Opinion
E066008
09-27-2018
In re the Marriage of DOUGLAS BOYD HARRIS and LISA J. PECK. DOUGLAS BOYD HARRIS, Appellant, v. LISA J. MACDONALD, Respondent.
Douglas Boyd Harris, Appellant in pro. per. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWD1300762) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Douglas Boyd Harris, Appellant in pro. per. No appearance for Respondent.
This divorce case is somewhat unusual, in that, during the spouses' 10-year marriage, neither of them was gainfully employed; the wife supported them and their children out of the proceeds of the settlement of a previous divorce.
After a full trial, the trial court ruled that, pursuant to the couple's premarital agreement, the houses that they acquired during the marriage and paid for out of the wife's separate property were her separate property. It ordered the wife to pay the husband spousal support, child support, and attorney fees (though not as much as he was seeking). However, it declined to order the wife to pay the husband's post-separation debts.
The husband appeals, challenging virtually every ruling by the trial court. Finding no error, we will affirm.
I
PROCEDURAL BACKGROUND
Husband Douglas Harris filed this divorce proceeding against wife Lisa Peck (now MacDonald) in March 2013. He had counsel during two brief and relatively uneventful periods in the litigation (March-June 2013 and January-July 2014); otherwise, he was in propria persona throughout.
From here on, we will refer to the parties by their first names, for two reasons. First, this has become customary in family law cases. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 531, fn. 2.) Second, first names make it easier for the reader to keep track of who is the husband and who is the wife.
In March 2015, the trial court entered a status-only judgment of dissolution. On August 21 and September 22-23, 2015, it held a trial on all remaining issues. On October 21, 2015, it issued a statement of decision. The statement of decision provided:
1. Child support: Lisa was to pay $743 a month in child support. She was also ordered to pay $22,910 ($790 a month for 29 months) in past-due temporary child support.
2. Spousal support: Lisa was to pay $2,500 a month in spousal support, effective October 1, 2015 and terminating on April 30, 2018. She was also ordered to pay $32,712 ($1,128 a month for 29 months) in past-due temporary spousal support.
3. Property division: All real property acquired during the marriage was found to be Lisa's separate property.
4. Debt division: The trial court declined to order Lisa to pay Douglas's post-separation debts.
5. Attorney fees and costs: Lisa was to pay $5,577 to Douglas in attorney fees and costs.
On February 10, 2016, Douglas filed a motion for "modification" of the "[j]udgment" (i.e., the statement of decision). On March 15, 2016, the trial court entered judgment in accordance with its statement of decision. On April 13, 2016, it denied Douglas's motion for modification.
II
PRELIMINARY STATEMENT
Rather than provide a comprehensive statement of facts, we will state the facts that are relevant to each issue separately.
In stating facts, we consider only the evidence admitted at trial. Even assuming the trial court had discretion to consider matters presented in earlier proceedings, it warned the parties that it was not going to do so.
Thus, for example, the trial court's appointed accounting expert, Mark Kaplan, created a report, which was filed before trial and admitted into evidence at trial. We may consider that. On the other hand, accountant David Whitford also prepared a report, which was filed before trial but never admitted into evidence at trial. We may not consider that.
We also point out that we cannot consider evidence admitted at trial if it has not been provided to us as part of the appellate record. Even though "all exhibits . . . are deemed part of the record" (Cal. Rules of Court, rules 8.122(a)(3), 8.124(b)(4)), it is not physically possible for us to review them unless the appellant has either had the originals transmitted to us (see Cal. Rules of Court, rule 8.224) or included copies of them in the appendix. (See Cal. Rules of Court, rules 8.122(a)(3), (b)(3)(B), 8.124(b)(1).)
A few exhibits are in the record, not as exhibits per se, but because they were also filed in connection with pretrial proceedings and we have been able to identify them as identical to a trial exhibit. These are Exhibit 4, Schedule of Assets; Exhibit A, Premarital Agreement; and Exhibit B, First Kaplan Report. Even though it may not be strictly according to Hoyle, we do consider these exhibits.
Finally, it is a general rule that "[f]actual findings made by the trial court will be upheld if based on substantial evidence." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) It is also a general rule that "[i]ssues not raised in the appellant's opening brief are deemed waived or abandoned. [Citation.]" (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 149, fn. 7.) Combining these general rules, we will accept a factual finding of the trial court unless Douglas is specifically contending that it is not supported by substantial evidence.
III
INCOME FOR PURPOSES OF CHILD SUPPORT AND SPOUSAL SUPPORT
Douglas claims that the trial court took an erroneous approach to calculating Lisa's income for purposes of spousal support and child support.
A. Additional Factual Background.
When the parties married, Douglas was 44 and Lisa was 32. They had both been married before. As a result of the property settlement in a previous divorce, Lisa had assets (not including the value of her primary residence) worth approximately $3 million. Douglas had always been self-supporting.
Lisa came into the marriage with six children. During the marriage, the couple had two more.
During the marriage, neither spouse was gainfully employed. Lisa worked as a self-employed consultant but generated negligible net income. The trial court found that her business "appear[ed] to be a tax shelter." Douglas worked briefly as a self-employed realtor, but he, too, generated negligible net income. The spouses argued constantly over Douglas's refusal to work outside the home; it "was the biggest problem in [the] marriage."
The family therefore lived off of Lisa's assets. Or, as the trial court put it, they lived by "cannibalizing the golden egg." They enjoyed what the trial court found to be an "elevated" but not "extravagant[]" standard of living. They spent approximately $20,000 a month. Because they had no net income, they paid no income taxes.
By the date of separation, Lisa's original primary residence had been sold for $700,000; her current primary residence was worth only $460,000. In addition, the value of her cash assets had been reduced to about $2.4 million. After separation, she continued to live off of her cash assets; by the time of trial, their value had been further reduced to $2.1 million. Meanwhile, Douglas continued not to work. He lived by racking up credit card debt.
B. Additional Procedural Background.
The trial court appointed Mark Kaplan, a forensic accountant, as its own expert. (Evid. Code, § 730.) Based on In re Marriage of Destein (2001) 91 Cal.App.4th 1385 (discussed in more detail in part III.C, post), he recommended attributing an income to Lisa based on the reasonable rate of return on her investment assets. He calculated that, on that basis, her annual income would be $63,000.
Douglas argued that Lisa's income should be deemed to be the couple's actual spending — i.e., $20,000 a month or $240,000 a year. The trial court, however, accepted Kaplan's recommendation.
C. Discussion.
"[W]e review a judgment for child or spousal support under the abuse of discretion standard [citation] . . . ." (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) "[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]" (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.)
The income of each of the spouses is a significant factor for purposes of both spousal support (Fam. Code, § 4320, subd. (c)) and child support (Fam. Code, §§ 4055, 4058, 4059, 4060). For purposes of child support, income includes "income from whatever source derived." (Fam. Code, § 4058, subd. (a).) Here, the trial court applied the same standard for purposes of spousal support. Douglas does not contend that this was error.
"[W]hile the definition of income in [Family Code] section 4058 is broad, it is not limitless. [Citation.] Generally, the types of income specified in the statute consist of money that the support obligor actually receives, and do not include unrealized increases in the value of assets. [Citation.] This is consistent with '[t]he traditional understanding of "income" [as] the gain or recurrent benefit that is derived from labor, business, or property [citation], or from any other investment of capital [citation].' [Citation.] Put another way, '[s]upport payments usually are paid from present earnings, not liquidation of preexisting assets.' [Citations.]" (In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1372-1373.)
Nevertheless, "where a support obligor possesses considerable wealth, the court should 'consider imputing reasonable income on [the obligor's] assets, . . . to the extent necessary to meet the children's reasonable needs. [Citation.]' [Citation.]" (In re Marriage of Pearlstein, supra, 137 Cal.App.4th at p. 1374, fn. 10.) "For example, where the supporting party has chosen to invest his or her funds in non-income-producing assets, the trial court has discretion to impute income to those assets based on an assumed reasonable rate of return. [Citations.]" (Id. at pp. 1373-1374, fn. omitted.)
In In re Marriage of Destein, supra, 91 Cal.App.4th 1385, during the marriage, the spouses enjoyed a "lavish lifestyle," funded largely by the income from the husband's investments, which included both securities and real property. (Id. at pp. 1388-1389.) Upon divorce, the trial court attributed income to the husband based, in part, on a hypothetical six percent return on his real property assets (id. at p. 1390), even though he had acquired them for long-term appreciation and they generated no income. (Id. at p. 1389.) The court of appeal held that this was not an abuse of discretion. (Id. at pp. 1393-1397.) It stated: "Nothing in Family Code section 4058, subdivision (b), suggests that the court's discretion to charge a reasonable rate of return to an investment asset depends on an income-producing history." (Id. at p. 1394.) Here, the trial court proceeded in accordance with Destein.
Douglas argues that it should have treated as Lisa's income the whole $240,000 a year that she generated during the marriage by selling her assets. Under Pearlstein and Destein, however, the sale of an asset is not income, except to the extent that it has appreciated.
Lisa paid no taxes, indicating that she had no capital gains. Moreover, the trial court found that "the couple sold off less profitable stocks at a sale price, equal to or lesser than the purchase price of those stocks, thus avoiding a tax consequence. Thus, if other stocks or investments in the portfolio increased in value, the total investment portfolio might maintain its value, even while the less profitable stocks were sold off to keep the lights on." Douglas identifies no error in this finding.
Douglas does argue that the trial court erred by finding that the value of Lisa's assets had gone down as a result of her spending. In his view, the record shows that the value went down abruptly during (and as a result of) the "[c]rash" of 2008, but otherwise it held "rock-steady." He does not explain how this would undermine the judgment. As best we can tell, his point seems to be that Lisa must actually have been selling assets that had appreciated (while not declaring the gains for tax purposes). As just stated, however, the trial court explained how the total value of the portfolio could remain constant even though Lisa was selling some of the assets to live on.
Douglas complains that Lisa should not be able to manipulate her income for support purposes (even though she can for tax purposes) by choosing to sell off assets that have gone down rather than assets that have gone up.
The trial court took care of this problem, however, by applying Destein. The whole point of Destein is that it attributes to the obligor spouse the income that is he or she is deliberately forgoing by not selling appreciated assets.
In any event, Douglas fails to show that the overall value of the portfolio actually did remain steady. He relies in part on "evidence" that was never admitted at trial. (See part II, ante.) When we review what little evidence remains, it falls far short of proving what he claims. He admitted that he did not have any documentary evidence regarding the value of the portfolio prior to 2007. Moreover, he relies heavily on his own testimony that the value immediately before the crash was $2.7 million; the trial court, however, did not have to accept this testimony, especially as he did not introduce any documentary proof. Moreover, he gives a figure of $1.94 million for the value after the crash that is not cited to any evidence whatsoever. Finally, he includes the value of the couple's primary residence, even though, as Kaplan testified, a primary residence ordinarily is not income-producing property and thus is irrelevant to income. (In re Marriage of Henry (2005) 126 Cal.App.4th 111, 118.)
We therefore conclude that the trial court did not abuse its discretion in calculating Lisa's income.
IV
OTHER ISSUES REGARDING SPOUSAL SUPPORT
A. Failure to Order Sufficient Temporary Spousal Support.
Douglas claims that the $1,128 a month that the trial court awarded him in past-due temporary spousal support was insufficient.
He does not discuss the trial court's reasoning; thus, he fails to explain why it was wrong. Among other things, he does not discuss the Xspouse calculations on which the trial court relied. (See Cal. Rules of Court, rule 5.275.)
Douglas merely cites In re Marriage of Burlini (1983) 143 Cal.App.3d 65, which stated, "Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial . . . . [Citation.]" (Id. at pp. 68-69.) He therefore asserts that the marital standard of living was $20,000 a month, $1,128 a month is less than half of this, and therefore it is erroneous. However, Burlini stated that this was the goal of temporary spousal support, not a rigid rule for calculating it. Moreover, Douglas disregards the "as close . . . as possible" aspect of Burlini.
Douglas paraphrases this statement; somewhat misleadingly, he places his paraphrase in quotation marks.
B. Finding of Ability to Work in the "White-Collar Sector."
The trial court found that Douglas was "in sufficiently good health to be employed in the white-collar sector . . . ."
Douglas argues that he was not in good health. As support, he cites a declaration that he did not file until six months after trial and after the entry of judgment. This is irrelevant.
He also claims that he had never held a white-collar job. However, he does not discuss all of the evidence bearing on this point. "'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' [Citations.] [Appellant's] contention herein 'requires [appellant] to demonstrate that there is no substantial evidence to support the challenged findings.' (Italics added.) [Citations.] A recitation of only [appellant's] evidence is not the 'demonstration' contemplated under the above rule. [Citation.] Accordingly, if, as [appellant] here contend[s], 'some particular issue of fact is not sustained, [he is] required to set forth in their brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be waived.' (Italics added.) [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.)
Even assuming the trial court erred, the error is not prejudicial. The trial court merely imputed to Douglas a minimum-wage income, which he could make even without a white-collar job. Indeed, he undercuts his own argument by stating that he "has been developing a self-employed business plan adapted to his skills and capacities." Thus, evidently he is capable of earning at least minimum wage.
C. Finding of Ability to Earn $50,000 from One Transaction.
The trial court found that Douglas "came to the marriage with the ability to earn $50,000 from a single transaction . . . ." He does not deny that there was evidence to support this. He merely claims that Lisa never brought it up, and thus it was somehow unfair for the trial court to consider it. However, the trial court was not bound by Lisa's arguments.
He also claims that he actually ended up losing $15,000 in the transaction, but he cites no evidence to support this.
D. Failure to Consider Douglas's "Litigation Employment."
The trial court stated that Douglas "chose to work on [t]his lawsuit for the last 2.5 years and build up a mountain of debt instead of getting busy earning a living . . . ."
Douglas is clearly stung by this, but as far as we can tell, he does not explain why it is wrong. The trial court could reasonably conclude that the effort of litigating a single family law case, in which there were many lengthy continuances, did not preclude Douglas from earning a living.
V
ADDITIONAL ISSUE RELATING TO CHILD SUPPORT
Douglas contends that the trial court miscalculated his timeshare for purposes of child support.
The trial court gave Douglas "parenting time" (which we will refer to as custody) as follows:
1. During the school year, one weekday night per week, from 4:00 p.m. until school starts.
2. During the school year, 1st, 3rd, and 5th weekends, from 4:00 p.m. Friday until school starts Monday.
3. During the summer break, 50 percent.
4. During vacations and holidays, in accordance with "the CCRC report of July 23, 2013."
For purposes of child support, the trial court calculated that Douglas had a 36 percent timeshare; however, because Lisa had supplied an Xspouse calculation using a 38 percent timeshare, it accepted the 38 percent figure.
Douglas asserts that the correct figure was 42 percent.
He reasons, in part, that, during the school year, Lisa had custody for three out of four weekdays (excluding Monday, which he treats as part of the weekend). Douglas, however, did not have custody for a full 24-hour weekday. He only had custody for 16 hours; Lisa had custody for the other 8 hours.
Similarly, he reasons that during the school year, Lisa had custody for two weekends a month, consisting of three days (Saturday, Sunday, and Monday) each. This is inaccurate, however, because on the other two or three weekends a month, Lisa had custody for an additional eight hours.
We also note that "the CCRC report of July 23, 2013" is not in the record. The trial court described it as setting forth "a detailed holiday and vacation schedule." The trial court did briefly summarize its provisions regarding vacations (to be split "as equally as possible"), but there is no evidence of its provisions regarding holidays. Thus, while Douglas represents that vacations and holidays were split 50-50, we cannot verify that.
Douglas also represents that the school year consisted of 36 weeks, but we cannot verify that, either.
Finally, in the trial court, Douglas supplied a completely different calculation, based on different assumptions, which produced a timeshare for him of 44.4 percent. This demonstrates that there was some leeway in the calculation. He has not shown that the trial court exceeded this leeway.
VI
CHILD CUSTODY AND VISITATION
Douglas claims that the trial court erred by signing and entering Lisa's proposed child custody and visitation order even though it had not been served on him.
A. Additional Factual and Procedural Background.
On March 6, 2015, the trial court issued a written ruling regarding child custody and visitation. It directed counsel for Lisa to prepare a formal order. On April 29, 2015, the trial court signed and entered a formal order (which is not in the record).
On May 20, 2015, Douglas filed a request (which also is not in the record) to modify the order.
On August 21, 2015, at the beginning of trial, the trial court denied the modification request. It further indicated that it intended its April 29, 2015 order to be a final order, and it was not going to revisit it in the absence of a showing of changed circumstances.
The trial was held in August and September 22, 2015. On October 21, 2015, the trial court issued its statement of decision.
On November 24, 2015, at a hearing on an unrelated matter, Douglas asserted for the first time that he had not had an opportunity to review the proposed order before the trial court signed it. The trial court responded, "There's nothing on calendar related to that today." It observed that, in the ordinary course of business, the proposed order would have been served on Douglas. It added that it signed the order because the order conformed with its ruling.
Douglas appears to be claiming that counsel for Lisa admitted filing the proposed order without a proof of service. Counsel made no such admission.
On February 10, 2016, Douglas filed a motion for modification of the statement of decision. In it, he asserted again that he had not had an opportunity to review the proposed order. He asked the trial court to sign and enter an amended order.
On March 15, 2016, the trial court entered judgment. The judgment adopted the April 29, 2015 child custody and visitation order as final.
On April 13, 2016 — after entry of judgment — the trial court denied Douglas's motion for modification.
B. Discussion.
Douglas never raised this issue properly below. He did file a request to modify the formal order; it is not in the record, and apparently he did not claim in it that he had not been served. At trial, when the trial court indicated that it regarded the April 29, 2015 order as final, Douglas still did not raise the present issue.
He raised the issue for the first time, without any notice to Lisa, at a hearing on an unrelated matter. He raised it again in his motion for modification, but while that motion was pending, the trial court entered judgment. As a result, it lost jurisdiction to modify its interim orders. (Cf. In re Marriage of Thorne and Raccina (2012) 203 Cal.App.4th 492, 499.)
More important, he failed to show below that the proposed order was not actually served on him. He never submitted any declaration or other evidence to that effect.
Likewise, he has not so shown in this appeal. Neither the proposed order nor the signed order is in the record. Hence, we cannot say that the proposed order did not have a proof of service. We may reasonably assume that, if it did not have a proof of service, the clerk would not have accepted it and the trial court would not have signed it. (Evid. Code, § 664.)
Finally, he has not shown prejudice. (See Cal. Const., art. VI, § 13.) The trial court found that the proposed order conformed to its actual ruling. As the order is not in the record, Douglas cannot show otherwise. Thus, it appears that, even if the proposed order had been served on him, the trial court ultimately would have signed it.
VII
DIVISION OF REAL PROPERTY
Douglas claims that the trial court found that there was no community real property based on an erroneous construction of the parties' premarital agreement.
A. Additional Factual and Procedural Background.
Clause 1 of the premarital agreement provided:
"Except as otherwise provided in this Agreement, the following property now owned or later acquired by either party shall remain and be their separate property:
"— All property, including real or personal property, the income from such property, and the investments and re-investments of such property . . . . [¶] . . .
"The property currently owned by each party is described on Exhibits A and B . . . ."
Exhibit B, regarding Lisa's property, listed a house in Orem, Utah. It also listed cash (or cash-equivalents) in various accounts.
These accounts were later moved to Merrill Lynch and are sometimes referred to in the record as the Merrill Lynch accounts.
Clause 1.c provided: "If the parties now reside in or later become residents of . . . []a community property state[] the property interests of the parties shall nevertheless remain as stated in this Agreement."
Clause 4.a provided that, in the event of divorce: "Each party shall have an equal interest in all property acquired by the other party during the course of the marriage (except property that is merely the result of the increase in value of the property owned separately by the parties prior to the marriage . . . )."
Clause 4.b provided that, in the event of divorce, "all property listed on the attached schedules as separate property (owned by a party prior to the marriage) shall remain the separate property of that party . . . , including any appreciation, income, or other increase to such property."
Finally, clause 5 provided that, in the event of divorce, "neither party shall seek or obtain any form of alimony or support from the other, or seek any relief, other than a distribution of their joint property interests or those property interests acquired during the course of the marriage . . . ."
Before trial, the trial court ruled that this waiver of spousal support was invalid.
During the marriage, the Orem house was sold and the proceeds, plus some of Lisa's cash assets, were used to buy a house in Highland, Utah.
Douglas claimed that he contributed $18,000 toward the purchase of the Highland house, in the form of his services as realtor in connection with the purchase. The trial court found that, by rendering these services, he was saving money, not making or contributing money. In this appeal, he does not challenge this finding.
Later during the marriage, the Highland house was sold; the proceeds, plus some more of Lisa's cash assets, were used to buy a house in Murrieta.
During the trial, the trial court ruled that all real property acquired during the marriage was Lisa's separate property.
B. Discussion.
"'When a trial court's interpretation of a written agreement is appealed and no conflicting extrinsic evidence was admitted, the interpretation of the contract is a question of law which we review de novo. [Citations.]' [Citation.]" (Rancho Pauma Mutual Water Company v. Yuima Municipal Water District (2015) 239 Cal.App.4th 109, 115.)
"'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.' [Citations.] 'Such intent is to be inferred, if possible, solely from the written provisions of the contract.' [Citations.] 'If contractual language is clear and explicit, it governs.' [Citation.]" (State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195.) "'"[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract."' [Citation.]" (Ibid.)
The premarital agreement provided that all "investments" of the parties' separate property would remain separate property. The Orem house was Lisa's separate property. When it was sold, the proceeds (plus some of Lisa's cash assets) were invested in the Highland house; thus, the Highland house was also Lisa's separate property. And likewise, when the Highland house was sold, the proceeds were invested in the Murrieta house; thus, the Murrieta house was also Lisa's separate property.
Douglas relies on clause 4.a, which gave each party, upon divorce, an equal interest "in all property acquired by the other party during the course of the marriage . . . ." However, it carved out any "property that is merely the result of the increase in value" of separate property. Thus, it paralleled the provision of clause 1 that income from any investments of separate property would remain separate.
In Douglas's view, clause 1 applies only during the marriage and provides that the increase of separate property remains separate, whereas clause 4.a applies only on divorce and provides that the increase of separate property becomes community. Clause 1, however, has no such temporal limitation. Moreover, this would be absurd — a spouse would have no right to the other spouse's separate property during marriage (when they would most want to provide for each other) but would gain one on divorce (when they would least want to provide for each other).
It seems unreasonable to allow a mere change in the form in which one spouse's separate property is invested to have such a significant impact in the event of divorce. Here, the Orem house was sold, and the Highland house was purchased, within months after the marriage; in Douglas's view, this gave him the right, on divorce, to half the value of the Highland house, which totaled over $500,000. As the trial court stated, "[I]n this instance where it is so clear that it was her asset that was used to purchase a subsequent residence, it was basically a replacement residence, I struggle to understand why you should receive [a] windfall and then get half of that home." "I just don't see . . . how it would [be] conscionable under a rational interpretation of the premarital agreement."
Douglas also relies on clause 5, which purported to waive spousal support but allowed the parties, in the event of divorce, to obtain "a distribution of their joint property interests or those property interests acquired during the course of the marriage . . . ." (Italics added.) However, this must be understood as including the carve-out provided in clause 4.a for "property that is merely the result of the increase in value" of separate property. Otherwise, the two provisions would contradict each other.
We therefore conclude that the trial court correctly ruled that houses acquired during the marriage were Lisa's separate property.
VIII
EQUALIZATION PAYMENT
Douglas claims the trial court erred by ordering him to make an $8,000 equalization payment.
A. Additional Factual and Procedural Background.
After separation, Douglas kept $16,000 that was in a savings account. This was money "that [he] saved up from [the] work that [he] did during the marriage . . . [.]"
The trial court found that this money was community property. Accordingly, the judgment provided: "[Douglas] is awarded the following community property and debts as his sole and separate property . . . : [¶] . . . The sum of $16,000 that was in [his] possession at the date of separation . . . ." It also provided: "[Douglas] owes [Lisa] $8,000 for [Lisa's] share of the $16,000 [Douglas] had in his possession at the date of separation."
B. Discussion.
Douglas argues that the judgment is contradictory because it declares the $16,000 to be his separate property, yet it requires him to pay Lisa $8,000 as her share of the $16,000.
This ignores the whole point of an equalization payment. "Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate." (Fam. Code, § 2601.) Here, the trial court awarded the $16,000 community asset to Douglas, as his separate property, on condition that he pay Lisa $8,000 as her separate property. The net result was an equal division.
Even if the judgment really were contradictory, Douglas would not be entitled to have the contradiction resolved in his favor. Rather, given the finding that the $16,000 was community property, we would amend the judgment suitably as to the $16,000, but we would still require him to pay the $8,000.
IX
POST-SEPARATION DEBTS
Douglas claims that the trial court erroneously refused to require Lisa to pay any of his post-separation debt. He relies on Family Code section 2623, which provides:
"Debts incurred by either spouse after the date of separation but before entry of a judgment of dissolution of marriage or legal separation of the parties shall be confirmed as follows:
"(a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred.
"(b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt."
After citing and quoting Family Code section 2623, the trial court ruled: "[T]here are multiple limitations and qualifiers within this code section. The significant qualifier impacting this section is the language that advises that these debts 'shall' be allocated in this manner 'in the absence of a court order or written agreement for support or for the payment of these debts.' In this case, based on the judgment of the court set forth in this statement of decision, there is now a court order for both child support and spousal support and it is made retroactive to a point in time shortly after the parties separated and within 15 days of the filing of the RFO requesting such support. As such, the court will not order [Lisa] to pay the debts accrued by [Douglas]. Furthermore, assuming the court has the discretion to make such an order, the court declines to do so. As noted throughout this decision, [Douglas] intentionally pursued a strategy wherein he chose not to work but to invest all of his time and energy into preparing his lawsuit. Certainly had he readily sought employment and spent his time earning an income immediately following separation, his debt would not be at its current level. Likewise, there is scant evidence on how [Douglas] spent the $90,000 worth of debt that he claims to have accrued. Furthermore, the court declines to make a finding regarding the amount of debt and whether it was spent on 'common necessaries' because the evidence on these issues is lacking."
Douglas argues that the trial court was not aware of Family Code section 2623. Obviously, when it ruled, it was.
Douglas's next argument is not at all clear. He seems to be saying that a prior court order for support does not preclude the trial court from reallocating post-separation debt. However, the statute says that it does. Specifically, it says that post-separation debt can be reallocated only "in the absence of a court order or written agreement for support." And this makes sense. Otherwise, a supported party would have an incentive to spend beyond the amount of support, in the hope that the resulting debt would be reallocated in the judgment.
Douglas argues that the trial court erred by stating that it had "discretion," because the statute says that post-separation debt "shall be confirmed" to the appropriate spouse. This ignores the fact that it requires reallocation of post-separation debt "shall be confirmed . . . according to the parties' respective needs and abilities to pay." The trial court has discretion in assessing these needs and abilities.
This is followed by another unclear argument. The point seems to be that Douglas had no actual income, and the statute prohibits considering the ability to earn income. "[A]bilit[y] to pay," however, must reasonably be construed to include "ability to get a paying job." Once again, any other construction would give the spouses an incentive not to work.
Finally, Douglas argues that there was sufficient evidence of the amount of debt that he incurred specifically for necessaries. He cites his trial testimony that he had accumulated $88,000 in post-separation debt. Otherwise, he cites matters that were not part of the evidence at trial — his closing argument and two random documents that were never introduced into evidence at trial. In sum, then, he fails to show how much of this debt went toward necessaries.
X
ATTORNEY FEES
Douglas claims that the trial court erred by awarding him only $5,577 in attorney fees, rather than $21,000. He also argues that it erred by failing to address attorney fees in a timely manner.
A. Additional Factual and Procedural Background.
On April 22, 2013, Douglas filed a request for orders, seeking, among other things, attorney fees. It was accompanied by a declaration by his then-attorney, stating that he had had incurred attorney fees and costs totaling $5,577.
On August 26, 2013, the trial court reserved ruling regarding attorney fees until trial.
In his trial brief, Douglas asked the trial court to order Lisa to pay $50,000 toward his post-separation debt. (See part IX, post.) He added: "This $50,000 payment would be inclusive of any [r]equests for payment of [a]ttorney's [f]ees." Otherwise, his trial brief did not mention attorney fees at all.
At the outset of trial, the trial court stated: "[I]f after I hear this case I deem it's appropriate to order attorney's fees and costs, I believe both of you have filed against one another for attorney's fees and costs. Both of you — well, both of you have filed against one another for sanctions. And so, I'll consider any requests for sanctions at the end of our trial." It added: "[W]e are putting over the matter of attorney's fees[,] costs and sanctions until after the trial."
Douglas did not testify regarding his attorney fees. He had filed one income and expense statement on August 18, 2015 and another (possibly corrected) on August 19, 2015. The August 18 statement is in the record but was not introduced at trial. The August 19 statement was introduced at trial but is not in the record.
Douglas asserts that Lisa introduced his August 18 statement. Not so. In the portion of the record that he cites, Lisa's counsel referred to an April 25, 2013 statement. And even that statement was never actually introduced. --------
At the end of the trial, neither side brought up attorney fees.
In its statement of decision, based on the 2013 declaration of Douglas's attorney, the trial court awarded Douglas $5,577 in attorney fees and costs.
In his motion for modification, Douglas argued that he was entitled to $21,000 in attorney fees. He attached documentation that had never been introduced at trial. The trial court denied the motion.
B. Discussion.
Douglas forfeited his present contention by failing to raise it at trial. (De Boni Corp. v. Del Norte Water Co. (2011) 200 Cal.App.4th 1163, 1171, fn. 6.) His trial brief indicated that he was seeking attorney fees solely as post-separation debt and not under Family Code section 2030.
Admittedly, the trial court indicated that it was postponing any issue regarding attorney fees (or possibly sanctions) until the end of trial (or possibly after trial). However, precisely because the trial court's statement was vague and ambiguous, it was incumbent on Douglas to raise the issue of attorney fees at some point; at a minimum, he should have asked the trial court when it did intend to deal with this issue. "[H]is failure to press for a ruling waives the issue on appeal. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 984; accord, Phillips v. Campbell (2016) 2 Cal.App.5th 844, 848.)
Douglas raised the issue in his motion for modification, but by then, it was too late. He had not introduced any evidence regarding the amount of his attorney fees at trial. Thus, it could hardly be argued that the trial court erred by awarding him less than he sought, for the first time, in the motion. Indeed, the trial court bent over backwards by seeking out his attorney's 2013 declaration — which he had not introduced at trial — and awarding him the amount of attorney fees shown in it. He can hardly complain that it did not award him even more.
Finally, in his motion, he did not argue that the trial court had erred by failing to address the issue sooner. This further forfeited any such contention.
XI
DISPOSITION
The judgment is affirmed. Because Lisa has not appeared, we award neither party costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.