Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara James F. Rigali, Judge Super. Ct. No. 1250524
Biely & Biely, Suzanne K. Biely, for Appellant.
John F. Hodges and Buddy Jaquith, for Respondent.
YEGAN, Acting P.J.
Elizabeth Dominguez (wife) appeals from an amended judgment of marital dissolution denying temporary support, reserving jurisdiction on spousal and child support, and ordering wife to pay $950 expert costs. The trial court reserved jurisdiction on support for six months until the financial condition of the parties stabilized and wife obtained full time employment. We reverse with directions to recalculate child support based on statewide uniform guidelines (Fam. Code, §§ 4052-4055) subject to any adjustments that may be in the best interests of the children. (§ 4057, subd. (b); In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1326).)
All statutory references are to the Family Code unless otherwise stated.
Facts and Procedural History
Bernie Dominguez (husband) and wife separated on October 15, 2007, following an 18 year 2 month marriage. Four children were born during the marriage.
Husband financially assists the oldest child who is in college and is the primary caregiver of the three younger children. Wife lost her job as a school teacher after she was convicted of felony petty theft (Pen. Code, §§ 484(a)/666), violated probation in another case, and was arrested on a new theft offense. The Santa Barbara County Superior Court ordered wife to serve 120 days county jail.
Wife was in custody from June 4, 2008 to July 22, 2008. After July 22, 2008, she moved in with her parents.
In June of 2008, the trial court granted husband temporary child custody and control of the family home until the criminal proceedings were concluded. Wife was awarded exclusive possession of a condominium.
In November of 2008, husband and wife entered into a stipulated order for joint legal custody. The trial court awarded "primary residence" of the children to husband. The order provided that wife could care for the children in the family home when husband was at work or away. Wife stipulated that husband would not pay child or spousal support, that the court would reserve jurisdiction on support, and that the "global plan" would be re-evaluated in the future, depending on wife's career change and living situation.
At the March 26, 2009 trial, evidence was received that husband grossed $6,594 a month as a school counselor. He had, however, just received a layoff notice for the next academic year. Husband's household expenses were $4,252 a month, plus $1,158 a month for the children's private schooling.
Wife had a masters degree, lived with her parents, and worked as a part-time waitress earning about $860 a month. Before the theft conviction, wife earned $8,225 a month as a school teacher and had 16.9 years of service.
The trial court dissolved the marriage, modified visitation, and reserved jurisdiction on spousal support and child support. The court divided the property, awarding husband the family residence with a $62,500 equalizing payment to wife.
Spousal Support
Before trial, wife filed a motion for temporary support requesting $600 a month spousal support, guideline child support, and $2,500 attorney's fees. Following trial on March 26, 2009, the trial court stated that it was denying spousal support "for now" and was "not ruling out the possibility that I'll order that [husband] pay [wife] spousal support in the future." The court found that the motion for temporary support was moot.
Wife argues that the trial court erred in not awarding spousal support. 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 a determination of permanent support. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) "Subject only to the general 'need' and 'the ability to pay,' the amount of a temporary spousal support award lies within the court's sound discretion, which will only be reversed on appeal on a showing of clear abuse of discretion. [Citation.]" (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Before trial, the status quo was no support as set forth in the November 12, 2008 stipulated order. Although husband was awarded the family residence at trial, he was also ordered to make a $62,500 equalizing payment. Husband had just received a "pink slip" from his employer, making it very speculative whether he could support the children and pay their schooling without wife's help. Wife on the other hand, had a masters degree, had worked as a school teacher for more than 16 years, was living with her parents, and was working part-time as a waitress. Wife claimed that she could not get a full time job because of her criminal record.
The trial court stated that it would review support in six months with the expectation that wife obtain full time employment. "[I]f you come back and you've done a great job of trying to get your act together, including your housing act together, and you tell me you need some help from [husband], which is going to be help that comes from the kids because once I start taking money from him, I'm taking it from the whole... operation, and I'm happy to do that, and I'm happy to bring and put stress on their situation, which might make them move out – I don't know...."
The trial court did not err in reserving jurisdiction until more was known about husband's and wife's financial situation. "The issue of spousal support, including its purpose, is one which is truly personal to the parties. [¶] Equitable considerations are the most significant factor in these cases." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 481.)
Wife complains that the trial court failed to consider support guidelines but temporary spousal support is not governed by section 4320. (In re Marriage of Murray, supra, 101 Cal.App.4th at pp. 594-595; Hogoboom & King, Cal. Practice Guide, Family Law (The Rutter Group 2009) ¶ 6:828, pp. 6-302.7 to 6-302.8.) Nor is a family law court "restricted by any set of statutory guidelines in fixing a temporary spousal support amount. [Citation.]" (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
The record indicates that the trial court did consider many support factors including include the parties' earning capacity and their ability to pay, taking into account education, income, assets, and standard of living; the duration of the marriage; the needs and marketable skills of the supported party; the goal that the supported party become self-supporting within a reasonable period of time; and the hardships of the parties. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 303-304.)
It was uncontroverted that most of husband's income went to the children's housing, care and schooling, and that wife was not paying child support. Because of the layoff notice, it was quite possible that husband would not have a job the next academic year.
The trial court was concerned that wife was working as a part-time waitress despite her prior employment as a school teacher ($8,225 per month) and marketable skills. It found that wife could do better, both in employment and housing, and declined to order temporary support because it would result in a hardship to the children and jeopardize their care and housing. Wife makes no showing that the court abused its discretion in reserving jurisdiction on spousal support.
Wife, however, argues that the trial court was biased and denied support to punish her. The trial court warned that wife's criminal record and part time job was wife's own doing. It reminded the parties that this "is a no-fault state" and the court was not "going to be hitting [wife] over the head with the criminal stuff as long as [wife] goes and does her best." With the property division and $62,500 equalizing payment, "[y]ou have plenty of money now, liquid assets available to you to live off of and to get housing and to start over and come back into this court. I'm assuming it's going to be relatively soon. By that, I mean,... next fall, or something, because I don't know if [husband's] going to have a job or not."
Having reviewed the full context of the trial court's comments, we reject the argument that the court was biased, engaged in misconduct, or used wife's criminal record to deny support. The trial court's statement that wife should focus on "her own responsibility for the criminal stuff" was not intended to punish wife but to urge wife to get a full time job and better housing. " '[W]hen the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to... prejudice against a litigant....' " (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031.)
Child Support
Wife argues that guideline child support should be awarded to minimize disparities in the children's living standards in two homes. (§ 4053, subd. (g).) Husband, however, is the primary caregiver, pays for the children's care and schooling, and receives no support from wife. Four months before trial, wife agreed not to seek temporary child support so that husband could maintain the family home and be the primary caregiver.
At trial, little had changed. Wife was still working as a part time waitress and had moved to a studio apartment. The trial court stated that child support might be awarded in six months if appropriate. It warned that support could go "both ways" and that income could be imputed in calculating child support if wife did not obtain gainful employment commensurate with her education, job skills, and work experience. (See e.g., El Dorado County Dept. of Child Support Services v. Nutt (2008) 167 Cal.App.4th 990, 993; In re Marriage of Eggers (2005) 131 Cal.App.4th 695, 699-701 [collecting imputed income cases].) The trial court stated that it was setting child support "at zero because I basically want you to butt out of each other's affairs for the end of the school year and the summer...."
We reverse and remand. Although a family law court has the statutory discretion to award any amount necessary for child support, uniform child support guidelines must be applied. (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1326.) In determining the amount of child support a parent owes, the trial court is required to calculate a presumptive amount under the formula set forth in section 4055, subdivision (a)) and may vary from the presumptive amount only if it finds that one or more of the circumstances set forth in section 4057, subdivision (b) are applicable. (Id., at p. 1326.)
We observe that the case is unique and if the trial court intends to make a section 4055(b)(5) trial finding, it shall expressly do so.
Attorney Fees
Wife argues that the trial court erred in denying attorney fees. Wife spent $5,000 in community funds for counsel, engaged in obstructive conduct, and decided to represent herself. At trial, wife declared that she owed no attorney fees and requested $2,500 attorney fees. Husband had already incurred $8,000 in attorney fees.
Denying the request for fees, the trial court found that wife is "not entitled to any attorneys fees for herself.... I don't think she needs attorney's fees to be here on her own." The trial court did not err in ordering the parties to pay their own attorney fees. (See In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) A spouse who elects to forego representation at trial may not be awarded attorney fees unless the spouse paid for or is liable to pay attorney fees. (§ 2030, subd. (a)(2); Hogoboom & King, Cal. Practice Guide, Family Law, supra, ¶ 14:128.1, p. 14-40.)
Expert Costs
Wife contends that the trial court erred in ordering her to pay $950 expert costs, to be deducted from the $62,500 equalizing payment. Ron Reddall, a pension expert, calculated that wife's CalSTRS retirement benefits were $213,000 and that husband's CalSTRS retirement benefits were $139,500. Wife refused to accept the appraisal, requiring husband to pay $600 for an updated report and $500 for Reddall's court appearance.
At trial, wife stated that she was not disputing Reddall's appraisal and "I don't know why a forensic economist [i.e., Reddall] was hired." The trial court ordered wife to reimburse husband for the $950 charged by Reddall. It found that "there was no valid basis asserted by [wife] to justify the additional costs incurred by Mr. Reddall, including his Court appearance to testify...."
Section 271 "advances the policy of the law 'to promote settlement and to encourage cooperation which will reduce the cost of litigation.' [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as sanctions. [Citations.]" (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) The evidence shows that wife engaged in frivolous trial tactics, requiring husband to produce Reddall at trial and incur unnecessary costs. The trial court did not abuse it discretion in ordering wife to pay those costs ($950), to be deducted from the $62,500 equalizing payment. (See e.g., In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)
We reverse the order denying child support and remand with directions to recalculate child support based on statewide uniform guidelines (§§ 4052-4055), subject to any adjustments which the trial court finds are in the best interests of the children. (§ 4057, subd. (b); In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1326) The judgment, as modified, is affirmed. Wife is awarded costs on appeal and each side is to bare its own attorney's fees.
We concur: PERREN, J. COFFEE, J.