Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Frederick C. Shaller, Judge. Super. Ct. No. BD353707
Law Office of Noelle M. Halaby, Noelle M. Halaby and Diane Jurdi for Appellant.
Law Office of Lee W. Harwell, Jr. and Jonathan R. Ivy for Respondent.
JOHNSON, J.
Kevin Washington appeals from an order awarding temporary child and spousal support and attorney fees to Kerri Washington in this dissolution proceeding. Finding no abuse of discretion, we affirm the order.
To avoid confusion when referring to parties who have the same surname, we will use the parties’ first names.
FACTS AND PROCEEDINGS BELOW
On August 29, 2001, Kevin filed a petition for legal separation from Kerri. In the petition, he listed the date of the parties’ marriage as March 5, 1995, and the date of their separation as May 25, 2001. On September 27, 2001, Kerri filed a response to Kevin’s petition in which she set forth the same dates of marriage and separation.
On March 30, 2004, Kerri filed an amended response to Kevin’s petition and requested dissolution of the parties’ marriage rather than legal separation. This time, Kerri claimed the date of the parties’ marriage was March 2, 1995 and the date of their separation was October 4, 2003. On May 17, 2004, Kevin filed an amended petition, also requesting dissolution of the parties’ marriage. He maintained the date of separation was May 25, 2001.
On June 15, 2005, Kerri filed an order to show cause requesting “guideline” spousal support and an award of attorney fees in the amount of $5,000. In her declaration in support of the order to show cause, Kerri stated the parties were married on March 2, 1995 and they “separated briefly from May 25, 2001 to approximately May 2002.” Kerri also stated the parties “reconciled in June, 2002” and then “finally separated on October 4, 2003 due to sever [sic] domestic violence.” Kerri claimed Kevin “comfortably supported [her] and the children” during the marriage. He typically took her to the movies every weekend and to restaurants at least once a month. “Sometimes” he gave her “money to buy clothing or nice outfits.” During the latter part of the marriage, Kerri did not work outside the home and did not have access to the parties’ “community funds in the bank.” According to Kerri, she and Kevin “managed to save enough for a down-payment on the family home, in which [Kevin] now lives.”
In her declaration, Kerri stated the following about her employment history: “When [Kevin] and I first married I was working as a merchandise lead at a retail store, making approximately $5.00 per hour. After the birth of our second child, I quit my job to become a stay-at-home mother, a decision which was encouraged and fully supported by [Kevin]. I was a stay-at-home mother for approximately 3 years, until our separation in September 2001 . . . . At that time, I began working as an appointment scheduling clerk, making approximately $9.80 per hour, full-time. However, I was laid off from that position shortly after [Kevin] and I reconciled in June, 2002.”
In her declaration, Kerri also claimed Kevin “financially cut [her] off completely” after the parties’ separation in October 2003 even though she “remained the primary custodial parent” of their children who were nine, seven and two years old at the time she filed the order to show cause. She received assistance from “Welfare and Medi-Cal” until sometime after September 15, 2004 when the trial court ordered Kevin to pay her $1,336 per month in child support payments. At the time she filed her declaration, Kerri was receiving $499 per month in food stamps but she stated these allotments were set to terminate in July 2005. Kerri also explained she had received training to work as a “nursing assistant” and was working “sporadically until more or permanent work becomes available.” The public assistance program which paid for her training also was paying for her child care expenses.
According to Kerri’s declaration, the trial court also awarded her sole legal and physical custody of the children and granted Kevin visitation for approximately five hours per week.
Kerri stated she was requesting an award of $5,000 in attorney fees based on her “limited means” and her inability “to secure any loans or lines of credit to finance this action.” She had only recently retained an attorney who agreed to represent her at a rate of $150 per hour. By the time she filed her order to show cause, she had incurred $2,358 in attorney fees. As further evidence of the fees she had incurred, Kerri submitted a declaration from her attorney and an itemized statement. Kerri’s attorney stated she had received only $300 in compensation since she was retained in April 2005. Kerri’s attorney believed Kerri would incur another $2,500 in fees and costs in litigating “this matter through to completion.”
On July 5, 2005, Kevin filed an order to show cause seeking modification of the child support order. He asserted Kerri “should be inputted [sic] with an earning ability.” He submitted to the trial court an 11-page vocational assessment report in which a rehabilitation consultant concluded, based on her educational background and past employment history, Kerri should be able to earn a starting salary of $30,000 per year as a retail store manager trainee or a sales representative.
On July 14, 2005, the Child Support Services Department filed a response to Kevin’s order to show cause stating it did not consent to a reduction in the child support amount as Kevin had requested. The Child Support Services Department urged the trial court to maintain the status quo or modify the order to increase the amount of child support pursuant to the guidelines. In his reply papers, Kevin argued there was no evidence supporting an increase in child support. He asserted a reduction in support was warranted based on the trial court’s modification of the custody order which affected his “custodial percentage.”
The modified custody order is not in the record and Kevin did not explain in what manner the custody arrangement was modified.
In an income and expense declaration filed July 19, 2005, Kevin listed his gross monthly salary as $4,840. He stated he owed $1,450 per month on his mortgage and $305 per month on a second mortgage. In addition to a $428 monthly payment on his car lease, he also listed $23,500 in credit card debt and stated he made payments of $767 per month to service this debt.
In response to Kerri’s order to show cause, Kevin submitted a declaration stating he could not afford to pay her spousal support or any amount for her attorney fees. Kevin asserted, after he agreed to allow Kerri to live with him in June 2002 in the house he had purchased while they were separated, Kerri “made a voluntary decision to avoid work” and chose instead “to collect State Disability and /or Unemployment payments.” Kevin represented he had incurred more than $30,000 in legal fees and costs since the parties’ separation in May 2001. He also stated: “Due to clerical and computational errors at DCSS (that I have been desperately attempting to resolve), my credit history and qualification has [sic] been decimated, making any future borrowing extremely difficult.” Kevin asserted his monthly expenses exceeded his after-tax income by $2,500.
In support of his response to Kerri’s order to show cause, Kevin also submitted to the trial court Kerri’s responses to his special interrogatories which were prepared in April 2005. Therein, Kerri listed her monthly expenses as $1,187, which included an $800 payment for rent. She listed her debts as $2,200 in medical expenses and $600 for wireless phone service.
On July 27, 2005, the trial court held a hearing on the parties’ orders to show cause. On August 1, 2005, the trial court issued a nine-page notice of ruling. The court found the parties’ representations about their respective incomes were true. As set forth above, Kevin stated he earned $4,840 per month. Kerri apparently stated her income was $658 per month (17 hours per week at $9.00 per hour). In a three-page discussion, the trial court explained why it declined to impute additional income to Kerri, stating Kerri “has used reasonable efforts to become employed and in spite of those efforts is still not able to earn more than she currently has earned.”
The trial court calculated the “[c]ustodial timeshare” at 91 percent for Kerri and nine percent for Kevin. The trial court awarded Kerri guideline child support which, based on the DissoMaster calculation, came to $1,772 per month for the parties’ three children.
The trial court also awarded Kerri $200 per month in spousal support. The court based the award on the following factors: the parties had been married since 1995 and had a “middle class standard of living” before separation, Kerri was a stay-at-home mother for periods of time during the marriage, Kerri’s work history “substantially limited [her] in getting back into the job market with seniority enough to earn sufficient sums to support herself to [sic] the marital standard,” Kevin “lives in the family home” and Kerri “has had to move out and live in either a home of a relative or in an apartment with the children,” Kerri provided for the three children and acted as their primary caretaker after separation, Kevin “was found guilty of spousal abuse in October 2003 in events that appear to have caused the final separation of the parties,” and there are criminal and civil restraining orders against Kevin. The court concluded Kevin “obviously has a stable position and is able to pay spousal support. [Kerri], who is clear [sic] financial distress, needs spousal support to maintain the status quo pending her vetting in her current employment.” Although the amount of spousal support based on the Santa Clara County guideline would be $535 per month, the court found Kevin could only afford to pay $200 per month. The court also ordered Kevin to pay an additional $100 per month for three months to pay off spousal support arrears in the amount of $300 (representing one-and-a-half months of support).
Finally, the trial court ordered Kevin to pay $5,000 for Kerri’s attorney fees, concluding Kerri had “no ability” to pay her legal fees. The court found Kevin had “substantial income, but also substantial expenses. However, on balance, [Kevin] has much greater ability to pay than does [Kerri]. Further, the parties have a single asset of what appears to be community property, the residence in which [Kevin] currently resides.” The court explained, “A review of the Family Code §4320 factors, as discussed above relative to spousal support, as required by Family Code §2032 balances heavily in favor of [Kerri] being awarded her attorney’s fees from [Kevin] in this case.” The court ruled: “If the cash is not immediately available, [Kevin] is ordered to refinance the family residence to the extent necessary to obtain sufficient funds to compensate [Kerri]’s attorney. . . . If, in good faith and after reasonable efforts, the funds cannot be obtained by way of refinance or taking a line of credit secured by the family home, then [Kevin] shall pay to [Kerri]’s attorney the sum of $500 per month on the first of each month commencing September 1, 2005 until the fees and costs are paid in full.”
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING TEMPORARY CHILD AND SPOUSAL SUPPORT AND ATTORNEY FEES TO KERRI.
Kevin contends the trial court erred in ordering him to pay temporary child and spousal support and attorney fees in an amount which exceeds 50 percent of his gross monthly income. Because Kevin has not shown the trial court abused its discretion, we must affirm the order.
We begin first with a review of the $1,772 monthly child support payment, which constitutes the majority of the obligation the trial court ordered Kevin to pay. As Family Code section 4053, subdivision (a) makes clear, “A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” The trial court ordered Kevin to pay an amount in child support which is consistent with the statewide guideline. “The amount of child support established by the formula provided in subdivision (a) of Section 4055 [the statewide guideline amount] is presumed to be the correct amount of child support to be ordered.” Pursuant to statute, a trial court may deviate upward or downward from this guideline amount of support only if certain enumerated factors are present. Examples of these factors include, “[t]he parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children,” or “[c]ases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent.” None of the enumerated factors apply to the circumstances of this case and Kevin does not assert otherwise. Thus, he cannot establish the trial court abused its discretion in awarding guideline child support based on the parties’ incomes and their relative timeshares with the children.
Further statutory references are to the Family Code.
Section 4057, subdivision (a).
Section 4057, subdivision (b).
Section 4057, subdivision (b)(3).
Section 4057, subdivision (b)(5)(B).
In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (“We review child support awards under an abuse of discretion standard”).
We next review the $200 monthly spousal support award. “Generally, temporary spousal support may be ordered in ‘any amount’ based on the party’s need and the other party’s ability to pay.” The “parties’ accustomed marital lifestyle” is “the main basis for a temporary [spousal] support order.” In determining ability to pay, a court may consider not only income but also investments and other assets, including separate property. “Subject only to the general ‘need’ and ‘the ability to pay,’ the amount of a temporary spousal support award lies within the court’s sound discretion and will only be reversed on appeal on a showing of clear abuse of discretion.”
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at page 1327.
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at page 1327.
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at page 1327; section 4320, subdivision (e).
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at page 1327.
In considering the factors identified in section 4320, the trial court concluded a spousal support award was warranted in this case. We agree. Based on her prior employment and history as a stay-at-home mother, Kerri did not yet have the ability to earn sufficient income to maintain the lifestyle she enjoyed while married to Kevin. Moreover, in making its spousal support award, the trial court properly considered Kerri’s status as a victim of domestic violence which was perpetrated by Kevin.
Section 4320, subdivisions (a), (d) and (g).
Section 4320, subdivision (i).
Kevin does not dispute, based on the parties’ circumstances, the amount of spousal support he would be required to pay under the Santa Clara County guideline is $535 per month. Although not binding on the trial court, “the use of such guidelines has been held to be a valuable tool in an aid to calculating temporary support.” “[E]ven where standardized local schedules have exceeded a party’s stated living expenses because he or she has cut back or is living frugally, courts have held the use of such guidelines for temporary spousal support proper to maintain the marital lifestyle.” After considering Kevin’s income, assets and also his other obligations, the trial court concluded he could only afford to pay $200 per month in spousal support. We cannot conclude the court abused its discretion in making this determination. Kevin is sitting on a major asset -- the house. He pays $428 per month on his car lease and claims he spends about $250 per month eating out. Kevin has maintained his middle class lifestyle and he is obligated to help Kerri do the same, at least temporarily until any property issues between the parties are resolved. We recognize Kevin has sizable debts to pay, but his support obligation to Kerri is not subordinate to his other debts.
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at pages 1327-1328.
In re Marriage of Wittgrove, supra, 120 Cal.App.4th at page 1328.
Nor do we find the trial court abused its discretion in ordering Kevin to pay an additional $100 per month for three months to cover one-and-a-half months of past spousal support.
See Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 298-299.
Finally, we review the trial court’s award of attorney fees in the amount of $5,000. Section 2030 provides, in pertinent part: “(a)(1) In a proceeding for dissolution of marriage . . . 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, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay. . . .” A trial court may make “an award of future attorney fees” in order “to provide the party to whom the award is made an adequate amount to properly litigate the action.” In determining whether to award fees, the court should consider the factors set forth in section 4320, as the trial court did in this case, and “may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.” In determining whether to award fees in a dissolution proceeding, a trial court has broad discretion and we will not reverse its determination absent a clear showing it abused its discretion.
In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167.
Section 2032, subdivision (b).
Section 2032, subdivision (c).
In re Marriage of Dick, supra, 15 Cal.App.4th at page 167.
Kevin asserts he cannot afford to pay the attorney fees award. The trial court ordered Kevin to try to refinance or borrow against his house in order to pay the $5,000 award. Kevin claims he cannot do that but there is no evidence (or even an allegation) showing he has tried. Nor did Kevin make any showing he cannot obtain the money through another line of credit. There can be no dispute Kevin is in a far better position to borrow money to pay these attorney fees than Kerri. He does not challenge the trial court’s finding she has no ability to pay for an attorney to represent her in this dissolution proceeding. Absent any showing Kevin cannot borrow the money, we cannot find the trial court abused its discretion in ordering him to pay the $5,000 award.
He does not argue the amount of fees requested was unreasonable based on the amount of fees incurred and the amount projected to be incurred in the future.
Despite Kevin’s claim to the contrary, this case is distinguishable from In re Marriage of Keech (1999) 75 Cal.App.4th 860 for several reasons. In that case, the husband’s “‘gross cash flow available for support’ was $5,405 per month.” (Id. at page 864.) The Court of Appeal affirmed the trial court’s order awarding the wife $800 per month in guideline spousal support, but reversed the order requiring the husband to pay $25,000 of wife’s attorney fees at a rate of $500 per month. (Id. at 863, 865.) The husband did not challenge the order awarding the wife $1,468 per month in guideline child support for the parties’ two children.
For the foregoing reasons, we conclude the trial court did not abuse its discretion in making the award of temporary child and spousal support and attorney fees. The record demonstrates Kevin has the ability to pay based on his income, assets and the lifestyle he maintains.
II. THE TRIAL COURT DID NOT MAKE ANY DETERMINATION ON DATE OF SEPARATION OR THE COMMUNITY OR SEPARATE PROPERTY NATURE OF THE RESIDENCE WHICH WOULD BE SUBJECT TO THIS COURT’S APPELLATE REVIEW.
In rendering its written notice of ruling, the trial court referenced dates of separation, reconciliation and final separation as provided by Kerri. The court also stated the house Kevin lives in “appears to be community property” and thereafter referred to it as the “family residence.” Kevin characterizes the trial court’s comments on these issues as “findings” which he asks this court to review. Kevin does not dispute these comments were not material to the trial court’s award of temporary child and spousal support and attorney fees. The earlier date of separation Kevin provided would not have affected the amount of support. And, as explained above, regardless of whether the house was community or separate property, Kevin could properly be called upon to use this asset as a means of paying support and an award of attorney fees. Because the trial court did not decide anything or make any determination on these issues, and the court’s comments were not material to the outcome of the proceeding, there is nothing for this court to review with respect to these issues.
DISPOSITION
The order awarding temporary spousal and child support and attorney fees is affirmed. Respondent is entitled to recover her costs on appeal.
We concur: PERLUSS, P. J., ZELON, J.
In reversing the attorney fees award, the appellate court concluded the trial court had failed to consider the wife’s need and husband’s ability to pay, and could not have considered whether the $25,000 in attorney fees allegedly incurred were reasonable given the wife did not submit any evidence about “the nature and extent of the services rendered.” (Id. at pages 867, 870.) In the case before us, the record demonstrates the trial court considered all of the appropriate factors, including the fact Kevin has a major asset (the house he lives in).