Opinion
A145105
02-20-2018
In re the Marriage of RAYMOND M. BUDDIE and KAIA BALSZ. RAYMOND M. BUDDIE, Appellant, v. KAIA BALSZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. FL086314)
Raymond M. Buddie and Kaia Balsz were married in 1996. They separated in 2008, and shortly thereafter Buddie filed a petition to dissolve the marriage. Following many court proceedings, in April 2010, the parties settled, but leaving some possible issues for later modification. In 2012 Buddie filed for modification of his permanent spousal support and child support obligations. In 2013 Balsz also filed for modification of both support orders, and also seeking other relief.
The matters came on for hearing beginning August 2013, and trial was held over eight days extending into May 2014, a trial the court described as a "new record for a DCSS [Department of Child Support Services] trial." The court issued a 16-page statement of decision and judgment on reserved issues. Both Buddie and Balsz appeal, Buddie asserting two claims of error, and Balsz purporting to assert 14 claims of error, most of them taking issue with the court's determinations of fact. We affirm.
BACKGROUND
The Parties and the General Proceedings
As noted, the parties married in 1996. They had two children, a son born in 1998 and a daughter born in 2000. They separated in October 2008, and on December 24 of that year, Buddie filed a petition to dissolve the marriage. Buddie was aged 55, and Balsz 50.
Both Buddie and Balsz are lawyers by education. At the time of the trial involved here in 2014, Buddie, aged 60, was a practicing attorney, whom the court described as "an income partner in a law firm in San Francisco." Over the years 2009 to 2013, Buddie's income ranged from $358,000 to $565,000. Buddie had counsel in the early proceedings, but represented himself at trial and represents himself on this appeal.
Balsz, who was 55 at the time of trial, obtained her law degree in 1991 and was licensed to practice law in Pennsylvania. But law was not her main profession, as the trial court would come to characterize it: "Both before and during the early years of her marriage . . ., [Balsz] worked successfully as a lobbyist. In 1991, she suffered a serious accident in which her car was hit by a bus. She appeared to recover and, during the marriage until approximately 2001, she worked successfully as a fund raiser for nonprofit businesses and political campaigns. She also worked as a manager for Plumpjack Companies Management Group. She worked briefly as an associate attorney in California but she was unsuccessful in her attempt to pass the California bar exam and she left that position. She testified that she was no longer interested in working as an attorney." Balsz was represented by counsel at trial, the same counsel who also represents her on appeal.
The dissolution proceeding resulted in numerous court hearings and proceedings, generating a 44-page register of actions. One such session, on April 6, 2010, resulted in a settlement that was filed as a stipulated judgment of dissolution. The judgment had affixed to it a five-page stipulated judgment that was signed by Buddie and Balsz, approved as to form by counsel for Buddie, and signed as an order by the superior court.
The judgment continued the previously court-ordered monthly child support of $4,368 and temporary spousal support of $5,199. Schedules for increasing both types of support were attached, in the event Buddie received additional income. And as pertinent to the issues that would later develop, the judgment provided: "Temporary spousal support will continue to be paid . . . pursuant to the existing order dated May 28, 2009 . . . . The issue of permanent post-judgment spousal support shall be resolved pursuant to a motion to be filed by either party in January 2012 and set for hearing no later than April 2012, or as soon as the Court calendar permits. Pending trial or settlement, the temporary spousal support and child support orders shall remain in effect, subject to retroactivity back to the date of filing." The judgment also provided that Buddie would be responsible for maintaining his existing life insurance policies for $1.5 million in 2011; that the parties would split the cost of premiums for 2012; and that the amount of insurance and premiums after 2012 would be issues reserved for the "review hearing on post judgment spousal support."
On January 31, 2012, Buddie filed a notice of motion for modification of temporary and permanent spousal support, in which he requested that temporary support remain unchanged until December 21, 2012, that it be thereafter decreased to $3,000 per month in 2013 and 2014, and that it terminate on December 31, 2014. Buddie sought the reductions because of a claimed decrease in income. After a contested hearing in October 2012, the court, in March 2013, ordered Balsz's spousal support reduced to $3,357 per month, and child support reduced to $3,073 per month.
On June 6, 2013, Balsz filed a request for order modifying child and spousal support, seeking increases of both. She also requested a determination of arrearages, order for payment of the premiums for Buddie's life insurance policies, and attorney fees.
That was the general background against which the matter came on for trial.
The Trial
Trial began on August 22, 2013, and was held on seven more days: August 29, October 24, and October 31, 2013, and March 13, April 29, May 1, and May 27, 2014. Trial was held before a court commissioner to whom the parties had stipulated, who heard testimony from six witnesses: Balsz; Buddie; Ifeoma Ikenze, M.D.; Rachel Hawk, vocational examiner; Reagan Wade, CPA; and Richard Rubenstein, M.D. Various exhibits were also introduced.
Both sides requested a statement of decision, and on June 12, 2014, the trial court issued a tentative statement of decision and proposed judgment. Both sides filed objections and on July 30, the trial court filed its comprehensive 16-page statement of decision and judgment on reserved issues.
On September 11, the matter came on for hearing on the issue of whether there had been a stipulation to the commissioner. The register of actions quotes the findings and order after hearing in the minutes as follows:
"In reviewing the court's file in this matter and specifically the minute orders of the 07/25/13 issue conference, the 08/20/13 motions in limine, and the 08/22/13 first day of trial, the court notes that each of those minute orders states:
"The general advisement is given, and the parties are deemed to have stipulated to Judge Pro Tem Judith H.B. Cohen hearing the case unless an objection is made.
"There is no indication in any of those minute orders that either father [Buddie] or any other party objected to Comm. Cohen hearing the case as judge pro tem. In fact, several of the minute orders for subsequent days of the ultimately 8 day trial contain the 'General Advisement' as well (10/24/13, 04/24/14, 05/01/14 and 05/27/14) and again no objection was made.
"Father's claim that his objection to the court hearing his 01/31/12 motion and mother's [Balsz's] 06/09/13 request for order at the same time does not constitute an objection to Comm. Cohen hearing the trial on those issues as a judge pro tem. And the court notes that the 07/25/14 issue conference minute order states that the 'trial is on motion for permanent support, the motion to modify child support and calculation of arrears.'
"The court finds that father [Buddie] did not state an objection to Comm. Cohen hearing the case as judge pro tem, and his request for a trial de novo pursuant to FC [Family Code] 4251 is denied."
The court then addressed several questions raised by Buddie about the statement of decision:
"At the 09/11/14 hearing, father also expressed concern that in the statement of decision and judgment he was not given deductions for health insurance premiums or mandatory retirement in the court's determination of his 2009 bonus support arrearage. Although not technically before it, the court has investigated father's concern and notes that the health insurance issue is addressed at page 10 of the SOD/Judgment commencing line 11, and the ruling states that the prior order didn't give father credit for such premiums ($18,599) were deducted from father's income in determining his 2009 bonus support arrearages, and such income as found to be $81,401.
"Although the SOD/Judgment does not reference a deduction for mandatory retirement from father's income for bonus support purposes in 2009, the court did consider mandatory retirement payments of $1,500 per month in setting guideline child support effective 01/01/14 (page 12, line 24-26), and that deduction was included in the calculation accompanying the 03/14/14 order after hearing as well. And while such a deduction was not included in the calculation of support for the 06/29/09 order after hearing, mandatory retirement contributions do not appear on father's IED filed on 03/12/09 for that hearing or in his support calculations filed 05/20/09, and the minute order from the 05/28/09 hearing reveals no argument on that issue."
"Judgment—Dissolution and Judgment on Reserved Issues" was filed on March 18, 2015, from which both sides appeal.
DISCUSSION
Introduction
Buddie has filed a 17-page appellant's opening brief, raising two arguments. It is not helpful, as he cites no record reference to support either argument, but cites only to various multipage "tabs" (e.g., "AA 33-91 Tabs") in his appellant's appendix. Those tabs are to Buddie's two declarations, neither of which was in evidence. Even more surprisingly, there is absolutely no reference to any page of the transcript of the eight-day hearing, an omission that is inexplicable and surprising, given that Buddie identifies substantial evidence as the standard of review to be applied.
One declaration, marked as exhibit 23, was not introduced in evidence. The other declaration was marked exhibit 20 for identification. Buddie attempted to introduce it, and the court responded: "Your declaration? No, I'm not going to admit that into evidence."
Balsz's brief, while 74 pages long, is no better. While it has a few references to the transcript of the hearing, it violates the rules of appellate review in many particulars. The introduction states that Balsz "raises the following issues and errors," and goes on to list 16 items. And the index to the "Argument" section of the brief lists 14 separate arguments, four of them with subarguments ranging from four to six. Most of these arguments do not cite to the record, but merely argue what Balsz apparently argued below, ignoring any contrary evidence or factors that supported the decision below. Not only that, a few of the arguments assert that the trial court's rulings were "contrary to the weight of the evidence," hardly a valid argument on appeal.
Balsz's 15th "argument" addresses why Buddie's argument is unsupported.
In short, the briefs of both Buddie and Balsz violate settled rules of appellate procedure, beginning with the principle that "it is counsel's duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) But that is just the beginning of the deficiencies.
The most fundamental principle of appellate review is that "[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) Because of this rule, an appellant challenging the sufficiency of the evidence to support a finding or order—as both Buddie and Balsz do here—is required to set forth in his or her opening brief all the evidence on that point. If this is not done, we may treat the issue as waived. (E.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 ["Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' "].)
In addition to these problems, to the extent the parties' briefs set forth the evidence at all, they cite only their own evidence, that is, the evidence claimed to support their position. That, of course, is improper, as it ignores the precept that all evidence must be "viewed most favorably to the prevailing party [citations] and in support of the judgment [citation]." (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; accord, Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d 975, 881.) In short, what both sides attempt to do is merely to reargue the facts as he or she would have them, an argumentative presentation that not only violates the rules noted above, but also disregards the admonition that he or she is not to merely reassert " 'his own proofs' [citations]." (Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687; accord, Albaugh v. Mt. Shasta Power Corp. (1937) 9 Cal.2d 751, 773.) As Justice Mosk well put it, such a "factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)
Against that background, we will address the issues in the appeals as best we understand them, beginning with Buddie's appeal.
BUDDIE'S APPEAL
Buddie asserts that the trial court erred in two respects: (1) in ruling that post-judgment permanent support would be retroactive only to January 2014, not to January 2012; and (2) in calculating the support amounts, specifically in (a) failing to allow certain deductions, and (b) requiring Buddie to pay support on the same income twice.
Retroactivity of Support
Buddie states his first argument as follows: "The Trial Court Erred In Refusing To Make The Permanent Spousal Support Decision Retroactive To January 31, 2012" because "[t]he specific enforcement of the parties [sic] agreement on the retroactive date for permanent support is enforceable and not left to the Trial courts [sic] discretion," and that "[t]he retroactive application of an order modifying support is specifically authorized under Family Code §§ 3653 and 4333." The argument fails.
It is perhaps enough to note the brief colloquy at trial, where Buddie was arguing about financial records, and that "we're going to need a final calculation that brings the spousal support back to the January filing date of 2012." Then, after a few pages about Buddie's production of financial records, the court stated that, "I want everyone to understand that, even though I have the authority to make a retroactive order, I don't have to make a retroactive order." And Buddie—as noted, an attorney representing himself—replied, "I understand that."
This, of course, is the law: Family Code section 4333 provides that an order modifying support may be made retroactive to the date of filing or "to any subsequent date."
Buddie's second argument fares no better. The argument asserts that the trial court erred in calculating support amounts owed to Balsz, in two respects: not allowing deductions for insurance and retirement contributions, and treating a salary advance as income.
As to the insurance/retirement claim, Buddie's entire argument is as follows:
"Buddie's K-1 tax statements were used by the Court for its calculations. The K-1 statements clearly show amounts for medical insurance premiums and retirement contributions as follows:
"2009 No retirement contribution and $18,599 for medical insurance premium which was allowed by the Court.
"2010 Mandatory retirement contribution of $37,000 and medical insurance premium of $19,692 Neither of which were allowed by the Court.
"2011 Mandatory retirement contribution of $68,059 and medical insurance premium of $13,927 Neither of which were allowed by the Court.
"2012 Mandatory retirement contribution of $27,000 and medical insurance premium of $28,443 Only retirement contribution of $11,250 was allowed by the Court."
To begin with, there is no evidence that Buddie ever claimed such deductions prior to the hearing on temporary child and spousal support on May 28, 2009. Furthermore, the language of the "bonus" provision in the June 29, 2009, temporary support order does not state medical insurance premiums and mandatory retirement should first be deducted from Buddie's income in excess of his annual baseline salary. Instead, the support order merely recites, "A bonus schedule shall apply to any additional income Husband receives over the sum utilized in the calculations."
Buddie points to nothing in the statement of decision supporting his conclusory arguments. Moreover, the trial court did discuss some of these items in its statement of decision, illustrated by this:
"RAYMOND also argues that $18,599 in medical insurance coverage withheld from his paychecks should also be deducted from his 2009 income. In reviewing the 2010 order for support, it appears that RAYMOND was not given credit for medical premium payments in the support calculation. As the maintenance of medical insurance is a mandatory deduction from income in support calculations, [Family Code section 4059(d)], it is reasonable to deduct $18,599 from RAYMOND'S 2009 income bonus support arrearages. His total income for support purposes for 2009 was $81,401. [¶] The additional bonus schedule child support for 2009 is $9,279.71. The total bonus child support owed from 2009 through May 2014 is $25,690.97."
As to the salary argument, it is based solely on Buddie's two declarations, one in July 2013, the other in August of that year. Buddie quotes extensively from the first declaration, which, as indicated, was not received in evidence. It cannot be relied on here.
But beyond that, the trial court found that, "In 2009, RAYMOND requested and received a $100,000 advance from his law firm which he used to cover expenses stemming from the dissolution. The advance was to be repaid the following year. RAYMOND argues that the advanced monies should not be considered in his income for 2009 because he repaid it the following year through a reduction in his gross pay by the same amount. RAYMOND's receipt of advanced salary is additional income to him in 2009 and should be considered in the calculation of bonus support. Fam. Code section 4058 defines annual gross income as income from whatever source derived, including salary. The advance was not a loan. It was salary he would have received in 2010. The reduction in his income in 2010 by $100,000 eliminated any bonus support arrearage entirely for 2010."
BALSZ'S APPEAL
The introduction to Balsz's opening brief has this second paragraph:
"In this cross-appeal, Respondent contends that this Judgment amounts to a serious miscarriage of justice, especially since the maladministration of justice in the Marin County Superior Court is an utter travesty and should be the subject of investigation by the administrative arm of the California Courts, the State Bar of California, and the State Legislature. The capriciously applied procedures of the Court fail to afford the typical litigant with any sense of fairness or predictability, while its operating procedures effectively favor adversaries with superior financial means to grind impecunious litigants into submission or suffer the adverse effects of the Law."
In a later amplification of the claim, Balsz says this: "In this case, Respondent's presentation of her case was severely and adversely affected by the Marin County Superior Court's policies and procedures. The Court failed to provide clear trial dates on the DCSS calendar and failed to provide court reporters, which not only limited Respondent's time to present her evidence, but unnecessarily increased her costs due to the inefficiency. Moreover, given the long periods of time between trial dates, Respondent had no confidence that the testimony of her expert witnesses was given due weight or was even properly recalled by the court. How can Respondent, let alone any other family law litigant, have respect and trust in the court system, if the reasonable expectation of having a trial completed in August, 2013, was consistently undermined by a system that promoted inefficiency and resulted in the completion of trial over a ten month period of time. Respondent had a right to expect a cohesive, efficient and reasonably uninterrupted trial. Instead, she walked away from trial wondering how this crazy system persists."
This is the apparent basis for Balsz's first and second arguments.
The Arguments are as follows:
"1. RESPONDENT WAS DENIED A FAIR AND REASONABLE TRIAL DUE TO THE CAPRICIOUS AND INCONSISTENTLY, IF NOT WANTONLY, APPLIED POLICIES AND PROCEDURES OF THE MARIN COUNTY SUPERIOR COURT
"A. THE PARTIES HAD NO REGULAR OR CONSISTENT ASSURANCE AS TO WHEN THE MATTER WOULD BE HEARD OR THE TIME ALLOTTED THERETO
"B. THE OPERATION OF THE HEARING COURT'S PROCEDURES CONFERRED NO POWER ON THE COMMISSIONER TO SCHEDULE OR MAKE ALTERNATIVE ARRANGEMENTS FOR A PROPER TRIAL OF THIS MATTER
"C. THE APPELLANT WAS AFFORDED A DISPROPORTIONATE AMOUNT OF ALLOCATED FOR TRIAL TIME, IMPACTING AND LIMITING RESPONDENT'S TIME FOR REBUTTAL
"D. THE MARIN COUNTY SUPERIOR COURT DID NOT PROVIDE COURT REPORTERS CREATING UNDUE HARDSHIP AND FINANCIAL DURESS ON THE RESPONDENT
"E. ELKINS MANDATES A REVERSAL OF THE JUDGMENT OF THIS MATTER AND A REMAND FOR FURTHER PROCEEDINGS
"2. THE THREAT OF MISTRIAL DEPRIVED RESPONDENT OF A FAIR TRIAL AND WARRANTS A REVERSAL OF THE JUDGMENT."
Balsz cites nothing supporting a claim that the court must supply a reporter, and in fact California Rules of Court, rule 2.956(c) provides that it is the party's responsibility to arrange for a reporter and pay the cost where no official reporter is available. And as to the arguments about the amount of time Balsz had to present her case, it is perhaps enough to note the court's observation that this case was "a new record for a DCSS trial." Balsz has had her day in court. And Elkins v. Superior Court (2007) 41 Cal.4th 1337, on which Balsz relies, has no application here.
The issue in Elkins involved a local rule and a scheduling order in the Contra Costa Superior Court that provided that in dissolution trials the parties had to present their case by means of written declarations. As Chief Justice George summed up the case:
"A local superior court rule and a trial scheduling order in the family law court provided that in dissolution trials, parties must present their cases by means of written declarations. The testimony of witnesses under direct examination was not allowed except in 'unusual circumstances,' although upon request parties were permitted to cross-examine declarants. In addition, parties were required to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial.
"Petitioner's pretrial declaration apparently failed to establish the evidentiary foundation for all but two of his exhibits. Accordingly, the court excluded the 34 remaining exhibits. Without the exhibits, and without the ability through oral testimony to present his case or establish a foundation for his exhibits, petitioner rested his case. As the court observed, the trial proceeded 'quasi by default,' and the court's disposition of the parties' property claims demonstrated that the court divided the marital property substantially in the manner requested by petitioner's former spouse.
"Petitioner challenges the local court rule and trial scheduling order on the grounds that they are inconsistent with the guarantee of due process of law, and that they conflict with various provisions of the Evidence Code and the Code of Civil Procedure . . . .
" . . . [P]ursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials. Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a 'day in court,' including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact." (Elkins v. Superior Court, supra, 41 Cal.4th at pp. 1344-1345.) Elkins hardly describes the situation here.
Balsz's third argument is that the trial court was biased in favor of Buddie. The claim is essentially premised on the fact that Buddie, an attorney and an "officer of the Court of almost 30 years," should have conducted himself differently, including responding more appropriately to discovery requests. Balsz demonstrates nothing to support her claim that Buddie showed "contemptuous disregard" for the system.
Balsz's fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth arguments all address claimed errors in what the trial court found, or failed to find, and will be addressed together. Before that we address Balsz's sixth argument, which is this: "The trial court's ruling on Appellant's motion in limine regarding her medical experts was erroneous and prejudicial against her regarding the issues of her continuing disability and in ability [sic] to work." This argument attacks the ruling made by the trial court concerning Balsz's physician, Dr. Ifeoma Ikenze, as to whom the court ruled: "The doctor may not testify as to respondent's ability to work. The doctor can testify to medical treatment." This, Balsz claims, was an abuse of discretion.
That ruling was made on August 20, 2013. The minutes reflect that there was no reporter present that day. Thus, no abuse of discretion argument will lie. The leading practice treatise explains why: "Unless a court reporter is present, the losing party may have no effective way of challenging the court's ruling by writ or appeal: 'In the absence of a transcript, the reviewing court will have no way of knowing . . . what grounds were advanced, what arguments were made, and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation.' [Citations.]" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 9:172, p. 9(I)-133.)
As indicated, Balsz's remaining arguments all address claimed issues involving what the court did, or did not do. Three of the arguments, the seventh, eighth, and eleventh, argue that the court's findings were "against the weight of the evidence." Such arguments have no place here. Even if Balsz were correct as to the "weight of the evidence"—and we do not conclude she is—such arguments necessarily fail. That is, if there is substantial evidence in support of the appealed judgment or order, we must affirm notwithstanding that the record also reveals "substantial" contrary evidence. "If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874; see Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245 ["We do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the verdict in favor of the prevailing party."].) As Witkin describes the principle, the test for the substantial evidence "is not whether there is substantial conflict, but rather whether there is substantial evidence in favor of the respondent. If this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed. In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 370, p. 427.)
That leaves remaining Balsz's seven other arguments, which assert as follows:
"4. The trial court erred in its findings regarding the marital standard of living which is the crucial predicate in establishing permanent spousal support under Family Code § 4320(d)."
"5. The trial court erred in finding that $2,400 per month in permanent spousal support will meet respondent's needs in light of the marital standard of living and her medical needs, consistent with Family Code § 4320(d) and (h)."
"9. The court erred in making any findings that the imputation of income was in the best interests of the children."
"10. The trial court erred in its calculation of child support because it failed to give any consideration of her extraordinary medical expenses."
"12. Respondent contends that the trial court erred in refusing to award her some of appellant's retirement assets to satisfy a portion of the foregoing child and spousal support arrearages."
"13. The trial court erred in failing to award respondent reimbursement of $15,323.43 for unpaid medical and child-related expenses."
"14. Respondent contends that the trial court erred in failing to award her attorney fees as a sanction under Family Code § 271 or CCP § 1991."
To begin with, and as indicated earlier, Balsz's arguments are based on a treatment of the record that essentially ignores any version of facts incompatible with hers, which there were. That is inappropriate, and we may deem the issue waived. (In re Marriage of Fink, supra, 25 Cal.3d at p. 887; Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
We will nevertheless highlight a few items of evidence that were referred to in the court's statement of decision.
The trial court found that Balsz's current sources of income are Social Security disability payments, annuity payments, investment income, and child and spousal support. And in connection with the Family Code section 4320 factors, the trial court found that Balsz's "earning capacity is significant but her willingness to be retrained and to promote herself in the job market after this Judgment is unknown. There is no question that her earning capacity has been impaired by long periods of unemployment during the marriage to devote herself to domestic duties. However, the children are now of sufficient age for their mother to be out of the home during the day. [¶] There was conflicting evidence about the extent to which KAIA enhanced RAYMOND's career by introducing him to influential political figures. RAYMOND testified that only one such contact turned into a case he handled."
The trial court addressed for several pages Balsz's predicament and her pain:
"Over time, the pain became full body pain. As a result, KAIA stopped working entirely, becoming instead a full-time mother to the parties' two minor children. She also began what appears to be a desperate attempt to find the causes of her pain and treatments to ameliorate it. After seeing 20-30 health care providers, including 13-15 neurologists, she remains unsuccessful in either identifying all of the causes of her pain or in finding treatments that work. Her primary doctor, Dr. Ifeoma Ikenzi [sic] acknowledged that KAIA's symptoms remain essentially unchanged and that no treatment has been particularly successful."
"Both KAIA and Dr. Ikenze testified that KAIA exhibits occasional mental confusion, either from the constant pain or from her various medications. Yet, she has been able to take 50% or more of the timeshare responsibility for the parties' two children. In addition, KAIA has been able to represent herself at various times in this action, composing well-written and cogent declarations on her own behalf.
"Accepting that KAIA's pain is resistant to treatment, Dr. Ikenze has encouraged her to learn to live with the pain, to engage in physical activities and to 'live her life.' "
There was also evidence from expert Richard Rubenstein, who conducted an independent physical examination, who opined that Balsz appears to have a major depressive disorder in which her emotional pain is converted into physical symptoms—"somatoform pain disorder." Dr. Rubenstein recommended antidepressive drug treatment, aerobic exercise, and cognitive behavioral therapy to address what he labeled "mal-adaptive behavior." Rachel Hawk, an expert in vocational rehabilitation and a vocational consultant, testified that Balsz is employable, and she specifically recommended that Balsz reenter the legal field, probably as a paralegal, noting that other law-related jobs could include document examiner or legal secretary. Hawk further testified that Balsz could return to work as a fund-raiser, a lobbyist, or in business development.
To the extent Balsz answers that going to work will undercut her ability to obtain disability benefits, the law states otherwise, illustrated, for example, by Stewart v. Gomez (1996) 47 Cal.App.4th 1748. There, the husband was receiving disability benefits at the time the trial court imputed additional income to him for purposes of calculating support. The husband claimed that the court could either use imputed income or disability benefits, but not both. The Court of Appeal disagreed, concluding that the trial court did not abuse its discretion by reasoning the husband's imputed income earning capacity was not inconsistent with his unearned income from disability benefits.
To the extent that Balsz places heavy reliance on her disability, we note there was evidence from Buddie that Balsz engaged in kayaking, catamaran sailing, and rowing, and that she also travels extensively, including going to the Sierras, Texas, and to the Rose Bowl.
As for Balsz's financial affairs, the trial court also found, based on Balsz's Schwab asset statements, that in 2008 and 2009 she withdrew at least $355,825 in stock and securities, going on to find this:
"A majority of the monies were invested with a trusted friend, Sam Fairchild, who purportedly invested the monies for KAIA in a Mexican company. Although KAIA did not receive any paperwork for the investment, nor any K-1 or 1099, she continued to invest monies with Mr. Fairchild. She did not receive any return on her investment and it is now apparently a lost cause. KAIA failed to respond to RAYMOND's discovery to account for the use of all the monies withdrawn from her Schwab account. Her testimony at trial revealed that she remains unsure about how she spent the money and how much was invested with Mr. Fairchild, nor did she make any effort to obtain this information. It is reasonable to charge KAIA with a reasonable rate of return on these funds. [County of Kern v. Castle (1999) 75 Cal.App.4th 1442]. Neither party offered evidence on the appropriate rate of return. Therefore, the Court will set 3.5% as a reasonable rate. KAIA is, therefore, charged with an additional $1038/mo. in income."
DISPOSITION
The judgment is affirmed. Each party shall bear their respective costs on appeal.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.