Opinion
B321536
12-08-2023
In re the Marriage of ENRIQUE MURILLO and ALICIA CAMACHO. v. ALICIA CAMACHO, Defendant and Respondent. ENRIQUE MURILLO, Plaintiff and Appellant,
Rudy Aguirre, Rudy Aguirre, and Michael A. O'Connor for Plaintiff and Appellant. Weisberg Law Group and Devin Weisberg for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. BD601987 Joshua D. Wayser, Judge.
Rudy Aguirre, Rudy Aguirre, and Michael A. O'Connor for Plaintiff and Appellant.
Weisberg Law Group and Devin Weisberg for Defendant and Respondent.
VIRAMONTES, J.
Appellant Enrique Murillo appeals from a trial court order awarding respondent Alicia Camacho permanent spousal support and attorney's fees. We conclude that the trial court did not abuse its discretion in awarding Camacho $830 per month in permanent spousal support and $6,000 in attorney's fees. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2014, Murillo filed a dissolution of marriage action after 24 years of marriage to Camacho. On August 27, 2014, Camacho filed a response.
The parties reached a partial settlement agreement where Camacho received $165,000 for her share of the community property assets. Those assets included the parties' packaging business that Murillo sold to their son, the parties' home in Carson, California, and a rental income property in Tulare, California.
The parties stipulated that the sole remaining issues for trial were the amount of spousal support and attorney's fees. A trial regarding permanent spousal support and attorney's fees began on January 24, 2022 and ended on January 25, 2022.
The parties each testified and submitted evidence of their financial condition and needs to the trial court. Camacho testified that she could not afford to pay for an apartment because rents were too high. Camacho stated that in Gardena and Carson, California, she was unable to find a studio apartment for less than $1,500 or a one bedroom for less than $2,000. Camacho was renting a room for $600 from her sister in a house with five people and a bathroom that all the tenants shared. She also paid her sister $300 per month for food. Camacho earned approximately $3,000 per month and had $2,750 in monthly expenses. As such, her net income after expenses was $250 per month.
Murillo continued to reside in the four-bedroom home in Carson where he paid off the mortgage. He also paid off the mortgage on his rental property in Tulare. The two properties together were worth approximately $867,000. Murillo earned approximately $2,200 in net wage income per month. He had an average net rental income of $1,079.55 per month in 2021 from the Tulare property. As such, Murillo's total net monthly income was $3,279.55. Murillo had expenses totaling $1,618. Therefore, his net income after expenses was $1,661.55.
Murillo testified that several friends and family members loaned him money to help pay his credit card debt. He incurred the credit debt to pay off his mortgage and Camacho's settlement amount. However, Murillo's testimony revealed that there was no timeline for repayment or any definite promise for repayment on the loans. His father who loaned him $80,000 said, "don't worry about it." Murillo testified that none of the lenders had a trust deed on any of his real property.
Camacho also testified that she used her savings to pay her attorney $30,000. Camacho's expense form confirmed that as of July 2, 2021 she had incurred $29,755.00 in fees and costs and that she also used funds from the partial settlement to pay fees and costs.
At the close of trial, Camacho's counsel requested $36,000 in attorney's fees. Camacho's counsel asked if the court wanted any declarations. The trial court stated that it would make Family Code section 4320 findings on the record and take the matter under submission. The trial court further stated, "I have the sense of how I want to handle things . . . based on the evidence before me. I don't know that I need any further declarations." After inquiry from the trial court, Camacho's counsel stated that his rate was $350 per hour; he had 18 years of experience; and he was in good standing with the bar. Prior to the trial commencing, Murillo's counsel filed a declaration regarding attorney's fees that included the nature and complexity of the litigation and the fees and costs incurred. His declaration also stated that he had 25 years of experience and was billing at a rate of $400 per hour. The trial court then confirmed that it would make its section 4320 findings on the record and take the matter under submission:
All subsequent code sections are to the Family Code unless otherwise noted.
"THE COURT: All right. So I don't know that I need any further declarations.
"So my intent is I will make my [section] 4320 findings on the record now and then take the matter under submission and issue a writ of ruling with respect to the two issues that have been tried, spousal support and attorney's fees.
"Any objection, counsel?
"MR. O'CONNOR: No, your Honor.
"THE COURT: And any objection, Mr. Weisberg?
"MR. WEISBERG: No, your Honor."
The trial court made its section 4320 findings on the record and in writing as an attachment to the judgment. The trial court made findings as to each factor under section 4320. Among its findings, the trial court concluded that the earning capacity and standard of living during the marriage was working class to lower middle class. The trial court also found that Camacho's monthly income was $3,000 and Murillo "included, but did not necessarily take into account the expenses from the Tulare property. The rent is included as a gross figure, and then he did provide the net number. So the court must take that into account." As to each party's obligations or assets, the trial court noted it was a complicated issue because a partial settlement agreement divided community assets. Camacho received the partial settlement payment while Murillo received the Carson and Tulare properties. The trial court noted that Murillo "may have done better because the real estate market has improved." The trial court also found that Murillo remained in the house while Camacho lived in a rented room after 24 years of marriage. The trial court further concluded that because the parties were in a long-term marriage, the goal that the supported party become self-supporting within a reasonable time did not apply.
The trial court issued a written ruling on January 25, 2022, where it incorporated its section 4320 findings. In its ruling, the trial court found that Murillo took loans from friends and family to pay debt and to pay Camacho her share of community assets from the partial settlement agreement. The trial court also resolved credibility issues in favor of Murillo and found that he had not suppressed or hidden his income.
After reviewing the parties' income and expense declarations, the trial court awarded $830 per month in permanent spousal support to Camacho. The trial court reasoned that the amount was approximately half of the net income Murillo had after paying his monthly expenses. The trial court further reasoned that the amount combined with Camacho's net salary after her expenses "should be sufficient to allow her to afford her own housing. That is a fair and equitable result under the circumstances."
The trial court found a disparity in income and ability to pay and awarded Camacho need-based fees of $6,000 as the lower-earning spouse in a long-term marriage. The trial court determined that Camacho was unable to prove that Murillo hid or suppressed income and that he was not indebted to third-party creditors. Thus, it did not grant the entire $36,000 fee amount that Camacho requested.
On February 4, 2022, Murillo filed a request for a statement of decision under Code of Civil Procedure section 632. Camacho then filed an objection to Murillo's request as untimely because the trial was less than eight hours long. On February 7, 2022, the trial court declined to provide a statement of decision because it agreed with Camacho that the trial was less than eight hours over two days, and that Murillo failed to request a statement of decision before the matter was submitted. On May 3, 2022, the trial court entered the judgment.
Murillo timely appealed.
DISCUSSION
I. The trial court did not abuse its discretion in awarding permanent spousal support
On appeal, Murillo contends that the trial court abused its discretion by awarding $830 per month in spousal support to Camacho. Murillo argues that the trial court incorrectly factored in the gross rental income from the Tulare property and did not apply all the section 4320 factors. We disagree.
a. Governing law and standard of review
"Permanent spousal support 'is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.'" (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442 (Blazer).) Those factors include the extent to which each party's earning capacity is sufficient to maintain the marital standard of living, the supporting spouse's ability to pay, the parties' obligations and assets, the duration of the marriage, the balance of hardships, and the goal that the supporting party become self-supporting. (§ 4320.)
In making its spousal support order, the trial court possesses broad discretion to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties." 'The issue of spousal support, including its purpose, is one which is truly personal to the parties.'" (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).) "In awarding spousal support, the court must consider the mandatory guidelines of section 4320." (Kerr, at p. 93, fn. omitted.)" '[T]he court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support.'" (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559.) "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." (Kerr, at p. 93.) "We examine the challenged order for legal and factual support. 'As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld "as long as its determination is within the range of the evidence presented." '" (Blazer, supra, 176 Cal.App.4th at p. 1443.)
b. The trial court correctly calculated $830 per month and considered all the section 4320 factors
In his opening brief, Murillo argues that the trial court abused its discretion because it calculated $830 per month by incorrectly using his gross rental income figure rather than the net rental income figure. Murillo earned approximately $2,200 in net wage income per month. He had an average net rental income of $1,079.55 per month in 2021 from the Tulare property. As such, Murillo's total net monthly income was $3,279.55 when factoring in the average net rental income. Murillo had additional expenses totaling $1,618. His net income after expenses was therefore $1,661.55. Half of this amount is $830.77. The trial court awarded Camacho $830 per month. Murillo is thus incorrect that the trial court used the gross rental income figure. Accordingly, we find no abuse of discretion.
Murillo also argues that the trial court failed to consider all the section 4320 factors. This argument is forfeited because Murillo raised it for the first time in his reply brief. (Gund v. County of Trinity (2020) 10 Cal.5th 503, 525 (Gund).)
Even considering the merits of this argument, the record shows that the trial court considered and made findings as to all the applicable factors. It was reasonable for the trial court to determine that Murillo was more financially well-off given that he earned more than Camacho after expenses and owned two pieces of real property that were free of any mortgages. There was also substantial evidence to support that the only major debts Murillo owed were from family and friends and Murillo made no definite repayment promise. Further, it was reasonable for the trial court to consider that after a long-term marriage, Camacho rented a room in a house with five other tenants and shared a bathroom with them. The trial court stated that it awarded a monthly spousal support amount that would allow Camacho to find her own housing. The monthly payment would maintain the standard of living established during marriage while considering Murillo's ability to pay. (Blazer, supra, 176 Cal.App.4th at p. 1442.) The record thus shows that the trial court fairly weighed the section 4320 factors to achieve substantial justice. (Kerr, supra, 77 Cal.App.4th at p. 93.) Moreover, because the parties were in a long-term marriage, the trial court correctly did not pursue having Camacho become selfsupporting within a reasonable time. (See § 4320, subd. (1).) As such, the trial court did not abuse its discretion in awarding Camacho $830 per month in permanent spousal support.
II. The trial court did not abuse its discretion in awarding attorney's fees to Camacho
On appeal, Murillo makes several arguments against Camacho's $6,000 attorney's fee award. We find them meritless.
a. Governing law and standard of review
"Need-based fee awards in dissolution proceedings are governed by sections 2030 and 2032, as well as section 4320 (as incorporated by § 2032, subd. (b))." (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111 (Ciprari).) Under section 2030, subdivision (a)(1), "the court shall ensure that each party has access to legal representation . . . to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding ...." (Ibid.)
Under subdivision (a)(2) of section 2030, "[i]f the findings demonstrate disparity in access [to funds] and ability to pay, the court shall make an order awarding attorney's fees and costs." (Ibid.) The word "shall" reflects the mandatory nature of these provisions where a court makes a finding of relative disparity. (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050 (Morton).) Where the trial court's award may be interpreted as making the requisite findings of relative financial disparity and the ability of one party to pay, the award of attorney's fees will be upheld if substantial evidence supports the finding. (Ciprari, supra, 32 Cal.App.5th at p. 112.)
In determining one party's relative need and the other party's ability to pay, "the family court may consider all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313-1314 (Tharp).) The amount of the award should be what is just and reasonable under the relative circumstances of the parties, but not more than what is reasonably necessary for attorney's fees and costs in the proceedings. (§ 2030, subd. (a)(1).)
Under subdivision (b) of section 2032, "[i]n determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in section 4320." (Ibid.)
"In making this determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order." (In re Marriage of Falcone &Fyke (2012) 203 Cal.App.4th 964, 975 [citing In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769].)
"[T]o request attorney's fees and costs, a party must complete, file and serve the following documents: [¶] (A) Request for Order (form FL-300); [¶] (B) Request for Attorney's Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319; [¶] (C) A current Income and Expense Declaration (form FL-150); [¶] (D) A personal declaration in support of the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and [¶] (E) Any other papers relevant to the relief requested." (Cal. Rules of Court, rule 5.427(b)(1), italics omitted.)
A party seeking section 2030 attorney's fees must "provide the court with sufficient information about the attorney's hourly billing rate; the nature of the litigation; the attorney's experience in the type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable." (Cal. Rules of Court, rule 5.427(b)(2).)
b. The attorney's fee amount of $6,000 was reasonable and supported by substantial evidence
Murillo argues that the trial court erred by not requiring Camacho to file a form FL-150, a form FL-158, or any comparable declarations. (See Cal. Rules of Court, rule 5.427(b)(1).) After the trial court asked the parties whether they had any objection to the trial court proceeding without any additional declarations, both Murillo and Camacho's counsel stated they had no objection. "[A]n appellant waives [the] right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal." (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) As such, Murillo waives this argument on appeal.
Even assuming the trial court committed any error, we find no prejudice. "While a Rule of Court phrased in mandatory language is generally . . . binding on the courts . . . departure from it is not reversible error unless prejudice is shown." (Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121.) Murillo does not present any argument that Camacho failing to file a form FL-319 or FL-158 prejudiced him. (See In re Marriage of Steiner &Hosseini (2004) 117 Cal.App.4th 519, 524.) Murillo therefore fails to show the trial court committed reversible error when it found it unnecessary for Camacho to file additional declarations.
Murillo also contends that the trial court did not have information about the nature of the litigation; the fees and costs incurred or anticipated; and why the requested fees and costs were justified, necessary, and reasonable. (Cal. Rules of Court, rule 5.427(b)(2).) We disagree.
Here, the court was well-acquainted with the litigation as it presided over a trial. Moreover, Murillo's attorney's fee declaration set forth the history of the litigation in a section labeled "nature and complexity of the litigation." Murillo and Camacho both submitted a FL-150 that showed income and expenses, including attorney's fees Camacho incurred. Camacho also testified under oath as to the amount of fees she paid. Camacho's counsel stated to the court he was charging $350, had 18 years of experience, and was in good standing with the bar. In his declaration, Murillo's counsel stated that he was billing at $400 per hour with 25 years of experience. Murillo did not argue below or on appeal that Camacho's counsel's rate was unreasonable. Thus, the trial court was familiar with the litigation and had information about the fees incurred.
The trial court was also "in a position to assess whether or not the case was overlitigated and the fees reasonably incurred." (Ciprari, supra, 32 Cal.App.5th at p. 112.) The trial court made explicit findings as to whether the fees were justified and reasonable by concluding that Camacho was "unable to prove [that Murillo was] hiding or [suppressing] [] income after seven plus years of this matter pending and after the hiring of a neutral joint forensic accountant to value the former community business." By taking into account these facts, the trial court reduced the requested amount to $6,000. Accordingly, we find no abuse of discretion.
Murillo further argues that the trial court failed to make findings that Camacho had less access to funds to retain counsel, and had a reduced ability to pay when compared against Murillo. Here, however, the court had documents and testimony regarding the parties' incomes, monthly expenses, assets, and savings. (See § 4320; In re Marriage of Terry (2000) 80 Cal.App.4th 921, 933.) The trial court's findings under section 4320 supported the trial court's finding of disparity of access and ability to pay. These findings included the length of the marriage, the value of Murillo's real estate in Carson and Tulare, as well as his greater net income after expenses. (Morton, supra, 27 Cal.App.5th at p. 1050.) Under these findings, the trial court determined that Camacho was the lower-earning spouse with less assets. The trial court thus properly considered the "need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320." (§ 2032, subd. (b).) Accordingly, substantial evidence supported the trial court's conclusion that Camacho had less access to funds and was less able to pay.
Murillo's argument that Camacho was able to pay because she used her savings is unavailing. Rather, Camacho using savings is more evidence that she could not pay with regular income. Further," '[b]y mandatory consideration of the parties' relative circumstances, section 2032 authorizes a need-based fee award even if [Camacho] could pay her own attorney's fees.'" (In re Marriage of Knox (2022) 83 Cal.App.5th 15, 40.) As such, this argument fails.
Murillo also argues that we should factor in the $830 per month in spousal support in considering whether the trial court properly awarded attorney's fees. However, "[a] spouse should not have to utilize support payments designed to pay living expenses to fund litigation in the dissolution proceeding." (Tharp, supra, 188 Cal.App.4th at pp. 1315-1316.) This argument is thus also without merit.
On this record, we conclude the trial court's finding of disparity of access to income or assets to pay attorney's fees was supported by substantial evidence. Accordingly, we affirm the trial court's award of need-based attorney fees.
III. Murillo's argument related to the statement of decision is both forfeited and without merit
On January 25, 2022, the court issued a written ruling where it incorporated its section 4320 findings. The trial court agreed with Camacho that Murillo's request for a statement of decision was untimely because the trial lasted less than eight hours. (See Code Civ. Proc., § 632.) Murillo did not oppose Camacho's objection to Murillo's request being untimely. Because Murillo argues for the first time in his reply brief that there is no evidence the trial lasted less than eight hours, his argument is forfeited. (Gund, supra, 10 Cal.5th at p. 525.) Even assuming the trial court erred, Murillo fails to show any prejudice.
Murillo argues that there is no evidence that the trial lasted less than eight hours. However, a judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it where the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is Murillo's burden to affirmatively demonstrate error. (Ibid.) Here, Murillo concedes in his reply brief that the record contains no indication as to the time spent in the trial. He has therefore failed to furnish a record to impeach the trial court's finding.
In any event, the trial court did issue a written decision that substantially set forth the factual and legal explanation for its decision on the principal controverted issues. (Code Civ. Proc., § 632.) Murillo fails to affirmatively demonstrate error by showing why the trial court's written decision was legally inadequate. (See In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530-1531.)
Moreover, an error "in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review." (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.) We do not presume injury from error, but rather Murillo must show that the error resulted in prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Murillo fails to set forth any argument that he was prejudiced. Therefore, even assuming error occurred, Murillo has not carried his burden on appeal to demonstrate prejudice.
DISPOSITION
The order awarding permanent spousal support and attorney's fees is affirmed.
WE CONCUR: STRATTON, P. J.,WILEY, J.