Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 1189392, James W. Brown, Judge
Law Office of Herb Fox, Herb Fox for Appellant.
Law Offices of Charles Oxton, Charles Oxton; Lascher & Lascher, Wendy C. Lascher, Eric R. Reed for Respondent.
GILBERT, P.J.
Bret E. Davis appeals a judgment of the family law court awarding his former wife, Maria Docouto, $10,000 monthly spousal support. We affirm.
We shall refer to the parties as "Bret" and "Maria," not from disrespect but to ease the reader's task.
FACTS AND PROCEDURAL HISTORY
On May 4, 2006, Bret filed a petition to dissolve his long-term marriage to Maria. The couple had been married for nearly 20 years, and had two minor children.
Bret is a board-certified physician employed by Sansum Medical Clinic in Santa Barbara. He earns an annual salary of approximately $455,000.
Maria is an attorney licensed to practice law in Massachusetts. After passing the Massachusetts bar exam in 1996, she was employed as a prosecutor. Following the birth of her second child in 1997, she pursued an immigration law practice. Maria, born in Brazil, is fluent in the Portuguese, Spanish, and English languages.
In 1999, the couple moved from Massachusetts to Santa Barbara. Maria took the California bar exam on two occasions, but did not pass the exam. She continues to pursue an immigration law practice in part because it does not require a license to practice law in California. Maria testified that financial success in her legal practice is limited by her inability to establish a client-trust account and by the restrictive immigration policies and laws enacted following the September 11, 2001 terrorist attacks. In 2007, Maria earned a gross income of $30,000 from practicing law, but only $2,806 after expenses. She testified that she works a 40-hour weekly schedule at her law practice and at marketing her legal skills, including an international contract practice resting upon her language fluency. She also testified that she intends to retake the California bar exam.
At trial, vocational and rehabilitation counselor Doctor Ann Wallace testified that she interviewed Maria and concluded that she could earn $68,000 to $72,000 annually by continuing her immigration law practice and accepting hourly contract work from Santa Barbara attorneys. Wallace recommended that Maria obtain a license to practice law in California to build her law practice. Wallace also opined that Maria could earn $50,000 - $65,000 annually as a paralegal employee. In her written report, however, Wallace stated that she had interviewed the owners of two Santa Barbara paralegal placement firms and they stated they would not employ an attorney in a paralegal capacity.
Prior to trial, Maria filed another income and expense declaration reflecting $16,720 in monthly expenses (increased from $8,876), including $7,000 in annual property taxes on the family home. Following the presentation of evidence at trial and cross-examination regarding her monthly expenses, Maria filed a trial brief reiterating that her monthly expenses are $16,720. She also stated that she "has a need for[] a monthly award of spousal support of $9,519.00 per month" and requested an award in that amount.
The family law court established a date of separation, divided and awarded the marital property, awarded monthly child support, and awarded Maria $10,000 monthly spousal support to reflect the marital lifestyle. The court discussed and applied the spousal support award factors of Family Code section 4320, and concluded that Maria has a "negligible" and "speculative" earning capacity partly because "skills in Immigration Law are not particularly marketable at the present time." The court also determined that Maria has an annual earning capacity of $60,000 as a paralegal employee. In determining the amount of spousal support, the court concluded that Maria's $16,720 monthly needs "are not entirely credible." The court also warned Maria pursuant to In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712, that she must make reasonable good faith efforts to become self-supporting.
All further statutory references are to the Family Code unless stated otherwise.
Bret appeals and contends that the family law court erred by 1) awarding Maria more support than she requested, and 2) not imputing income to her.
DISCUSSION
I.
Bret argues that the family law court erred by awarding Maria more spousal support than requested in her written trial brief. He relies upon Benton v. Benton (1898) 122 Cal. 395, 398-399, holding that a plaintiff in an action for separate maintenance may not recover more than his complaint demands. Bret also relies upon the general rule in civil actions that a defaulting party is not liable for more than that demanded in the complaint. (Code Civ. Proc., § 580, subd. (a) ["The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint"]; In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1163, 1167 [denial of due process to enter default judgment ordering payment of child support where none requested in dissolution petition]; Buchanan v. Buchanan (1952) 114 Cal.App.2d 120, 121 [court may not order defaulting spouse to pay spousal support where none demanded in complaint]; but see Valenzuela v. Valenzuela (1959) 168 Cal.App.2d 565, 567 [default judgment may award spousal support despite absence of request because support "is so germane to the issue of divorce"].) He points out that the rule also applies in contested proceedings. (Castaic Clay Manufacturing Co. v. Dedes (1987) 195 Cal.App.3d 444, 449 [in contested matter, court may not award damages in excess of that claimed in pleading].) Bret adds that constitutional principles of due process demand we apply the general rule here.
The family law court did not err because Bret received notice of the increased spousal support demand prior to trial and litigated the issue at trial. Several days prior to trial, Maria filed an income and expense declaration stating that her expenses had increased to $16,720. Bret cross-examined Maria at trial regarding the increased expenses. Moreover, Maria's post-trial brief referred in part to a $9,519 "guideline" spousal support award that is not determinative. The post-trial brief also reiterated Maria's testimony that she required $16,720 monthly "to approximate the marital lifestyle." Although Maria requested $9,519 at the conclusion of her brief, we interpret that as her minimum demand. (Castaic Clay Manufacturing Co. v. Dedes, supra, 195 Cal.App.3d 444, 449 [averments in pleading, not prayer, control party's financial damages].)
The family law court also properly applied the spousal support factors of section 4320, subdivisions (a) through (n), to the evidence presented in the income and expense declarations and the testimony of the parties at trial. An award of spousal support rests upon the facts and circumstances existing at the time the support order is made. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) Bret received constitutionally sufficient notice of Maria's increased financial demands.
II.
Bret contends that the family law court erred by not imputing income to Maria. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 642 [earning capacity may be considered in determining spousal and child support].) He points out that Doctor Wallace opined that Maria could earn $68,000 annually as an immigration attorney who also performed contract work for local attorneys. Bret adds that Maria's hourly wage from her law practice is less than the federal minimum wage and precludes her from supporting her children to the best of her ability.
The family law court properly exercised its discretion by not imputing income to Maria. (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1385 [family law court has discretion to impute income to parties].) As Doctor Wallace testified, Maria is implementing a planned practice in immigration and international contract law, while studying to pass the California bar exam. Wallace concluded in her vocational assessment that "[i]n the long run, the best income/employment opportunity [for Maria] lies in her being licensed in California and adding additional services to her practice." Maria testified that the lack of a California license hindered her ability to establish a client-trust account and to perform contract work for other attorneys. She stated that she intended to study for and retake the California bar exam. The family law court concluded that the loss of a license to practice law had a "significant negative impact" on Maria's earning ability and that Maria should continue to build her law practice and to become licensed as a California attorney. The court also warned Maria that she should become self-supporting within a reasonable time. The court's order is reasonable and not an abuse of discretion within the applicable law.
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: YEGAN, J. COFFEE, J.