Opinion
G037502
5-24-2007
In re Marriage of DEBORAH and BARRY HANCOCK. DEBORAH HANCOCK, Appellant, v. BARRY HANCOCK, Appellant.
John R. Schilling for Appellant Deborah Hancock. Law Offices of Michel & Rhyne and Michael L. Michel for Appellant Barry Hancock.
NOT TO BE PUBLISHED
Deborah Hancock appeals from a judgment on reserved issues ordering a reimbursement to Barry Hancock of his separate property contribution to the acquisition of a home he purchased in his name during the marriage and subsequently transferred to the community via a revocable family trust. Deborah contends Barry waived his right to reimbursement under Family Code section 2640. We disagree, concluding there was no sufficient evidence of waiver.
After oral argument and submission of the matter, we concluded we do not yet have one final judgment, as will be explained more fully post. Thus the appeal is taken from a nonappealable order. (Code Civ. Proc., § 904.1.) However, we have discretion to treat an appeal from a nonappealable order as a petition for an extraordinary writ within the courts original jurisdiction. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 88, pp. 147-149; Olson v. Cory (1983) 35 Cal.3d 390, 401.) Here, we exercise that discretion in the interest of judicial economy. The parties have fully briefed and argued all of the issues on appeal and cross-appeal, and outright dismissal of the appeal without extraordinary relief will predictably, and perhaps inevitably, result in error, engendering another round in the Court of Appeal, with the concomitant expense and delay. Therefore, we construe the appeal as a petition for an extraordinary writ and bifurcate the issue of Barrys separate property reimbursement valuation for determination by the trial court in accordance with this opinion. (See, e.g., In re Marriage of Doherty (2002) 103 Cal.App.4th 895, 898; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 404.)
Hereafter, we refer to the parties by their first names, not out of disrespect, but because "husband" and "wife" may be inappropriate and other designations lack clarity and ease of reference. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
All statutory references are to the Family Code unless otherwise stated.
However, we are persuaded by Deborahs alternative assertion that if Barry preserved his right to a statutory reimbursement, the amount must be calculated in accordance with the record developed at trial, i.e., the sum Barry claimed in the parties pretrial stipulation framing the issues for trial, the parties briefing reiterating their understanding as expressed in the stipulation, and testimony of Barrys expert witness that the amount was, as stated in the stipulation, approximately $ 400,000, or more precisely slightly more than $409,000, deposited into escrow by Barry at the time of the purchase and traceable to his separate property brokerage account.
Deborah correctly argues the court erred in ignoring the stipulation and evidence when it determined, after trial, that Barry was entitled to reimbursement, not of the amount of monies deposited in escrow, but of the value of his contribution measured at the time the residence was transmuted to community property, as to which there was no evidence at trial. It is true the date of transmutation is the correct date for evaluating the contributing partys right to reimbursement. (In re Marriage of Witt (1987) 197 Cal.App.3d 103, 108 [the court determines "the equity value of the contributing spouses property at the time of the gift and restore[s] to him or her the value of that property"]; Cal. Law Revision Com. com., 29D Wests Ann. Fam. Code (2004 ed.) foll. § 2640, p. 590.) But the rule does not apply here, where the parties tried the case on the basis of a stipulation, countenanced by the court and understood by all as framing the controversy, that Barrys contribution of separate property was in an amount of approximately $ 400,000. The effect of the courts departure from the stipulation was to (1) invalidate that conclusive agreement with no motion or showing of good cause (see Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 453), and (2) reopen the case, also without the requisite motion and showing of good cause and due diligence (see, e.g., Horning v. Shilberg (2005) 130 Cal.App.4th 197, 209) as to the value of the contribution measured at a later time. As a consequence, Deborahs rights to her appropriate share of an agreed-upon community property pool were vitiated, and Barry received a windfall in that he was allowed to reopen his case, via a posttrial order to show cause, and to claim entitlement to nearly twice the stipulated sum. That part of the judgment cannot stand.
Deborah also asserts that in terminating spousal support after two years, nearly the length of the marriage, the court failed to properly apply the living-standard and other factors of section 4320, and she contests as inadequate the courts award of the major part of her attorney fees and costs, arguing Barry should be required to pay the full amount. We reject these contentions. Barry, in his response and cross-appeal, argues the residence is his alone, and the courts transmutation finding is erroneous because the property (1) was transferred to a revocable trust, and (2) was the result of Deborahs undue influence. He further contends the courts order for child support exceeds established guidelines. These arguments are without merit.
We therefore direct the trial court to vacate only that portion of the judgment finding Barry entitled to the reimbursement value of his separate property interest in the residence as measured at the time of the transmutation to community property. We direct the court to enter a new and different order based on the parties stipulation and the evidence presented at trial. In all other respects, the courts determinations are error free.
FACTS
Deborah and Barry were married on September 29, 2001, and separated two years and one month later, on October 18, 2003. They have one child, Caden Hancock, born December 4, 2002.
During the marriage, from his separate funds, Barry made an approximate $400,000 down payment on a new family residence. The parties neglected to point us to the evidence on the issue, and indeed, Deborah told us there was none, but we reviewed the reporters transcript and found relevant testimony of Barrys expert, Glenn Mehner, who stated there were two traceable components, and a third untraceable component, in the purchase of the residence, altogether totaling $434,783. One component was a cash deposit into escrow of $390,516, traced to one of Barrys brokerage accounts. The other traceable component was a $19,266 deposit for upgrades, comprised of three checks from the same account. (We observe these two components total $ 409,782, closely approximating the parties stipulated figure of about $400,000, as discussed more fully post.) The third, untraceable, component was the buyers initial deposit of $25,000.
"It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the specific pages where the evidence can be found." (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) However, we have conducted the search to satisfy ourselves that the parties tried the case based on the stipulated understanding Barry was, in fact, seeking to recover a separate property contribution of about $400,000, as measured at the time the money was paid into escrow.
Barry took title to the property in his name only. Barry then granted the real property by deed to "BARRY HANCOCK AND DEBORAH HANCOCK, AS TRUSTEE." The subject trust was a revocable family trust dated March 18, 2003, which identifies the transferred residence as a community asset. In pertinent part, Schedule A of the trust document provided, "A. The following assets are the community property of Settlors regardless of the form in which they were held prior to transfer to the trust. [¶] 1. All of Settlors right, title and interest in and to that certain residence commonly known as 9 Leatherwood, Coto de Casa, California." In addition, Article Two, paragraph 2.1(a) of the Declaration of Trust stated, "The Settlors declare that the property described in Schedule `A . . . is held in trust under this instrument and is the separate and community property of the Settlors as delineated on Schedule `A, irrespective of the form or manner in which these properties were held prior to their conveyance to the trust."
On February 13, 2004, four months after the marriage broke up, Barry revoked the trust. The parties then sold the residence, and in the March 15, 2004 pretrial stipulation and order which is pivotal to our disposition, they agreed, inter alia, "1. The amount of $506,000 of the net proceeds from the sale of the real property . . . shall be deposited into an interest bearing trust account in the name of the parties pending further agreement of the parties or further order of the Court. Said sum represents: [¶] a. $400,000.00 as an approximate sum claimed by [Barry] to be a separate property contribution towards the purchase of the parties[] real property; [¶] b. $91,000.00 as an approximate sum claimed by [Deborah] to be a separate property contribution towards the purchase of the parties[] real property; and [¶] c. $15,000 representing monies ordered from [Barry] to [Deborah] as an advance to facilitate her move out of the parties[] residence. [¶] 2. The remainder of the net proceeds shall be equally divided between the parties directly from escrow." (Italics added.) Thereafter, in response to Deborahs and Barrys requests, the court released to each of them an advance of $91,000 from the trust account, with the issue of the released funds characterization as separate or community property reserved to the time of trial.
Following a four-day trial, the court issued its statement of decision, finding, inter alia, that with the transfer of the property into the trust, there had been a transmutation from separate property into community property, and Barry was entitled to a section 2640 reimbursement of his contribution, not limited to the amount of his escrow deposit of about $400,000, as provided in the pretrial stipulation and order and as adduced in the only evidence on the issue, but valued at the time of transmutation by transfer to the trust, as to which there was no evidence at all. The court stated it would reserve jurisdiction on the issue.
Given this unexpected turn of events, Barry promptly filed an order to show cause to "[d]etermine the equalization payment owed by [Deborah] to [Barry]." The pleading was accompanied by Barrys declaration that his separate property contribution should be evaluated at $750,288.70, and a real estate appraisers letter stating the market value of the property in March 2003 was about $1.5 million. According to Barrys calculations, Deborah had been overpaid by some $228,000, and he had been underpaid by more than $500,000.
In its judgment on reserved issues, the court confirmed its finding that the family residence was a community asset by virtue of transmutation at the time of the transfer into the trust, and awarded Barry "a reimbursement of all of his appreciated separate property value in the house as of the date of the transmutation which would be March 2003." In anticipation of the postjudgment hearing on Barrys OSC, the parties filed briefs, but because notices of appeal had been filed, the court decided it could not rule pending our disposition, and it stayed the determination of the amount of Barrys reimbursement. This explains why the appeal violates the one final judgment rule and results in our construing it as a petition for extraordinary writ in the interest of judicial economy. Other issues will be addressed separately in our legal discussion post.
We advised the parties we would decide Barrys motion to augment the record on appeal in conjunction with our determination of the merits of the appeal. We now deny the motion. All but one of the identified documents are contained in the clerks transcript, and the remaining document is without legal consequence.
DISCUSSION
Transmutation Issue
The transmutation issue is raised in Barrys cross-appeal, but in the interest of logical progression, we address it first. Under section 852, subdivision (a), a valid transmutation occurs "in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected."
It is undisputed Barry acquired the residence during the marriage, using his separate funds for a down payment deposit and taking title in his name only. However, he then conveyed the property in a deed granting title to "BARRY HANCOCK AND DEBORAH HANCOCK, AS TRUSTEE," and the parties jointly transferred it into the family trust as community property. Schedule A of the trust so characterizes the transaction, in which the settlors transferred "[a]ll . . . right, title and interest in and to that certain residence" to the community, "regardless of the form in which [it was] held prior to transfer to the trust." Article Two, paragraph 2.1(a) of the Declaration of Trust reiterates this provision. Moreover, Barry testified he intended to transfer the property from separate to community ownership. It cannot be gainsaid this evidence supports the courts transmutation finding, and Barry cites no cases that would support a conclusion to the contrary.
Barry argues, however, that the revocability of the trust disabled the transmutation process. His only cite for this proposition is section 853, subdivision (a), which provides, "A statement in a will of the character of property is not admissible as evidence of a transmutation of the property in a proceeding commenced before the death of the person who made the will." (Italics added.) Obviously, the statute is inapt. We are not impressed with Barrys dismissive assertion at oral argument that a revocable trust walks and talks like a will, thus the two are functional equivalents to be accorded the same treatment under the statute. The point withers under the most cursory legal analysis. The transfer here satisfies section 852, and the fact that the trust is revocable is without legal relevance to the issue of characterization of property as belonging to the community. Indeed, under section 761, subdivision (b), "Community property . . . distributed or withdrawn from a trust by revocation . . . remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal." If the act of revocation does not affect the character of the trust assets, a fortiori, neither does the fact of revocability.
To the extent Barry cites Estate of MacDonald (1990) 51 Cal.3d 262 and In re Marriage of Starkman (2005) 129 Cal.App.4th 659 as requiring an express declaration of the change in character of ownership, we conclude the documents here could hardly express more specifically the change from separate to community property.
Barry also argues no valid transmutation occurred because Deborah exerted undue influence on him to transfer his separate property to the community. This contention is unsupported by fact or law. Section 721 describes the fiduciary relationship of husband and wife, and, in a nutshell, instructs them to deal fairly with one another in "the highest good faith" and prohibits them from taking "any unfair advantage of the other." Barry points to nothing in the record showing Deborah took unfair advantage of him, and the court found as much, noting Deborahs repeated insistence that the ownership be changed did not constitute undue influence under the law, i.e., Deborah did not "nag[]" Barry "in the manner characterized by [him]" about the house being in his name only. We agree with the courts legal conclusion and do not second-guess its credibility assessment.
Finally, to the extent Barry argues transmutation must be supported by consideration, we note consideration is one of the factors relevant to a determination of whether to indulge a presumption of undue influence. (See, e.g., In re Marriage of Delaney (2003) 111 Cal.App.4th 991; In re Marriage of Haines (1995) 33 Cal.App.4th 277.) But the rule is inapt here, where there is no evidence of undue influence and the record affirmatively shows Barry intended the residence to become community property and chose to make the transfer after consulting with two attorneys who fully explained to the parties the consequences of the transaction.
Reimbursement Issue
Deborah contends Barry was not entitled to reimbursement of the separate funds he used to purchase the property because he waived that right when he transferred the residence to the trust as community property. But the fact that the property was transmuted is not determinative of Barrys right to reimbursement. The latter issue requires a separate legal analysis involving a different set of rules.
Section 2640, subdivision (b), provides in pertinent part, "In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the partys contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source." Section 2640, subdivision (a), provides as relevant, "`Contributions to the acquisition of the property, as used in this section, include downpayments." As stated in In re Marriage of Witt, supra, 197 Cal.App.3d at page 108, "[W]e hold that Civil Code section 4800.2 creates a substantive right of reimbursement in the contributing spouse which can be relinquished only by an express written waiver. In the absence of such a written waiver the donative intent of the contributing spouse does not bar reimbursement for separate property contributed after January 1, 1984. Once the trial court in a dissolution proceeding determines that the contributing spouse did give the property to the community after January 1, 1984, and that the contributing spouse did not execute a [Civil Code] section 4800.2 waiver, then the court is required to determine the equity value of the contributing spouses property at the time of the gift and restore to him or her the value of that property." Moreover, "the separate property contribution is reimbursed prior to the division of community property." (In re Marriage of Walrath (1998) 17 Cal.4th 907, 913.)
Civil Code section 4800.2 was recodified without substantive change as section 2640 when the Family Code was enacted effective 1994. (See Cal. Law Revision Com. com., 29D Wests Ann. Fam. Code (2004 ed.) foll. § 2640, p. 590.)
Here the court found "the trust document does not contain language that amounts to a waiver of Respondents right to reimbursement." Deborah argues this is error. She contends the trust language conveying all of Barrys "`right, title, and interest" in the property necessarily indicates he gave up his statutory right to reimbursement. We disagree.
Because the right to reimbursement is a substantive right (In re Marriage of Witt, supra, 197 Cal.App.3d 103), the requirements for an express waiver are strict. The conveyance document itself "will not serve as a waiver." (In re Marriage of Kahan (1985) 174 Cal.App.3d 63, 72.) For example, in In re Marriage of Carpenter (2002) 100 Cal.App.4th 424, the couple had a premarital agreement that the house the husband was purchasing would be community property, the husband executed a quit claim deed, and the mortgage payments illustrated the transmutation to community property, but yet the documents did not defeat the husbands right to reimbursement under section 2640. As the court stated, "`[S]ection 2640 protects the general expectations of most people in marriage, i.e., that spouses will be reimbursed for significant monetary contributions to the community should the community dissolve." (In re Marriage of Carpenter, supra, 100 Cal.App.4th at p. 429.) Also, in In re Marriage of Perkal (1988) 203 Cal.App.3d 1198, where the husband executed a grant deed stating the transfer to joint tenancy with the wife was "For A Gift" (id. at p. 1200), the insertion of gift language was not a waiver of the right to reimbursement in light of uncontradicted credible testimony that the words were merely the husbands unworthy "attempt to negate the payment of a documentary transfer tax and to obviate the possibility of reassessment and a concomitant rise in property taxes." (Id. at p. 1203.) As the court in In re Marriage of Kahan, supra, 174 Cal.App.3d at page 71, noted more than 20 years ago, the Legislature enacted section 2640s predecessor statutes to change the rule that a contribution in the context of marriage was presumed to be a gift.
Deborahs waiver claim is defeated by this established history of vigilant protection of the right to reimbursement under section 2640. Nor can we endorse Deborahs assertion that the trusts silence regarding reimbursement or a method of accounting for reimbursement signifies a waiver of Barrys statutory right. Under the law, the right is not waived by silence or omission, but only by an express written waiver or the signature of the party on a writing that has the effect of a waiver. Whatever the latter phrase may mean, it does not embrace the documents here, which transmute the property from separate to community, but make no mention and contain no implication of Barrys right to reimbursement.
Valuation of the Right to Reimbursement
Deborah contends the court erred in allowing Barry a section 2640 reimbursement potentially at odds with the approximate $ 400,000 in funds deposited in escrow, as claimed by Barry in the March 15, 2004 stipulation and as proved through his expert witness at trial. Deborah notes that at no time prior to or during trial, in briefs or testimony, was there an issue as to valuation of Barrys contribution appreciated beyond the amount of the monetary deposit. Moreover, the claim upon which the parties proceeded to trial with respect to the remaining equity in the family home was the reserved issue of the characterization of a pool of $506,000 held in trust which, by the subject stipulation and order, consisted of Deborahs $91,000 claim of separate property, Barrys roughly $400,000 claim for separate property, and a $15,000 advance to Deborah. In his trial brief, Barry presented a claim for $416,000; in his supplemental trial brief, he alluded to his contribution of "$400,000+/-"; he also argued against an award of fees and costs to Deborah because she "has also received $326,000 in cash." Moreover, Barrys own expert testified Barry contributed $409,000 of deposit money, traceable to his separate brokerage account.
Nonetheless, after trial, the court issued its statement of decision, advising the parties it would measure Barrys right to reimbursement, not in accord with the stipulation and evidence, but as of the time of transmutation, and would retain jurisdiction for the purpose of determining the amount. Barry, quick to take advantage of this implied invitation to reopen the case, filed an order to show cause to "[d]etermine the equalization payment owed by [Deborah] to [Barry]," and presented, for the first time, his declaration opining that at the time of transmutation, the value of his $409,000 contribution had mushroomed to $750,288.70, thereby obliterating any interest Deborah might have in the stipulations $506,000 pool of net proceeds from the sale of the residence and leaving her holding a substantial six-figure I.O.U.
Deborah argues the stipulation and evidence at trial precluded Barry from obtaining reimbursement beyond the monetary amount of the funds he deposited in escrow at the time he deposited them. She contends the stipulation and order are res judicata on the issue. We disagree with that rationale, but agree the courts decision as to how the reimbursement is to be valued is erroneous on other grounds, as we now discuss.
We cite at some length the courts summary of law pertinent to party stipulations in Harris v. Spinali Auto Sales, Inc., supra, 240 Cal.App.2d at page 452: "`A stipulation is an agreement between counsel with respect to business before a court, and is not one of the usual pleadings, but is a proceeding in the cause and as such is under the supervision of the court, and has been compared to, and distinguished from, a contract. Stipulations are, of course, favored by the courts. . . . [¶] A stipulation is conclusive with respect to the matters covered by it, unless the court, for good cause shown, later permits its abandonment or withdrawal. . . . `Unless the trial court, in its discretion, permits a party to withdraw from a stipulation [citations], it is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted."
The Harris court further noted, "Stipulations are conclusive as to all matters properly contained in them. [Citations.] Ordinarily, a party will not be permitted to contradict a stipulation, even though it may be opposed to otherwise provable fact, and even though the stipulation affects the statutory and constitutional rights of the parties." (Harris v. Spinali Auto Sales, Inc., supra, 240 Cal.App.2d at p. 453, italics added.) In addition, "when a stipulation is accepted by the court, . . . there is an additional party or element involved, namely, the court. And it becomes necessary, if contrary evidence is to be admitted or considered, for the trial judge to give permission, upon proper request, to a setting aside of the stipulation. Such action on the part of the trial court should normally be preceded by a motion to set aside the stipulation and a statement of the grounds supporting such an order; a court should not set aside a stipulation regularly made except after a clear showing of error or unfairness." (Ibid., italics added.)
Finally, the Harris opinion states, "In a proper case, a trial court has the power to set aside a stipulation and to permit other evidence on the issues which were dealt with in it. . . . `Courts may set aside stipulations where a mistake of fact is clearly shown, on such terms as will meet the justice of the particular case; but in order to warrant relief the mistake must be of a material character, such as will change the legal rights of the parties, and the mistake must be one which could not have been avoided by the exercise of ordinary care." (Harris v. Spinali Auto Sales, Inc., supra, 240 Cal.App.2d at pp. 453-454, italics added.)
Under these established principles, we conclude the court erred in disregarding and effectively setting aside the subject stipulation without the requisite substantive and procedural safeguards. Moreover, there is another reason the court could not change course after the close of the parties case. "Ordinarily, upon the conclusion of the evidence, argument, and instructions, the cause is deemed submitted, i.e., taken under advisement for decision." (7 Witkin, Cal. Procedure (4d ed. 1997) Trial, § 180, p. 206.) The case may be reopened on the motion of a party, based on a showing of good cause and due diligence, but even assuming Barrys filing of an order to show cause after the courts statement of decision was the functional equivalent of a motion to reopen, Barry made no effort to show good cause or due diligence, perhaps because he had made a tactical decision prior to and during trial to limit his claim for separate property reimbursement under section 2640 to approximately $409,000, i.e., the money he deposited in escrow, as attested by his own expert witness. Where the failure to introduce evidence is the result of trial tactics, the trial court does not abuse its discretion in denying a motion to reopen. (Horning v. Shilberg, supra, 130 Cal.App.4th at p. 209 [motion to reopen to present evidence of additional damages properly denied where plaintiff chose to limit his damages claim to certain items at trial]; Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1052-1053.) Here, Barry made a tactical decision to limit his reimbursement claim to return of the money he deposited in escrow as traceable to his separate property. He should not have been allowed to reopen to present new evidence of an enhanced claim.
Spousal Support
Deborah contends the court abused its discretion in terminating spousal support and jurisdiction over the issue. Although she received two years of spousal support based on a marriage of two years duration, she asserts she needed ongoing support to enable her to become fully self-supporting in her new career in real estate, the pursuit of which would allow her flexibility to care for her young children. She claims she was earning only $2,432 per month — far below the $29,000 to $41,000 monthly spending to which she had become accustomed during the marriage. But the statement of decision finds Deborahs income from part-time employment as a real estate agent to be $3,477 per month.
Deborah does not contend the courts factual findings are without evidentiary support, although she devotes a few pages of her opening brief to summarizing testimony specifically rejected by the trial court. The thrust of her argument is that under In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 303, the marital standard of living provides the template against which all other factors must be measured. She contends the vast disparity between her marriage and post-marriage financial circumstances hallmarks the improper weight accorded to the factors by the court. She argues, "It does not appear the Trial Court weighed the other factors `against the marital standard of living but rather, put them on equal footing." She contends this inappropriate weighing process constituted an abuse of discretion resulting in an erroneous disposition.
We review the record, bearing in mind that "[a]n award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines. [Citation.] In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. `The issue of spousal support, including its purpose, is one which is truly personal to the parties. [Citation.] In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] `Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn. omitted.)
Section 4320 enumerates the factors to be considered by the court in making an order for spousal support. The court here expressly considered those factors, as is evidenced in the statement of decision and the judgment on reserved issues. The former states, in addition to the income findings already noted: "The Court has considered all Section 4320 factors on which evidence was presented and finds the following. [¶] Petitioner has marketable skills as a dental hygienist and as a real estate agent that would allow her to support herself. [¶] Petitioner was out of the marketplace for a very short time during the marriage and it did not impair her earning capacity. [¶] Petitioner did not contribute to Respondents attainment of an education or training, but the reverse is true: [S]ince the marriage ended, Respondent has paid spousal support for approximately two years to allow Petitioner to obtain training and a license in the real estate field. [¶] Respondent does have the ability to pay spousal support based on his assets and standard of living. [¶] The parties enjoyed a relatively high standard of living during the marriage, including numerous vacations, eating out often, and purchasing a large home in an affluent suburb. [¶] The marriage was of short duration, lasting approximately 2 years and 1 month. [¶] Petitioner worked as a dental hygienist while her two older children [from other relationships] were very young, and therefore she can also work as a dental hygienist while Caden is young. Alternatively, Petitioner has already earned approximately $43,000 in commissions working as a real estate agent on a less than full-time basis. She testified that one of the reasons she changed careers was to work in an area that would allow her to spend more time with her children. The Court finds that Petitioner can engage in gainful employment without unduly interfering with the interests of her dependent children. [¶] Both parties are young and in good health. [¶] Petitioner has been provided with spousal support for almost the length of the marriage. She was advised by the Court in February 2004 that she should not expect more than a year of support and should become self-supporting. [¶] Based on the foregoing factors, the Court does not believe that any further spousal support is warranted and terminates jurisdiction over spousal support. The Court does not believe that it would serve the interests of justice or equity to make the spousal support order retroactive and therefore, declines to do so."
In relevant part, section 4320 provides: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported partys present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting partys earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties." In addition, subdivision (l) of section 4320 provides that the court shall consider "[t]he 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. However, nothing in this section is intended to limit the courts discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties."
The judgment on reserved issues reiterates, more succinctly: "The court having considered all the factors in Family Code Section 4320 declines to make a spousal support order on behalf of the Petitioner. The specific findings under Family Code Section 4320 are that the Respondent has the ability to pay, the marriage was of short duration, 2 years, 1 month, Petitioner has the ability to work and is presently working; both parties are young and in good health. The Petitioner has received spousal support for almost the length of the marriage; therefore, based upon all of the factors listed in the code section and the specific findings in this case, the court believes that spousal support should be terminated, and therefore terminates the amount and the jurisdiction to make any orders for support effective January 12, 2006."
Our review of the record reveals no abuse of discretion as asserted by Deborah. In the first place, the marital standard of living does not stand alone in dominance over the other factors, as Deborah proposes is the rule. To the contrary, as stated in In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1095, "`[T]he actual marital standard of living is not `an absolute measure of reasonable need, but merely a "basis" or reference point for determining need and support." Additionally, Deborah has not affirmatively demonstrated that the court overlooked, misapprehended or underutilized the standard of living factor in making its spousal support order. In short, she has not shown that the court exceeded the bounds of reason or that the order resulted in a miscarriage of justice. Unless there has been such a showing, "`"`a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power."" (Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 331.)
Child Support
Barrys challenge to the courts child support award in his cross-appeal suffers from the same problem. He contends the award was nearly four times the guideline amount established in section 4055, but he does not demonstrate the order exceeds the bounds of reason or constitutes a miscarriage of justice.
Barry also contends the court failed, in its statement of decision, to make all of the findings required under section 4056, but he filed no objection on this basis in the trial court, and the issue is waived. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132 [litigant who fails to bring to the attention of the trial court deficiencies in the statement of decision waives the right to complain of such errors on appeal]; see also Code. Civ. Proc., § 634.)
Section 4055 establishes a formula for calculating child support, and under section 4057, subdivision (a), the formula is presumed to be correct, but that does not mean the court is bound to adhere to the formula in all cases. Here, the court found Barrys monthly income was $6,940, taking into consideration his employment compensation and income from non-aggressive investing. It deemed "an upward adjustment from Guideline support" appropriate because, inter alia, Barry "did not rely merely on income from employment or investments either during or after the marriage to maintain his or his familys standard of living. Rather, he has typically relied on gifts and assets from his inheritance to maintain his lifestyle and that of his family. The evidence showed that during the marriage, the family spent between approximately $29,000 and $41,000 per month to pay for their personal expenses, even though [Deborah] was not working and [Barrys] income alone would not have allowed for such lavish spending. Moreover, the evidence showed that after the separation, [Barry] continued spending beyond what his income would allow." The court concluded it was in Cadens best interest "to be able to maintain a lifestyle that is somewhat commensurate with the lifestyle his father maintains." It ordered Barry to pay child support of $2,150 per month, based upon his "continued habit of spending more per month on himself and his family during the marriage in excess of his earnings capacity." The cases cited by Barry do not demonstrate abuse of discretion in this award.
In re Marriage of Loh (2001) 93 Cal.App.4th 325, a decision by another panel of this court, does not prove Barrys point that a parents lifestyle cannot be used for upward modification of child support. We will not delve into the complexities of the many aspects of the issue as presented to that court. We simply observe that the income figure utilized by the trial court "appear[ed] to have been plucked from thin air" (id. at p. 327), leading the reviewing court to note, "Evidence of lifestyle . . . is not a cheap substitute for proper discovery of income reported on tax returns." (Ibid.) We agree, but no parallel facts are present here, thus the case is of no help to Barry.
Attorney Fees and Costs
Deborah claimed attorney fees and costs of approximately $110,000, plus about $22,500 in forensic accountant fees. Barry had previously advanced $10,000 toward attorney fees and $15,000 toward costs. The court, after considering "the parties respective income and assets," found Barry had the ability to pay and Deborah had the need for an award of fees, and awarded Deborah an additional $75,000, leaving her roughly $32,000 short of the fees and costs she sought.
Deborah contends she should have been awarded 100 percent of her attorney fees and costs under section 2030, subdivision (a) since these expenses were reasonable under the established factors (see In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870) and, given the disparity between her and Barrys income and assets and ability to earn money, no judge could reasonably have required her to bear any of her fees and costs. She argues that in In re Marriage of Braud (1996) 45 Cal.App.4th 797, the court found there was no basis in the record for the trial courts award of attorney fees in an amount less than claimed by the wife because the reasonableness of the services had not been disputed, the wife had few assets while the husband had substantial income, and there was no apparent reason for an award grossly disproportionate to the fees charged, i.e., $9,281.50 charged, $500 awarded without any explanation for the reduction. (Id. at p. 826.) The Braud court observed, "The purpose of a . . . fee award is to ensure that the parties have adequate resources to litigate the family law controversy and to effectuate the public policy favoring `parity between spouses in their ability to obtain legal representation." (Id. at p. 827.) Concluding "there was no showing that the time spent or fees charged were unreasonable, and the parties respective financial circumstances clearly justif[ied] a higher fee award," the Braud court found the "drastic reduction in the requested amount" could not be sustained. (Id. at p. 828.)
The Braud case is not dispositive of the issue here because (1) the reduction in the requested amount was far from drastic, constituting less than 25 percent, and (2) the court here did not agree there was the vast disparity between Deborahs and Barrys situation that Deborah argues on appeal. We do not reassess that issue. Deborah has failed to demonstrate reversible error in the courts fees and costs award.
DISPOSITION
The appeal is dismissed. Let a peremptory writ of mandate issue, directing the trial court to vacate only that portion of its June 13, 2006 judgment on reserved issues finding Barry is entitled to a reimbursement as of the date of the transmutation and awarding to Barry a reimbursement at that value. The court is directed to enter a new and different order finding that Barry is entitled to a reimbursement in conformity with his stipulated claim of separate property and in accordance with the proof presented at trial. Deborah shall recover her costs incurred in this proceeding.
WE CONCUR:
OLEARY, ACTING P. J.
FYBEL, J.