Opinion
B228396 Los Angeles County Super. Ct. No. BD420664
12-09-2011
TARA D. GARNER, Plaintiff and Appellant, v. CHRIS D. ARONSON, Defendant and Respondent.
Tara Garner, in pro per. Trabolsi & Levy and Ilene Evans Trabolsi, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark Juhas, Judge. Affirmed.
Tara Garner, in pro per.
Trabolsi & Levy and Ilene Evans Trabolsi, for Respondent.
Appellant Tara Garner (wife) and respondent Christopher Aronson (husband) dissolved their 18 year marriage effective October 2, 2008. Appealing from the February 8, 2010 judgment on reserved issues, wife contends the trial court erred in calculating child support, denying her request for attorney fees, distributing marital assets and failing to impose sanctions on husband. Wife also requests that we order the matter assigned to a new judge on remand. We affirm the judgment and decline the request to order reassignment.
FACTUAL AND PROCEDURAL BACKGROUND
Married on July 7, 1990, the couple had three children: Christopher born in 1991; Lyndsay born in 1992; and Daniel born in 1999. Wife filed for legal separation in February 2005. In March 2005, wife was awarded the family residence, attorney fees and spousal support. The couple reconciled in September 2005. After the reconciliation, husband received approximately $500,000 in severance pay from MGM and began working at 20th Century Fox at an annual salary of $375,000. Husband and wife separated again on December 31, 2005. Their marriage was dissolved effective October 2, 2008.
In February 2010, the date of the order appeal from, son Christopher was 19 years old; daughter Lyndsay was 17 years, 3 months old; and son Daniel was 10 years, 2 months old. Daniel is sometimes referred to as "Payne" in the parties' appellate briefs.
According to a May 2006 Vocational Examination Report, wife reported that she earned between $3,000 and $52,000 annually as a writer and spokesperson. The evaluator concluded that, based on wife's past earning history ($50,000 in 2005 for six months of work and $80,000 in 2004), she could earn between $80,000 and $100,000 per year.
Over several days in late 2006, Commissioner Ann Dobbs presided over a trial in the matter, not including custody issues which were to be addressed in a separate trial. In March 2007, husband was awarded full custody of all three children. Commissioner Dobbs retired in October 2007 without ruling on wife's several attorney fee requests. In February 2008, a mistrial was declared and the matter was assigned to the Honorable Mark A. Juhas.
At wife's request, we take judicial notice of the Decision and Order Imposing Public Censure and Bar Pursuant to Stipulation, dated July 15, 2009, pursuant to which Commissioner Dobbs was censured for not deciding cases in a timely manner. This case was cited by the Commission in its decision and order.
In April 2008, wife's attorney, Hugh Lipton, filed a motion for attorney fees in the amount of $150,000. In May 2008, the court awarded attorney fees in the amount of $15,000 to both husband and wife, to be paid from community funds (specifically, the MGM severance monies).
Wife has been represented by multiple attorneys. Until February 2007, she was represented by William Fingerett, who withdrew because of unpaid attorneys fees. She was next represented by Tammy Andrews, who withdrew in August 2007, also because of unpaid fees (it was Andrews's motions for attorney fees that were never decided by Commissioner Dobbs). Next, wife was in pro per for several months. In April 2008, wife retained Hugh Lipton.
On October 2, 2008, husband and wife reached a settlement agreement, the terms of which were recited on the record in open court. Among other things, it was agreed that wife would receive the family home but thereafter be responsible for the mortgage and pay husband $125,000 to be secured by a promissory note and deed of trust on the home. It was further agreed that husband would pay spousal support of $6,750 per month beginning November 1st and, as additional spousal support, wife would receive 15 percent of husband's annual bonuses from 2006 going forward (regarding past bonuses, the 15 percent was to be paid over two years in equal installments). It was further agreed that husband would pay wife $26,250 on the date judgment was entered. The parties and their counsel confirmed to the trial court that this settled the "property interest part of this." Husband was tasked with preparing the written judgment. However, the parties were unable to reduce the oral agreement to a written agreement. Wife objected that the written agreements proposed by husband included terms to which wife never agreed.
At a hearing on December 14, 2009, the trial court ended a second custody evaluation that was in progress and instead directed the parties to select a date for a child custody trial. At that hearing, the trial court observed that when settlement was reached on October 8, 2008, it was anticipated that a written judgment would be filed by November 2008, but none was ever entered. Wife explained that after October 2008, she discovered that husband's financial disclosures upon which she based her agreement were not complete. The trial court proposed entering judgment as to items that were expressly agreed to in October 2008 as reflected in the reporter's transcript of that hearing, as well as items as to which neither party objected, but not to items that were not agreed to in October 2008. The court advised wife that her remedy was to make a motion to set aside the judgment because of fraud. On January 19, 2010, wife filed a "Further Argument Re: Entry of Judgment [etc.]" in which she requested monthly spousal support of $20,000 and attorney fees.
The trial court entered judgment on February 8, 2010. The written judgment consisted of the husband's proposed judgment interlineated by the trial court. The final terms were what the parties agreed to on October 2, 2008, including spousal support to wife of $6,750 retroactive to November 1, 2009, additional spousal support consisting of 15 percent of husband's bonuses and the $125,000 equalizing payment to husband. In addition, husband was ordered to pay attorney fees to two of wife's former counsel and $4,400 to her current counsel. Except for these specified payments, wife was to be responsible for all attorney fees incurred by her through November 13, 2008.
On April 1, 2010, the trial court issued an Order to Show Cause for modification of child support, custody, spousal support, attorney fees and omitted assets on wife's application. Husband opposed the OSC.
At hearings in July, August and September 2010, wife took the position that the October 2, 2008 agreement left five unresolved property issues: (1) spousal support, (2) division of the MGM severance payment, (3) omitted assets, (4) attorney fees, and (5) sanctions. Wife argued that spousal support of $6,750 per month was insufficient now that the couple's daughter was living with mother more than 50 percent of the time. Regarding child support, the parties were unable to agree on a monthly income figures to be entered into the DissoMaster for each. The trial court settled on $36,350 for husband and $3,000 for wife. Husband was ordered to pay monthly child support of $996 retroactive to July 1, 2009, and to advance wife $10,000. At the hearing on September 3, 2010, wife's counsel represented that the parties had resolved all issues of arrearages and overpayments. However, wife sought an upward modification of child support.
The Judgment
On September 7, 2010, the court entered judgment on reserved issues. The judgment: (1) adopted the DissoMaster, with the exception that husband's $800 car allowance was added as income; (2) wife's request to have certain assets divided in a manner contrary to the stipulated judgment was denied; (3) wife's request for additional attorney fees was denied.
Wife filed a timely notice of appeal.
DISCUSSION
A. Income
Wife contends the trial court improperly omitted some of husband's income in calculating the child support order. Specifically, wife contends the trial court did not include: an annual $265,000 bonus, $70,847 in stock options, and $36,000 of rental income. We find no error.
We begin with the standard of review. "[C]hild support awards are reviewed for abuse of discretion. [Citations.] We observe, however, that the trial court has 'a duty to exercise an informed and considered discretion with respect to the [parent's child] support obligation . . . .' [Citation.] Furthermore, 'in reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]' [Citation.] In short, the trial court's discretion is not so broad that it 'may ignore or contravene the purposes of the law regarding . . . child support. [Citations.]' [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282 (Cheriton).)
Family Code section 4055 sets forth the algebraic formula for determining child support, known as the "guideline amount." One component of this calculation is the high earner's net monthly disposable income. Net monthly disposable income is computed by deducting specified expenses and liabilities from annual gross income. (§ 4059.) Annual gross income means "income from whatever source derived" and includes predictable bonuses, rents, and stock options. (§ 4058, subd. (a)(1); Cheriton, supra, 92 Cal.App.4th at p. 286; see also 10 Witkin, Summary of Cal. Law (10th ed. 2005), Parent and Child, § 397.) If the court deviates from the guideline amount, it must state the guideline amount, the reasons why the court's award differs from the guideline amount, and the reasons why an amount different from the guideline amount is in the children's best interest. (§ 4056.)
All future undesignated statutory references are to the Family Code.
Here, the trial court's comment that it was comfortable relying on husband's pay stub to determine his monthly income was not a statement that husband's salary was the only income the trial court was taking into account. The trial court's statement was made in the context of a discussion of wife's income and the trial court's observation that wife did not have reliable documentation of her income. In fact, the DissoMaster calculation included dividends and interest received by husband and husband's car allowance was added. Regarding the $3,000 monthly rental income, the court recalled that at a prior hearing it was resolved that the rental income was off-set by the $3,000 a month expenses for the property. Wife did not dispute the trial court's recollection, nor does she present any evidence to the contrary on appeal.
Regarding annual bonuses, wife argued in the trial court: "We think that the appropriate way to deal with the bonuses for determination of child support is with an order . . . for a percentage." This is exactly what the trial court later did: it ordered that 5 percent of each annual bonus be paid to wife as child support (this amount was in addition to the 15 percent she was to receive as spousal support). At oral argument, husband's counsel agreed that this had been the trial court's ruling and she had no explanation for why it was not reflected in the Ruling on Submitted Matter upon which was based the Order After Hearing On September 3, 2010, drafted by husband. Counsel stated that husband had no objection to modifying the order to reflect the ruling. The failure to include this ruling in the Ruling on Submitted Matter appears to have been a scrivener's error. We modify the order accordingly. (Code Civ. Proc., § 43; see e.g. Main Street Plaza v. Cartwright & Main LLC (2011) 194 Cal.App.4th 1044, 1053 [where parties agreed that judgment was intended to resolve issue and failure to do so was scrivener's error, appellate court has authority to order amendment of the judgment appealed from].)
Other than omitting its ruling on the bonus from its final order, wife has failed to show the trial court abused its discretion in calculating husband's monthly income for purposes of calculating child support.
B. Child Support Add-Ons
Wife contends the trial court abused its discretion in including husband's child care costs in the calculation of child support. She argues that child care costs should be apportioned because of husband and wife's disparate incomes, and that the trial court did not explain how giving husband the add-on was in the children's best interest. We find no abuse of discretion.
Employment related child care costs are "mandatory add-ons" (i.e. mandatory additional child support). (§ 4062; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039 (Fini); see also In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 471.) Where the parent incurring child care costs is the supporting parent, application of the mandatory add-on results in a "negative add-on;" in other words, a reduction in the amount of child support. (Fini, at p. 1039, fn. 5 [discretionary add-on for travel expense more properly called a negative add-on]; but see In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, 527-526 [no deduction from the guideline amount for discretionary add-ons, such as travel expenses for visitation].) The trial court has discretion to apportion child care costs in an appropriate manner. (§ 4061; Fini, at p. 1035.)
Here, wife did not dispute the amount of the child care add-on. (See In re Marriage of Gigliotti, supra, 33 Cal.App.4th at p. 525, fn. 2 [§ 4062 provides for add-on of actual child care costs].) She did, however, request that the trial court apportion the child care add-on arguing that, because wife stayed at home to take care of the children, she could not take advantage of having child care expenses. In other words, wife argues she is entitled to an add-on for child care costs she does not incur. But wife has failed to provide any legal authority for this proposition. That the trial court has discretion to apportion child care costs is not the same as having discretion to credit a parent with an expense that the parent has not incurred.
C. Imputation of Income
Wife contends the trial court abused its discretion by imputing income to wife without evidence of ability and opportunity. She argues that she established that her expenses exceeded her income by $2,500 each month and that husband presented no evidence that she had the ability or opportunity to earn $3,000 a month. We disagree.
The party seeking to impute income has the burden of setting forth competent evidence that the other party has the ability and opportunity to earn the attributed income. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1329.)
Here, wife's assertion that the trial court "imputed" income to her is not established by the record. According to her July 2010 Income and Expense Declaration, wife was self-employed as a freelance spokesperson and author. From this source wife estimated average monthly income of $953.92, after expenses. In addition, she received monthly spousal support of $6,750. Her monthly expenses were $10,335.20. The trial court noted that wife's expenses exceeded her income and inquired about the shortfall. At the next hearing, wife submitted: (1) a contract with Pavilions' showing that wife earned $21,500 in September 2009 and (2) a letter agreement with Media Café pursuant to which wife received $2,750 for each "co-op SMT." Wife explained a "co-op SMT" was an 8 hour block of time during which she does satellite interviews. Wife explained that she did not account for these contracts in her Income and Expense Declaration because, "It's my understanding when I was filling out the Income and Expense Declaration that it asked me for gross after expense." The trial court noted its lack of confidence in wife's Income and Expense Declaration. Wife stated, "Your Honor, I attached all of the contracts that I have had. I did this income and expense declaration at the very early hour, right after we came to court on the 30th. I realized that I needed to update it. Ran the numbers and obviously and checked the actual - I should have figured out how to do an actual versus the proposed." (Italics added.) Thus, wife conceded that the figure of $953.92 did not represent her actual income.
According to wife's 2008 tax return, that year she received $76,800 in spousal support and $1,983 from her limited liability corporation, Tara Aronson, LLC. Items included in annual gross income includes spousal support "actually received from a person not a party to the [child support] proceeding." (§ 4058, subd. (a)(1); In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1498.)
Nothing in the record indicates the trial court imputed any income to wife. On the contrary, the only reasonable inference from this record is that the trial court added the $953.92 on wife's Income and Expense Declaration to the $2,020.83 per month represented by the two contracts (Pavilions' and Media Café), neither of which was accounted for in the Income and Expense Declaration, to arrive at a monthly income of $3,000 for wife. At the August 3, 2010 hearing, the trial court confirmed that it did not impute any income to wife, but based its finding on the evidence of wife's actual income. In fact, the trial court observed, wife's 2009 Tax Return, which she introduced at the August hearing, supported the trial court's finding. We conclude the finding that wife's monthly income was $3,000 was based on evidence of her actual income, and that no income was "imputed."
D. Time Share
Wife contends the trial court abused its discretion in finding a 50/50 time share for daughter Lyndsay. She argues that, although the trial court gave 17-year-old Lyndsay the choice to "do what she wants to do" in terms of where she stayed, wife had primary responsibility for Lyndsay during the relevant time period. We find no abuse of discretion.
We review the trial court's determination of timeshare for abuse of discretion. (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 977.) One component in calculating child support is the percentage of time the high earning parent has primary physical responsibility for the child compared to the other parent. (§ 4055, subd. (b)(1)(D).) "This calculation ' "is based on the parents' respective periods of primary physical 'responsibility' for the children rather than physical 'custody.' " ' [Citations.]" (DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1033.)
Here, at the hearing on July 30, 2010, wife stated that although the parties had agreed to a 50/50 time share for Lyndsay, Lyndsay had actually been with wife "90 percent of the time;" as a result, wife was entitled to additional child support.Resolution of the issue was put off to the next hearing. At the hearing on August 9, 2010, wife argued that because Lyndsay had no transportation of her own, wife took Lyndsay where she needed to go which resulted in Lyndsay being with wife 80 percent of the time. Father responded that Lyndsay had a driver's license, used husband's or wife's cars on occasion, and for the most part was driven around by her friends. The trial court stated that it was "comfortable" using the 50/50 timeshare to calculate child support for Lyndsay. At the hearing on September 3, 2010, wife reiterated her argument that Lyndsay spent 79 percent of her time with wife. But the trial court was not convinced and it calculated child support based on the prior agreement to a 50/50 timeshare for Lyndsay.
Specifically, the court had previously ordered that Lyndsay, "who is 17, will do whatever she wants."
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Wife has failed to show any abuse of discretion. Under DaSilva, regardless of where Lyndsay actually was, both parents had equal physical responsibility for her. As a result, calculating child support on the basis of a 50/50 time share was not an abuse of discretion.
E. Above Guideline Support
Wife contends the trial court abused its discretion in refusing to deviate upward from guideline support.
Section 4053 mandates that each parent "should pay for the support of the children according to his or her ability." (§ 4053, subd. (d).) "Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children." (§ 4053, subd. (f).) "Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes." (§ 4053, subd. (g).) "The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula." (§ 4053, subd. (k); see also § 4057, subd. (a).) The presumption that the guideline is correct may be rebutted by admissible evidence showing that application would be unjust or inappropriate, consistent with the principles stated in section 4053. (§ 4057, subd. (b).)
At the hearing, wife argued that husband was "a rather high wage earner," that the children should not have to experience a wide disparity in the lifestyle at each parent's home, and that the guideline amount was not enough to allow wife to maintain the family home. Noting that the legal authority relied on by wife, In re Marriage of Catalano (1988) 204 Cal.App.3d 543, was a pre-guideline case and therefore inapplicable, the trial court was unconvinced.
We find no abuse of discretion in the trial court's refusal to deviate from the guideline amount. Wife has not shown that the guideline amount of child support was unjust or inappropriate. (§ 4057, subd. (b).) That wife's expenses were more than her income does not establish that the children's needs were not being met.
F. Attorney Fees
Wife contends the trial court abused its discretion in denying wife's request for additional attorney fees.
"When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward." (§ 2030, subd. (a)(2).) The purpose of an attorney fee award is to provide one of the parties with an amount adequate to properly litigate the controversy. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629.) The trial court must take into account whether the fees incurred were reasonably necessary. (Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 255.)
Here, implicit in the trial court's finding that husband should not have to pay wife's additional attorney because the work of the attorneys was of "little value to the process" is a finding that the fees were not reasonably necessary to adequately litigate the controversy. This was a legitimate reason for denying wife's request for additional attorney fees.
G. Assets
Wife contends the trial court erred in not distributing all community property assets. As we understand her argument, it is that the trial court did not divide the assets listed in the attachment to the February 8, 2010 judgment, which the trial court crossed out. Wife's argument is belied by the record.
At the hearing on December 14, 2009, the trial court stated that it would enter judgment as to items that were expressly agreed to in October 2008 as reflected in the reporter's transcript of that hearing, as well as items as to which neither party objected, but not to items that were not agreed to in October 2008. The court advised wife that, to the extent she believed she was induced to enter into the settlement agreement by misrepresentations, her remedy was to make a motion to set aside the judgment because of fraud. Accordingly, the judgment entered on February 8, 2010 included as an attachment the proposed judgment interlineated by the trial court to delete reference to anything not agreed to by the parties on October 2, 2008. At the hearing on July 30, 2010, wife stated that one of the five property issues left unresolved by the October 2, 2008 agreement was "omitted assets." The assets wife claimed were omitted were discussed in the subsequent hearings. In the September 7, 2010 judgment, the trial court concluded that wife did not meet her burden to prove that these were "omitted" assets: "It is apparent that these various assets were discussed and settled at the time of the [October 2, 2008] settlement agreement. Further, it is apparent that [wife] was aware of the various issues well before the settlement conference. From the exhibits produced as part of the hearing, it is clear to the court that both sides compromised their position in order to settle the matter. As a result, the court denies these requests."
Wife does not dispute that these assets were discussed during settlement negotiations. She maintains that the trial court was nevertheless required to divide them. Her reliance on Henn v. Henn (1980) 26 Cal.3d 323, 330, for this proposition is misplaced. As our Supreme Court stated in Henn, "Under California law, a spouse's entitlement to a share of community property arises at the time the property is acquired. [Citations.] That interest is not altered except by judicial decree or an agreement between the parties." (Italics added.) Here, the trial court found that the parties' entitlement to the so-called omitted assets was resolved by the settlement agreement. Thus, they were not omitted assets. We find no abuse of discretion in this determination.
H. Sanctions
Wife contends husband should be sanctioned for his failure to accurately disclose his income and assets. Wife has not, however, established that husband failed to disclose any income or assets. Accordingly her request for sanctions is denied.
I. Bias
Wife contends the trial court demonstrated bias against her which requires that the case be assigned to another judge. (See Code Civ. Proc., § 170.1, subd. (c).) Our review of the record reveals no bias demonstrated against wife by the trial court. Accordingly, her request to reassign the case is denied.
DISPOSITION
The September 7, 2010, child support order is modified such that husband shall pay wife an additional 5 percent of his annual bonus as additional child support in the same manner and at the same time he pays wife 15 percent of those bonuses as spousal support pursuant to the April 10, 2010 order. In all other respects, the September 7, 2010 order is affirmed. Each party to bear their own costs.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.