¶] (j) The immediate and specific
tax consequences to each party. [¶] (k) The balance of the
hardships to each party. [¶] (l) The goal that the supported party
shall be self-supporting within a reasonable period of time. . . . [¶]
(m) The criminal conviction of an abusive spouse . . . .[¶] (n) Any
other factors the court determines are just and equitable.”
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required to award spousal support in an amount at least equal to
the marital standard of living, which the parties’ respective
accountants determined to be $39,000 to $46,000 per month. The
marital standard of living is not a “ ‘mathematical standard,’ ”
however, but rather “ ‘a general description of the station in life
the parties had achieved by the date of separation.’ ” (In re
Marriage of Grimes & Mou (2020) 45 Cal.App.5th 406, 424
(Grimes), quoting In re Marriage of Smith (1990) 225 Cal.App.3d
469, 491 (Smith).) “Section 4330 does not make ‘marital standard
of living’ the absolute measure of reasonable need. ‘Marital
standard of living’ is merely a threshold or reference point
against which all of the statutory factors may be weighed.
[Citation.] It is neither a floor nor a ceiling for a spousal support
award.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546,
1560.)
“While ‘the marital standard of living is an important factor
in determining spousal support, it is not the only factor, and its
importance in determining whether it is “just and reasonable”
(§ 4330) to award spousal support will vary based on the court’s
evaluation of the section 4320 factors.’ (In re Marriage of
Shaughnessy (2006) 139 Cal.App.4th 1225, 1247.) After
considering the marital standard of living along with the other
statutory factors, ‘the court may “fix spousal support at an
amount greater than, equal to or less than what the supported
spouse may require to maintain the marital standard of living, in
order to achieve a just and reasonable result under the facts and
circumstances of the case.” ’ (In re Marriage of Williamson (2014)
226 Cal.App.4th 1303, 1316.)” (Grimes, supra, 45 Cal.App.5th at
p. 425.)
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The record shows that the trial court considered the
parties’ marital standard of living as determined by their
respective forensic accountants, which included savings and
investments during the marriage. Against that standard, the
trial court weighed other relevant statutory factors set forth in
section 4320, as well as the facts and equities of the parties’
circumstances. These included the parties’ respective ages,
Edward’s current eligibility for retirement, Edward’s ability to
pay support during his continued employment and after
retirement, and the relative parity in the parties’ respective
monthly incomes after Edward’s retirement. The trial court
found that while Edward is currently a high-earning executive,
upon retiring, his income stream would cease, and his ability to
pay support would depend on community retirement plans. The
trial court’s consideration of the section 4320 factors was within
the bounds of reason, and we will not reweigh those factors. (See
In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304
(Cheriton) [trial court has discretion to determine appropriate
weight to accord each factor].)
We reject Elba’s contention that the trial court’s failure to
include the parties’ history of saving and investment during the
marriage as an element of the support award requires reversal of
the judgment. The trial court was obliged to consider the marital
history of saving as part of the parties’ marital standard of living
(In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1098
(Drapeau)), and the record shows that it did so. The trial court
was not required, however, to set support at an amount that
would include such savings. As one authority has noted: “[T]he
trial court should consider the parties’ practice of saving income
as an element of the marital standard of living; and, after
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considering and weighing all of the applicable § 4320 factors, it
may be appropriate to award spousal support in an amount
sufficient to continue to save as they did during the marriage. . . .
[¶] This does not mean, of course, that a supported spouse is
necessarily ‘entitled’ to support at a level that will allow for
savings at a particular rate.” (Hogoboom et al., Cal. Practice
Guide: Family Law (The Rutter Group 2023 update) ¶¶ 6:951.2,
6:951.3.)
Drapeau, supra, 93 Cal.App.4th 1086, does not support
Elba’s position that marital savings must be included as part of a
support order, so long as the supporting party can afford to pay.
The court in Drapeau reversed a spousal support order and
remanded the matter to the trial court because there was “no
policy reason to foreclose consideration of savings as an aspect of
MSL” and it was “not clear from the record whether the trial
court considered the marital history of savings as an element of
the parties’ MSL.” (Id. at pp. 1097, 1098.) Here, in contrast, the
record shows that the trial court considered the parties’ pattern
of saving during the marriage as a component of the marital
standard of living, weighed it against the other factors set forth
in section 4320, and declined to include savings as part of the
support award.
California law does not support Elba’s argument that
because Edward can presently afford to pay permanent spousal
support in an amount that would allow Elba to enjoy her
predissolution marital standard of living (including savings), the
trial court abused its discretion by not ordering him to do so.
(See Grimes, supra, 5 Cal.App.5th at p. 425; Smith, supra, 225
Cal.App.3d at p. 483.)
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The record discloses no abuse of discretion by the trial court
in setting the amount of the permanent support order.
C. Step-down in support upon Edward’s retirement
The trial court did not abuse its discretion by ordering
Edward’s support obligation to be reduced to $0 upon his
retirement. Step-down provisions in support orders may be
appropriately employed in some situations, consistent with the
exercise of the trial court’s broad discretion. (Cheriton, supra, 92
Cal.App.4th at p. 309.) “ ‘[O]rders for changes in support to take
effect in the future must be based upon reasonable inferences to
be drawn from the evidence, not mere hopes or speculative
expectations.’ ” (In re Marriage of Smith (1978) 79 Cal.App.3d
725, 740.) “The critical inquiry . . . is whether the step-down
provision, standing alone, is supportable given the parties’
circumstances at the time the order was made.” (Cheriton, at
p. 311.)
The step-down provision at issue here is supported by the
evidence, by reasonable inferences that can be drawn therefrom,
and by the parties’ circumstances at the time the support order
was made. Edward was 71 years old when the support order was
made. Although he continued to be employed, he was eligible for
retirement and had been eligible since age 65. Given Edward’s
age and the duration of his employment, the trial court could
reasonably infer he might retire in the not too distant future.
The trial court found that Edward’s earning capacity was
dependent upon his continued employment, and that upon
retirement, his income, and his ability to pay spousal support
would be substantially reduced to between $19,000 and $23,000
per month. The trial court found that Elba, age 76, would have
monthly income between $17,000 and $21,000 after division of
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the community estate, an amount roughly equal to her projected
monthly expenses. The trial court considered these factors and
found a step-down in support upon Edward’s retirement to be
appropriate.
The step-down provision is supported by the parties’
circumstances at the time the order was made. These
circumstances include the parties’ respective ages, Edward’s
current age and eligibility for retirement, and the relative parity
in the parties’ monthly income after Edward’s retirement. The
record does not support Elba’s argument that the step-down
order was speculative.
In re Marriage of Richmond (1980) 105 Cal.App.3d 352, on
which Elba relies, undermines rather than supports her position.
The appellate court in that case upheld as a proper exercise of the
trial court’s discretion a step-down provision terminating spousal
support on a specified date, unless the supported spouse made a
showing of good cause to extend spousal support beyond that
date. (Id. at pp. 355–356.) The trial court here set no specific
date on which Edward’s support obligation would terminate but
made that obligation dependent upon Edward’s continued
employment.
Elba fails to establish any abuse of discretion by the trial
court in issuing the permanent support order.
II. Temporary Spousal Support
The trial court lacked jurisdiction to grant Elba’s request
for retroactive temporary spousal support, and her challenge to
the court’s denial of that request is barred by the doctrine of res
judicata. “[A] trial court lacks jurisdiction to retroactively modify
a pendente lite support order to any date earlier than the date on
which a proper pleading seeking modification of such order is
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filed, unless it specifically reserves jurisdiction to do so.” (In re
Marriage of Williamson, supra, 226 Cal.App.4th at pp. 1317–
1318; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 631,
638–639 (Gruen); In re Marriage of Freitas (2012) 209
Cal.App.4th 1059, 1074–1075 (Freitas).) “A temporary support
order is operative from the time of pronouncement, and it is
directly appealable.” (Gruen, at p. 637.) “ ‘If an order is
appealable, . . . and no timely appeal is taken therefrom, the
issues determined by the order are res judicata.’ ” (Id. at p. 638.)
In its October 9, 2020 order, the court did not expressly
reserve jurisdiction to amend the temporary support award based
on further consideration of evidence, nor did it specify a date
certain to which the matter would be continued to preserve the
ongoing nature of proceeding and prevent its ruling from
becoming final for appeal purposes. (Cf. Freitas, supra, 209
Cal.App.4th at pp. 1074–1075.) The trial court accordingly
lacked jurisdiction to order retroactive temporary support. That
the October 9, 2020 support order denied “without prejudice”
Elba’s request for retroactive temporary support did not accord
the trial court jurisdiction to retroactively modify the award.
(Gruen, supra, 191 Cal.App.4th at p. 640.) Elba did not appeal
the October 9, 2020 order which then became final and not
subject to challenge.
Elba also failed to follow the statutory procedure for
modification of the October 9, 2020 temporary support order,
which ordinarily requires a noticed motion or order to show
cause. (Gruen, supra, 191 Cal.App.4th at p. 640; § 3603.) Even if
Elba’s request had been based on a pending motion or OSC for
modification, section 3603 would have prohibited the trial court
from modifying any amounts that accrued before the filing of the
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motion or OSC. Section 3603 states: “An order made pursuant to
this chapter may be modified or terminated at any time except as
to an amount that accrued before the date of the filing of the
notice of motion or order to show cause to modify or terminate.”
(§ 3603.)
Elba fails to establish any error by the trial court in
denying her request to retroactively modify the October 9, 2020
temporary support order.
III. Section 271 Sanctions
A. Applicable Law and Standard of Review
Section 271 provides: “Notwithstanding any other
provision of this code, the court may base an award of attorney’s
fees and costs on the extent to which the conduct of each party or
attorney furthers or frustrates the policy of the law to promote
settlement of litigation and, where possible, to reduce the cost of
litigation by encouraging cooperation between the parties and
attorneys. An award of attorney’s fees and costs pursuant to this
section is in the nature of a sanction.” (§ 271, subd. (a).)
We review an award of section 271 sanctions for an abuse
of discretion. (In re Marriage of Pearson (2018) 21 Cal.App.5th
218, 233; In re E.M. (2014) 228 Cal.App.4th 828, 850.) The
imposition of section 271 sanctions “will be upheld on appeal
unless the reviewing court, ‘considering all of the evidence viewed
most favorably in its support and indulging all reasonable
inferences in its favor, no judge could reasonably make the
order.’ ” (In re E.M., at p. 850; In re Marriage of Greenberg (2011)
194 Cal.App.4th 1095, 1100 [the applicable standard of review is
highly deferential].)
Elba does not dispute the trial court’s finding that she
refused three settlement offers Edward extended on October 30,
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2020, April 20, 2021, and June 8, 2021, as well as a posttrial
settlement offer in November 2021 in which each party would
pay his or her own fees. The record supports the trial court’s
determination that these offers were very favorable to Elba. The
trial court further found that by refusing all settlement offers,
Elba required the matter to be tried, causing Edward to incur
$208,000 in fees preparing for and conducting the trial.
On this record, we are unable to conclude the trial court
abused its discretion by imposing sanctions against Elba under
section 271.
DISPOSITION
The judgments entered on February 2, 2022, and May 23,
2022, are affirmed. Edward Prunchunas shall recover his costs on
appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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