Opinion
G060772
03-07-2024
In re Marriage of CINDI CUMMINGS and ANDREAS LINDENTHAL. v. ANDREAS LINDENTHAL, Appellant. CINDI CUMMINGS, Appellant,
Law Offices of Lisa R. McCall, Lisa R. McCall, Erica M. Baca; Provinziano & Associates and Alphonse F. Provinziano for Appellant Andreas Lindenthal. Burch Shepard Family Law Group and Robert Burch for Appellant Cindi Cummings.
NOT TO BE PUBLISHED
Appeals from an order of the Superior Court of Orange County No. 16D004860 Julie A. Palafox, Judge. Affirmed.
Law Offices of Lisa R. McCall, Lisa R. McCall, Erica M. Baca; Provinziano & Associates and Alphonse F. Provinziano for Appellant Andreas Lindenthal.
Burch Shepard Family Law Group and Robert Burch for Appellant Cindi Cummings.
OPINION
MOTOIKE, J.
Andreas Lindenthal (Andreas) and Cindi Cummings (Cindi) both appeal from an order: (1) denying Andreas's requests for reimbursement based on breach of fiduciary duty claims; (2) denying Andreas's request to modify the temporary spousal support order; (3) granting Andreas's request for reimbursement of funds to purchase and improve the parties' house; and (4) reserving jurisdiction on a retirement withdrawal issue. Andreas challenges the trial court's reasons for denying his requests for reimbursement and argues the trial court erred in denying his request to modify the temporary spousal support order. Cindi contends the trial court erred by failing to apply the proper tracing method in granting Andreas's request for reimbursement regarding the parties' house and erred by reserving jurisdiction on the retirement withdrawal.
As is customary in family law cases, we refer to the parties by first name for purposes of clarity. No disrespect is intended.
We affirm. We find Andreas did not supply an adequate record for us to conduct a meaningful review of his reimbursement arguments on appeal. We also conclude the trial court did not err in denying Andreas's request to modify the temporary spousal support order. Cindi is estopped from challenging the trial court's order by operation of the invited error doctrine.
FACTUAL AND PROCEDURAL BACKGROUND
Cindi and Andreas married in November 2010. Cindi possessed a real estate license, but had not worked regularly in a full-time job during the marriage. Andreas was a businessman and obtained a Master of Business Administration. He founded PLM Advisors, LLC. He was also a co-owner of Metafore, LLC, which was later sold to a business called Kalypso, where he eventually worked as an employee. In September 2013, he started a business called GoSolar.
In March 2016, Cindi and Andreas separated. Cindi petitioned for dissolution of the marriage in June 2016. Cindi filed an income and expense declaration, estimating Andreas's gross monthly income was $27,083. Andreas filed an income and expense declaration, stating his gross monthly income was $8,000. In July 2016, Andreas responded to Cindi's petition, requesting dissolution of the marriage.
I.
TEMPORARY SPOUSAL SUPPORT
In a July 2016 minute order, the trial court ordered, among other things, Andreas to pay Cindi $3,000 per month in temporary spousal support beginning on August 1, 2016. It also ordered Andreas to pay Cindi $7,500 per month if she moved out of the parties' family residence.
In September 2016, Andreas requested a modification of the temporary spousal support order. In a declaration, Andreas stated his income decreased because Cindi was interfering with his business activities. Andreas asserted he had not earned any money since June 2016, when the trial court granted a temporary restraining order against him. Andreas requested, "I need the order for spousal [support] modified and suspended until I have some earnings," and the "[s]pousal support be reduced or terminated - removing the $3,000 in cash award to" Cindi.
In October 2016, the trial court issued a formal temporary spousal support order. It ordered, in addition to other things, Andreas to pay Cindi $3,000 per month in temporary spousal support "commencing August 1, 2016 and continuing until further order of court, remarriage of [Cindi], death of either party, [or Cindi] moving from the residence, whichever first occurs." The trial court also ordered, if Cindi moved out of the family home, temporary spousal support would increase to $7,500 per month. The October 2016 order did not address Andreas's request to modify the temporary spousal support order.
II.
DISSOLUTION, BIFURCATION, AND REFEREE'S HEARING AND REPORT
Dissolution litigation between the parties proceeded on various issues unrelated to this appeal. In April 2018, Andreas requested an order to appoint a referee to provide recommendations on reimbursement issues in the case.
In May 2018, the trial court entered a "status only" judgment, dissolving the parties' marital status. It bifurcated and reserved jurisdiction on the remaining issues in the case.
In June 2018, following a stipulation between the parties, the court ordered the appointment of a referee under Code of Civil Procedure section 638 to provide advisory recommendations to the trial court on a range of issues, including, among other items, reimbursement and temporary spousal support issues. After several continuances of the evidentiary hearing before the referee, the parties filed trial briefs with the referee in October 2020.
The referee held a three-day evidentiary hearing on October 21, October 22, and November 12, 2020. The record contains a reporter's transcript of only the first two days of the hearing on October 21 and 22, 2020. No transcript for the third day exists because the parties disputed who should pay for a court reporter on the third day. Both Cindi and Andreas testified at the hearing and called witnesses. In December 2020, the referee issued a report, making advisory recommendations.
III.
TRIAL COURT HEARING
In December 2020, after the referee issued his report, Cindi and Andreas filed objections to the referee's recommended findings and orders with the trial court. In February 2021, during a hearing, Andreas requested the trial court set aside the referee's report and hold a new trial.
In April 2021, the trial court held a hearing on several issues, including the parties' objections to the referee's recommended findings and orders, Andreas's request to reject the referee's recommended findings and orders, and Andreas's request for a new trial. At the outset of the hearing, the trial court announced a tentative ruling on the referee's recommended findings and orders: "The request that the court not accept [the referee's] recommended findings and orders, the court is going to deny that request -- it's, basically, a request for a new trial -- and for many reasons." In response to this tentative ruling, Andreas's counsel requested time to argue. Cindi's counsel submitted on this tentative ruling, stating: "On [the referee's] findings, [Cindi] will submit on the court's tentative." Cindi's counsel also asserted, "As to [Andreas's] request for a half hour of argument on [the referee's] findings, I thought we had already discussed this and briefed it, fairly, extensively. I don't see that need. If the court would like to do so, that is up to the court."
The trial court gave both parties an opportunity to present arguments regarding the referee's recommended findings and orders. Cindi's counsel argued, "And so the suggestion the court should order a new trial, I think, should be disregarded. The court should adopt the very detailed recommendations from [the referee]. We did have objections to [the referee's] report. We had two objections. I did state we submit on the tentative but since he argued, I might as well argue my objections as well." Following arguments, Cindi's counsel requested, "Overall, you know, we would ask that [the referee's] recommendations be adopted, and it pains me to hear a request for a new trial on this case." The trial court took "the issues of [the referee's] findings and [Andreas's] request for [a] new [trial]" under submission.
Days later, the trial court issued a written ruling on the submitted matters, stating it "accepts all the recommended findings and orders as issued by [the referee] as the decision of this Court" and it denies Andreas's request for a new trial. The trial court directed Cindi to prepare a "formal order," submit it to Andreas for review, and then file it with the trial court for execution.
IV.
TRIAL COURT'S FINDINGS AND ORDERS
On October 6, 2021, the trial court issued a "Findings and Order After Hearing" in which it "accept[ed] all the Referee's recommended findings and orders as set forth below as the decision of the Court" and it "denie[d] [Andreas's] request for a new trial." The trial court stated, "The Referee's 49-page Recommendation and Findings is fully incorporated herein by reference. As to the Referee's findings, the Court orders and finds the following." What followed was not the referee's report in its entirety. It was an abridged version of the referee's report, excluding portions of it but adopting the referee's primary findings and orders nearly verbatim.
As to the parties' credibility regarding online banking, the trial court adopted the referee's findings and concluded Cindi was generally more credible than Andreas:
"A major issue in this litigation is the question of who had the ability to access and make transactions in the various bank accounts held in the parties' names. Differentiation needs to be made between 'access' and 'on line access' to the various accounts. [Cindi] asserts that although she did most of her financial transactions on the computer ('on line') the password for the accounts were on the family's Apple MAC and [Andreas] had equal access by the use of that computer. She alleges that transactions which are now produced showing what 'she' did were actually actions done by Respondent without her knowledge. [Andreas] argues that since he was not on the signatory permission slip for some accounts, no bank would permit him to make transactions and argues that actions taken were entirely planned and executed by [Cindi]. As this court has questioned the credibility of each of these witnesses in earlier hearings, the issue of credibility is extremely important. Generally, the Referee found the credibility of [Cindi] to be of greater value than that of [Andreas]."
The trial court denied Andreas's request to modify temporary spousal support and found Andreas's monthly income was $14,150. It granted Andreas's request for reimbursement of certain funds expended on the parties' house. It also reserved jurisdiction on the retirement withdrawal issue.
Additionally, the trial court denied several of Andreas's requests for reimbursement. The trial court excised some of the referee's discussion regarding these individual requests and adopted the referee's recommended reasons for denying these requests as stated below.
We identify only the requests at issue on appeal.
A. August 5, August 20, September 10, and September 12, 2013, Transfers of Funds
The trial court explained Andreas sought "reimbursement for funds he asserts were taken by [Cindi] from his separate property, including funds received from Kalypso on or about August 5, 2013 ($93,000 [=] $47,000+$46,000) [and for] funds received from Vanguard and TIAA-CREF ($23,045) on August 20 and September 10 and 12, 2013." The court found "any cash received by [Cindi] was used for the family living expenses, and, further, that [Andreas] is at fault of unreasonable delay in making the assertion for reimbursement of these funds."
The trial court's reasons for denying this request for reimbursement is somewhat different than the referee's reasons. While the referee discussed these reasons in denying this request in his report, the referee's recommendation listed four main reasons for denying the request: "(1) The issue is stale, having arisen three years prior to the parties' separation; (2) The credibility of [Cindi] is greater than the credibility of [Andreas] and it well may be that it was [Andreas], himself, [who] withdrew and retained the funds by his using the family MAC computer; (3) there is no credibility in thinking that [Andreas] could be unaware of [the] missing $93,000 and done nothing about it ($47,000 + $46,000); (4) the scheme of the parties was to evade a legal obligation."
B. March 18, 2014, Transfers of Funds
The trial court denied Andreas's "requests . . . that the March 18, 2014 transfers be reimbursed as his separate property for the following reasons: (1) the issues [are] stale, having arisen two years prior to the parties' separation; (2) the credibility of [Cindi] is greater than the credibility of [Andreas] and it well may [be] that it was [Andreas] himself [who] withdrew and retained funds by using the family MAC computer; (3) there is no credibility in thinking that [Andreas] could be unaware of [the] missing funds referred to in the twenty-four months and done nothing about it; [and] (4) the scheme of the parties to evade a legal obligation."
C. July 7, 2014, Transfer of Funds
The trial court denied "the requests of [Andreas] to reimburse the community for these reasons: (1) the issues [are] stale, having arisen two years prior to the parties' separation; (2) the credibility of [Cindi] is greater than the credibility of [Andreas] and it well may [be] that it was [Andreas] himself [who] withdrew and retained funds by using the family MAC computer; (3) there is no credibility in thinking that [Andreas] could be unaware of the missing funds referred to in the many months since and done nothing about it; [and] (4) the Court accepts as true that if [Cindi] received cash, she used it for the parties' living expenses."
D. August 5, 2014, Transfer of Funds
The trial court denied "the requests of [Andreas] to reimburse the community for these reasons: (1) the issues [are] stale, having arisen two years prior to the parties' separation; (2) the credibility of [Cindi] is greater than the credibility of [Andreas] and it well may [be] that it was [Andreas] himself, [who] withdrew and retained funds by using the family MAC computer; [and] (3) there is no credibility in thinking that [Andreas] could be unaware of the missing funds referred to in the many months since and done nothing about it."
E. May 5, 2015, Transfer of Funds
The trial court denied "the requests of [Andreas] to reimburse the community for these reasons: (1) the issues [are] stale, having arisen two years prior to the parties' separation; (2) the credibility of [Cindi] is greater than the credibility of [Andreas] and it well may [be] that it was [Andreas] himself, [who] withdrew and retained funds by using the family MAC computer; (3) there is no credibility in thinking that [Andreas] could be unaware of the missing funds referred to in the many months since and done nothing about it; [and] (4) The scheme of the parties was to evade a legal obligation."
F. December 22, 2015, Transfer of Funds
The trial court denied "the requests of [Andreas] to reimburse the community for these reasons: (1) the issues [are] stale, having arisen ninety (90) days prior to the parties' separation; (2) the credibility of [Cindi] is greater than the credibility of [Andreas] and it well may [be] that it was [Andreas] himself, [who] withdrew and retained funds by using the family MAC computer; (3) there is no credibility in thinking that [Andreas] could be unaware of the missing funds referred to in the many months since and done nothing about it; [and] (4) The scheme of the parties was to evade a legal obligation."
G. January 15, 2016, Transfer of Funds
The trial court denied Andreas's "request for reimbursement to the community for these reasons: (1) the credibility of [Cindi] is greater than the credibility of [Andreas] and it may well be that it was [Andreas], himself [who] withdrew and retained the funds by using the family MAC Computer; [and] (2) [Cindi] testified that any [cash] so received was used for the family's living expenses and her testimony is credible."
H. February 23, 2016, Transfer of Funds
The trial court denied Andreas's "request for these reasons: (1) $5,000 could well have been expended for the parties['] living expenses as [Cindi] testified; (2) The credibility of [Cindi] is greater than the credibility of [Andreas] and it well may be that it was [Andreas], himself, [who] withdrew and retained the funds; [and] (3) the scheme of the parties to evade a legal obligation."
The parties timely appealed the trial court's order. During the pendency of this appeal, we invited the parties to file supplemental letter briefs addressing whether the record contains the reporter's transcript of the entire evidentiary hearing before the referee. Both parties did so.
DISCUSSION
I.
SCOPE OF THE TRIAL COURT'S ORDER
We begin by clarifying the scope of the trial court's order from which the parties appeal. In their briefs, the parties state the trial court adopted all the referee's recommended findings and orders. As a result, throughout their briefs, they often contend the referee erred on particular matters, citing the referee's report. But it is important to emphasize here that, while the trial court adopted all the referee's primary findings and orders, it did not use the entire referee's report as its own order.
In family law cases, "the trial court may well find it advantageous to designate a separate forum to resolve the parties' differences" (Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1207 (Ruisi)) and refer certain issues to a referee to consider (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1522). "The Code of Civil Procedure provides for two types of reference." (Ruisi, supra, 53 Cal.App.4th at p. 1208, fn. omitted.) First, in a "general reference" under Code of Civil Procedure section 638, subdivision (a), the referee's decision "upon the whole issue must stand as the decision of the court." (Code Civ. Proc., § 644, subd. (a).) Second, under section 639 or section 638, subdivision (b), the referee's decision "is only advisory," and "[t]he court may adopt the referee's recommendations, in whole or in part, after independently considering the referee's findings and any objections and responses thereto filed with the court." (Code Civ. Proc., § 644, subd. (b); Ruisi, supra, 53 Cal.App.4th at p. 1208.)
Here, the referee made recommended findings and orders. In a ruling, the trial court adopted all the referee's recommended findings and orders as its own decision and instructed Cindi's counsel to prepare a formal written order. The trial court's written order did not include the entire referee's report, but adopted all the referee's primary findings and orders. "[W]hen the trial court's minute order expressly indicates that a written order will be filed, only the written order is the effective order." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) Therefore, as the ruling here indicated a written order would be filed, the written order is the effective order. Where the trial court did not include a portion of the referee's report in its written order, that portion of the referee's report is not part of the trial court's order.
II.
INADEQUATE RECORD
"A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent." (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) "[T]he appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) "If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings." (Cal. Rules of Court, rule 8.120(b).) "'Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].'" (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) "In numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided." (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186.)
Here, Andreas has provided only a partial transcript of the referee's hearing. The record includes a reporter's transcript for only the first two days of the hearing. No transcript exists for the third day. It is unclear on this record who testified on the third day and if the referee admitted any exhibits then. From the available transcripts, we can infer Cindi's counsel intended to begin cross-examination of Andreas on the third day. Moreover, because the referee found Cindi's testimony regarding family expenses credible and because that testimony did not occur during the first two days of the hearing, we can infer from the referee's report that Cindi testified on the third day as well.
Andreas challenges five findings by the trial court, some or most of which the trial court cited as reasons in denying each of his requests for reimbursement. The five challenged findings are: (1) "the issue[ was] stale; (2) Cindi was more credible than Andreas, "and it may well be that it was [Andreas], himself, [who] withdrew and retained the funds by using the family MAC computer"; (3) "there [was] no credibility in thinking that [Andreas] could be unaware of the missing funds referred to in the many months since and done nothing about it"; (4) "[t]he scheme of the parties was to evade a legal obligation"; and (5) Cindi "testified that any [cash] so received was used for the family's living expenses and her testimony is credible." All or nearly all of these findings depend on credibility determinations.
Only the first finding, "the issue [was] stale," may not necessarily depend on credibility, although a laches analysis likely would in the instant case. Even if we proceeded on the merits, we would defer to the trial court's credibility findings (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968), and affirm the trial court's order on that basis (Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193 ["it is a settled appellate principle that if [an order] is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning"]).
With only a partial transcript of the hearing, we cannot evaluate Andreas's challenges to the trial court's credibility findings. Where the trial court denied several of Andreas's requests for reimbursement based on credibility determinations, a complete transcript of the parties' testimony regarding those issues is necessary to conduct a meaningful review of Andreas's arguments on appeal. Therefore, we reject Andreas's challenges to any denial of reimbursement, all of which hinge on credibility findings, because he "failed to provide this court with a record adequate to evaluate" them. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
III.
REQUEST TO MODIFY TEMPORARY SPOUSAL SUPPORT
Andreas also appeals the trial court's denial of his request to modify its temporary support order. "Temporary spousal support during the pendency of a proceeding for dissolution of marriage is addressed in [Family Code] section 3600. Subdivision (a) of section 3600 provides that a court may order either spouse to pay any amount that is necessary for the support of the other spouse based on the supported party's need and the supporting party's ability to pay. [Citation.] The purpose of temporary spousal support is to '"'maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.'"'" (Last v. Superior Court (2023) 94 Cal.App.5th 30, 37-38 (Last).)
"The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount." (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) It may, in using "its broad discretion," look at "the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living." (Ibid.)
"[A] temporary spousal support order '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.'" (Last, supra, 94 Cal.App.5th at p. 42.) "'The trial court has broad discretion to decide whether to modify a [temporary] spousal support order.'" (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104.) "'Whether a modification of a [temporary] spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown.'" (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) "'"Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these [spousal support] orders."'" (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 269.)
"'"The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower [court] falls within the permissible range of options set by the legal criteria."' [Citation.] The scope of the court's discretion is limited by law governing the subject of the action taken. [Citation.] An action that transgresses the bounds of the applicable legal principles is deemed an abuse of discretion. [Citation.] A trial court's decision is an abuse of discretion if it is based on an error of law [citations] or if the court's factual findings are not supported by substantial evidence [citation]." (Last, supra, 94 Cal.App.5th at p. 37.)
A. Material Change of Circumstances
Courts will not modify a temporary spousal support order unless a "'material change of circumstances'" occurred since the last order. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1068; In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 (Tydlaska).) "Consequently, 'a modification order must be based on current facts and circumstances.' [Citation.] The moving party has the burden of showing a material change of circumstances since the last order was made." (Tydlaska, supra, 114 Cal.App.4th at p. 575.) But, even if such a showing is made, a court is not required to modify the temporary spousal support order. (In re Marriage of Khera &Sameer (2012) 206 Cal.App.4th 1467, 1484.)
"'Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. [Citations.] It includes all factors affecting need and the ability to pay.'" (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) "[T]he power to modify a support order must be limited to the conditions and circumstances existing at the time the order is made." (Tydlaska, supra, 114 Cal.App.4th at p. 576; see also Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2023 ¶ 17.147, p. 17-61 ["the relevant 'circumstances' are those that developed since entry of the most recent support order and that are existing at the time of the modification hearing"].)
Andreas argues the trial court erred by failing to consider a change in Andreas's income between June 30 and December 31, 2016. He contends the temporary spousal support order was based on his alleged income of over $27,000 per month, despite an accountant's report finding his income was only $11,526 between June 30 and December 31, 2016. In support, Andreas cites his objections to the December 7, 2020, referee's report, in which Andreas relies on gross income figures from the PLM Advisors' and the GoSolar reports to demonstrate how his income was only $11,526 between June 30 and December 31, 2016.
These arguments fail for a couple of reasons. First, the trial court did not find Andreas's monthly income was $27,000 or make any findings as to Andreas's monthly income in its temporary spousal support order. Second, Andreas does not cite any evidence to support these arguments; he cites only arguments, made in prior proceedings below, that rely on the PLM Advisors and GoSolar reports. These reports are not in the record. "A party's inaccurate or missing record citations 'frustrates this court's ability to evaluate which facts a party believes support his position.'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited." (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)
In his reply brief, Andreas contests the trial court's finding that his monthly income was $14,150 for purposes of spousal support. He argues "[t]here was no evidence Andreas was making $14,150 per month," despite referencing in his reply brief, an accountant's report finding Andreas's available monthly income was $14,149 in 2016. Even though the accountant's report concluded Andreas's monthly income decreased in 2017 and 2018, the referee made a credibility determination in support of its monthly income finding as well: "As the credibility of [Andreas] has been challenged by [the trial] court, an opinion shared by the Referee, it is possible that [Andreas] has either reduced his efforts for working, or has not reported all income available to him since the [parties'] separation." "We do not judge credibility on appeal" (In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175), and "we defer to the trier of fact on issues of credibility" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968). Thus, substantial evidence supported the trial court's finding Andreas's monthly income was $14,150.
B. Family Code Section 4320 Factors
Andreas also argues the trial court should have modified the temporary spousal support award because: (1) the parties had a short-term marriage (Fam. Code, § 4320, subd. (f); all undesignated statutory references are to this code); (2) the referee incorrectly found Cindi had dependent children (§ 4320, subd. (g)); and (3) the trial court should have considered "just and equitable" factors like Cindi's alleged interference with Andreas's business activities (§ 4320, subd. (n)). These are factors courts weigh in determining permanent spousal support, and courts need not evaluate these section 4320 factors for temporary spousal support. (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 30 ["To the extent the court required [appellant] to present evidence on factors included in section 4320 but inapplicable to temporary spousal support, it erred"].) Because the trial court here was not required to consider these section 4320 factors, it did not abuse its discretion in denying Andreas's request to modify the temporary spousal support order.
Applying the deferential standard of review applicable here, we find Andreas has not shown any error.
IV.
INVITED ERROR
Cindi argues the trial court erred by not applying the appropriate tracing method in granting Andreas's request for reimbursement of funds used toward the parties' house. She also argues the trial court erred by reserving jurisdiction on the retirement withdrawal issue. We disagree and find the doctrine of invited error applies.
"The '"doctrine of invited error'" is an '"application of the estoppel principle"': '"Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal"' on appeal. [Citation.] The purpose of the doctrine is to 'prevent[] a party from misleading the trial court and then profiting therefrom in the appellate court.'" (Pinto v. Farmers Ins. Exchange (2021) 61 Cal.App.5th 676, 693.) "[T]he doctrine of invited error contemplates 'affirmative conduct demonstrating a deliberate tactical choice on the part of the challenging party.'" (Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1210 (Velasquez).) "'[W]here a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error.'" (Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 377 (Baxter).)
"But the doctrine does not apply when a party, while making the appropriate objections, acquiesces in a judicial determination. [Citation.] As [the California Supreme Court] has explained: '"An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible."'" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213 (Mary M.).)
Here, both parties filed objections to the referee's report. At the start of the hearing on April 23, 2021, the trial court gave a tentative ruling denying Andreas's request for a new trial and his request to deny the referee's recommended findings and orders. Cindi's counsel then submitted on this tentative ruling. The submission on the tentative ruling alone would not constitute invited error. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 ["Submission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis"].)
But, after Cindi's counsel submitted on the tentative ruling, he changed tactics. Rather than merely acquiesce and "'"make the best of a bad situation for which he was not responsible"'" (Mary M., supra, 54 Cal.3d at pp. 212-213), he advocated a new position: he argued the trial court should adopt the referee's findings and orders. Then, albeit somewhat reluctantly, Cindi's counsel argued his two objections to the referee's report: "I did state we submit on the tentative but since he argued, I might as well argue my objections as well." Notwithstanding these objections, at the conclusion of his argument, Cindi's counsel asserted again, "Overall, you know, we would ask that [the referee's] recommendations be adopted, and it pains me to hear a request for a new trial on this case."
Cindi's counsel's advocacy to adopt the referee's report was an affirmative act showing "a deliberate tactical choice" by her counsel. (Velasquez, supra, 233 Cal.App.4th at p. 1210; see Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1312 ["Because counsel invited the entry of judgment, appellants are estopped from contending that the trial court erred"].) Cindi's counsel "'may not use that tactical decision as the basis to claim prejudicial error.'" (Baxter, supra, 18 Cal.App.5th at p. 377.) Because Cindi invited the trial court to adopt the referee's findings and orders, Cindi is estopped from asserting the trial court erred on appeal.
DISPOSITION
The order is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.