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In re Marriage Bush

California Court of Appeals, Fourth District, Third Division
Jun 15, 2023
No. G061202 (Cal. Ct. App. Jun. 15, 2023)





Quinn &Dworakowski and David Dworakowski for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.


Appeal from a judgment of the Superior Court of Orange County, No. 15D011205, Carmen R. Luege, Judge. Affirmed in part, reversed in part, and remanded with directions.

Quinn &Dworakowski and David Dworakowski for Appellant.

Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.



In this marital dissolution proceeding, appellant Stephen Bush (husband) appeals from a post-trial judgment dividing certain disputed property and assets between him and respondent Tina Bush (wife). Husband contends there is no substantial evidence to support the trial court's award to wife of retroactive temporary spousal support and division of a community property investment account. In addition, he argues the court erred in failing to include in the judgment previously awarded monetary discovery sanctions against wife. Based on the record before us, husband's argument concerning division of the investment account has merit. In contrast, substantial evidence supports the court's determination concerning temporary spousal support. Regarding the discovery sanctions, the court did not err by omitting the sanctions in its final calculations in the judgment; the discovery sanctions order is due and payable, and separately enforceable. Accordingly, we reverse the judgment in part, and affirm it in part.


After more than 20 years of marriage, husband and wife separated in 2015. For the first few years, husband paid to wife spousal and child support in a combined amount agreed to by the parties. During that time, husband owned an electrical business and wife was unemployed.

Early in 2019, husband retired and wrapped up the business. Thereafter, in May of the same year, the trial court heard a request for modification of spousal support filed by husband. At the close of the hearing, the court ordered temporary spousal support reduced to zero, subject to potential future modification retroactive to June 1, 2019. The court further specified: "If [wife]'s counsel discovers an ability to pay by [husband], [wife]'s counsel is to contact [husband]'s counsel and the [c]ourt to reinstate spousal support."

Roughly two years later, the trial court heard a discovery related request for order brought by husband after wife failed to appear for a noticed deposition and produce requested documents. In ruling on the issue, it determined discovery sanctions against wife were appropriate. The court imposed monetary sanctions in the amount of $3,635 (the discovery sanction), stating the following: "The [c]ourt understands that there are pending claims to be resolved at trial relating to whether [husband] owes [wife] money or visa-versa [sic]. For this reason, the discovery sanctions imposed herein will become payable at trial once the [c]ourt determines the pending issues."

Not long thereafter, the dissolution matter went to trial on limited reserved issues still disputed by the parties, including spousal support and the division of certain assets.

With respect to spousal support, wife requested permanent support and a modification of temporary support retroactive to June 1, 2019. Regarding the latter, a forensic accountant, Michael Campagna, testified as an expert on wife's behalf. Mr. Campagna provided an analysis of husband's gross adjusted income available for support for the years 2016 through 2019. At the outset, he explained his analysis was "preliminary" because he was not given copies of all necessary documents. Among the types of documents he noted missing were husband's personal bank records and his company's bank and credit card records.

Based on his review of husband's personal tax documents, as well as the financial records and tax returns of husband's company, Mr. Campagna concluded husband's income available for support in each year was as follows: $36,790 per month in 2016; $17,203 per month in 2017; $30,907 per month in 2018; and $38,064 per month in 2019.

For 2019, Mr. Campagna said he understood husband closed his business in the first few months of the year. He further explained his calculation was a monthly average based on husband's W-2 wages for all of 2019, which totaled $436,410, although he could not isolate precisely in which months that income was earned.

Regarding division of assets, an investment account (the Putnam account) was among the property in dispute. After counsel for the parties clarified the sole issue was the value of the Putnam account, not its characterization as community property, wife testified she withdrew a total of $105,000 from the account post-separation and she did not share any of the money with husband. Husband testified concerning his perceived value of the Putnam account. He also testified about a separate Putnam investment account he liquidated during the marriage, in 2014. As to that account, he said there was approximately $30,000 in it when he closed it, and he used the money to start his electrical business.

Following testimony on the remaining disputed issues, the parties submitted written closing arguments and the trial court took the matter under submission. Neither party requested a statement of decision.

The trial court issued a 12-page written ruling titled "COURT'S FINDINGS AND ORDERS AFTER TRIAL". Therein, the court denied permanent spousal support but granted temporary spousal support for the period of June 2019 through December 2019. The monthly amount awarded was that requested by wife, $9,187 per month, for a seven-month total of $64,309. As for the Putnam account, the court found it was a community asset that should be divided equally. It valued the account at $135,000, citing its recollection of testimony from wife that she withdrew $105,000 from the account and from husband that he received $30,000 when the account closed. Based on these numbers, the court calculated wife owed husband $37,500 to achieve the equal division.

Husband filed written objections to the trial court's findings and orders, which he contended was the equivalent of a statement of decision. He argued: (1) the temporary spousal support order must be vacated because, contrary to a recitation of testimony in the court's ruling, there was no evidence he received wages after he closed his business in early 2019; (2) wife testified she kept all monies withdrawn from the Putnam account and there was no evidence he received $30,000 from it, so the order should be corrected to reflect wife owes him half of the $105,000 she took; and (3) the final equalization calculation failed to reflect the previously ordered $3,635 in discovery sanctions against wife.

The trial court declined to address husband's objections, noting neither party requested a statement of decision.

Pursuant to court order, wife filed a proposed judgment. The judgment specified spousal support and division of property was detailed in the trial court's written findings and orders after trial, a copy of which was attached. Husband renewed the objections described above, but the court signed the judgment as submitted.

Husband timely appealed.


Husband challenges three different aspects of the judgment. First, he contends there was no evidence to support an award of retroactive temporary spousal support. Second, he claims the evidence is similarly lacking as to the trial court's division of the Putnam account proceeds. Third, he argues the court erroneously omitted from the judgment monetary discovery sanctions previously ordered against wife. We agree with the second contention and disagree with the two others.

A. Preliminary considerations

Wife contends we should not reach any of the issues husband raises on appeal because he waived his right to raise them by providing an inadequate appellate record and by failing to request a statement of decision in the trial court. We disagree.

With respect to the record, an appellant has a duty to provide an appellate record sufficient to enable us to verify or refute the appellant's contentions. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Husband has done so. Although the dissolution proceeding between husband and wife has been ongoing for more than six years, the issues raised by husband on appeal are limited in scope and the documents and transcripts in the record are adequate to conduct our review.

As for the lack of a statement of decision, the waiver of a statement of decision, through failure to request one or an untimely request, undoubtedly impacts appellate review. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267 (Shaw); In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.) In such circumstances, we must presume the trial court made all factual findings necessary to support the judgment. (Shaw, supra, 170 Cal.App.4th at p. 267.) Our review of any factual contentions is limited to whether substantial evidence supports those implied findings. (Ibid.)

Here, husband's factual arguments are grounded in the substantial evidence standard of review. Notably, this is not your typical "implied findings" case. Although neither party requested a statement of decision, the trial court issued a lengthy and detailed document in which it articulated its "findings and orders after trial[.]" Those findings and orders are attached to the judgment as the court's ultimate disposition of the issues that remained before the court. "This is sufficient to make the court's factual findings part of the judgment and they will accordingly guide our review of factual matters." (Shaw, supra, 170 Cal.App.4th at p. 269.)

B. Temporary spousal support

Husband asserts there is a lack of substantial evidence to support the trial court's retroactive temporary spousal support award. He argues the evidence is deficient both as to his ability to pay and as to wife's need during the months for which the court awarded support. The record shows otherwise.

"Awards of temporary spousal support do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support." (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166.) "The purpose of temporary spousal support is to maintain the status quo as much as possible pending trial." (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525.) In awarding such support, the trial court has very broad discretion, subject only to the general consideration of the requesting party's need and the other party's ability to pay. (In re Marriage of Lim &Carrasco (2013) 214 Cal.App.4th 768, 773; In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 337; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312.)

There is ample evidence from which the trial court could conclude husband had an ability to pay spousal support between June and December 2019. Although he closed his electrical business in the first few months of that year, Mr. Campagna testified husband's 2019 tax documents showed his total wages for the year were $436,410. Even assuming, as husband suggests, that none of the 2019 wages were earned in the latter half of the year, the court could rightly rely on them to conclude husband had the ability to pay support during that time. (See In re Marriage of Dick, supra, 15 Cal.App.4th at p. 159 ["Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for . . . temporary spousal support[.]"].) That reliance is consistent with Mr. Campagna's additional expert testimony that in 2019 husband had approximately $38,000 per month of income available for payment of spousal support.

As for wife's need, the issue was not before the court at the time of trial. When the trial court reduced temporary spousal support to zero in May 2019, the order stated wife's counsel should contact husband's counsel and the court to reinstate spousal support "if [wife]'s counsel discovers an ability to pay by [husband.]" Thus, the determination concerning wife's need was made in 2019 and all that remained for future decision if wife requested retroactive spousal support covering that time period was husband's ability to pay.

Even if wife's need was before the court at the time of trial, substantial evidence supports the court's implied conclusion wife had a need for temporary spousal support in 2019. Wife testified she had not worked in 10 years and she did not begin receiving social security income until April 2021. In addition, there was testimony husband and wife led, as the court referred to it, a "way upper[] middle class" lifestyle. They lived in a 2,700 square foot hillside Laguna Beach home with 180-degree ocean views, drove expensive vehicles, made significant personal property purchases, and traveled the world. This evidence, viewed in light of the purpose of temporary spousal support being to maintain the status quo as much as possible pending trial, is sufficient to support a finding of wife's need in 2019. (See In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 ["Trial courts may look to the parties' accustomed marital lifestyle as the main basis for a temporary support order."].)

In sum, substantial evidence supports the trial court's decision to award temporary spousal support to wife for June through December 2019.

C. Putnam account

The trial court ordered the community property Putnam account to be divided equally. Husband claims the court erred, however, in crediting him with having received $30,000 from the account when wife closed it. We agree there is no evidence husband received any monies from the disputed Putnam account.

Testimony concerning the Putnam account was limited. Wife testified the account had "around $105,000" in it and she liquidated it after separation. When questioned further on cross-examination, wife expressly stated she did not share any of the money with husband. And, while husband disputed the value of the account, he made no mention of having received any money from it. With no other evidence concerning distribution of the proceeds from the Putnam account, there is no evidence to support the trial court's credit of $30,000 to husband from its liquidation.

It appears the trial court may have mistakenly conflated testimony about the disputed Putnam account with testimony concerning a different Putnam investment account which was not at issue in the dissolution proceeding. With respect to the different account, husband testified he closed it during the marriage and used the $30,000 in proceeds from it to start his electrical business. The court expressed some confusion about the two similarly-named accounts, but contrary to wife's contention, husband did not invite error by failing to provide additional evidence concerning the accounts.

D. Discovery sanctions

The trial court imposed $3,635 in discovery sanctions against wife. Husband claims it was error for the court to not include the sanction in its final calculation of the amount of money each party owed the other. Wife claims any alleged error was invited by husband because he failed to remind the court of the sanction at trial or in post-trial briefing. Both parties miss the mark because, under the circumstances, the sanctions order was automatically due and enforceable once the court issued its post-trial ruling adjudicating all remaining matters.

"[M]onetary [discovery] sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction." (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 (Newland); see Code Civ. Proc., § 680.010 et seq. [enforcement of judgment laws]; Jones v. Otero (1984) 156 Cal.App.3d 754, 759 [monetary discovery sanctions order enforceable under enforcement of judgment laws].)

Here, the trial court imposed a monetary discovery sanction against wife a couple of months before trial. Recognizing "there [were] pending claims to be resolved at trial relating to whether [husband] owe[d] [wife] money or visa-versa[,] [sic]" the court expressly ordered the imposed sanction would "become payable at trial once the [c]ourt determine[d] the pending issues." Effectively, the court stayed the sanction until it determined how the parties' assets should be characterized and divided. Once it made that determination, the sanction order had the full force and effect of a money judgment which husband could enforce through execution. (Newland, supra, 40 Cal.App.4th at p. 615.)

Although we recognize there may be a logistical benefit to having the monetary sanction included in the final post-trial judgment (see Constellation-F, LLC v. World Trading 23, Inc. (2020) 45 Cal.App.5th 22, 31 [concluding it was "proper and efficient" in case's procedural context to include monetary discovery sanction award in post-trial judgment]), it was not error for the trial court to omit it. Likewise, wife cannot escape responsibility for payment of the sanction based on the omission.


The judgment is reversed to the extent it credited husband with having already received $30,000 from the Putnam account proceeds, and it is affirmed in all other respects. On remand, the trial court shall enter a new judgment modifying the amount wife owes husband concerning the Putnam account to $52,500. The parties shall bear their own costs on appeal.


Summaries of

In re Marriage Bush

California Court of Appeals, Fourth District, Third Division
Jun 15, 2023
No. G061202 (Cal. Ct. App. Jun. 15, 2023)
Case details for

In re Marriage Bush

Case Details

Full title:In re Marriage of TINA and STEPHEN BUSH. v. STEPHEN BUSH, APPELLANT. TINA…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jun 15, 2023


No. G061202 (Cal. Ct. App. Jun. 15, 2023)