Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Marjorie Steinberg, Judge, Consolidated with B186728
Law Offices of Vicki J. Greene, Vicki J. Greene for Appellant.
Nachshin & Weston, Scott N. Weston; De Goff and Sherman, Richard Sherman, and Victoria J. De Goff, for Respondent.
TURNER, P. J.
I. Introduction
This is a consolidated appeal by Adam Venit from post-dissolution child support and litigation costs orders in favor of his former spouse Jami Abell-Venit entered by Judge Marjorie Steinberg. First, Adam challenges the July 15, 2005 denial of his application to modify a November 8, 2002 child support order to reduce his child support payments for his two children from $26,971 per month, which he was ordered to pay pursuant to the statewide uniform child support guideline formula set forth in Family Code sections 4050 et seq., to $12,000. Second, Adam challenges that portion of the July 15, 2005 order which increased his child support payments to $31,603 per month pursuant to the statutory guideline support formula based on his annual income of $4,082,424. Third, Adam also appeals from an August 22, 2005 order directing him to pay $246,268.54 of litigation costs to Jami in connection with the July 15, 2005 order, among other things. Under the applicable standards of review Judge Steinberg did not abuse her discretion in: denying the request to reduce the support order from $26,971; increasing the amount of monthly support to $31,603 based on the escalation in Adam’s annual income from $3.6 million in 2002 to $4,082,424 in 2005; and ordering Adam to pay most of Jami’s litigation costs.
Hereinafter we refer to the parties by their first names for purposes of clarity and not out of disrespect.
All further statutory references are to the Family Code unless otherwise indicated.
II. Background
A. The January 25, 1999 Judgment
At the time a dissolution judgment was entered on January 25, 1999, Adam and Jami had six-year-old twins, Sarah and Michael. Adam owned an 11 percent share of the Endeavor Talent Agency. In 1999, his yearly income was about $1,110,000. As part of the dissolution judgment, Adam received his 11 percent interest in the Endeavor Talent Agency. Jami received the family home in Encino which was encumbered by a $510,000 mortgage. The parties agreed that Adam would pay a total of $5,020 in monthly child support for the twins plus an additional amount if he received a bonus. The parties also agreed that Jami would receive spousal support payments until September 15, 2002.
B. The November 8, 2002 Child Support Order
On August 28, 2001, Jami filed an order to show cause seeking an increase in child support. Jami argued that there was a great disparity in the lifestyle the twins had with her compared to the lifestyle they had with Adam. On November 8, 2002, Judge Lee Edmon ordered the child support payments increased to the guideline support amount of $13,485 per month per child for a total of $26,971 per month retroactive to September 1, 2001.
In a statement of decision dated December 4, 2002, Judge Edmon ruled: the children’s reasonable needs were not currently being met by the existing January 25, 1999 child support order; Adam’s income had increased from $1.1 million to over $3.6 million since the January 25, 1999 support order; there was a great disparity in the lifestyle that the children were able to enjoy with Adam; and Adam had failed to establish the uniform child support guideline should not be followed. Judge Edmond’s December 4, 2002 statement of decision states: “The Court finds it is appropriate to apply in this case the well-established principles (1) that the child’s need is measured by the parent’s current station in life, (2) that where the child has a wealthy parent that child is entitled to and therefore needs something more than the bare necessities of life, (3) that where the supporting parent enjoys a lifestyle that far exceeds that of the supported parent, child support must reflect the more opulent lifestyle even though it may benefit the supporting parent[,] and (4) that child support may appropriately improve the standard of living of the supported parent to improve the lives of the children. ([Fam. Code, § 4053 subds. (a) & (f); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 293-294; In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 129; In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 552].)” In addition, Judge Edmon ruled that Adam failed to demonstrate that it was in the children’s best interests to impute income to Jami for purposes of determining the child support level.
C. The July 15, 2005 Child Support Order
Adam did not appeal from the November 8, 2002 child support order. Rather, on December 30, 2004, Adam filed an order to show cause for modification of child support. Adam asserted Jami had misrepresented to Judge Edmon a need for more child support so the twins could receive a more comparable lifestyle to the one provided for them by Adam. Also, Adam disagreed with the manner in which Jami conducted her financial affairs. The order to show cause alleged that: Adam and Jami share joint equal legal and physical custody; Adam is now married to Trina Venit; and they live with Trina’s daughter and their two children, Olivia and Matthew. Jami is married to Patrick Patterson, who is employed by the Los Angeles Fire Department. Patrick and Jami live with his two minor children and the twins. Adam argued the child support should be reduced to $6,000 per month for the twins because: Jami was misusing the child support; Jami was receiving more child support than she reasonably needed and was supporting her new husband and his children; and Jami had failed to return to gainful employment to contribute to the twins’ or her own expenses.
In support of his request to modify the child support order to reduce his payments to $12,000 per month, Adam filed the declaration of Susan Miller. Ms. Miller, a vocational counselor, interviewed Jami in November 2001 and prepared a report in December 2001. Ms. Miller believed Jami could obtain employment as an event planner with an earning capacity of $55,000 to $60,000 per year. Ms. Miller’s opinion was based on the 2001 data as well as market conditions. At the March 23, 2005 hearing, Judge Steinberg noted that Ms. Miller’s declaration was predicated on an interview which was conducted several years earlier. Judge Steinberg explained the issue of Jami’s employment was being raised in a backhanded context because Judge Edmon had previously considered the issue. Adam’s counsel, Vicki Greene, then argued that the purpose of Ms. Miller’s declaration was to establish that Jami should be working. Rather, according to Ms. Greene, Adam was not asserting that income should be imputed to Jami. This was because, even if $50,000 income were imputed to her, it would not affect the guideline amount by more than $300 or $400. Judge Steinberg ruled Ms. Miller’s declaration was irrelevant.
Also in support of his order to show cause, Adam detailed instances of personal animosity. Adam complained that Jami and her new husband gave “generous” contributions to the Stephen S. Wise elementary school where the twins as well as Patrick’s children attend. According to Adam, Patrick’s children attended the school even though they are not Jewish. Adam believed the support payments were paying for Jami and Patrick to enjoy a generous lifestyle. Adam declared: “I believe I got hit very hard by the Court in 2002, too hard. The Court ordered me to pay child support of more than $26,000 per month. In addition, I pay one-half of our children’s private schooling, medical, etc. . . . It is just that [Jami] convinced the Court that she needed more money to buy a new house, join a country club, travel, etc. My income also had increased dramatically, from about $1 million (which was the highest year of my marital income and in the last year of our marriage) to more that $3.6 million gross per year.” According to Adam, Jami did not do what she said that she would do if the money were awarded to her. As previously noted, Adam did not appeal from the November 8, 2002 order directing he pay $26,971 per month.
Adam reiterated that he did not want to have the funds paid for support to benefit Jami and her new family. Adam admitted he had purchased a new home in Beverly Hills but stated he had earned the right to do so. According to Adam, Jami wanted to have, but was not entitled to share, the same lifestyle that he was accustomed to having. Because Jami did not actually purchase a new home and take the twins on vacations other than to Hawaii, Adam claimed that his support obligation should be reduced. Adam further anticipated that his income was likely to increase even more in the future but believed that his earning capacity should not require him to pay more support. Adam believed that Jami refinanced her home so that she could save some of the child support for the time when it terminates.
Adam also attached the declaration of certified public accountant David J. Swan in support of the order to show cause. Mr. Swan declared that, based on Jami’s financial records, she had spent only an average of $14,388 per month on the twins for the past 20 months. Mr. Swan concluded: “The present child support order appears to exceed the needs of the supported children even when 100% of the residence expenses are attributed to them. Furthermore, the present order exceeds the $24,396 adjusted average monthly living expenses of [Jami’s] entire household, and it appears that [Jami’s] husband contributes a minimal amount toward the household operating expenses.”
In response to the order to show cause, Jami argued Adam had failed to establish a material change of circumstances between the existing November 8, 2002 order and the current order to show cause filed on December 30, 2004 to justify a reduction in child support. Rather, Jami argued the only change in circumstances justified an increase in the amount of child support. Jami cited evidence that: since the November 8, 2002 child support order was entered, Adam’s income was substantially higher; his standard of living had greatly increased; and Jami’s standard of living had increased since the November 8, 2002 order. Jami further argued: that the issues raised by Adam did not establish a material change in circumstances; the issue concerning “disguised spousal support” had been raised, litigated, and adjudicated against Adam by Judge Edmon in 2002; and Judge Steinberg should focus on Adam’s ability to pay and his standard of living.
Jami declared that she had spent the child support for the benefit of her children. As they grew older, their expenses increased. Adam had enhanced the quality of his lifestyle by doubling the size of his home, taking the children on lavish Hawaii vacations, and driving the twins around in new extravagant vehicles. Even with the increase in child support since the November 8, 2002 order, there remained a huge disparity between the lifestyle the children had with their mother and the one they had with their father. According to Jami, the children commented on the disparity. Michael, one of the twins, stated the mother only drives an Escalade while their father drives a Rolls Royce. Michael also stated that Adam’s backyard is as big as a football field. Michael explained that it is so much bigger than Jami’s backyard. Sarah wanted her soccer friends to go to her father’s home to see how “cool” it was. Both twins stated that they wanted gates around Jami’s property because they live in a gated community with their father. They said they would feel much safer with a gate. In 2003, Adam sold his 5,500 square foot home in Encino and purchased an 11,000 square foot Beverly Hills estate. Adam also acquired the lots across the street and below the main house. The twins each have their own bedroom and own bathroom at their father’s home.
Jami declared that she did not separate any of her income from all sources including child support payments. She also received court ordered monthly payments to reimburse her for: attorney fees; accounting fees; child and spousal support arrears; and child related reimbursements. Jami did not actually receive a child support payment of $26,971 from Adam until August 2004.
Jami married Mr. Patterson in 2003. Mr. Patterson and his two children live in her house. According to Jami, she pays all the household expenses because it is her house. Mr. Patterson, who is a firefighter, contributes $1,000 per month to a joint account. Mr. Patterson gives Jami $600 a month in cash. Mr. Patterson usually pays for the family meals when they go out to dinner. He pays for the lease on a Mercedes and groceries for the entire family. Mr. Patterson pays for his and his children’s share of family vacations.
Jami also disputed Mr. Swan’s professional opinion that her household living expenses were only $24,396. Jami presented evidence that the household expenses were $44,436. Andrew Hunt, a certified public accountant, explained Mr. Swan’s opinion failed to include all expenses and deductions. Mr. Hunt declared Mr. Swan did not utilize general ledgers which contained Jami’s actual 2004 expenditures. Nor, according to Mr. Hunt, did Mr. Swan include expenditures from bank accounts. Mr. Hunt compared actual general ledgers and Jami’s bank statements for the year 2004. Mr. Hunt concluded that Mr. Swan had not included about $325,000 in expenses. Mr. Hunt concluded that the twins’ total living expenses are $29,521 per month. Mr. Hunt concluded that Adam’s living expenses were $84,707 per month. Yet, according to Mr. Hunt, Adam’s controllable cash flow is $339,500 per month.
Mr. Hunt prepared exhibit No. 9 which showed that Jami had received child support totaling $647,305 plus $515,485 in other payments for the years 2003 and 2004. The $515,485 included payments from Adam of: $171,400 for reimbursement of legal fees; $119,031 for child support arrearages; and $9,851 in other reimbursements. The remaining $215,203 came from the following sources: $115,597 from loans; $21,572 from Mr. Patterson; $43,917 in tax refunds; $20,657 in dividend income; and $3,333 in other income.
Jami also submitted as exhibit No. 23, a calendar which summarized the time the parties spent with the twins. She declared that she kept a contemporaneous calendar of the time she spent with the twins over the two-year period between 2003 and 2004. Jami calculated the twins spent 57 percent of their time with her. The twins spent 41 percent of their time with Adam.
In reply, Adam submitted, among other things, a new declaration by Mr. Swan. In the new declaration, Mr. Swan admitted that his former analysis was incomplete. Mr. Swan analyzed in depth the living expenses of Jami, the twins, and the extended family. In Mr. Swan’s opinion, even when 100 percent of the residence expenses are attributed to the twins, the child support order exceeded the needs of the supported children by a wide margin. Mr. Swan estimated that, if 100 percent of the residence expenses are attributed to the twins, the total expenditures per month were $17,965.
After the hearing, Judge Steinberg took the matter under submission and on May 13, 2005 issued a tentative statement of decision and factual findings. We set forth in depth Judge Steinberg’s findings because of the issues raised by Adam in this appeal. The decision provides: “1 [Jami] Has Demonstrated a Material Change of Circumstances Which Justifies A Change in Child Support. The Court finds that Petitioner has met her burden of proof of demonstrating by a preponderance of the evidence and as a matter of law that there has been a material change of circumstances since the order on Order to Show Cause Modifying Judgment of Dissolution was entered November 8, 2002 (‘Amended Judgment’), which justifies a change in the amount of Guideline Child Support, namely: [¶] (A) [Adam’s] net disposable income has increased from $169,308 or $2,031,696 per year at the time of the Amended Judgment to $193,850 per month or $2,326,200 per year currently; and [¶] (B) The approximate percentage of time [Adam] has actual primary physical responsibility for the minor children has decreased from 44% at the time of the Amended Judgment to 42% currently, with [Jami’s] time increasing from 56% to 58%. [¶] 2. Guideline Child Support. The Court makes the following factual and evidentiary findings in support of its determination of the amount of current Guideline Child Support for the twin children of the marriage, Michael and Sarah Venit, . . . [¶] (A) The amount of child support under the Statewide Uniform Child Support Guideline formula is $31,603 per month for the minor children. [(Fam. Code § 4055.)] [¶] (B) [Adam’s] current gross income is $340,202 per month or $4,082,424 per year for the twelve month period ended December 31, 2004, which consists of (a) $304 per month or $3,649 per year in taxable interest income from investment accounts and (b) $339,898 per month or $4,078,776 per year in taxable self employment income, including the following types of income and amounts: (1) $321,250 per month or $3,855,000 per year in partner draws (draws, income tax payments on his behalf, bonus payments, advances and loans forgiven) from Endeavor Talent Agency; (2) $15,315 per month or $183,780 per year in partner draws from EA Asset Holdings; and (3) $3,333 per month or $40,000 per year in profit sharing from Endeavor Talent Agency. [(Fam. Code § 4058, subd. (a).)] [¶] (C) [Adam’s] allowable deductions from his gross income are as follows: (1) state and federal income tax liability of $146,352 per month or $1,756,224 per year, which includes the following tax deductions: (a) $4,058 per month or $48,696 per year as home mortgage interest; and (b) $6,640 per month or $79,680 per year as real estate taxes. [(Fam. Code §§ 4056, subds. (b)(3) & 4059.)] [¶] (D) [Adam’s] current net disposable income is $193,850 per month or $2,326,200 per year. [(Fam. Code §§ 4056, subd. (a)(1) & 4059.)] [¶] (E) [Adam’s] actual federal income tax filing status is ‘married filing joint.’ [(Fam. Code § 4056, subd. (b)(2).)] [¶] (F) The approximate percentage of time [Adam] has primary physical responsibility for the minor children compared to [Jami] is 42%. [(Fam. Code § 4056, subd. (b)(4).)] The Court finds that [Jami] provided sufficient evidence of the actual time each party had primary physical responsibility for the minor children . . . and that [Adam’s] proffered interpretations of the existing child custody order on this issue are incorrect. The Court finds that [Jami’s] evidence established by preponderance of the evidence that [Adam’s] defacto primary physical responsibility for the minor children on weekends was less than the dejure amounts stated in the existing custody order and that no language in the existing order would permit the Court to disregard such evidence (as opposed to changes in weekday time which were expressly agreed by the parties not to affect custodial time percentage) in making this determination. [¶] (G) [Jami’s] gross income includes the following sources: (1) $943 per month or $11,316 per year in taxable interest and dividends. [(Fam. Code § 4058.)] [Jami] is claiming four (4) dependents and her new spouse has wages and salary of $9,833 per month. [(Fam. Code §§ 4056, (b)(3) & 4059.)] [¶] (H) [Jami’s] current net disposable income is $844 per month or $10,128 per year. [(Fam. Code §§ 4056, subds. (b)(1) & 4059.)] [¶] (I) [Jami’s] actual federal income tax filing status is ‘married filing joint.’ [(Fam. Code §§ 4056, subd. (b)(2).] [¶] 3. [Adam’s] Failure to Meet His Burden of Proof of Demonstrating that Special Circumstances Exist to Deviate from Guideline. [Adam] has failed to demonstrate by a preponderance of admissible evidence and as a matter of law that it is appropriate on the facts and circumstances of this case to deviate from the current Statewide Uniform Child Support Guideline in this case under Family Code Sections 4057 [subdivisions (b)(3) and (b)(5)] in accordance with the following findings of fact and law. [¶] (A) [Adam] has an extraordinarily high income within the meaning of Family Code Section 4057[, subdivision (b)(3)]. However, [Adam] has failed to meet his burden of proof showing by a preponderance of the evidence that the presumptively correct amount of child support determined under the Guideline formula would be unjust or inappropriate in this case and would exceed the reasonable needs of the children consistent with the principles set forth in Family Code Section 4053. [See [(Fam. Code §§ 4057, subd. (a), (b) & 4053 subd. (k); see e. g. In re Marriage of Hubner (‘Hubner II’) (2001) 94 Cal.App.4th 175, 183.)] [¶] (1) The Court has considered the lifestyle and standard of living of [Adam], who is the high earning parent, as part of its consideration of the appropriate level of child support: ‘A child is entitled to be supported in a style and condition consummate with the position in society of its parents.’ [(Hubner II, supra, at 187.)] Where one party has an income capable of providing a lifestyle much in excess of the other parent, the children are entitled to life at a level closer to the ‘more opulent lifestyle,’ even if that level of support may ‘as a practical matter, produce a benefit for the custodial parent.’ [(See In re Marriage of Hubner (‘Hubner I’) (1988) 205 Cal.App.3d 660, 668; Fam. Code, § 4053, subds. (f) & (g).)] [Adam] has not met his burden of proof of showing by a preponderance of the evidence what the reasonable needs are of these two children whose high earning parent has the income and lifestyle of [Adam]. [Adam] has not provided any competent, admissible evidence or indeed any cognizable legal argument as to what amount would meet the reasonable needs of these two children whose high earning parent’s after-tax income exceeds $190,000 per month. With regard to the Court’s consideration of the factor of [Adam’s] lifestyle and standard of living in determining the appropriate level of child support, [Adam] has failed to address the guiding principles set forth in Family Code Section 4063[, subdivisions] (f) and (g). [¶] (2) Assuming arguendo that the current reasonable needs of the children could be determined by allocating the historic expenses of support recipient’s household between the recipient and the children in an appropriate case (but see Marriage of Cheriton[, supra,] 92 Cal.App.4th [at p.] 293), and that this was an appropriate case to do so, the Court finds the testimony of [Jami’s] expert, Andrew Hunt, CPA, to be more persuasive than that of [Adam’s] expert, David Swan, CPA, and it would adopt Mr. Hunt’s opinion in this regard. Mr. Hunt opined that [Jami’s] actual average monthly family living expenses were $44,436 for the 24 month period ended December 31, 2004, and that the average monthly children’s expenses, if such could be determined by allocation, were $29,521 for the same period. ([Jami’s] Exhibit 7.) The Court rejects Mr. Swan’s approach to evaluating the actual expenditures of [Jami] and the children finding it to be arbitrary and sometime clearly incorrect. The Court finds that [it] is appropriate to allocate all of [Jami’s] housing expenses (determined by Mr. Hunt to be $15,104 per month on average over the period), including payments on a 15 year mortgage, to the children’s reasonable needs, where such amount is far less than the mortgage payments alone on [Adam’s] house (determined by Mr. Hunt to be $25,448 per month). [Citation.] [¶] (3) The argument that the reasonable needs of the minor children can be measured by actual expenditures might be compelling in the proper case, such as where Guideline child support based on the income of an extraordinarily high wage earner had been paid and the recipient of support had spent far less than the amount of Guideline child support over some considerable period of time. No published appellate decision has considered such facts, but such an argument is not persuasive in this case in any event, where (a) the period of time over which the Guideline child support amount under the Amended Judgment has been actually paid is only two years, (b) the preponderance of the evidence is that [Jami’s] actual total monthly expenses were well in excess of either the amount of Guideline child support ordered under the Amended Judgment (i.e. $26,971 per month) or the amount determined currently under the Statewide Uniform Child Support Guideline formula (i.e., $31,603 per month), and (c) the preponderance of the evidence is that the difference, if any between the allocated expenditures of the children and either the old or the new Guideline child support amount is not very great. [¶] (4) The Court finds that major expenditures, for example B’nai Mitzvot, are on the immediate horizon for the minor children for which [Jami] may wish prudently to provide a reserve from current support. The Court rejects [Adam’s] argument, that he should be permitted to pay less than the applicable Guideline child support amount to [Jami] and then pay directly the entirety of these upcoming special expenses, as inappropriate for the reasons stated on the record by [Jami’s] counsel at the hearing. For the same reasons, the Court declines to second-guess [Jami’s] day-to-day decisions concerning housing and other expenses. This Court is not authorized under the Family Code, nor would it be good fiscal or public policy for the Court, to assume the role of auditing, second-guessing and micro-managing the Guideline child support recipient’s discretionary household budget expenditures. Rather, the Court appropriately focuses its attention on the standard of living that the extraordinarily high income earning parent is providing to the children and the extraordinary income earner’s ability to pay support to the less financially advantage parent in order ‘to minimize significant disparities in the children’s living standards in the two homes.’ [(Fam. Code § 4053, subd. (g).)] The preponderance of the evidence in this case is that [Adam] is providing an increasingly luxurious standard of living for the children when they are with him, and that he is able to pay the increased Guideline child support amount to ‘appropriately improve the standard of living of [Jami’s] household to improve the lives of the children’ when they are with her. [(Fam. Code § 4053, subd. (f).)] [Adam] has provided no cognizable legal authority, no compelling facts and no persuasive policy reason in support of his argument that the support payor rather than the support recipient should control and decide how to best utilize the Guideline child support funds awarded to the support recipient. Indeed, the case law on the subject is to the contrary. [(Marriage of Chandler[, supra,] 60 Cal.App.4th [at p.] 130.)] [¶] (B) [Adam] has failed to meet his burden of proof of showing by a preponderance of the evidence that application of the presumptively correct amount of child support determined under the Guideline formula, consistent with the principles set forth in Family Code Section 4053, would be ‘unjust or inappropriate due to special circumstances in this particular case.’ [Citation.] [¶] (1) [Adam] does not contend that any of the special circumstances statutorily recognized under Section 4057 [subdivision] (b)(5)(A) to (c) exist in this particular case. Instead, [Adam] argues that ‘special circumstances’ exist in this particular case, (a) alleging that [Jami] has diverted or misused child support, and (b) because [Jami’s] financial contribution to the support of the children is small relative to his contribution. The Court rejects both of these arguments as unsupported by the facts adduced by a preponderance of the evidence and/or by the applicable law. [¶] (2) The Court finds by a preponderance of the evidence and as a matter of law that [Jami] did not misuse child support funds. The Court finds the testimony of [Jami’s] expert, Mr. Hunt, more persuasive than that of [Adam’s] expert, Mr. Swan, in this regard. The Court finds that during the relevant period, [Jami] had over $500,000 in funds available to her from sources other than current child support. The Court finds that [Jami’s] total average monthly family living expenses (i.e., $44,436 for the 24 month period ended December 31, 2004) were well in excess of the amount of monthly Guideline child support (i.e., $26,971) being paid to [Jami] under the Amended Judgment. [Jami] did spend funds for herself personally and for persons in her household other than the children who are the subjects of this child support proceeding, but [Adam] failed to establish by the preponderance of the evidence that such purchases came from his current child support payments as opposed to other deposits into her account from personal and institutional loans, fee contributions from [Adam], reimbursements from [Adam] and support arrears from [Adam]. [Adam’s] expert did not trace any single transaction to [Jami’s] receipt of monthly child support. The Court expressly rejects [Adam’s] argument that the other deposits were not [Jami’s] money to spend as she desired. There is no legal basis for said claim, nor was one cited by [Adam]. [¶] (3) To the extent that child support payments received by [Jami] were used to pay for such ‘communal’ assets as the house, home improvements and a washer and a dryer, that is the kind of ‘incidental benefit’ to the custodial parent that the courts have held do not make an award of guideline child support unjust or inappropriate. As Section 4053, [subdivision] (f) states: ‘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.’ [Citations.] [¶] (4) The Guideline child support amount is not unjust or inappropriate simply because [Jami] does not contribute as much as [Adam] to the support of the minor children from her other income sources. The Statewide Uniform Child Support Guideline formula takes into account the incomes of both parents and that was done in this case. [Adam] conceded at the hearing that the imputation of any reasonable amount of income to [Jami] would not make much difference in the Guideline child support amount. No imputation of income to [Jami] was sought by [Adam] at the hearing, which moots [the] request for findings of fact and law on [Jami’s] earning capacity. The fact that the application of the formula to a high income earner produces a child support amount which renders any material actual out-of-pocket expenditure by the other parent unlikely does not change the plain language of the Family Code and does not, of itself, provide grounds for a downward departure from the presumptively correct Guideline child support amount.” (Original italics.)
Adam objected to the tentative statement of decision by rearguing the issues raised in his order to show cause for child support modification. Adam further argued that Judge Steinberg had improperly resolved the issues in the matter by failing to adequately address the issues raised by him. Adam also contended Judge Steinberg should have credited Mr. Swan’s conclusions. On July 15, 2005, Judge Steinberg entered an order directing Adam to pay Jami the guideline support sum of $31,603 per month per child. After posting a bond on July 26, 2005, Adam filed a notice of appeal from the modified child support order on August 11, 2005.
C. The Litigation Costs Award
In a June 23, 2005 minute order, Judge Steinberg directed the parties to file requests for litigation costs by July 19, 2005 and responses by August 2, 2005. Adam filed a request for attorney fees and costs as an offset of $58,000 against any fees he might be ordered to pay. He argued an offset was warranted because Jami caused him to incur attorney fees before the issue of either party’s request for modification of support was raised before Judge Steinberg. Adam argued he should not be required to pay litigation costs for the period of time between September 2003 and July 2004 when there was no ongoing litigation between the parties. He further argued, during the applicable period of time: Jami was the party responsible for the fees because she was not complying with various court orders which led to disputes; Judge Steinberg found that Jami had over $500,000 of her own funds during the applicable period of time which enabled her to pay her own fees; and Adam had no notice that Jami would ask for an award of litigation costs. In support of his offset request, Adam attached his own declarations and two by his attorney, Ms. Greene outlining the disputes between the parties. Adam’s declaration which had been executed in December 2004 stated, among other things, that Jami engaged in inappropriate behavior during August 2004 while he was on vacation with the children in Hawaii including bringing ex parte motions. He outlined disputes over Father’s day, weekends, and visitation exchange points. He also restated his motives for bringing the order to show cause to address his claims that Jami misused child support and had falsely represented she intended to purchase a new home in 2002. Adam continued to express dissatisfaction with the November 8, 2002 child support order.
Ms. Greene stated the parties were engaged in a dispute over the drop off and pick up points for the children sometime in August 2004 after Adam moved to Beverly Hills. The declaration then outlined the very litigious aspect of the parties’ dispute between August and December 2004. In a second declaration dated March 16, 2005, Ms. Greene addressed comments by Jami’s counsel as to the parties’ dispute between August 2004 and February 2005.
Jami requested litigation costs of $266,778.48 consisting of: $199,543 in legal fees; $60,136 in accounting fees; and $7,100 in bookkeeping fees. In support of her request she filed her own declaration and the declarations of: her counsel Scott Weston; her accountant, Mr. Hunt; and a bookkeeper, Marilyn Anderson. Jami also attached exhibits supporting her litigation costs request.
On August 22, 2005, Judge Steinberg issued a ruling on the request for litigation costs directing Adam to pay Jami $246,268.54. The ruling contains a statement explaining the basis of Judge Steinberg’s decision. On August 31, 2005, Adam filed objections to Judge Steinberg’s ruling and a proposed statement of decision. On September 30, 2005, Judge Steinberg issued a final statement of decision on the litigation costs which states: “[Adam] seeks to offset against any fees he may be ordered to pay the amount of $58,000 which was incurred by [Jami] before the issues of either party’s request for modification of child support was raised with the Court. He claims that for the period September 2003 to December 30, 2004 [Jami] is not entitled to fees because either there was no ongoing litigation between the parties or [Jami] engaged in conduct (and incurred fees) unrelated to the dispute that was ultimately determined by with respect to [Adam’s order to show cause]. [Adam] also seeks an offset against the attorney’s fees and costs awarded in connection with [Adam’s order to show cause] on the grounds that [Jami] engaged in conduct which caused those fees to escalate. [¶] In reaching its decision concerning these requests the Court considered the financial data provided by the parties including their income and expense declarations and the reports and declaration of their respective forensic accountants. The Court also considered each party’s written settlement proposals. . . . [¶] The Court makes the following findings based upon the preponderance of the evidence. [¶] Both parties claim that communication with other is impossible and, accordingly they are required to use the services of lawyers to deal with even trivial disputes. Both parties and their lawyers claim that the other has acted in bad faith and in a fashion to increase the legal fees. From a review of the declarations filed by both sides, there appears to be some truth to the positions of both. [Jami] has not sought fees under Family Code Section 271 nor has [Adam] made such a claim. . . . [Jami] . . . seeks fees under Family Code Section 2030. That section provides that 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.’ [Subdivision] (b) of that section provides that the fees and costs may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding. [¶] There are multiple ‘proceedings’ for which attorneys’ fees are sought by [Jami]. Section 2030(b) contemplates that fees may be awarded even before an order to show cause is filed. The Court expressly reserved jurisdiction to award fees on custody issues after March 31, 2002 in its November 8, 2002 Order. Furthermore, the Court expressly reserved jurisdiction to award fees in connection with the ex-partes brought by the parties in August 2004 and September 2004. Therefore, all the fees incurred by [Jami] for which she seeks payment by [Adam] are recoverable and [Adam’s] objection that they are not because there was no ‘ongoing litigation’ until December, 2004 is not well taken. [¶] Among the fees sought by [Jami] are those associated with correspondence regarding enforcement of the judgment including pick-up and drop off, tutoring, reimbursements, etc., temple dues and similar matters. These fees, incurred from September 2003 to May 2004, total $14,250.00. There are also fees associated with [Jami’s] proposed Orders to Show Cause to modify the pick-up and drop off location, reimbursements, temple dues and related attorneys’ fees totaling $13,975.12. There are fees totaling $317.50 for ‘paralegal document control’ incurred between September 2003 and July 2004. There are fees associated with [Jami’s] ex parte for enforcement of the court order for travel and her response to [Adam’s] ex parte seeking a restraining order totaling $8,393.50 incurred during August and September 2004. There are also fees in the amount of $6,728 for discovery related to attorneys’ fees reserved from the August hearing on the ex-partes. Finally, there are fees of $96,016.00 related to [Adam’s order to show cause]. . . . [¶] In assessing a request for fees and costs under Section 2030, the Court must take into account the incomes and needs of the parties. However, as provided in Family Code Section 2032, ‘Financial resources are only one factor for the court to consider in determining how to apportion the overall costs of the litigation equitably between the parties under their relative circumstances.’ Furthermore, the Court first must determine what fees are ‘reasonably necessary.’ [¶] The fees incurred in connection with the correspondence regarding miscellaneous issues ($14,250) and in connection with a potential [order to show cause] regarding some of those issues ($12,895 and $1,080) appear to be excessive in light of the issues involved. [Jami] claims that she had to incur fees because [Adam] would not talk to her, yet the billing invoices reflect many communications between counsel for both sides during the period. Therefore, these simple matters should not have required almost $30,000 in fees to address and resolve. Only half of those fees- i.e., $14,112.50 –appears to be reasonably necessary. On the other hand, the work in connection with the ex-partes and with [Adam’s order to show cause] was all reasonably necessary. [¶] [Adam] is a very high earner and has the ability to pay the fees of [Jami]. [Jami] has need for payment of some, but not all, of her fees. She once worked and is capable of doing so again. No income was sought to be imputed to her in the calculation of child support because of the minimal difference such income would make in the calculation of ‘guideline’ support, but that does not foreclose the Court from considering the fact, never contested, that she has earning capacity. Her husband is employed and contributes to her support. She has most of her living expenses paid for by reason of the child support ordered for the twins of the parties. Her housing and utilities are paid for this way. Therefore, while she has a need for contribution to her attorneys’ fees, she is certainly able to bear the cost of some of them, particularly if she would realize her earning capacity by returning to work. As noted above, the reasonably necessary fees associated with dealing with [Adam] on ongoing issues related to custody and visitation, including work related to her efforts to make changes in the arrangements, total $14,112.50. This averages to less than $1,000 per month for the period during which these fees were incurred (September 2003 to July 2004). While [Adam] clearly has the ability to pay all of these fees, it is equitable in the court’s view in light of her ‘need’ and other factors, that [Adam] pay only one half of this amount as a contribution to [Jami’s] fees, i.e. $7,056. [¶] The remainder of the reasonably necessary fees and costs were incurred in connection with either the ex-parte brought by [Jami] (on which she prevailed) or the ex-parte brought by [Adam] (on which he did not prevail) and [Adam’s] request for a modification of child support. [Jami] prevailed in all of these matters. [Adam’s order to show cause] involved a great deal of discovery and work by the lawyers and the accountants on both sides. It raised complex issues of both fact and law. In light of the very large disparity between the incomes of the parties (even assuming some earning capacity on the part of [Jami]) and in light of the nature of the matters for which the fees were incurred, [Adam] is ordered to pay all of such fees. The legal fees, after deduction for the fees found not to be necessary ($14,112.50) and those which [Jami] has been ordered to bear herself ($7,056), total $149,469. Costs were $28,904. Accountant’s fees were $60,795 and Ms. Anderson’s fees were $7,100. All of those fees were also reasonably necessary.”
On September 30, 2005, Judge Steinberg entered an order directing Adam to pay Jami $246,268.54 towards Jami’s litigation costs for the order to show cause and ensuing litigation. Adam appealed from the attorney fee award on October 17, 2005. We ordered the child support modification and litigation costs appeals consolidated on January 19, 2006.
III. Discussion
A. The Child Support Order
1. Adam’s contentions
Adam raises a number of theories as to why the current child support order must be reversed including that he is entitled to utilize Jami’s historical spending as a basis for determining the twins’ needs. In a shotgun approach, Adam argues that Judge Steinberg’s order refusing to decrease the amount of the statutory support guideline must be reversed. The following arguments are presented: he is an extraordinarily high income earner and the amount generated by the formula exceeds the needs of the twins (§ 4053, subd. (k)); Jami is not contributing to the support of the twins commensurate with her custodial time (§§ 4053 & 4057, subd. (b)(5)); Judge Steinberg failed to make any finding of what Jami’s earning capacity is for purposes of section 4053; Judge Steinberg ignored $500,000 of Jami’s money as a source for a contribution from Jami in its guideline calculation; Judge Steinberg erroneously found that Adam had conceded that there was no need to determine a contribution from Jami; Judge Steinberg unfairly shifted the entire burden for supporting the twins onto Adam; Judge Steinberg ignored the rebuttable factors provided in section 4057 for deviating from and awarding less than the guideline amount; Judge Steinberg misinterpreted section 4057 to mean that Jami is entitled to more child support based on Adam’s spending habits rather than the actual needs of the twins; consideration of Adam’s higher mortgage should have created a special circumstance for deviating from the guidelines rather than a basis to award Jami more child support so she could create an improper savings account; Judge Steinberg ignored or failed to consider a number of factors such as Jami’s unemployment and credibility; Judge Steinberg awarded Jami enough support to remodel her home and cover extra monthly voluntary principal payments; Judge Steinberg failed to consider that Jami was awarded more child support in 2002 because she said the twins needed a bigger home but decided to remodel her home instead; the evidence including documents filed for the November 8, 2002 child support order did not support that Jami had spent $500,000 of her own money; Judge Steinberg failed to actually assess the twins’ needs which is not intended to match the lifestyle of the wealthier parent; Judge Steinberg misapplied section 4061 additional child support expenses as guideline needs; Judge Steinberg misinterpreted In re Marriage of Cheriton, supra, 92 Cal.App.4th at page 293, as impeding her discretion to review Jami’s historical use of child support from the date of the November 8, 2002 child support order; an indirect benefit of child support cannot be spousal support; Adam rebutted the statutory presumption that the guideline amount was correct by producing evidence which Judge Steinberg disregarded in favor of Jami’s inaccurate evidence; and Adam should not pay more child support due to the necessity for business travel.
It should be noted that Adam’s opening brief contains numerous arguments which are based on misstatements of the law and citations to unpublished appellate court opinions. Furthermore, as illustrated by the lengthy and factual context of Adam’s claims of errors, the crux of most of his assertions are disputes with Judge Steinberg’s resolution of disputed factual matters. As can be noted, notwithstanding the plethora of claimed insufficiencies in Judge Steinberg’s decision, the only real issues here are whether she abused her discretion in determining that the November 8, 2002 child support order should not be modified downwardly; but rather should be increased due to changed circumstances.
2. The guidelines and review standards
Child support is “a highly regulated” area of California law. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1236-1237; In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 282-283.) Section 4055 requires courts to utilize a mathematical formula for calculating a statewide uniform guideline to determine the appropriate amount of child support. (§§ 4050, 4052, 4053, 4055.) The amount of child support to be paid is calculated based on a formula which considers the parents’ annual gross income (§§ 4055, 4058 ) and annual net disposable income. (§ 4059.) There is a presumption that the guideline amount established by the formula is correct. (§§ 4052, 4053, subd. (k), 4057.) Courts are not allowed to deviate from this formula except in the “special circumstances” set forth in the statutory scheme. (Ibid; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 283.) Section 4052 limits a court’s discretion to vary from the statutory framework by providing: “The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article.” (See In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1237; In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1013.) Thus, where a parent seeks a variance from the statutory guideline, “[T]he only discretion a trial court possesses is the discretion provided by statute or rule.” (In re Marriage of Butler & Gill (1997) 53 Cal.App.4th 462, 465; accord Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407, 1415.) One circumstance allowing for the court to exercise is discretion is where one parent is an extraordinarily high income earner. (§ 4057, subd. (b)(3) .) A child support order including whether a modification is warranted is reviewed for an abuse of discretion. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 283; In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951.)
Section 4053 sets forth principles for courts to follow to implement the statewide uniform guidelines recognizing the child’s right to be supported based upon the parent’s position and society in life. Section 4053 provides: “In implementing the statewide uniform guideline, the courts shall adhere to the following principles: [¶] (a) 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. [¶] (b) Both parents are mutually responsible for the support of their children. [¶] (c) The guideline takes into account each parent’s actual income and level of responsibility for the children. [¶] (d) Each parent should pay for the support of the children according to his or her ability. [¶] (e) The guideline seeks to place the interests of children as the state’s top priority. [¶] (f) 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. [¶] (g) 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. [¶] (h) The financial needs of the children should be met through private financial resources as much as possible. [¶] (i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children. [¶] (j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation. [¶] (k) 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. [¶] (l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.”
Section 4058 provides: “(a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: [¶] (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. [¶] (2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business. [¶] (3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. [¶] (b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children. [¶] (c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.”
Section 4057 provides: “(a) The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered. [¶] (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056: [¶] (1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065. [¶] (2) The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 and the rental value of the family residence in which the children reside exceeds the mortgage payments, homeowner's insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount. [¶ (3) The 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. [¶] (4) A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time. [¶] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: [¶] (A) Cases in which the parents have different time-sharing arrangements for different children. [¶] (B) Cases 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. [¶] (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount.”
3. Adam’s downward modification request
Initially, it must be noted that Adam’s order to show cause sought to modify Judge Edmon’s November 8, 2002 child support order to reduce his support payments from $26,971 to $12,000. Prior to entry of the November 8, 2002 order, the parties litigated the issue of whether the twins’ needs would be met by the guideline support amount. Judge Edmon found the guideline support amount was correct. Adam did not appeal from the November 8, 2002 order ruling that the guideline child support payment amount for the twins was $26,971. The primary changed circumstance was that Adam’s income had actually increased since the November 8, 2002 child support order by approximately $500,000 annually. This is not a basis for establishing a change of circumstances warranting a downward adjustment. As the appellate court in the case of In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 556 explained: “An order of child support ‘may be modified or terminated at any time as the court determines to be necessary.’ (§ 3651, subd. (a).) Statutory procedures for modification of child support ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ [Citations.] The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse. Citation. ¶ ‘Ordinarily, a factual change of circumstances is required for an order modifying support (e.g., increase or decrease in either party’s income available to pay child support).’ Citation. ‘There are no rigid guidelines for judging whether circumstances have sufficiently changed to warrant a child support modification. So long as the statewide statutory formula support requirements are met (Fam. Code, § 4050 et seq.), the determination is made on a case-by-case basis and may properly rest on fluctuations in need or ability to pay.’ Citations.The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.] The reviewing court will resolve any conflicts in the evidence in favor of the trial court’s determination. [Citation.]” (Orig. italics, see also In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1292; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 298.) A trial court has no jurisdiction to modify an existing child support order unless there are changed circumstances which have occurred after the entry of the original order. (In re Marriage of Brinkman, supra, 111 Cal.App.4th at p. 1288; In re Marriage of Mulhern (1973) 29 Cal.App.3d 988, 992.)
The only evidence of changed circumstances were: Adam’s annual income had increased by half a million dollars; the size of Adam’s home had increased; the twins were older; Jami had remarried; and Jami had remodeled and refinanced her home rather than purchasing a new residence. On November 8, 2002, Judge Edmon ruled $26,971 was the correct amount of child support based on Adam’s annual income of approximately $3.6 million. Two years later, Adam sought to decrease his support obligation to $12,000 per month, which was well below the $26,971 child support statutory guideline.
Judge Steinberg did not abuse her discretion when she found Adam failed to establish any of these facts constituted changed circumstances warranting a downward adjustment of the guideline support amount which had been determined on November 8, 2002 to be $26,971. In the absence of material changed circumstances, Judge Steinberg had the discretion to rule that Adam’s modification request was merely an untimely and improper collateral attack on the existing November 8, 2002 child support order. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480; In re Marriage of Mulhern, supra, 29 Cal.App.3d at p. 992.) The contention that Judge Steinberg abused her discretion in refusing to find changed circumstances that permitted a downward adjustment is frivolous. No abuse of discretion occurred.
4. Jami’s modification request
Judge Steinberg granted Jami’s request to modify the child support order to the guideline support amount of $31,603 per month. Adam does not dispute his dramatic increase in income constituted a changed circumstance. Rather, Adam contends Judge Steinberg erred in adjusting the guideline support amount because he is an extraordinarily high income earner. Adam further asserts the guideline amount exceeds the twins’ needs. Adam, however, presented no evidence of what the twins’ actual needs were. Rather, Adam sought to have Judge Steinberg base the child support order on Jami’s spending history. Adam is really asserting that a parent receiving child support is required to periodically account for the use of the funds and the supporting spouse is entitled to dictate how the moneys are used. He has cited no statutory or case law which supports the requirement that the recipient of child support is required to account for the expenditures.
Likewise, there is no authority for his contention he is entitled to manage Jami’s expenditure of child support payments. In any event, authority exists which supports the trial court’s refusal to micro-manage Jami’s expenditure of support funds. (See In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 130 [“The law does not provide for such control. Once the court determines the appropriate amount of child support, the supporting parent has no right to determine whether these funds are used to buy groceries, pay rent or pay for music lessons”]; accord Wilson v. Shea (2001) 87 Cal.App.4th 887, 895-896.) For similar reasons, we disagree with Adam’s argument that Judge Steinberg misinterpreted In re Marriage of Cheriton, supra, 92 Cal.App.4th at page 293. In this regard, Judge Steinberg implicitly complied with the directive that, in implementing the statewide uniform guideline, a trial court is to apply the policy, “The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.” (§ 4053, subd. (j); see In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1038.) If supporting parents are allowed to challenge the spending habits of the recipient of child support on an ad hoc basis, it would encourage litigation and dispute. As this case illustrates, such a rule certainly does not promote fair and efficient settlement of conflicts.
Furthermore, as previously noted, Adam sought a downward adjustment of the guideline support amount from Judge Edmon’s November 8, 2002 finding the guideline amount of $26,971 was correct. The issue of whether Judge Edmon correctly computed the guideline amount of $26,971 cannot be relitigated in this appeal. Rather, the only issue in this appeal is whether Adam rebutted the presumption that the guideline support amount should have been decreased from $31,603 to $26,971. The presumption in section 4057 is only evidence which can be weighed by the trier of fact. (In re Marriage of Mix (1975) 14 Cal.3d 604, 611-612; Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 221; Weil v. Weil (1951) 37 Cal.2d 770, 788.) A disputable presumption may be rebutted by evidentiary fact. It is for the trier of fact to determine whether the proffered evidence outweighs the presumption. (In re Marriage of Mix, supra, 14 Cal.3d at pp. 611-612; Weil v. Weil, supra, 37 Cal.2d at p. 788; Olson v. Olson (1935) 4 Cal.2d 434, 437; In re Marriage of Friedman (2002) 100 Cal.App.4th 65, 72-73; McDonald v. Hewlett (1951) 102 Cal.App.2d 680, 688.) The determination will not be reversed on appeal if supported by substantial evidence. (In re Marriage of Mix, supra, 14 Cal.3d at pp. 612-613; Weil v. Weil, supra, 37 Cal.2d at p. 788; In re Marriage of Friedman, supra, 100 Cal.App.4th at pp. 72-73.) As the party seeking a downward adjustment to the presumptively correct guideline support amount, Adam had the burden of establishing that not only applying the formula to him would be unjust and inappropriate but the lower amount is consistent with the “best interests” of the children. (§ 4056, subd. (a)(3); see also §§ 4053, subd. (k), 4057, subd. (b)(3); In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1328; Marriage of Hubner, supra, 94 Cal.App.4th at p. 183; County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1424.)
Judge Steinbergfound Adam had not rebutted the presumption of correctness by showing that it would be unfair or unjust due to the special circumstances of this particular case. (§ 4057, subds. (a) & (b)(5).) Judge Steinberg found Adam had not proven that Jami diverted or misused child support. Judge Steinberg found in this respect: Jami’s average monthly expenses for the 24-month period were $44,436 and the monthly guideline child support amount was $26,971; Jami had over $500,000 of her own funds available from sources other than the current child support order; Adam failed to prove the purchases Jami made for herself and others came from his child support payments; and Adam had not traced any single transaction to a monthly child support payment. In addition, Judge Steinberg ruled that the amount of Jami’s contributions did not render the guideline child support amount unjust or inappropriate. The ruling in part was based on Adam’s concession that imputing income to Jami would not make much difference in the guideline child support amount.
For similar reasons, Judge Steinberg did not err in implicitly rejecting Adam’s claims that his wealthy lifestyle had no bearing on the issue of the children’s needs. (See In re Marriage of Hubner, supra, 205 Cal.App.3d at p. 667 [the court’s focus for a child of a wealthy parent should be to insure the wealth flows to the youngster and not the custodial former spouse].) Adam claims the trial court failed to properly assess the children’s actual needs by utilizing Jami’s exhibit No. 7, which served as a partial basis for Mr. Hunt’s opinion. According to Adam, Judge Steinberg incorrectly ruled no admissible evidence was offered on the issue of the twins’ needs. Adam argues exhibit No. 7 established that the twins had actual expenses and Jami’s housing costs for herself and others were not segregated to determine the two children’s actual needs. Adam claims that the indirect result of Judge Steinberg’s failure to determine what were the children’s actual needs without regard to Jami’s entire household resulted in his increasing the Patterson household’s standard of living.
As the party seeking a downward adjustment from the statutory guideline support amount, Adam had the burden of showing the amount was not only unjust and inappropriate, but in the twins’ best interest. This he failed to do by producing no evidence of what the twins’ actual needs were. In any event, the twins have a very wealthy parent, Adam, who has an opulent lifestyle. Both parties presented evidence which established that there was a material disparity in the children’s living standards in the two homes. Section 4053, subdivision (g) expressly states that the child support order “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 residences. The Court of Appeal has held: “‘[A] child . . . is entitled to be supported in a style and condition consonant with the position in society of its parents.’ [Citation.]” (McGinley v. Herman (1996) 50 Cal.App.4th 936, 941 quoting Kyne v. Kyne (1945) 70 Cal.App.2d 80, 83; accord In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187.) Thus, where a child has a wealthy parent, the parent’s duty of support of a child “‘does not end with the furnishings of mere necessities if [the parent] is able to afford more.’ [Citation.]” The Court of Appeal has explained: “California law regarding child support is clear: ‘“[A] child . . . is entitled to be supported in a style and condition consonant with the position in society of its parents.” [Citation.] “The father’s duty of support for his children does not end with the furnishing of mere necessities if he is able to afford more.” [Citation.]’ (McGinley v. Herman, supra, 50 Cal.App.4th at p. 941.) ‘“Clearly where the child has a wealthy parent, that child is entitled to, and therefore “needs” something more than the bare necessities of life.”’ (Johnson [v. Superior Court (1998)] 66 Cal.App.4th [68,] 72.)” (In re Marriage of Hubner, supra, 94 Cal.App.4th at p. 187.)
We agree with Judge Steinberg that, even if the evidence established that child support payments were used for household expenses, they were merely “incidental benefits” and neither unjust nor inappropriate. Section 4053, subdivision (f) expressly provides: “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.” (See In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1237; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 283.) The father’s home is in a gated community in Beverly Hills. The twins each have private bedrooms with their own bathrooms in their father’s home. The twins made comments about the disparity in the two homes to their mother. This included comments to Jami about the sizes of the homes as well as their comfort level in not living in a gated community. Judge Steinberg’s order complies with the legislative mandate that a trial court “adhere” to the principles set forth in section 4053 including minimizing disparities in the two homes. Judge Steinberg’s findings that Adam had not established it was unjust or inappropriate to apply the guideline child support amount under the special circumstances in this case is supported by the evidence.
Furthermore, without abusing her discretion, Judge Steinberg could reasonably find that Adam failed to prove the guideline support figure was unjust or that the twins’ needs would be met by a downward adjustment. As previously noted, the parties presented competing opinions on Jami’s expenditures for the years 2003 and 2004. Mr. Swan’s opinion was that Jami spent $14,388 supporting the children. Mr. Swan subsequently retracted his views and issued a revised opinion that, if 100 percent of the residence expenses are attributed to the twins, the total expenditures per month were $17,965. Judge Steinberg, however, found Mr. Swan’s opinion to be “arbitrary” and sometimes “clearly” incorrect. By contrast, Judge Steinberg found Mr. Hunt’s opinion to be more persuasive. Judge Steinberg was more persuaded by Mr. Hunt’s declaration that Jami’s actual average monthly family living expenses were $44,436 for the 24-month period ended December 31, 2004. Mr. Hunt concluded that if the average monthly expenses for the twins could be allocated, they would be $29,521. Judge Steinberg found that it was appropriate to allocate all of Jami’s housing expenses to the children’s reasonable needs. Judge Steinberg’s findings that the children’s needs were not exceeded by the guideline support amount is, thus, supported by substantial evidence. Because Adam failed to meet his burden of showing that the guideline support amount was unjust or inappropriate or that the children’s needs would be met by a downward adjustment, Judge Steinberg’s order must be affirmed.
5. Miscellaneous claims of error
(a) Jami’s support duty
Adam claims the trial court disregarded Jami’s duty to contribute to the support of the twins as required by section 4053. Adam refers to certain legal principles set forth in section 4053: “In implementing the statewide uniform guideline, the courts shall adhere to the following principles: [¶] . . . (d) Each parent should pay for the support of the children according to his or her ability. [¶] . . . (h) The financial needs of the children should be met through private financial resources as much as possible. [¶] (i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.” We disagree with Adam that Judge Steinberg failed to give any consideration to Jami’s support duty. Judge Steinberg made express findings as to Jami’s income and sources of funds. Judge Steinberg considered Jami’s income and sources of funds in calculating the guideline support amount.
(b) imputation of income to Jami
Adam argues Judge Steinberg failed to impute income to Jami. At the hearing on the order to show cause, Adam’s counsel explicitly stated, “We’re not suggesting to impute income to her. Because it wouldn’t affect the dissomaster anyway.” Given this concession before Judge Steinberg, Adam may not now request the imputation of income to Jami. (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640; In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) In any event, a trial court has discretion to impute income to a parent based on earning capacity. (§ 4058, subd. (b); In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 37; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 301.) Judge Steinberg ruled that no income should be imputed to Jami. The conclusion was based in large part on a concession by Adam’s counsel. As noted, the “dissomaster” result would be the same if there was the imputation of income to Jami. Judge Steinberg also noted that the issue of imputing income to Jami had been raised, litigated, and rejected by Judge Edmon in 2002. Moreover, the only current evidence offered of any income which should be imputed to Jami was in Ms. Miller’s declaration. Judge Steinberg struck Ms. Miller’s declaration because it was irrelevant based on Adam’s concession and it was based on information that was several years old. Nonetheless, the imputation of income is a matter of discretion. Adam has failed to demonstrate Judge Steinberg abused her discretion. (In re Marriage of Graham (2003) 109 Cal.App.4th 1321, 1326; In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.)
(c) application of section 4057, subdivision (b)(5)(B)
Adam argues Judge Steinberg’s order violates section 4057, subdivision (b)(5)(B). Adam argues that his expensive mortgage created a special circumstance which warranted a downward adjustment from the guideline level. Adam relies on section 4057, subdivision (b)(5)(B) which states: “The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056: [¶] . . . (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: . . . [¶] (B) Cases 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.” (As noted section 4057, subdivision (a) refers to the guidelines in section 4055, subdivision (a).) Adam’s assertion that merely because his mortgage is higher, as a matter of law, a downward departure is mandated finds no support in any decision or the statutory language. No doubt, there may be circumstances where a supporting parent pays very high housing costs. And it is conceivable that a supported parent pays a lower mortgage. But it is not the law that in every case where a supporting parent has a extraordinarily high income, she or he is entitled to a downward departure—section 4057, subdivision (b)(5)(B) never says that. We find no error in Judge Steinberg’s refusal to find Adam’s higher mortgage warranted a downward departure from the support guideline.
Moreover, there is no merit to Adam’s argument that the order under review permitted Jami to make increased mortgage payments on her residence thereby creating an improper savings account and giving her what amounts to disguised spousal support. First, the disguised spousal support argument had previously been rejected by Judge Edmon in 2002, which order Adam failed to appeal. In addition, Judge Steinberg correctly ruled that child support could indirectly benefit Jami. (§ 4053, subds. (f) & (g); In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1326; In re Marriage of Leonard, supra, 119 Cal.App.4th at p. 556; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 292.) Finally, Adam had no authority to control how Jami expended the child support funds or to seek to indirectly accomplish such by means of a court order. (Wilson v. Shea, supra, 87 Cal.App.4th at p. 896; In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 130.)
(d) funds available to Jami
Adam contends the trial court failed to reduce the guideline support amount based on evidence that Jami received about $500,000 in 2003 and 2004. Jami obtained funds from a number of sources including reimbursements from Adam for legal fees, child support arrearages, loans, and tax refunds. Judge Steinberg considered the evidence of the $500,000 in response to Adam’s theory that Jami had misused child support payments. Judge Steinberg ruled that the funds were a resource to pay for her expenses as well as others without utilizing Adam’s child support payments. Judge Steinberg further found Adam had failed to provide a sufficient evidentiary basis that child support payments were improperly used to support others. As noted, Jami could utilize the funds in any way she chose. Judge Steinberg could reasonably rule the $500,000 should not be utilized in computing Adam’s support obligation.
(e) calculation of timeshare
Judge Steinberg did not improperly allocate the timeshare factor (the percentage of time the twins were with Adam or Jami) in calculating the guideline support amount which is calculated as follows: CS = K[HN-(H%)(TN)]. The components are: CS equals child support; K equals the amount of both parents’ income to be allocated for child support as in section 4055, subdivision (a)(3); HN equals the high earner’s net monthly disposable income; and TN equals total net monthly disposable income of both parties. “H%,” in the context of this case, represents the approximate percentage of time that the high earner, Adam, has primary physical responsibility for the children compared to Jami. (§ 4055; subd. (b)(1)(D); DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1033; In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 981.)
Judge Steinberg did not abuse her discretion in calculating the timeshare factor. (In re Marriage of Katzberg, supra, 88 Cal.App.4th at p. 980; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1160.) Jami submitted a contemporaneous calendar which showed that the allocation of time spent between the parents was approximately 58 percent with her and 42 percent with Adam. Judge Steinberg’s factual finding that the parties spent the aforementioned portion of time with the twins must be upheld because it is supported by substantial evidence. (In re Marriage of Katzberg, supra, 88 Cal.App.4th at p. 981; In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 128.)
(f) the application of section 4061
Adam argues Judge Steinberg misapplied section 4061. Section 4061 sets forth the method of computing additional support payable under section 4062. Section 4062, subdivision (a) identifies additional mandatory components of child support. Section 4063, subdivision (b) sets forth discretionary additional support. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1367-1368; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 472-473.)
Section 4061 states in part: “The amounts in Section 4062, if ordered to be paid, shall be considered additional support for the children and shall be computed in accordance with the following: [¶] (a) If there needs to be an apportionment of expenses pursuant to Section 4062, the expenses shall be divided one-half to each parent, unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation which demonstrates that a different apportionment would be more appropriate. [¶] (b) If requested by either parent, and the court determines it is appropriate to apportion expenses under Section 4062 other than one-half to each parent, the apportionment shall be as follows: [¶] (1) The basic child support obligation shall first be computed using the formula set forth in subdivision (a) of Section 4055, as adjusted for any appropriate rebuttal factors in subdivision (b) of Section 4057. [¶] (2) Any additional child support required for expenses pursuant to Section 4062 shall thereafter be ordered to be paid by the parents in proportion to their net disposable incomes as adjusted pursuant to subdivisions (c) and (d).”
Section 4062 states: “(a) The court shall order the following as additional child support: [¶] (1) Child care costs related to employment or to reasonably necessary education or training for employment skills. [¶] (2) The reasonable uninsured health care costs for the children as provided in Section 4063. [¶] (b) The court may order the following as additional child support: [¶] (1) Costs related to the educational or other special needs of the children. [¶] (2) Travel expenses for visitation.”
At issue was a request to modify the child support guideline due to B’nai Mitzvot expenses for the twins. This expense is related to the educational needs of the children within the meaning of section 4062, subdivision (b)(1); a discretionary “additional child support” increment. According to Adam, the guideline support amount should have been determined first and then, if appropriate, the expenditures could have been reallocated between the parties. Adam further argued that paragraph 21.2 of the amended judgment should be modified because temple dues at the twins’ private school increased by $800 per year when Jami remarried. The November 8, 2002 order provided that the temple expenses were to be shared equally by the parties.
Judge Steinberg did not abuse her discretion by refusing to reduce the child support order based on the approaching expense of the B’nai Mitzvot. (In re Marriage of Lusby, supra, 64 Cal.App.4th at p. 467; Boutte v. Nears (1996) 50 Cal.App.4th 162, 166; In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, 527-529; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039.) Also, Adam has failed to establish that Judge Steinberg abused her discretion in refusing to apply section 4061 as a basis for reducing the guideline support amount. In addition, we find unpersuasive any claim that Judge Steinberg abused her discretion in refusing to modify paragraph 21.2 of the amended November 8, 2002 support order. It was reasonable to apportion the expenses as one-half to each parent for the expenses associated with the twins’ private school. Paragraph 21.2 included an express agreement to pay the temple dues for the twins as part of their private education.
B. Litigation Costs Award
1. Standard of review
The standard of review of an award of litigation costs is as follows: “During the pendency of a dissolution action, a court may order that one party pay some or all of the other party’s legal fees and costs. (§ 2030, et seq.) ‘“California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.”’ [Citation.] ‘A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866; accord In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Bower (2002) 96 Cal.App.4th 893, 902.)
2. The section 2030 award
Judge Steinberg awarded fees pursuant to section 2030. The Legislature requires family law courts to ensure that each party in a dissolution action has access to legal representation. This can be accomplished by one party paying reasonable attorney fees and costs for maintaining or defending the proceeding to the other litigant. (§ 2030, subd. (a).) Section 2032 provides that the court may make a just and reasonable litigation costs award under the relative circumstances of the case. Section 4320 sets forth a number factors for consideration in a spousal support award. Section 2032, subdivision (b) further provides in part: “The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.”
Section 2032 provides: “(a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In 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. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances. [¶] (c) The court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income. [¶] (d) Either party may, at any time before the hearing of the cause on the merits, on noticed motion, request the court to make a finding that the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. Upon that finding, the court may in its discretion direct the implementation of a case management plan for the purpose of allocating attorney’s fees, court costs, expert fees, and consultant fees equitably between the parties. The case management plan shall focus on specific, designated issues. The plan may provide for the allocation of separate or community assets, security against these assets, and for payments from income or anticipated income of either party for the purpose described in this subdivision and for the benefit of one or both parties. Payments shall be authorized only on agreement of the parties or, in the absence thereof, by court order. The court may order that a referee be appointed pursuant to Section 639 of the Code of Civil Procedure to oversee the case management plan.”
Section 4320 states in its entirety: “In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. [¶] (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325. [¶] (n) Any other factors the court determines are just and equitable.”
Judge Steinberg ordered Adam to pay $246,268.54 in attorney fees and costs. The child support issue was the subject of lengthy litigation. Both parties hired accountants and Jami’s entire spending history over a two-year timeframe was thoroughly examined. The bulk of the fees awarded were for issues raised in support of and in opposition to Adam’s claim that he was entitled to a downward adjustment of his statutorily mandated child support obligation. It is abundantly clear from the length, content, and breadth of issues raised by the parties that the litigation costs to resolve the issues in this case would be very high. Judge Steinberg also considered in her calculation the custody and visitation issues raised by the parties and made adjustments accordingly. Jami’s need and ability to pay some of her own legal fees were considered including those costs which were found to be unreasonably incurred. We cannot conclude under the circumstances of this case, no reasonable judge could have ruled that Adam should pay the litigation costs in this case. (In re Marriage of Sullivan, supra, 37 Cal.3d at pp. 768-769; In re Marriage of Bower, supra, 96 Cal.App.4th at p. 902; In re Marriage of Keech, supra, 75 Cal.App.4th at p. 866.)
Because we affirm Judge Steinberg’s order under section 2030, we do not address Jami’s claims that section 3652 provides an alternative basis for upholding the award.
3. The section 271 sanction
Adam argues Judge Steinberg failed to consider his request for a litigation conduct based fee award against Jami pursuant to section 271. However, Adam made no such request by motion or in his request for an offset. Because the fees for wrongful conduct under section 271 are in the nature of a sanction, they may not be awarded in the absence of notice and an opportunity to be heard. (§ 271, subd. (b); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178; In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 964.) Adam filed a request for an offset in which he did not cite section 271 nor request fees under this section. Rather, in response to Judge Steinberg’s initial ruling on August 22, 2005, Adam filed objections which for the first time asserted she should consider his arguments as grounds for an offset or a reduction in the fees and costs under section 271.
Section 271 provides: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award. [¶] (b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. [¶] (c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”
Nevertheless, the statement of decision demonstrates that Judge Steinberg considered Adam’s claim that Jami had acted in bad faith but rejected the notion that he was entitled to a $58,000 offset. The statement of decision provides in this respect: “Both parties and their lawyers claim that the other has acted in bad faith and in a fashion to increase the legal fees. From a review of the declaration filed by both sides, there appears to be some truth to the positions of both.” Thus, Adam has not established reversible error occurred because Judge Steinberg failed to consider or make any findings under section 271. Judge Steinberg’s statement of decision addressed the substance of the matters raised by Adam’s claims that Jami’s litigation conduct and tactics should provide a basis for an offset or reduction of fees. But Judge Steinberg rejected Adam’s argument that Jami’s conduct warranted imposition of an offset. (Code Civ. Proc., §§ 632, 634; In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736, fn. 15; Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1116.) Finally, Judge Steinberg could reasonably conclude that Jami’s conduct was insufficient to warrant the imposition of section 271 sanctions.
4. Jami’s earning capacity
Adam contends reversal of the litigation costs award is required because the statement of decision fails to make a finding as to what was Jami’s earning capacity. Adam never requested a statement of decision on this issue. Nor did Adam object to the court’s statement of decision on this ground. Moreover, he has cited no evidence in the record which would have supported a finding as to Jami’s earning capacity. The issue has, thus, been waived. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140.)
5. The due process claim
Adam asserts the litigation cost award violated his due process rights to the extent that it covered fees and costs incurred between September 2003 and May 2004. Adam did not raise his due process claim before Judge Steinberg, hence, it is waived. (In re S. B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Champion (1995) 9 Cal.4th 879, 918.) According to Adam, Judge Steinberg could not award litigation costs for the period between September 2003 and May 2004 because there was no “action” pending in connection with the parties’ disputes. A family law case concerning custody and child support issues remains pending even after entry of judgment. (In re Marriage of Kreiss (2004) 122 Cal.App.4th 1082, 1084 [matters related to custody]; In re Marriage of Armato, supra, 88 Cal.App.4th at p. 1043 [child support].) To the extent issues were raised by the parties which required legal representation involving custody, they were within the court’s jurisdiction. (Ibid.)
C. Statements Of Decision
Adam argues Judge Steinberg made ambiguous findings in her child support and litigation costs statements of decision. Adam cites to the finding that Jami spent money on herself and others. But Adam could not trace one expenditure to Jami for herself and others directly from child support payments. He claims the finding is inconsistent with the finding with regard to the litigation costs award that Jami “has most of her living expenses paid for by reason of the child support ordered for the twins of the parties.” Adam then reargues the merits of the child support order as to: disguised spousal support; the increase to $31,603 per month; the excess mortgage principal payments (he claims is a savings account); the square footage increase in Jami’s home and the remodeling; the court’s failure to make findings regarding the children’s actual needs; and Jami’s personal expenses. To the extent Adam claims the statement decision is deficient on these issues, there is nothing in the record to suggest he requested findings on these precise issues or objected to the statements of decision on these grounds. These issues have been waived. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1132; Tusher v. Gabrielsen, supra, 68 Cal.App.4th at p. 140.)
IV. Disposition
The order denying the request to reduce child support and directing a modification of child support to increase the amount of monthly support is affirmed. The order awarding litigation costs is affirmed. Jami Abell-Venit is awarded her costs on appeal from Adam Venit.
We concur: MOSK, J., KRIEGLER, J.