IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 10, 2011
IN RE THE MARRIAGE OF BRETT AND MELISSA SHURR. BRETT SHURR, APPELLANT,
MELISSA SHURR, APPELLANT.
(Super. Ct. No. 04FL01857)
The opinion of the court was delivered by: Hull , J.
Marriage of Shurr
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a marriage of nearly 10 years, Brett Shurr (husband) and Melissa Shurr (wife) have remained locked in a dissolution proceeding that has itself lasted for over seven years. In this appeal, we are asked to review a series of orders entered by the trial court between February 2008 and March 2009 concerning child and spousal support and attorney fees. The initial order was issued by Judge Peter McBrien following a two-day trial in February 2008. Judge McBrien ordered a gradual step down in child and spousal support commencing on July 1, 2008, with spousal support eventually eliminated altogether. The remaining orders, issued by Judge Eugene Balonon, primarily delayed implementation of the child support step down and either denied or deferred wife's requests for attorney fees.
Both parties have appealed. Wife challenges some of the factual underpinnings of Judge McBrien's order and contends he erred in ordering a step down of both child and spousal support based on a mistaken belief that wife would be able to start earning an income by July of 2008. Wife also argues Judge Balonon erred in refusing to modify the step down of support when it turned out wife was not in fact able to start earning an income as anticipated. Wife also challenges Judge Balonon's failure to award attorney fees. Husband contends Judge Balonon erred in delaying the step down of child support and in ordering him to pay the fees of a child custody evaluator.
On wife's appeal, we conclude some of the factual findings underlying Judge McBrien's order are not supported by the record and, therefore, the support amounts must be recalculated. We further conclude Judge McBrien erred in ordering a step down of child support based on anticipated changes in wife's earning capacity. However, we find no fault in his decision to step down spousal support based on anticipated changes and find no error in Judge Balonon's refusal to delay the step down of spousal support. Finally, we conclude Judge Balonon erred in denying one attorney fee request and deferring consideration of the other.
On husband's appeal, we conclude his notice of appeal was untimely as to one of the orders and otherwise reject each of his contentions as either not properly presented or moot.
We therefore reverse in part.
Facts and Proceedings
Husband and wife were married in 1994, had a child in 1996, and separated in 2004. The trial court entered judgment of dissolution and ordered husband to pay temporary child support of $1,288 per month and temporary spousal support of $1,904 per month.
Wife later moved for a modification of child and spousal support and for attorney fees. In August 2007, the trial court ordered child support of $1,045 and spousal support of $2,429, which amounts were less than wife had requested. The court deferred consideration of her attorney fees request. Wife appealed.
The following month, husband moved for bifurcation of the issues of spousal support and property division and for a trial date on those issues. Wife objected to setting a separate trial on spousal support and property division. Wife also sought attorney fees of $1,500 and a release of $8,500 in community funds to allow her to complete her education in her chosen field of equine dentistry.
On September 26, 2007, the trial court bifurcated the issue of child custody from all other issues and denied wife's request for distribution of $8,500.
In February 2008, the parties participated in a two-day trial before Judge McBrien, who thereafter issued a minute order setting a gradual step down in child and spousal support as follows:
Dates Child Support Spousal Support
2/1/08 - 7/1/08 $1,479 no change
7/1/08 - 8/1/08 $1,160 $2,200
8/1/08 - 9/1/08 $930 $1,850
9/1/08 - 10/31/08 $744 $1,450
11/1/08 --> $744 $0
In May 2008, wife moved for a modification of child and spousal support and an award of attorney fees. Wife sought: (1) a delay in the step down of spousal support until October 1, 2008; (2) a modification of child support based on new financial information; (3) elimination of the child support step down altogether; and (3) attorney fees of $2,500. Wife asserted the step down of support had been premised on an incorrect finding that she would become certified in equine dentistry by May 2008 and thereafter start earning income in that field.
On June 16, 2008, Judge Balonon denied wife's motion to delay the step down of spousal support, but ordered a delay in the step down of child support until September 1, 2008.
In August 2008, wife moved to modify child support once again, seeking a further delay in the step down "until such time as she has actually become certified as an equine dentist."
On September 3, 2008, Judge Balonon issued a minute order continuing the stay on the step down of child support, resetting the matter for November 26, 2008, and ordering wife to provide documentation from her school regarding the status of her certification.
The next day, Judge McBrien issued a formal order on his February ruling.
Wife appealed Judge McBrien's order and Judge Balonon's June 16, 2008, order.
In November 2008, wife's counsel filed a declaration indicating wife was then in Idaho attending class but was not yet attempting to obtain certification because "by the time this session [of the school] arrived [wife] was not sufficiently proficient to do so."
On November 26, 2008, Judge Balonon issued an order further delaying the child support step down until January 1, 2009, and continuing the matter until January 12, 2009.
In December 2008, wife filed a motion to compel husband to pay all fees of a court-appointed child custody evaluator. Husband responded, requesting that the motion be denied until such time as the reasonableness of the evaluator's fees could be determined at trial.
On January 26, 2009, Judge Balonon issued an order on the various matters before him. First, he found the fees charged by the custody evaluator to be reasonable and ordered husband to pay them. He also confirmed his previous minute order that the child support step down would begin effective January 1. However, he made the child support order subject to retroactive modification in the event husband could later establish a reduction in his income. Finally, Judge Balonon deferred consideration of wife's request for attorney fees.
On February 24, 2009, wife filed a motion to compel husband to pay the custody evaluator fees or to allow her to do so by withdrawing the necessary funds from her trust account. Wife also sought unpaid child support of $2,077 and attorney fees of $1,000.
On March 18, 2009, Judge Balonon issued an order releasing funds to pay the evaluator's fees and awarding wife $1,830 in child support and $500 in attorney fees.
On March 26, 2009, wife appealed Judge Balonon's orders of November 26, 2008, and January 26, 2009.
The following day, husband appealed Judge Balonon's orders of June 16, 2008, October 22, 2008, November 26, 2008, January 26, 2009, and March 18, 2009.
While the foregoing matters were working their way through the trial court, wife's appeal of the trial court's August 2007 order was pending in this court. In May 2009, we issued In re Marriage of Shurr (May 12, 2009, C057456) [nonpub. opn.] (hereafter Shurr I), in which we reversed in part, concluding the trial court erred in assessing husband's income and expenses for purposes of calculating temporary support. We also concluded the court erred in making its support order subject to retroactive modification and in deferring wife's request for attorney fees. (Shurr I, C057456.)
Wife raises a number of challenges to Judge McBrien's minute order of February 2008, which was formalized in a written order on September 4. However, before considering those challenges, we must address husband's contention that wife's challenges are not properly before us.
Husband contends wife may not appeal Judge McBrien's order until entry of final judgment. Husband asserts the issues of permanent spousal support and imputed income to wife, which were decided by Judge McBrien, were bifurcated for separate trial. Therefore, wife must first seek certification of the issues for appeal in accordance with Family Code section 2025. (Further undesignated section references are to the Family Code.) Husband further argues the order is not appealable as a collateral matter, inasmuch as determination of the issues of permanent spousal support and imputed income are necessary steps in the final resolution of this matter.
"'The right to appeal in California is wholly governed by statute and appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature. [Citation.]' [Citation.] The primary statute governing appeals in civil cases is Code of Civil Procedure section 904.1. Subdivision (a) thereof provides for an appeal '[f]rom a judgment except (1) an interlocutory judgment . . . .' . . . [¶] The intent of Code of Civil Procedure section 904.1 '. . . is to codify the final judgment rule, or rule of one final judgment, a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly and that a review of intermediate rulings should await the final disposition of the case. [Citations.]' [Citation.]" (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687.)
Code of Civil Procedure section 904.1, subdivision (a)(10), permits an appeal from any order made appealable by the Family Code. Family Code section 2025 reads: "Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. . . ." Under California Rules of Court, rule 5.175(c), "[t]he court may try separately one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues. Issues that may be appropriate to try separately in advance include: [¶] (1) Validity of a postnuptial or premarital agreement; [¶] (2) Date of separation; [¶] (3) Date of use for valuation of assets; [¶] (4) Whether property is separate or community; [¶] (5) How to apportion increase in value of a business; or [¶] (6) Existence or value of business or professional goodwill."
It is readily clear the court here did not bifurcate a particular issue or issues for separate trial in advance of disposition of the entire case. Rather, the court bifurcated the issue of custody for later trial and then purportedly proceeded on everything else. In addition, the issues tried in February 2008 were not of a type likely to simplify determination of the remaining issue of custody.
At any rate, it is also clear the issues tried in February 2008 were primarily collateral to the main issues in the case. "When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.] This constitutes a necessary exception to the one final judgment rule. Such a determination is substantially the same as a final judgment in an independent proceeding." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Historically, temporary support orders have been considered collateral to the main issues and directly appealable. (Ibid.) Such orders possess all the essential elements of a final judgment that may be enforced immediately. "An order for support is operative from the moment of pronouncement. And a final judgment excluding future support does not preclude recovery of all money due under a prior temporary support order." (Id. at p. 369.)
Husband argues the order at issue here is not one for temporary spousal support but one that denies permanent support. At the end of the step-down period, no further spousal support is required. But even if the final step of no spousal support amounts to a denial of permanent support, the fact remains the order also awards temporary support for a given period. It also provides for a gradual step down of child support. Had this order gone into effect, it could have been enforced immediately, notwithstanding the fact there has been no final judgment in the action. We conclude direct appeal from Judge McBrien's order is proper.
As noted above, on March 27, 2009, husband appealed or cross-appealed from Judge Balonon's orders of June 16, 2008, October 22, 2008, November 26, 2008, January 26, 2009, and March 18, 2009.
Wife contends husband's appeal from the June 16, 2008, order must be dismissed as untimely. California Rules of Court, rule 8.104(a) states that an appeal must be filed on or before the earliest of 60 days after service of notice of entry of the order or judgment or 180 days after entry of the order or judgment. Husband's March 27, 2009, notice of appeal was more than 180 days after entry of the June 16, 2008, order.
Husband contends the appeal is timely, because the June 16, 2008, order was not finalized by Judge Balonon until January 26, 2009, and husband's notice of appeal was filed within 180 days of that latter order. We disagree.
In his January 26, 2009, order, Judge Balonon stated: "On November 26, 2008 the Court took under submission [husband's] request for a Statement of Findings pursuant to Family Code section 4056 upon the Court's order that the child support stepdown shall be effective beginning January 1, 2009." The court then explained that section 4056 is inapplicable and confirmed that the step down of child support would commence on January 1, 2009, as ordered on November 26, 2008. There was no mention of the June 16, 2008, order.
Husband contends that what Judge Balonon did on June 16, 2008, was to stay Judge McBrien's step down of child support, which stay he continued in each of his subsequent orders, until January 26, 2009, when the final stay until January 1, 2009, was confirmed. This may be true. However, the fact remains that each of Judge Balonon's orders effectively modified Judge McBrien's child support order. Consequently, each order was separately appealable. The effect of the January 26, 2009, order was merely to decline to modify child support any further.
Husband contends he timely requested a statement of information and reasons for the June 16, 2008, order and, therefore, the time to appeal did not begin to run until the court complied with that request on January 26, 2009. However, as we have explained, the January 26 order did not contain any statement of information or reasons for the June 16 order. We therefore conclude husband's appeal from the June 16, 2008, order was not timely filed.
At any rate, husband's challenge to the June 16 order concerns the decision to delay the step down of child support. As we shall explain hereafter, Judge McBrien erred in ordering a step down of child support. Therefore, Judge Balonon's decision to delay such step down can have no bearing on this proceeding. Hence, husband's appeal of Judge Balonon's June 16 order is moot.
Wife contends husband's appeal from Judge Balonon's October 22, 2008, order cannot be considered, because no such order appears in the record and husband has raised no arguments on appeal regarding such order. Husband apparently concedes the point, as he raises no arguments in opposition.
Wife does not dispute that husband's appeal from the November 26, 2008, January 26, 2009, and March 18, 2009, orders is timely.
Judge McBrien's Findings of Fact
Wife challenges a number of the findings of fact underlying Judge McBrien's February 2008 order. She argues that, in calculating support, Judge McBrien erroneously found husband's "other income" to be $881 per month, when in fact the evidence showed it was much higher. Wife also argues Judge McBrien utilized an inflated amount for husband's health insurance expenses by improperly including amounts he paid for her insurance. Wife asserts Judge McBrien improperly credited her with tax deductible amounts of $1,400 and $208 in mortgage interest and property tax respectively, when the evidence showed she was living in a rented mobile home. Finally, wife argues Judge McBrien figured husband's tax liability based on three exemptions when in fact he was entitled to five exemptions due to the birth of twins to husband and his new wife in 2007.
Husband counters that wife may not challenge any calculation errors made by Judge McBrien, because she failed to bring such errors to the trial court's attention in a timely fashion. Husband argues wife must either object or seek reconsideration before she can pursue review on appeal.
In In re Marriage of Whealon (1997) 53 Cal.App.4th 132, the Court of Appeal noted that, "[f]or better or worse, California child support law now resembles determinate sentencing in the criminal law: The actual calculation required of the trial judge has been made . . . so complicated [citation] that, to conserve judicial resources, any errors must be brought to the trial court's attention at the trial level while the error can still be expeditiously corrected." (Id. at p. 144.) In Whealon, the court concluded the husband's claim that the trial court erred in using his last month's income rather than average income over the past 12 months had been forfeited because it was not raised in the trial court when the court made its finding on his income. (Id. at pp. 143-144.) The husband had brought a motion for reconsideration following the trial court's order but failed to mention his income had been overstated. (Id. at p. 144.)
In In re Marriage of Hinman (1997) 55 Cal.App.4th 988, the wife argued the trial court, in awarding child support, erroneously attributed five income tax exemptions to the husband rather than six, failed to attribute custody time to her based on visitation, did not take into account tax and mortgage interest deductions available to the husband, and should have given her hardship credit for three children living with her. The Court of Appeal concluded these arguments were forfeited because they had not been raised below. In her opposition below, the wife had contended the husband was not entitled to any child support whatsoever. She did not question the amount sought based on calculation errors. (Id. at pp. 1001-1002.)
Wife contends she had no meaningful opportunity to object to any of the alleged errors made by the trial court. We agree. The errors of which wife complains are not ones she failed to raise below. The relevant evidence was placed before the trial court, and wife's argument is that the court made findings of fact that are not supported by that evidence. Wife could not have known this until after the court issued its ruling. And, as wife points out, a motion for reconsideration at that point would have been improper given that she was not claiming any new evidence or new law. Her claim is simply that the trial court erred.
Husband nevertheless argues wife invited error by requesting at the end of trial that Judge McBrien recalculate child support despite having led Judge McBrien to believe throughout the trial that child support was not at issue. Husband further argues wife invited error by requesting the court to take judicial notice of her latest income and expense statement, which contained the information regarding her mortgage and property tax expenses.
Again we disagree. "Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) Even if we assume wife requested a recalculation of child support, that does not mean she requested it be done incorrectly. Wife does not claim child support should not have been recalculated. She claims the calculation of child support was incorrect because it was based on certain erroneous findings of fact and included a step down.
As for wife's request that the court take judicial notice of her income and expense statement, that is merely another way of getting evidence before the court. However, introduction of that evidence does not mean wife is precluded from presenting other, conflicting evidence.
Finally, husband contends wife was not prejudiced by the court's error in using the home mortgage and property tax numbers from her income and expense statement, because she received an offsetting benefit when the court used her assertion in that same statement that she was paying her own health insurance premium, when she was not. However, to the extent there was any such offsetting error, it can be resolved by the trial court upon remand. We conclude wife's challenges to the factual bases for the trial court's support calculations are properly before us. We now turn to those challenges.
"Statutory guidelines regulate the determination of child support in California." (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1359.) These guidelines "seek to place the interests of children as the state's top priority." (§ 4053, subd. (e).) The guideline amount, which is calculated by applying a mathematical formula to the relative incomes and expenses of the parents, "is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula." (§ 4053, subd. (k).)
"Child support awards are reviewed under an abuse of discretion standard. [Citations.] We cannot substitute our judgment for that of the trial court, but only determine if any judge reasonably could have made such an order. [Citation.] Our review of factual findings is limited to a determination of whether there is any substantial evidence to support the trial court's conclusions. [Citation.]" (In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 128.) Notwithstanding the uniformity imposed by the statutory guidelines, trial courts "must be permitted to exercise the broadest possible discretion in order to achieve equity and fairness in these most sensitive and emotional cases." (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044.)
Wife contends the trial court found husband's "other income" to be $881 per month, when in fact the evidence showed it was much higher. Wife cites husband's trial testimony that in 2006 he received $18,600 in investment income, or $1,550 per month. On his latest income and expense statement, husband listed investment income of $1,484.92 per month. Wife asserts other evidence showed husband received investment income of $1,366.25 per month in 2007. Husband makes no attempt to refute this evidence or defend the trial court's factual determination.
Wife contends Judge McBrien also utilized an inflated amount for husband's health insurance expenses by improperly including amounts he paid for her insurance. In Shurr I, we concluded husband is not entitled to a deduction from gross income for payments he was required to make for wife's health insurance. (Shurr I, supra, C057456.) That determination is law of the case in this matter. At any rate, it is not disputed by husband.
Wife next argues Judge McBrien improperly found she had tax deductible amounts of $1,400 and $208 in mortgage interest and property tax respectively, whereas she testified without contradiction that she had no mortgage and was living in a rented trailer. Wife explained at trial that the amounts in her income and expense statement were based on what she would have to pay if she bought a home in the area. Again, husband does not dispute wife's interpretation of the evidence.
Finally, wife argues Judge McBrien figured husband's tax liability based on three exemptions when in fact he was entitled to five exemptions due to the birth of twins to husband and his new wife in 2007. The five exemptions for 2008 are clearly reflected in husband's income and expenses statement. Once again, husband does not dispute the error.
We conclude Judge McBrien's order must be reversed because of the various calculation errors identified by wife and not disputed by husband. In particular, in arriving at appropriate support amounts, the trial court must: (1) recalculate husband's investment income based on the evidence presented at trial; (2) eliminate from husband's expenses any payments made by husband for wife's health insurance; (3) eliminate mortgage interest and property tax amounts from wife's expenses for purposes of computing her income tax liability; and (4) recalculate husband's income tax liability based on five exemptions rather than three. In addition, to the extent wife received any offsetting deduction from gross income for health insurance payments she did not make, this should also be eliminated from the calculation.
Step Down of Child Support
Wife contends Judge McBrien erred in ordering a step down of child support, commencing July 1, 2008, based on imputed future earnings to her in the field of equine dentistry. According to wife, "[t]his determination of future child support based on what [wife] might be earning in the months to come was error because the statutes governing the modification of child support 'contemplate that the trial court will modify child support orders based on the parties' then current circumstances.'" Wife argues jurisdiction to make child support orders is limited to the conditions existing at the time they are made and not what might possibly occur in the future. Wife further argues that while future earning capacity based on projected changes in circumstances may justify a spousal support step down, "California's statewide uniform child support guideline statutes do not permit a step-down in child support based on expectations of future income."
At the time of Judge McBrien's order, there was a prior order in place requiring husband to pay $1,045 in temporary child support. Judge McBrien changed this amount to $1,479, effective February 1, 2008. He further ordered that the amount be stepped down to a final award of $744.
As discussed later in this opinion, trial courts have discretion in appropriate circumstances to order a step down in spousal support until it is eliminated altogether. In what is commonly referred to as a "Richmond" order (see In re Marriage of Richmond (1980) 105 Cal.App.3d 352), spousal support is set "for a fixed period based upon evidence that the supported spouse will be self-supporting by the end of the period." (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 665.)
However, we are aware of no reported case where the court has approved or even considered a step down in child support, except where such step down is based on the children reaching the age of majority. (See, e.g., In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1381.)
Nevertheless, in the case of spousal support, it has been suggested that, where there is a change in circumstances warranting a downward modification of spousal support, it is not necessary that there be evidence to support each level of a step down. The step-down order is proper if, at the time of making the order, there is evidence to support the ultimate step-down level and the step down is implemented simply to ease the impact of the reduction in support. (See In re Marriage of Rising (1999) 76 Cal.App.4th 472, 478.)
We see no reason why the same logic would not apply to child support. If there is a change in circumstances warranting a downward modification of child support, and the evidence supports the ultimate support level under the statutory guidelines, we see no reason why the trial court could not implement a step-down procedure in order to ease the impact of the reduction. The question on appeal becomes whether there is substantial evidence to support the ultimate level of support.
But the present matter does not involve a situation where, at the time of the trial court's order, circumstances had changed to an extent warranting a downward adjustment in child support. On the contrary, the court actually increased child support. However, in anticipation of a future change in circumstances, the court ordered that such increased level of support gradually decrease over three steps to a final level of $744. The only changed circumstance identified by the court was an expected improvement in wife's earning capacity.
One of the factors considered under the guidelines in computing child support is the respective incomes of the parties. Such income may, in the court's discretion, include "the earning capacity of a parent in lieu of the parent's income," provided use of such amount is "consistent with the best interests of the children." (§ 4058, subd. (b).) However, whether considering actual earnings or earning capacity, the court's jurisdiction to issue child support orders "is limited to the conditions and circumstances existing at the time they are made, and the court cannot then anticipate what may possibly thereafter happen and provide for future contingencies." (Primm v. Primm (1956) 46 Cal.2d 690, 694; see also In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298 (Cheriton); In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 130.)
In Cheriton, the trial court entered an order requiring the parties to submit to a procedure for adjusting child support on an annual basis in the event of any changes in income. The procedure required the parties to exchange income tax returns or other proof of income and then recalculate child support using an authorized computer program or, if necessary, do so manually. The trial court explained that, because of fluctuating incomes of both parties, to fail to provide for annual adjustments "'would condemn the parties to annual, if not more often, modification motions.'" (Cheriton, supra, 92 Cal.App.4th at p. 295.)
In addition to finding other problems with this methodology, the Court of Appeal concluded the annual adjustment procedure violated the basic requirement that the court determine child support based on the presentation of evidence of changed circumstances. (Cheriton, supra, 92 Cal.App.4th at p. 298.) Insofar as the procedure attempted to provide for future contingencies, it exceeded the trial court's jurisdiction. (Ibid.)
Judge McBrien's order of February 2008 was based on a determination that wife would obtain her certification in equine dentistry by May 2008 and would be able to start earning income in that field thereafter. The evidence presented to the trial court supported a finding that wife would be able to start earning income after receiving her certificate. However, there was no evidence wife would in fact receive her certificate in May 2008. Wife testified she hoped to receive the certificate by that time. However, she further testified she needed certain instruments which she could not afford to buy and needed money in order to attend classes in May.
But even if wife had testified she would receive her certificate by May, the fact remains Judge McBrien's order to step down child support was not based on conditions existing at the time of the order but on conditions that may or may not come to pass in the future. This was in excess of the court's jurisdiction.
Husband contends the evidence before Judge McBrien supported his decision to impute an earning capacity to wife and to order a step down in child support. Husband cites the testimony of his expert, Patrick Sullivan, who had earlier recommended that wife train to become a registered veterinary technician rather than pursue equine dentistry. According to Sullivan, by the time of trial, the mean wage for a veterinary technician in Sacramento was $34,548 per year.
But the fact wife might have been earning $34,548 per year as a veterinary technician by the time of trial does not change the fact she did not pursue that course and, hence, was not certified to work as a veterinary technician. Just as the court could not base its child support decision on what may come to pass in the future, the court could not base such decision on what might have been if wife had chosen a different path. As we have explained, the trial court's power to modify child support is limited to the circumstances actually existing at the time the order is made. (Primm v. Primm, supra, 46 Cal.2d at p. 694.)
Husband points out that wife's expert, Thomas Sartoris, testified in 2006 that wife had a job offer in Idaho that would have paid her $3,360 per month. Husband argues that, had wife taken that job, she would have been earning even more by the time of trial. Again, however, this evidence goes to what might have been rather than the circumstances existing at the time of Judge McBrien's order.
Husband cites testimony from wife's witness, Kathryn Jones, that wife could have earned income as an equine dentist even without a certificate. Jones testified that she could keep wife busy once she receives her certificate. When asked if she would recommend wife to others, Jones testified: "Definitely once she is certified. And there is [sic] probably a lot of vets that would use her if she is not certified, but I like everything on the up-and-up and it would be a selling point for her to be certified."
Jones's speculation that there were probably veterinarians who would hire wife to do equine dentistry without a certificate is a far cry from evidence that wife would have been able to earn an income in that field. At any rate, the trial court did not base its ruling on the fact wife could earn income without a certificate. The court concluded wife would be able to obtain her certificate in May 2008 and then begin earning a living. Thus, evidence as to what wife might have been able to do without a certificate has no bearing on this matter.
Husband cites Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331 (LaBass & Munsee), in which we affirmed the trial court's decision to impute to the wife a starting salary of a full-time teacher despite her decision to work as a part-time lecturer at a community college. We explained: "A parent does not '"'have the right to divest himself [or herself] of his [or her] earning ability at the expense of . . . minor children.'"' [Citation.] When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income--otherwise 'one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the [fully] employed parent.' [Citation.] [¶] While [the wife] 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. [Citation.]" (Id. at p. 1339.)
The obvious difference between LaBass & Munsee and this case is that, in LaBass & Munsee, the wife had the ability to work as a teacher full-time at the time of the trial court's order. We specifically found there was substantial evidence to support the trial court's implied finding that the wife "had both the ability and the opportunity to work full time but was unwilling to do so." (LaBass & Munsee, supra, 56 Cal.App.4th at p. 1338.) But in the present matter, the evidence showed wife was not yet certified to work as an equine dentist at the time of Judge McBrien's order.
We conclude Judge McBrien erred in ordering a step down in child support based on projected changes in circumstances that may or may not come to pass.
Step Down of Spousal Support
Wife also challenges that portion of Judge McBrien's order providing for a step down of spousal support to $0. She argues the court made what amounted to an order denying permanent spousal support, notwithstanding the fact not all issues relating to permanent support had been resolved. She further argues Judge McBrien based his order on improper or erroneous factors. Finally, wife contends the step down of spousal support, like the step down of child support, was improperly based on projected changes in circumstances.
The order at issue here appears to address both temporary and permanent spousal support. From the effective date of the order to the end of June 2008, wife was awarded the same temporary spousal support she had been receiving, $2,429. Beginning July 1, spousal support was to be reduced to $2,200. On August 1, it was to be reduced further to $1,850, and on September 1, to $1,450. Finally, beginning November 1, spousal support was to fall to zero, thereby denying any further spousal support.
Wife contends the court could not enter an order denying permanent spousal support, because the issues of child custody and visitation had not yet been resolved. However, wife provides no legal support for this contention. Wife asserts that, "[u]nder the authorities set forth above, the time for determining whether permanent spousal support is appropriate in a given case, and if so, how much support is appropriate, is not until after dissolution of the marriage, division of the community estate, final determination of child custody and visitation, and the setting of permanent child support based on the custody and visitation determined." However, the authorities cited above in wife's brief, In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594; and In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, do not so state. Having failed to raise a coherent argument, wife has forfeited the issue. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)
Section 4320 sets forth the factors to be considered in arriving at an award of permanent spousal support. (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) Wife contends Judge McBrien failed to consider the section 4320 factors, opting instead to use the existing temporary spousal support order and then step down from there.
Wife misreads the order. Judge McBrien did not award permanent spousal support at the pre-existing temporary support level, to be stepped down thereafter. Rather, he ordered a continuation of temporary spousal support at the same level as before for a period of five months, followed by a gradual elimination of support altogether. By leaving temporary support the same, the court implicitly concluded there had been no material change in circumstances warranting a change in spousal support. At the same time, in reducing support thereafter to $0, the court anticipated there would be a change in circumstances that would warrant the elimination of support altogether.
As explained earlier, where the court steps down a support order, it need not justify each step of the process with a change in circumstances. It is sufficient if there is substantial evidence to support the ultimate level reached. (See In re Marriage of Rising, supra, 76 Cal.App.4th at p. 478.) Thus, the question here is whether the evidence supported the eventual elimination of spousal support altogether.
In his February 2008 order, Judge McBrien stated he considered all of the factors in section 4320 in reaching his decision. One of the section 4320 factors to be considered is: "The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration . . . , a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. . . ." (§ 4320, subd. (k)(l).)
The marriage at issue here lasted either nine years, eight months, or nine years, nine months, depending on whether the parties separated in February 2004, as husband claims, or March 2004, as wife claims. Using the longer duration, half of that length is four years, 10 1/2 months. The trial court ordered spousal support beginning on May 15, 2004. Judge McBrien ordered spousal support to end on November 1, 2008, four years, and five and one-half months later. Hence, Judge McBrien permitted spousal support to run for nearly half of the duration of the marriage.
However, the basis for Judge McBrien's reduction in spousal support to $0 does not appear to have been the duration of wife's receipt of support but his assessment that wife's earning capacity would reach a point by November 1, 2008, that she would no longer be entitled to support. As noted earlier, he based this on testimony suggesting that wife would become certified in equine dentistry by May 2008 and would be able to earn income for up to three days a week at $350 per day. This rate was apparently based on testimony by Kathryn Jones that she had paid another equine dentist $13,000 in 2007 for working one day a week beginning in April.
As with her argument regarding child support, wife contends Judge McBrien improperly based his permanent spousal support order on an assumption that she would become certified in May 2008, when in fact that had been no more than her hope or plan at the time of trial. But, unlike child support, a trial court is not limited to existing circumstances in fashioning an award of spousal support. It may also consider the need to encourage self-reliance and to discourage delay in becoming self-supporting. (See In re Marriage of Richmond, supra, 105 Cal.App.3d at p. 356.) In In re Marriage of West (2007) 152 Cal.App.4th 240, 248, the court explained: "[W]e find no fault with [the order modifying support] to the extent it stepped down support on the assumption [the wife's] income would rise over the next two years. Stepdown orders are not per se objectionable. [Citation.] They must, however, be based on reasonable inferences to be drawn from the evidence, not mere hopes or speculative expectations. [Citation.] It need not be shown the supported spouse certainly will be earning the presumed income. In In re Marriage of Smith (1978) 79 Cal.App.3d 725, the court approved an order reducing support to $1 at the end of a four-year period, on evidence the wife would have received a bachelor's degree in business administration by that time. The court found it was reasonable to infer the wife's marketable skills would then be significantly greater than they were at the time of the order and she would be in position to accept employment on a full-time basis. [Citation.] Similarly, in In re Marriage of Andreen (1978) 76 Cal.App.3d 667, the parties divorced after 27 years of marriage. The wife had not been employed for many years, but was taking secretarial training at the time of the support order and expected to obtain secretarial work at the completion of her training. The appellate court, although deeming it a close case, and reversing the support order on other grounds, did not find an abuse of discretion in the trial court's decision to step down support in light of the wife's anticipated earnings. [Citation.]"
Of similar import is In re Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d 645, where the Court of Appeal approved a step down in spousal support based on evidence, rather than just speculation, suggesting there would be future increases in earning capacity. According to the court: "Although the [trial] court has broad discretion in ordering or modifying an order of spousal support, 'orders 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.' [Citation.] 'Orders automatically decreasing in amount at specified intervals cannot be based on mere supposition as to what the supported party's future circumstances might be. Evidence in the record must support a reasonable inference that needs will be less with each step-down and that the spouse can realistically be self-supporting at the time nominal payments are set to begin.' [Citation.]" (Id. at p. 656.) Furthermore, "[w]hen evidence exists that the supported spouse has unreasonably delayed or refused to seek employment consistent with her or his ability, that factor may be taken into account by the trial court in fixing the amount of support in modification proceedings. [Citation.] Likewise, termination of support can be ordered where the supported spouse has failed to exercise diligence in seeking employment. [Citation.]" (Id. at p. 657.)
In his February 2008 order, Judge McBrien expressed some disappointment in wife's efforts to become self-sufficient. He noted the equine dentistry program wife had been pursuing "'is offered in two-week segments. As much as 1½ years has passed between [wife]'s participation in these segments. She has not developed a business plan, nor taken courses intended to improve her computer skills, in spite of the existence of a 2-year old vocational evaluation which recommended this course of action." Judge McBrien continued: "[Wife] does not appear as focused on self-sufficiency as the law would require for this short-term marriage."
"The effect of a 'Richmond' order is to tell each spouse that the supported spouse has a specified period of time to become self-supporting, after which the obligation of the supporting spouse will cease." (In re Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at p. 665.) In this instance, it is clear Judge McBrien's decision to step down spousal support was not based solely on a determination that wife would in fact become certified in May 2008. Rather, the step down of support was intended to send a message to wife that her right to support was limited and that she must make reasonable efforts to become self-sufficient.
Wife contends Judge McBrien did not consider all relevant evidence in deciding to deny permanent spousal support, as required by section 4320. One factor to be considered is the supporting spouse's ability to pay support, taking into account earning capacity, income, assets and standard of living. (§ 4320, subd. (c).) Wife points out that during husband's testimony, his attorney objected to questions about the number of vehicles husband owned and the amount of money he used to pay off loans on those vehicles, and Judge McBrien sustained those objections, explaining: "This is the wrong marriage. I will sustain the objection." According to wife, Judge McBrien's belief that evidence regarding husband's current marriage and financial circumstances is irrelevant to the instant matter demonstrates he did not consider such evidence, contrary to section 4320, subdivision (c).
We agree Judge McBrien was required to consider husband's then current financial circumstances in assessing support obligations. However, we further note that wife's objection was to a question about a loan on one of husband's cars. Prior to that objection, wife was able to establish that husband had three vehicles on which he had paid off $130,000 in loans. After the objection, husband testified about other assets he had, as reflected in his income and expense statement. Wife does not explain what other evidence might have come in on husband's finances had the court not sustained the objection.
As previously explained, this matter must be remanded to allow Judge McBrien to recalculate support levels based on corrected findings of fact. At the same time, Judge McBrien will have an opportunity, if he did not do so already, to consider husband's entire financial condition at the time of the original order based on the evidence already in the record.
Date of Separation
One of the factors to be considered in awarding permanent spousal support is the duration of the marriage. (§ 4320, subd. (f).) Wife contends Judge McBrien concluded the marriage here was short-term based on an erroneous finding that the date of separation was February 6, 2004, when in fact it was March 17, 2004. Wife argues there is no substantial evidence to support Judge McBrien's finding. According to wife, "the only evidence [husband] offered in support of his allegation of the date of separation was his bald statement that the date of separation was February 6." Wife points to her more detailed testimony that the parties continued to live together after February 6, they celebrated her birthday together on February 26, and she did not learn there was a problem until sometime in March, when she found out husband had taken her name off their bank accounts.
Contrary to wife's assertion, husband's "bald" testimony that they separated on February 6, 2004, is substantial evidence to support the trial court's finding. This was a matter of credibility between husband and wife. Issues of credibility are for the trier of fact. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)
Judge Balonon's Child Support Orders
In May 2008, three months after Judge McBrien issued his ruling setting forth a step down of spousal and child support, wife requested a modification of support. On June 16, Judge Balonon refused to modify spousal support but delayed the step down of child support until September 1. On August 5, wife sought a further modification of child support. On September 3, Judge Balonon extended the stay of the child support step down and continued the hearing on wife's motion until November 26. On November 26, Judge Balonon set January 1, 2009, as the effective date of the step down of child support and continued the matter. On January 26, Judge Balonon confirmed January 1 as the effective date of the step down of child support.
Wife contends Judge Balonon, in his orders of June 16, 2008, September 3, 2008, November 26, 2008, and January 26, 2009, erred in refusing to recalculate child support based on changed circumstances. Those circumstances, in particular, related to wife's failure to obtain certification as an equine dentist. However, wife further acknowledges that our reversal of Judge McBrien's order on child support, including elimination of the step down, will necessarily require the recalculation of child support all the way back to February 2008, which will correct any errors made by Judge Balonon on child support thereafter. Wife asserts she has appealed Judge Balonon's orders "out of an abundance of caution."
In light of our determination that Judge McBrien erred in ordering a step down of child support based on anticipated changes in conditions, any orders made by Judge Balonon thereafter on wife's motions to delay Judge McBrien's step-down order as to child support are moot. Wife's motions to modify child support must be reconsidered in light of circumstances existing at the time of those motions.
Delay in Spousal Support Step Down
In his June 16, 2008, order, Judge Balonon refused to delay the step down in spousal support. Wife contends that, because Judge McBrien's step-down order was based on an expectation she would become certified in equine dentistry by May 2008, and wife presented uncontested evidence that she did not in fact become certified in May, despite reasonable efforts to do so, Judge Balonon abused his discretion in refusing to delay the step down until wife became certified.
Husband responds that "Judge Balonon properly abstained from disturbing Judge McBrien's spousal support step-down orders." According to husband, the only mistake here was by wife, "who improperly sought to induce error by Judge Balonon, and improperly sought to circumvent [husband's] right to due process . . . ."
Although we find neither argument persuasive, we also find husband's argument incomprehensible. Husband's assertion that Judge Balonon properly abstained from disturbing Judge McBrien's February 2008 order totally misses the point. The question here is not whether Judge Balonon should have reconsidered and modified Judge McBrien's order. The question is whether changed circumstances since February 2008 warranted a change in spousal support, i.e., a new support order delaying the step down. Wife was not seeking reconsideration of Judge McBrien's order, but a new spousal support order based on changed circumstances, i.e., her failure to obtain certification.
Orders regarding the modification of support are reviewed under an abuse of discretion standard. (In re Marriage of Hopwood (1989) 214 Cal.App.3d 1604, 1607.) "In exercising discretion whether to modify a spousal support order, 'the court considers the same criteria set forth in section 4320 as it considered when making the initial order . . . ." (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.) "Although the trial court possesses broad discretion in modifying spousal support orders, [citation], it abuses that discretion when it modifies the order in the absence of a 'material change of circumstances' [citation], or where its findings are not supported by substantial evidence." (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 237-238.) Thus, the threshold inquiry is whether there has been a material change in circumstances.
"[A] material change of circumstances warranting a modification of spousal support may stem from unrealized expectations embodied in the previous order. [Citation.] Specifically, changed expectations pertaining to the ability of a supported spouse to become self-supporting may constitute a change of circumstances warranting a modification of spousal support. [Citation.] Thus, if a court's initial spousal support award contemplates that a supported spouse will take some action to decrease the need for spousal support following the issuance of the order and the supported spouse fails to take that action, the court may modify the award on the ground of changed circumstances." (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1238.)
But while unrealized expectations affecting earning capacity may warrant a modification in spousal support, they also may not. Following entry of a Richmond order, if things do not work out as anticipated, the supported spouse may, "upon a showing of good cause," request a change in the original order as to amount or timing. (In re Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at pp. 665-666.) "A 'Richmond' order psychologically prepares the supported spouse for the time when he or she must be self-supporting. It also places the burden of showing good cause for a change in the order upon the one who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order." (Id. at p. 666.) Thus, it is not enough that expectations were not realized. The party seeking a modification of a Richmond order must show he or she made reasonable efforts to bring about the expected changes. (See In re Marriage of Beust (1994) 23 Cal.App.4th 24, 29.)
In support of her motion for modification of support, wife submitted a declaration in which she explained that she needed certain specialized instruments and needed to become proficient in their use before attending the certification class in May 2008. She further explained the court had refused to release funds for the purchase of that equipment and she had to liquidate other funds to do so. Finally, wife asserted she did not obtain the necessary funds in time "to purchase the necessary instruments and become proficient with them in advance of the certification class scheduled for May."
Although the foregoing facts may be undisputed, they do not necessarily show good cause for a change in Judge McBrien's order. Judge Balonon's minute order does not contain any statement of reasons for denying a modification of spousal support. "Where, as here, the record lacks express findings of fact or a statement of decision[,] all intendments favor the ruling below and we must assume the trial court made whatever findings are necessary to sustain its order. Of course, each implied finding must be supported by substantial evidence. The evidence is viewed in the light most favorable to respondent who is entitled to the benefit of every reasonable presumption. We accept as true all evidence favorable to respondent and discard contrary evidence as unaccepted by the trier of fact. [Citation.]" (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 238.)
At the time of Judge McBrien's February order, wife was aware she needed specialized instruments to complete her certification. She also knew the court refused to release funds for her to purchase those instruments. At that point, there were three months remaining before the May certification class. According to wife's own declaration, the only thing stopping her from obtaining the instruments and becoming proficient in them before the classes was money. Wife ultimately obtained the funds by liquidating a portion of her deferred compensation account. However, she did not do so until April.
On this record, we cannot say Judge Balonon erred in his implied finding that wife had not shown good cause for her failure to become certified by May 2008. Wife argues the record shows Judge Balonon ruled against her not based on a finding she had not demonstrated good cause, but based on a misconception that she should have filed a motion for reconsideration rather than a motion for modification. This assertion is based on a question posed by Judge Balonon as to why wife did not file a motion with Judge McBrien "for reconsideration or new trial or something?" Elsewhere during the hearing, Judge Balonon appeared to be focused on the fact that all the information supporting wife's motion for modification had been before Judge McBrien and, thus, there was no reason to change Judge McBrien's order.
The fact that Judge Balonon was focused on what evidence was before Judge McBrien in February suggests nothing more than that he was trying to ascertain what information in wife's presentation was in fact new, i.e., what circumstances had changed. Here, as indicated, everything wife was relying on to show good cause for a change in support was known before Judge McBrien's order except wife's failure to obtain funds to purchase instruments until April. The other important facts--the need for specialized instruments and the court's refusal to release funds to purchase them--were known to Judge McBrien.
At any rate, it is clear this matter is not simply about whether wife was able to obtain certification in time to become self-supporting. As described earlier, Judge McBrien expressed exasperation in his original order over wife's failure to pursue her chosen field more diligently. His step-down order may therefore be viewed more as an attempt to prompt wife to action than as a prediction of what might occur in the future. When Judge Balonon refused to modify the spousal support order, we may assume he too was less focused on what came to pass and more concerned with wife's failure to pursue self-sufficiency more diligently. In effect, the underlying factor animating Judge McBrien's Richmond order, wife's lack of diligence in pursuing self-sufficiency, had not changed.
"[E]quitable considerations are paramount in fashioning spousal support awards." (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1241.) "'[T]he standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order [citation] was . . . not [designed] to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. [Citation.]' [Citation.]" (Id. at p. 1237; see also In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803-804.) In other words, if the circumstance underlying the original step-down order was an assessment that wife should become self-supporting by a certain time, the fact she did not in fact do so does not necessarily change that assessment.
On the record before us, we cannot say Judge Balonon erred in refusing to modify Judge McBrien's spousal-support order.
In his January 26, 2009, order, Judge Balonon addressed husband's request to modify support based on an anticipated reduction in his income in 2009. He cited husband's latest income and expense declaration and noted "[t]here is a certain level of uncertainty in this statement." Judge Balonon therefore confirmed the current child support amounts "subject to retroactive modification in the event there is any actual change in [husband's] income." Wife contends Judge Balonon erred in making his support award subject to retroactive modification. In Shurr I, we concluded "[a] temporary support order is directly appealable, and cannot be retroactively modified." (Shurr I, supra, C057456.) That conclusion remains true in this instance.
Attorney Fees--May 2008 Request
In her May 2008 motion to modify support, wife requested attorney fees of $2,500 and costs of $40. In her memorandum in support, wife cited both sections 2030 and 2032, allowing for fees based on need, and section 3652, permitting fees to the prevailing party. Judge Balonon denied the request.
Wife contends Judge Balonon abused his discretion in this regard. Wife argues she prevailed in part on her motion, in that the court delayed the step down of child support. She further argues the evidence before Judge Balonon showed her need for an award of attorney fees was "exceptional," and husband's ability to pay was "substantial."
Sections 2030 and 2032 permit an award of attorney fees and costs in a dissolution proceeding in order to "ensure that each party has access to legal representation . . . to preserve all of the party's rights." (§ 2030, subd. (a).) "The purpose of an award under . . . section 2030 is to ensure that the party in need has adequate legal representation to litigate the family law issues." (In re Marriage of Kelso (1998) 67 Cal.App.4th 374, 384-385.) "'California's public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.'" (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 41, fn. 12.) In considering the reasonableness of a fee request, the court may consider such factors as "the nature of the litigation, its complexity, the amount involved, the financial circumstances of the parties, the legal skill involved, and whether counsel's skill and effort were wisely devoted to the expeditious disposition of the case." (In re Marriage of Kelso, supra, 67 Cal.App.4th at p. 385.)
Section 3652 provides that "an order modifying, terminating, or setting aside a support order may include an award of attorney's fees and court costs to the prevailing party."
"[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) On appeal of an award of attorney fees and costs, the appellant bears the burden of establishing error. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056.) "All issues of credibility are for the trier of fact, and all conflicts in the evidence must be resolved in support of the judgment. [Citation.] The trial court's judgment is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
Judge Balonon's minute order makes no mention of wife's attorney fees request. At the hearing on the motion to modify support, Judge Balonon indicated he was denying the request for attorney fees. By way of explanation, Judge Balonon stated his decision was based on the parties' "respective incomes" and the fact he was delaying the step down of child support. Although wife's counsel pointed out that husband's income far exceeded that of wife, Judge Balonon did not change his decision.
Judge Balonon erred. While there may have been other reasons to deny attorney fees in this instance, the reasons stated by Judge Balonon are not supported by the record. First, the parties' respective incomes show husband with vastly superior resources to litigate this case. And while such difference in incomes may not alone be a sufficient basis for awarding fees, it certainly is not a basis for denying them. And as for the fact Judge Balonon delayed the step down of child support, thereby allowing wife to receive a little more child support for a couple of months, this is mixing apples with oranges. Child support is for the support of the children of the marriage. Presumably, the delay in initiating the child support step down was based on an assessment that a reduction in support would not be in the best interest of the parties' child. However, as indicated above, attorney fees under section 2030 are for the purpose of parity in allowing the parties to pursue the litigation. Hence, a change in child support cannot serve as a basis for denying attorney fees.
Husband contends Judge Balonon properly denied wife's request for attorney fees on the ground that her underlying motion to modify support was an improper attempt "to subvert the rules of court" and to "circumvent [husband's] right to due process." He further argues Judge Balonon would have been well within his discretion to deny the request on the basis of wife's unclean hands alone.
Husband provides no basis for asserting wife's underlying motion was without merit, let alone an attempt "to subvert the rules of court," especially given that wife was partially successful on her motion. And as for her purported unclean hands, we have no clue what husband is talking about.
Wife also sought attorney fees under section 3652. However, she raises no argument as to why Judge Balonon erred in refusing to award attorney fees under that section. Hence, we need consider it no further.
Attorney Fees--December 2008 Request
In December 2008, wife moved to compel husband to pay the expenses of a child custody evaluator. In that motion, she also sought $750 in attorney fees and $40 in costs. On January 12, 2009, Judge Balonon took the matter under submission. On January 26, he deferred consideration of the request for attorney fees and costs until trial. Wife contends this was error.
Husband counters that Judge Balonon's deferral of the fee request "is properly regarded as a temporary denial" and was proper. However, this is a distinction without a difference.
As we explained in Shurr I, "Section 2031, subdivision (a)(2) requires a trial court to rule on an application for attorney fees made during the pendency of proceedings 'within 15 days of the hearing on the motion or order to show cause.'" (Shurr I, supra, C057456.) The hearing on wife's motion was held on January 12, 2009. Hence, the court was required to rule on the request for fees by January 27. The court erred in failing to do so.
Husband contends Judge Balonon erred in his June 16, 2008, order in delaying the step down of child support. However, as explained earlier, husband failed to file a timely appeal from that order. Therefore, he has forfeited any claim of error in this regard. At any rate, we have concluded herein that Judge McBrien erred in ordering a step down of child support in the first place, thereby rendering Judge Balonon's decision to delay the step down moot. The same goes for Judge Balonon's subsequent decisions to delay the step down further.
Husband also challenges Judge Balonon's order of January 26, 2009, requiring husband to pay the custody evaluator's fees. Husband contends he is entitled to a trial on the reasonableness of those fees. However, husband presents no argument or citation to authority supporting this contention. In his order, Judge Balonon expressly found the fees of the evaluator to be reasonable. Husband devotes 10 lines of his 39 page opening brief to this issue, in which he asserts "[a] trial court may not order a party to pay whatever amount a custody evaluator charges" and "[d]enying a party the right to a trial is reversible per se." However, husband makes no attempt to explain why Judge Balonon's factual determination that the fees are reasonable is insufficient to protect husband's interests. A point not argued or supported by citation to authority is forfeited. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
Judge McBrien's order of September 4, 2008, is reversed insofar as the support calculations are based on erroneous findings as to husband's investment income, health insurance expenses, and number of income tax exemptions and as to wife's home mortgage and property tax expenses and any health insurance expenses wife may have claimed that she did not in fact incur. Judge McBrien's order is also reversed insofar as it orders a step down in child support.
Judge Balonon's order of June 16, 2008, is reversed as to the denial of attorney fees, and his order of January 26, 2009, is reversed as to the deferral of wife's attorney fees motion. In all other respects, each of the orders on which this appeal was taken is affirmed.
The matter is remanded to the trial court for a recalculation of both spousal and child support from February 1, 2008, forward in accordance with this opinion and for any appropriate award of attorney fees. Wife is awarded her costs on appeal.
We concur: BLEASE , Acting P. J. NICHOLSON , J.
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