Opinion
D057889 Super. Ct. No. D502278
12-29-2011
In re the Marriage of WILLIAM and KAREN T. BIXLER. WILLIAM R. BIXLER, Respondent, v. KAREN T. BIXLER, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed.
Karen Bixler, former wife of William Bixler, appeals portions of a judgment after trial of contested dissolution proceedings. Specifically, Karen contends the court committed reversible error in finding August 26, 2002 is the date of separation; failing to properly divide certain community property based upon the August 26, 2002 date of separation; disregarding William's current income in awarding spousal support; failing to sanction William under Family Code section 2107; and failing to consider William's future bonuses in setting spousal support. We affirm.
Statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Marriage and Family
William and Karen married on June 18, 1977. They have three daughters (Jordan, Brynn, and Kyle), none of whom were minors at the time of dissolution. Since about 1990, they lived in a custom built home on Loring Street near Mt. Soledad in La Jolla. William moved out of the Loring Street residence permanently in August 2002.
Community Property Subject To This Appeal
While William and Karen had additional community property, Karen only challenges the court's judgment as to the division of: (1) the proceeds of the sale of certain rental property located at Toulon Court in Pacific Beach; and (2) an interest in Bernardo View Properties, Inc. As such, we only discuss the facts relevant to this community property.
Karen also takes exception to the court's failure to reimburse her for certain mortgage payments on the Loring Street residence after the date of separation. Any necessary facts regarding this argument will be discussed in the appropriate discussion section.
The Toulon Court property was sold in December 2002. It sold for $450,000, from which the Bixlers received $179,730.91. From the proceeds, approximately $79,000 was used to pay the Bixlers' 2002 taxes. Of the remaining $100,000, William used $36,000 to purchase three used cars for his daughters. In 2005 and 2006, William transferred approximately a total of $43,400 of the remaining $64,000 to an account for Karen's exclusive use, following Karen's request to William for more money to cover her expenses. The remaining $20,600 balance was placed in an Ameritrade account.
William and Karen also owned 2.183 shares of Bernardo View Properties, Inc. They acquired it prior to 2002. The company owned an office building in Rancho Bernardo, from which Karen and William received income, including after 2002. Although the record is less then clear, it appears William did not disclose to Karen when he received income from Bernardo View Properties, Inc., except that it was listed on William's and Karen's joint tax returns. William also testified that he used the income, at least in 2007, to pay for his daughters' respective college tuitions.
Date of Separation
William's Showing
In August 2002, Karen learned William had been unfaithful, after which, "she basically threw [William] out of the house." Karen told William he could return to the Loring Street residence only to pick up his belongings, which she had placed on the outside deck of the house. William moved out on August 26, 2002. William never attempted to move back into the Loring Street residence, and Karen never asked him to do so.
Shortly after William moved out of the Loring Street residence, Karen called her mother, her father, and her brothers to tell them of the separation. Similarly, soon after he moved out, William told his brother and his close personal and work friends that he and Karen had separated.
William took his belongings and moved into a Residence Inn for approximately two weeks. Then William moved into the Toulon Court property, which was vacant at the time. While living there, William fixed up the property to prepare it for sale.
Between August 26, 2002 and the sale of Toulon Court in December 2002, William returned to the Loring Street residence only once. During the first two weeks after he left, William and Karen had a one-half hour conversation at the Loring Street residence in which they discussed the details of William's infidelity.
After moving out of the Toulon Court property, William rented an apartment in the Bird Rock area of La Jolla for approximately one and one-half years. William only returned to the Loring Street residence during this time to pick up his daughters to go out for a meal or see a movie. Even on those occasions, William did not enter the Loring Street residence; he honked the car horn, and his daughter(s) would leave the house to see him.
During this same one and one-half year time period, the only social functions at which William and Karen were both present were Jordan's graduation from high school and Kyle's graduation from middle school. Karen and William split evenly the costs of the graduation parties. Also, William could recall only one meeting at which he and Karen discussed financial arrangements: a 15 to 20 minute discussion regarding taxes that took place at a coffee shop.
After living in Bird Rock, William's work required him to move to Los Angeles for approximately two years, where he rented an apartment in the Playa del Rey area. When William moved back to San Diego (approximately four years after leaving the Loring Street residence), William moved into a small rental unit about one-half mile down the hill from the Loring Street residence. William still lived in the rental unit as of the date of trial.
Karen did not visit William after he left the Loring Street residence in August 2002. Since August 2002, William spent only one night at the Loring Street residence, on the couch, because of a family emergency.
One of Karen and William's daughters lied about where she was going, and no family member knew where she was. William, Karen, and the other two daughters waited up, and by the time the missing daughter came home and the family dealt with the situation, it was too late for William to drive back to Los Angeles. William slept on the couch and left for Los Angeles the next morning.
Since William moved out of the Loring Street residence, Karen has not done William's laundry nor has he asked her to do so. William and Karen also have not taken any vacations together, with or without the children, since August 2002.
Since August 2002, Karen did not ask William to attend marriage counseling. William, however, suggested they go to counseling "for the kids," but emphasized he had no intent to repair the marriage. Karen declined.
Since August 2002, Karen did not give William a gift or even a card for his birthday, Valentine's Day, Christmas gift, or anniversary. Also, with one exception, William did not send Karen any gifts or presents recognizing any of these holidays.
During their first year of separation, William sent Karen a birthday present, but she promptly returned it.
Other than one Thanksgiving dinner to which William and Karen were invited by their daughter, William and Karen have not celebrated any holidays together since William moved out of the Loring Street residence. In addition, William did not send Karen, and Karen did not send William, any letters or e-mails expressing one's love for the other.
After August 2002, Karen opened her own bank account and obtained a credit card in her own name. William also opened a new bank account in his own name and obtained a new credit card in his own name.
Since William moved out of the Loring Street residence, he and Karen have not had sexual relations. Karen consulted a divorce attorney as early as January 2003.
As of August 26, 2002, William believed the parties' marriage could not be repaired and understood Karen to have communicated the same.
In his petition for dissolution of marriage filed in 2007, William claims to have listed the date of separation as August 26, 2002. He further argues that when Karen first responded to William's petition, she agreed, alleging a date of separation of August 26, 2002. William also asserts Karen filed a motion for spousal support and fees in which she affirmatively testified that she and William "separated on August 26th, 2002"; and elsewhere in the 2007 document Karen referred to "the past five years since our separation." Apparently, the court took judicial notice of this motion at trial. The petition, Karen's response to the petition, and the motion for spousal support and fees are not included in the record. Karen, however, admitted at trial that she listed August 26, 2002 as the date of separation in her first response to the petition for dissolution of marriage.
Karen's Showing
Not surprisingly, Karen's testimony conflicted with William's regarding the date of separation. Other than William moving out of the Loring Street residence, Karen testified their marriage roles did not change. William continued to support the family, and Karen continued to provide full-time care for the children, paid the community bills, and maintained the Loring Street residence.
In 2005, William sent Karen an e-mail to wish her a happy Mother's Day, and Karen made a dinner for William to take to a family gathering. Karen and William also communicated about their finances and children by e-mail.
After William moved out of the Loring Street residence, he and Karen shared the same joint bank account and continued to pay all the community expenses from the account. William deposited his paycheck into the joint account, and no restrictions were placed on how either William or Karen could use the money. They shared joint certificate of deposit accounts, joint credit cards, and a joint equity line of credit. William would sometimes suggest what credit card Karen should use and allowed her to use the miles from his credit card. They also refinanced the Loring Street residence multiple times between June 2003 and November 2005. In addition, William continued to have some of his mail, including retirement account statements, sent to the Loring Street residence.
When the Toulon Court house was sold in December 2002, William did not divide the sale proceeds with Karen, but instead, planned to purchase other properties with Karen via a 26 United States Code section 1031 property exchange.
After he moved out the Loring Street residence, William opened at least one certificate of deposit account with Karen to hold the proceeds of the Toulon Court property sale. William ultimately took complete control over the proceeds from the Toulon Court property sale and never accounted for the proceeds prior to trial.
Karen and William filed joint tax returns as a married couple through 2007 because, as William explained, filing jointly resulted in "more monies in the pot" for them.
In 2006, William opened a separate checking account and reduced the amount of his monthly deposit into his and Karen's joint account to $6,000. The $6,000 represented what William believed to be a fair spousal support payment. If $6,000 was not enough to cover the expenses or Karen requested additional money, William deposited additional amounts in the account.
Between 2002 and 2007, Karen continued to drive a car registered in William's name, but William took no action to retrieve the car or change the registration information.
Karen also testified she believed she and William would get back together. In March 2007, the same month his youngest daughter turned 18 years old, William filed a petition for dissolution of marriage.
Trial
Trial occurred on February 4, 5, March 3, and 10, 2010. The trial court filed its judgment on July 2, 2010. Although the judgment incorporates by reference a statement of decision, no statement of decision or objections to statement of decision is included in the record.
The court found the date of separation was August 26, 2002.
It also divided the parties' community property as of the date of the judgment of dissolution. William and Karen each received half of the Ameritrade account containing the proceeds of the Toulon Court property. The court also divided equally the parties' interest in Bernardo View Properties, Inc. and ordered each party to share any costs related to the division. The judgment, however, does not contain any specific ruling regarding the 2006 to 2008 disbursements from Bernardo View Properties, Inc.
For spousal support, the court ordered William to pay Karen "$6,000 per month effective May 1, 2010," with the court "reserv[ing] jurisdiction over spousal support . . . in light of the length of the marriage." The court, without explanation, declined to sanction either party under section 271.
Also, the court found bonuses received by William in 2007 and 2008 were his separate property and made no findings as to future bonuses.
DISCUSSION
The primary issue before us is the date of separation. Karen argues the court erred when it determined August 26, 2002 as the date of separation. She predominately bases her argument on William's treatment of the finances after August 2002. We are satisfied that substantial evidence supports the court's decision.
I
THE DATE OF SEPARATION IS AUGUST 26, 2002
A. Standard of Review
Karen argues that a preponderance of the evidence dictates the date of separation should be no earlier than October 2007. While the date of separation is a factual issue to be determined by the preponderance of the evidence (In re Marriage of Peters (1997) 52 Cal.App.4th 1497, 1493-1494), "[o]ur review is limited to determining whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.) Thus, even if we would have reached a different conclusion based upon the evidence at trial, we do not reweigh the evidence and will affirm the judgment as to the date of separation if it is supported by substantial evidence. (See Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849, fn. 11 ["Under the substantial evidence test, courts do not reweigh the evidence. They determine whether there is any evidence (or any reasonable inferences which can be deduced from the evidence), whether contradicted or uncontradicted, which, when viewed in the light most favorable to . . . a court's judgment, will support the . . . judicial findings of fact."]; In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 435 [trial court's finding of separation date supported by substantial evidence].)
B. Standards for Determining the Date of Separation
Although the Legislature has declared "[t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse" (§ 771, subd. (a)), it has not further defined date of separation or specified a standard for determining that date. Accordingly, the courts rely on case law to define the date of separation.
In Makeig v. United Security Bank & Trust Co. (1931) 112 Cal.App. 138, 143, the court held living separate and apart is a "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof." This definition was amplified in In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 448 (Baragry): "The question is whether the parties' conduct evidences a complete and final break in the marital relationship." (Accord, In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 657.) In In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736, the court blended the Makeig and Baragry definitions, stating: "[B]ecause rifts between spouses may be followed by long periods of reconciliation, and the intentions of the parties may change from one day to the next, we construe Baragry to hold legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship." (Italics added.)
Thus, a court decides the date of separation by examining two components, one subjective and the other objective. (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158-1159 (Norviel).)The subjective component examines whether either of the parties harbors the subjective intent to end the marriage. The objective component examines whether there is objective conduct evidencing and in furtherance of that intent. (Ibid.)
The courts, perhaps recognizing that human relationships have incalculable permutations and each marriage is unique, have declined definitively to define the conduct sufficient to establish the date of separation. Instead, "[a]ll factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered [citation] . . . , [and n]o particular facts are per se determinative." (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 452 (Hardin).) The courts have nevertheless tried to distill the kinds of objective conduct that should be weighed in this calculus. One important factor is whether the parties have ceased sharing a marital home (Norviel, supra, 102 Cal.App.4th at p. 1163 [" 'living separate and apart' . . . [t]ypically . . . would entail each spouse taking up residence at a different address'']), although the fact that the spouses have physically separated and taken up new addresses is not necessarily dispositive and can be overcome by contrary evidence showing there was not a complete and final break in the marital relationship. (In re Marriage of Marsden, supra, 130 Cal.App.3d at p. 434.) The courts also consider whether, notwithstanding the parties' residential separation, they have continued their conjugal relations (In re Marriage of von der Nuell, supra, 23 Cal.App.4th at p. 736), maintained their family life (Baragry, supra, 73 Cal.App.3d at p. 447 [after moving out, husband still dined with family, took family on vacations, vacationed with wife alone, and sent gifts and remembrances of birthdays and anniversaries]), continued to attend social outings together (Norviel, supra, 102 Cal.App.4th at p. 1161), or continued to act jointly in financial matters. (Ibid.)
C. Substantial Evidence Supports the August 26, 2002 Date of Separation
On August 26, 2002, after discovering her husband had been unfaithful, Karen told William to pick up his belongings and leave the Loring Street residence. William retrieved his things, which Karen had left outside the house on the front porch, and moved out of the Loring Street residence, never to return. We are satisfied substantial evidence exists that William believed the marriage to be over on August 26, 2002, and communicated his intent to end the marriage by retrieving his items and moving out. (Norviel, supra, 102 Cal.App.4th at pp. 1158-1159.)
Although one party's subjective intent is sufficient (Hardin, supra, 38 Cal.App.4th at p. 453), we also conclude substantial evidence shows Karen believed the marriage to be over on August 26, 2002 and conveyed that intent to William by removing his belongings from the house, instructing him to come retrieve them, and never evidencing a desire to reconcile.
The evidence also supports the trial court's conclusion that William, contemporaneously with his declared intent, commenced a course of objective conduct in furtherance and confirmation of that intent. (Norviel, supra, 102 Cal.App.4th at pp. 1158-1159.) He moved out and established a separate residence and told close friends he had separated. After he moved out, the parties did not resume sexual relations, attended no counseling sessions, had extremely limited personal contacts, and maintained almost no incidents of either a family life (dining together at the home, vacationing or spending holidays together, or sending remembrances on birthdays or anniversaries) or a social life (attending parties or other events as a couple).
Karen argues the parties' continuing financial entanglements show there was not a complete and final break in the marital relationship in August 2002. Heavily relying upon Hardin, supra, 38 Cal.App.4th 448, and In re Marriage of Manfer (2006) 144 Cal.App.4th 925 (Manfer),Karen urges us to adopt a new rule that the date of separation cannot precede the end of a marital economic relationship. While the continuation of joint financial affairs is a consideration to be weighed in deciding whether there was a complete and final break in the marital relationship (In re Marriage of von der Nuell, supra, 23 Cal.App.4th at p. 736), it is not the sole, determinative factor. Neither Hardin nor Manfer compel a different conclusion. Moreover, they both support the court's judgment in this action. (See Manfer, supra, 144 Cal.App.4th at p. 930 [citing Hardin with approval]; Hardin, supra, at p. 452 ["No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court."])
In Hardin, supra, 38 Cal.App.4th 448, the Court of Appeal reversed the trial court's judgment that included a date of separation of June 28, 1969 because the trial court did not consider certain evidence it determined subjective. (Id. at p. 453.) In reviewing the evidence presented at trial, the Court of Appeal did not base its decision merely on the fact the parties had an unchanged economic relationship after the supposed date of separation, but also noted, among other things, the parties had close personal ties after June 28, 1969, the husband sent his former wife numerous cards professing his love for her, and the husband testified he did not make the decision to end the marriage until sometime between early 1982 and 1983. (Id. at p. 454.) No such analogous facts exist here. Further, the court in Hardin emphasized that the "ultimate question to be decided . . . is whether either or both of the parties perceived the rift in their relationship as final" and then opined that "[t]he best evidence of this is their words and actions." (Hardin, supra, 38 Cal.App.4th at p. 453, original italics.) Hardin thus can be read as holding that the litmus test for separation is when one of the parties subjectively understands the marriage is beyond salvage, and the objective conduct underscores the subjective intent of that party. It does not stand for the proposition, as urged by Karen, an unchanged economic relationship is the most important factor in determining the date of separation.
Manfer follows Hardin, supra, 38 Cal.App.4th 448. (Manfer, supra, 144 Cal.App.4th at pp. 929-930.) The Court of Appeal reversed the trial court's judgment involving the date of separation because the trial court improperly used a "public perception standard" to decide the date of separation. (Id. at p. 934.) No similar issue is before us here, and Manfer therefore is not instructive.
Finally, Karen insists that, although the court cited to Hardin, supra, 38 Cal.App.4th 448, and Baragry, supra, 73 Cal.App.3d 444 in its statement of decision, it did not determine the date of separation in accordance with the principles set forth in those cases. However, the statement of decision is not included in the record. The attachment to the judgment of dissolution incorporates by reference the statement of decision, but we are unable to ascertain whether the attachment includes all the reasoning set forth in the statement of decision. Because the statement of decision is not part of the record and there is no indication Karen objected to this portion of the statement of decision, we imply the necessary findings sufficient to support the ultimate disposition of the date of separation here. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1137.)
Further, Karen's challenge to the statement of decision appears to be based upon a misunderstanding of the relevant authority. She argues the court "focused on a list of subjective factors concerning the parties' personal interactions and disregarded the objective factors concerning the parties' economic relationship." Again, Karen overstates the importance of the parties' economic relationship in determining the date of separation as well as confuses the standard used to determine the date of separation. Here, as we discuss above, substantial evidence supports the court's finding William's subjective intent to end the marriage was conveyed to Karen when he picked up his belongings and moved out of the Loring Street residence permanently on August 26, 2002. Similarly, Karen's subjective of intent to end the marriage in August 2002 also is supported by her placing William's belongings outside the Loring Street residence and telling William to pick them up and leave. Moreover, the parties' objective conduct confirmed the subjective intent. They did not resume sexual relations, attended no counseling sessions, had extremely limited personal contacts, and maintained almost no incidents of either a family life or a social life. Indeed, there is no evidence in the record that either party made any attempt to reconcile. Further, contrary to Karen's argument, the parties' economic relationship, while important, is not the only objective factor the court considers in determining the date of separation.
Because substantial evidence supports the court's determination of the date of separation and we cannot conclude the court's conclusion was incorrect as a matter of law, we are satisfied it did not abuse its discretion in making such a finding. (See In re Marriage of De Guigne, supra, 97 Cal.App.4th at p. 1360.)
II
THE REMAINING CONTENTIONS ARE WITHOUT MERIT
In addition to challenging the date of separation, Karen also claims the court erred in: (1) dividing certain community property in light of an August 26, 2002 date of separation; (2) setting her spousal support at $6,000; (3) failing to sanction William under section 2071; and (4) failing to consider William's future bonuses in setting spousal support. We conclude none of the contentions has merit.
A. Division of the Community Property
Karen contends the court improperly divided the proceeds of the sale of the Toulon Court property and the interest in Bernardo View Properties, Inc. Karen argues the court, after finding the date of separation to be August 26, 2002, should have divided the assets equally as of that date. Karen insists the court improperly divided these assets equally at the time of the judgment of dissolution. Karen, however, does not challenge the division of the other community property (including stock options and retirement accounts), which the court also divided as of the date of the judgment of dissolution. She also claims the court failed to properly reimburse her for paying the mortgage (a pre-separation community debt) of the Loring Street residence with her separate funds. (See In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (Epstein);superseded in statute as stated in In re Marriage of Perkal (1988) 203 Cal.App.3d 1198, 1201-1202.)
As a threshold matter, Karen raises these issues for the first time on appeal. At trial, she asked the court to divide the remaining proceeds from the Toulon Court property sale equally between the parties, which the court did. She never offered any evidence as to the value of the Toulon Court property on August 26, 2002. Further, she did not challenge William's accounting of the proceeds at trial.
Karen also did not present any evidence at trial regarding the value of the parties' interest in Bernardo View Properties, Inc. in August 2002. She did not ask the court to divide the partnership interest as of August 26, 2002. In her trial statement, Karen asked the court to divide the parties' partnership interest "evenly." During closing argument at trial, she asked the court to award her all the partnership interest as sanctions.
Because she did not raise her challenges to the division of the Toulon Court property sale proceeds or the interest in Bernardo View Properties, Inc. at trial, she has forfeited both of these issues on appeal. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528 (Davenport) ["Preliminarily, we note that Jill's argument as to the Judicial Council form was not made below, and thus is waived or forfeited."]; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 [contentions or theories raised for the first time on appeal are not entitled to consideration]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 (Amato)["It must appear from the record that the issue argued on appeal was raised in the trial court. If not, the issue is waived."].)
Similarly, Karen also has forfeited her claim for reimbursement of mortgage payments after the date of separation by not presenting evidence to support her argument at trial. Reimbursement is not automatic. (Epstein, supra, 24 Cal.3d at p. 84; In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 625.) A specific request for the reimbursement is required. (Id. at pp. 624-625.) Here, Karen has not cited to the record where she made a request for reimbursement, and we independently did not find any such mention in the record. Accordingly, Karen has forfeited this issue on appeal as well. (Davenport, supra, 194 Cal.App.4th at pp. 1528-1529.)
B. Spousal Support
Karen also argues the court abused its discretion in setting her spousal support at $6,000. We disagree.
"In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 498.) But the "court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities." (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 655.) Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 47; In re Marriage of Watt (1989) 214 Cal.App.3d 340, 347; In re Marriage of Fransen (1983) 142 Cal.App.3d 419, 425.) Failure to do so is reversible error. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479.)
Here, Karen asserts the court failed to consider certain facts in determining the amount of spousal support. She does not, however, cite to the record for support of any of the facts she claims the court disregarded. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte) [it is appellant's duty to support arguments in her brief by reference to the record on appeal, including specific pages in the record].) Instead, Karen, with little explanation and no authority, substitutes William's post-separation salary of $300,000 in place of the $217,340 salary he had at the date of separation and argues the court's math is incorrect in calculating spousal support of $6,000.
Karen's argument regarding spousal support is nothing more than another attack on the date of separation. As we already discussed above, substantial evidence supports the court's finding of a date of separation of August 26, 2002.
Further, we cannot conclude the court abused its discretion based on the record before us. The attachment to the judgment includes the section 4320 factors the court apparently considered in reaching its decision. (See In re Marriage of Kerr, supra, 77 Cal.App.4th at p. 93.) Karen claims the court failed to consider William's ability to pay spousal support. (§ 4320, subd. (c).) Again, Karen merely asserts, without authority or citing the record, the court should have used William's higher postseparation salary in calculating spousal support. The absence of any citation or authority to support her position is improper on appeal, and we may deem this argument waived. (See Duarte, supra, 72 Cal.App.4th at p. 856; McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Further, the record indicates the court did consider William's ability to pay spousal support based upon his 2002 salary of $217,340. Karen has not convinced us the use of the 2002 salary was incorrect. Simply put, Karen has not shown the court abused its discretion in setting spousal support at $6,000.
C. Sanctions
Karen's next attack on the judgment is her argument the court erred when it failed to sanction William, under section 2107, for his alleged failure to comply with certain disclosure and fiduciary obligations. Karen, however, has forfeited this issue on appeal because she failed to object to the court's alleged failure to rule on her purported request for sanctions. (Cf. Niko v. Foreman (2006) 144 Cal.App.4th 344, 369.)
These fiduciary and disclosure obligations are found in sections 721, 1100, subdivision (e), and 2100, subdivision (c). Because we determine Karen has forfeited this issue, we do not discuss the relevant fiduciary and disclosure obligations.
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There is nothing in the record indicating the court ever ruled on any request for sanctions under section 2107. The only reference to sanctions in the judgment references sanctions under section 271. Section 271 allows a court to award attorney fees and costs as sanctions 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. (§ 271, subd. (a).) It is unrelated to section 2107, which concerns the failure to make certain disclosures under sections 2104 or 2105. (See § 2107, subd. (a).)
If Karen believed the trial court failed to rule on her request for sanctions, she needed to raise the issue to the trial court by objecting to either the statement of decision or judgment. (Arceneaux, supra, 51 Cal. 3d at pp. 1133-1134.) There is no indication in the record she made any such objection. Having not brought this alleged error to the attention of the trial court, we conclude Karen has forfeited this issue on appeal. (See Davenport, supra, 194 Cal.App.4th at pp. 1528-1529; Amato, supra, 18 Cal.App.4th at p. 1794.)
In addition, there is no motion for sanctions in the record. Karen first mentions sanctions during closing argument, and she does not specifically cite to section 2107. Karen's failure to request sanctions until closing argument also deprived William of his due process right to respond or be heard on the matter. (See Niko v. Foreman, supra, 144 Cal.App.4th at p. 369.) For this reason as well, sanctions under section 2107 were inappropriate.
D. Future Bonuses
Karen's final contention is the court committed reversible error by failing to conduct or even rule on her request for an order to account for William's future bonuses when calculating the amount of spousal support awarded. However, there is no authority requiring a trial court to consider a spouse's future bonuses in calculating spousal support. Indeed, the only case Karen cites to support her position confirms the court can consider a spouse's future bonuses in calculating spousal support if the particular circumstances support it, but this consideration is not mandatory. (See In re Marriage of Ostler & Smith, supra, 223 Cal.App.3d at p. 50.) Here, Karen has not shown why the trial court should have considered William's future bonuses.
Also, as Karen admits, the trial court apparently did not rule on her request it consider William's future bonuses in calculating spousal support. If the court failed to rule on her request, Karen should have objected to the statement of decision or judgment. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.) There is no indication in the record that she did so. Again, because Karen did not bring this purported error to the attention of the trial court, she forfeited this issue on appeal. (See Davenport, supra, 194 Cal.App.4th at pp. 1528-1529; Amato, supra, 18 Cal.App.4th at p. 1794.)
DISPOSITION
The judgment is affirmed. William is awarded his costs on appeal.
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HUFFMAN, Acting P. J.
WE CONCUR:
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McDONALD, J.
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O'ROURKE, J.