Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FL119540
ELIA, J.After termination of their marriage, Dianne and William Haydock litigated the reserved issues of spousal support, child support, and reimbursement of post-separation expense payments. On appeal from the resulting order, Dianne contends that the family court erred by (1) imputing employment income to her for purposes of calculating spousal support; (2) including Dianne's spousal support in the calculation of child support; and (3) awarding reimbursements to William without taking into account the disparity in the parties' income. We find merit in Dianne's second argument and must therefore reverse the order.
For the sake of clarity, we will refer to the parties by their given names, as do the parties.
Background
The parties separated on April 11, 2004, after nearly 17 years of marriage. Their two children were then 13 and 7 years old. On that day an incident involving domestic violence caused William to call the police, and Dianne was arrested and removed from the home. On April 15, Dianne filed a petition for legal separation. Shortly thereafter, William obtained a temporary restraining order against Dianne and a "Protective Order In Criminal Proceeding (CLETS)."
Dianne filed an Order to Show Cause for spousal support, visitation, and other relief on May 4, 2004. William then requested dissolution as well as legal separation. He requested legal and physical custody of the children and opposed visitation by Dianne. The court ordered William to pay Dianne temporary spousal support of $2,977 and ordered the parties to share child care expenses equally.
A jury acquitted Dianne of the criminal charges in July 2005, and the criminal restraining order was dismissed. The "Domestic Violence Restraining Orders" were dismissed without prejudice by stipulated order in May 2006. Dianne was nonetheless ordered to stay away from William except for "[p]eaceful" e-mail contact related to the children and limited financial issues.
On May 23, 2006 Dianne moved for an increase in spousal support and other relief. In his responsive declaration in June 2006 William requested that spousal support be recalculated by imputing income to Dianne. He also requested an order of child support payable by Dianne to him. Dianne's earning capacity became a primary subject of contention between the parties.
The parties stipulated to the appointment of a temporary judge, James F. Cox, for resolution of the pending motion and other financial issues. During the early months of 2007 the court made orders related to the disposition of the parties' property, including William's buyout of Dianne's interest in the family home. In May 2007 the court directed William's attorney to draft an order appointing Cheryl Foden to evaluate Dianne's ability to work. Foden conducted her evaluation during the summer of 2007 and submitted her report on February 7, 2008. Dianne moved to disqualify Foden as well as a neuropsychologist evaluator, but the court denied the motion, finding no bias as alleged by Dianne.
Foden testified at the trial on the support issue, which took place in February 2008. She had found it difficult to obtain the information she needed to complete her evaluation. She noted that Dianne had attempted a paralegal program but had been unable to complete it. Dianne had, however, graduated from the University of Pennsylvania, and in 1987 she had earned $36,710 a year as an assistant treasurer for a bank. She had also had "extensive" volunteer experience which had given her significant responsibility and earned the respect of others. Because Dianne felt she was unable to perform at that level, however, Foden had suggested a range of jobs that would be less demanding than her previous work. Foden thought she could have completed a more thorough and accurate evaluation had she seen the report of the neuropsychological evaluation she had had Dianne undergo; but Dianne had apparently requested a protective order to prevent release of the report. Foden was unaware that Dianne had undergone a criminal trial for domestic violence.
Dianne explained that she had obstructed the release of the report because she did not want respondent to see it "[a]nd laugh" at her.
In her direct testimony, Dianne disputed Foden's description of her volunteer responsibilities; none of these prior activities, she explained, had required her to assume positions of leadership or responsibility. Dianne further testified that she had not been advised of her duty to seek work at any time since her separation from William. She listed the medications she was taking and explained that some of them made it difficult to function until noon every day. She had pain from arthritis in her knees and feet, tendinitis in her elbows, and frequent migraines. Even though she was found not guilty in the criminal proceeding and the criminal restraining order was dismissed in early May of 2006, Dianne was concerned that the record of the arrest and CLETS order would adversely affect her ability to secure employment. Dianne said that she was "barely getting by" with secondhand furniture in the cheapest apartment she could find in Palo Alto.
On cross-examination and in her responses to a 2007 interrogatory Dianne admitted that she had not made any effort to seek employment. She did not know if she would try to become employed in the following year. She did not remember a court order in August 2004 requiring her to devise an employment plan within 30 days, but she acknowledged her signature on the document, which was part of a Family Court Settlement Officer Order. The document was admitted into evidence.
On December 30, 2008, the court filed its order addressing spousal support, child support, and reimbursement issues. Addressing the primary issue of Dianne's financial circumstances, the court noted that she was not employed and did "not appear to be looking to... develop [either] skills or employment opportunities to contribute to her own support." The court recognized Dianne's assertion that her medical impairments prevented her from being able to contribute to her own support, but during her seven-month period of contact with the evaluator, she had not provided "any medical or other professional support for her position. In fact, her assertions differ so markedly from the evidentiary documentation that they raised the real issue of whether it was possible that Ms. Haydock had a neurological or organic incapacitation." The referral to the neuropsychologist, however, did not clarify the picture, as she "chose to bar the inclusion of the finding in this proceeding, even after being instructed by the Court that it was her burden to prove up any incapacity."
The court also rejected Dianne's protest that she had been under no obligation to seek employment because she had not been advised of that responsibility pursuant to In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712. Although no evidence had been submitted that she had received the Gavron warning, the court was "morally certain" that her counsel had advised her of the obligation to make an effort to become self supporting. The court also recalled that it had "engaged in dialog with her during the month of December, 2006, on that issue in a Case Management Conference wherein she informed the Court that [she] was aware of the obligation to be employed because she had been informed by her counsel." The court acknowledged the difficulty of re-entering the workforce after being a homemaker for such a long time, having a challenging medical history, and having faced ejection from the family home and criminal prosecution. Nevertheless, because Dianne had earning ability and had been aware of her obligation to "strive to be self-supporting" since December 2006 at the latest, the court imputed an ability to earn "between $12 and $15 per hour, with a practical gradual increase to $22 to $25 per hour, in any of several different compatible occupations."
The court then set forth its determination of each of the pertinent factors listed in Family Code section 4320 and concluded that spousal support of $3,600 per month from William to Dianne was appropriate. Anticipating an increase in Dianne's earning capacity, the court ordered the support amount to be reduced on January 1, 2013 to $2,000 per month.
All further statutory references are to the Family Code except as otherwise indicated.
Turning to child support, the court found it "logically appropriate to reflect the reality of support at the marital standard of living by adjusting payor's income for his payment [of spousal support] (it can be placed in the 'SS paid to prev marriage' on the computer calculation), and by including the income for the payee in 'Other taxable income'. The net effect is obtain [sic] a payment much more like a family support order." The court thus included William's $3,600 spousal support payment in the column for father's "SS paid prev marriage" and included that same amount in the column for mother's "Other taxable income."
Finally, the court calculated the value of property divided and post-separation family expenses paid by William. The court determined that Dianne owed William more than $40,000 to reimburse him for these amounts.
The original order required Dianne to reimburse respondent in the amount of $38,350. On August 11, 2009, while this appeal was pending, the Judge Cox ordered Dianne to pay respondent another $3852 in additional reimbursable expenses incurred during 2008. This court granted Dianne's request to amend her notice of appeal and augment the record to include the later order.
Discussion
On appeal, Dianne asserts error in calculating the proper amounts of spousal and child support. She contends that the court should not have imputed income (a) without any warning that she must attempt to secure employment; (b) in reliance on Foden's vocational evaluation; and (c) based on a finding that she had not attempted to find opportunities to contribute to her own support. Dianne further argues that the court erred in computing child support by including William's spousal support payments as deductions to him and income to her. Finally, she challenges the award of reimbursements as being disproportionate to the comparative financial circumstances of the parties.
A significant portion of William's brief is spent urging this court to disregard all of Dianne's contentions as having been waived by her failure to object to the trial court's statement of decision. In his view it is "unfathomable" that Dianne could possibly avoid the application of "the implied findings/waiver doctrine," and she therefore "should not be permitted to flaunt [sic] long-settled rules on appeal in order to have her complaints heard by this Court."
William's argument is based on a misunderstanding of the waiver doctrine, the purpose and procedure governing statements of decision, and the Supreme Court's decision in Marriage of Arceneaux (1990) 51 Cal.3d 1130. Code of Civil Procedure section 634 "declares that if omissions or ambiguities in the statement are timely brought to the trial court's attention, the appellate court will not imply findings in favor of the prevailing party. The clear implication of this provision, of course, is that if a party does not bring such deficiencies to the trial court's attention, that party waives the right to claim on appeal that the statement [of decision] was deficient in these regards...." (Id. at pp. 1133-1134.) "It is clearly unproductive to deprive a trial court of the opportunity to correct such a purported defect by allowing a litigant to raise the claimed error for the first time on appeal." (Id. at p. 1138.)
"Although Code of Civil Procedure section 634 requires a party to bring to the trial court's attention any omissions or ambiguities in the statement of decision (in order to avoid an appellate court implying findings to support the judgment), a party is free to argue on appeal that the court's factual finding is not supported by substantial evidence, even if not raised in the trial court." (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1136.) Where "there is no omission or ambiguity in the trial court's statement... there are no 'findings' to be implied in favor of the prevailing party which could alter the analysis. Accordingly, Code of Civil Procedure section 634 does not require that a party who fails to file opposition to a statement of decision be deemed to have waived objection to legal errors which appear on the face of the statement." (United Services Auto. Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 186; accord, Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 251-252.)
Nowhere in Dianne's opening brief did she complain about the sufficiency of the statement of decision, as William represents. She does not argue that it contains errors, omissions, or ambiguities, or indeed any procedural misstep; her assertions are instead directed at the legal merits of the court's order. The doctrine of implied findings is therefore inapplicable, and William's extensive attempt to bypass the merits of the appellate issues through the mechanism of waiver (or more accurately, forfeiture) is misplaced.
William further asserts that the order, even if reviewable, should be affirmed because Dianne fails to demonstrate or even "expressly claim" prejudice. We disagree. Dianne clearly conveys her belief that she was prejudiced by the asserted judicial errors: she was required to pay William $1,124 in child support that she could not afford without income, while William was earning a salary of $17,000 a month.
1. Requirement that Dianne Contribute to Her Own Support
Dianne contends that the court should not have imputed income to her in the calculation of spousal and child support because it did not issue a formal warning to her that she needed to seek employment, contrary to In re Marriage of Gavron, supra, 203 Cal.App.3d 705, 712. William's response again is off the mark. He correctly points out that the so-called "Gavron warning" has been codified in section 4330, which now makes the admonition discretionary. It is not required in a marriage of long duration if the court "decides this warning is inadvisable." (§ 4330, subd. (b).) William, however, turns the qualification, which exists to protect the supported spouse, on its head. The problem asserted here is not that the court determined the warning to be "inadvisable"—on the contrary, Judge Cox acknowledged that it was necessary in order to encourage Dianne to seek employment—but that he nonetheless failed to issue the warning, so that Dianne was ill prepared to support herself by the time of the 2008 support proceeding. William's claim that the statutory admonition is "merely discretionary" is inapposite in these procedural circumstances.
This provision currently states: "When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to section 4320, unless, in the case of a marriage of long duration as provided for in section 4336, the court decides this warning is inadvisable."
William's better argument is directed at the adequacy of the admonition that was given. The court expressly stated that although Dianne had not been formally warned pursuant to either Gavron or section 4330 that she must look for a way to contribute to her own support, she had nonetheless been informed of this obligation by the court and "both of her fine legal counsel." The record supports that finding. The order of August 31, 2004 contains a written stipulation, signed by the parties and their counsel, that "Wife shall provide an employment plan to Husband's counsel within the next 30 days indicating her plan for reemployment." If there was any lack of clarity in this requirement, Dianne should have called attention to her confusion and the consequences of her noncompliance could have been explained. Neither the statute nor Gavron requires a court to use the words "onerous legal and financial consequences"-- or, for that matter, any particular phrasing-- in its admonition. In addition to the August 2004 stipulation, the court found it necessary in March 2007 to appoint a vocational expert to evaluate Dianne's ability to work. The Gavron court itself noted that an order for a vocational evaluation is sufficient to alert the supported party of the court's expectation that he or she obtain employment. (203 Cal.App.3d at p. 712; but see Marriage of Schmir (2005) 134 Cal.App.4th 43 [three weeks' notice insufficient for wife to find employment after 14 years of support and too-recent vocational reports].) By February 2008 when the support hearing took place, more than 10 months had elapsed since the appointment order and Dianne still had not tried to find work. Thus, to the extent that the Gavron warning applies to initial orders of permanent spousal support, Dianne's assertion of error is not well taken.
The admonition typically arises in the context of a motion to modify or terminate support. (See, e.g., Marriage of Schmir, supra, 134 Cal.App.4th at p. 58 [insufficient notice before terminating support]; In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1381 [modification].) In that setting the court can determine whether the supported spouse has followed through with the obligation to become financially self-sufficient in light of the warning he or she has received. Here, however, the 2008 order was an initial one for permanent support. It is notable, though not consequential, that the $3,600 monthly payment set in the 2008 order was not a reduction, but an increase over the $2,977 in temporary support William had been ordered to pay as of May 2004.
In light of Dianne's presumed awareness of her obligation, we must further reject her contention that "the evidence establishes that Dianne in fact made good faith efforts to enhance her skills and employability." Clearly the court was not convinced, and its finding to the contrary is supported by substantial evidence. The paralegal training program in which she was temporarily enrolled was not, in the court's view, evidence of a sufficient effort. She cites a number of excuses: that she was "preoccupied with defending herself against the criminal charges and restraining orders"; that she was forced by her claimed "cognitive and other disabilities" to drop out of the paralegal program; and that the evaluator was biased against her. Dianne further maintains that Foden failed to ascertain or acknowledge the limitations she faced due to her limited skills and qualifications, the pendency of criminal charges, her compromised health condition, and the insufficient time she had had to look for work (due to the absence of a Gavron warning). Moreover, Dianne argues, Foden misunderstood the nature of her volunteer duties and the extent of her education, and a "scathing" e-mail to Judge Cox demonstrated Foden's "lack of neutrality and impartiality."
The e-mail message to Judge Cox expressed Foden's opinion that Dianne was avoiding the neuropsychologist's many attempts to contact her. Foden stated that "Dr. Wright thinks she is very manipulative at the very least.... Dr. Wright has evaluated hardened and manipulative criminals as part of her work and has not seen the likes of Diane [sic] to this point."
However, Dianne had an opportunity to raise these complaints and in fact did so in her written closing argument, in which she corrected the "factual inaccuracies" in the report. At the hearing she testified regarding her need for support and the limitations she faced in finding work. The court nevertheless concluded, based on all the evidence presented, that Dianne had the ability to earn $2,500 a month, or $30,000 a year. In articulating its findings, the court took into account the factors set forth in section 4320. "The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor. [Citation.] Once it does, 'the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]' " (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207; accord, In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442-1443.) As Dianne fails to demonstrate an abuse of discretion, we may not second-guess its finding of earning capacity.
Dianne's statement that in setting spousal support the court imputed income to her of $6,100 per month is misleading. The court assigned income of $6,100 to Dianne solely for purposes of setting child support, not spousal support; in that calculation Dianne was to receive spousal support of $3,600 from William in addition to the $2,500 she was expected to earn each month.
2. Calculation of Child Support
In setting child support, family courts are bound by the state uniform guideline, which "seeks to place the interests of children as the state's top priority." (§ 4053, subd. (e).) Accordingly, "[a] parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life." (§ 4053, subd. (a).)
In order to implement these overarching policies, the state uniform guideline requires each parent to pay for the children's support "according to his or her ability" (§ 4053, subd. (d)), by factoring in "each parent's actual income and level of responsibility for the children." (§ 4053, subd. (c).)
In this case the court stated that its findings and order on child support were provided in the attached "Xspouse" computer printout. The printout reflects the 96 percent custody by William, his salary of $17,000 a month, and Dianne's imputed salary of $2,500 a month with four percent custody time. These calculations are beyond caveat. The court then took into account various expenses paid by William. Among those was his $3,600 spousal support payment, which is the subject of Dianne's primary contention on appeal and her most meritorious one.
The family court used William's $3,600 spousal support payment as a deduction from his income and an addition to Dianne's taxable income. The court explained its reasoning for using spousal support in the computer calculation as follows: "An interesting factor arises in a matter of post-judgment spousal support, as the computer calculations for child support are performed on incomes available for support prior to recognizing the deduction (for payor) and receipt (for payee) of spousal support. This position is supported in the statutory language mandating the calculation of child support, but it is logically incorrect when the purpose of post-judgement support is to equalize life-styles in an environment wherein one party (as here) departs the marital union with significantly greater money earning skills. Given that that economic comparison has been done, it is logically appropriate to reflect the reality of support at the marital standard of living by adjusting payor's income for his payment (it can be placed in the 'SS paid to prev marriage' on the computer calculation), and by including the income for the payee in 'Other taxable income'. The net effect is obtain [sic] a payment much more like a family support order."
The court's assessment of the guideline formula as "logically incorrect" in these circumstances does not justify its deviation from legislatively mandated procedure. Section 4058, subdivision (a), defines gross income expansively, as "income from whatever source derived," and it contains a long list of types of income the court may use in making this determination. The list specifically includes "spousal support actually received from a person not a party to the proceeding." (§ 4058, subd. (a)(1).) Section 4059 enumerates deductions from annual gross income, which the court may use to calculate a parent's "net disposable income." Among those is "[a]ny child or spousal support actually being paid by the parent pursuant to a court order, to or for the benefit of any person who is not a subject of the order to be established by the court." (§ 4059, subd. (e).)
The family court was not authorized to augment the list of elements in sections 4058 and 4059 in order to craft a more "logical" child support order. As Justice Grignon explained more than a dozen years ago, "Although section 4058 defines gross income broadly, and party spousal support is not expressly excluded, the only type of spousal support specifically included in gross income is spousal support from a person who is not a party to the child support proceeding. By necessary implication, the Legislature did not intend the inclusion of spousal support from a person who is a party to the proceeding. Otherwise, spousal support, without qualification, would have been included in the list of qualifying income. Thus, the specific inclusion of nonparty spousal support as gross income impliedly excludes party spousal support, despite the expansive initial definition of gross income." (In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1499.) In so concluding, the Corman court adhered to established principles of statutory construction requiring a statute to be read not in isolation, but in the context of the entire statutory framework of which it is a part, so that its provisions are harmonized with each other and with other statutes. (See Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407, 1421.)
The 1997 Corman holding, which William only obliquely and equivocally acknowledges in his respondent's brief, unquestionably applies to the situation before us. William nonetheless attempts to avoid the clear inference of judicial error by suggesting that the court was within its discretion to give William this deduction as a "special circumstance" deduction. His argument must be rejected. First, he cites only a nonexistent statute, "Fam. C. § 4721, subdivision (e)(6) [sic]," for this assertion; evidently he is referring to Family Code section 4057, subdivision (b)(5), which replaced Civil Code section 4721, subdivision (e)(6). More importantly, the rationale of special circumstances may be used when a court has calculated guideline support and found it "unjust or inappropriate." (§ 4057, subd. (b)(5).) Here the court did not even purport to justify a departure from the guideline amount on the ground that special circumstances existed; on the contrary, its reasoning indicates that it believed that the guidelines authorized it to include spousal support to Dianne in the Xspouse program as a deduction for William and additional income to Dianne. If the court had intentionally departed from the guideline formula, it would have been required to comply with section 4056, including an explanation for why a deviation from the guidelines was necessary and why the different amount was consistent with the best interests of the children. (§ 4056, subd. (a); see In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1364.) There is no such explanation here because the court apparently believed that spousal support to Dianne was a permissible component of the Xspouse calculation.
William asserts that "Dianne has presented no on-point authority for the proposition that the trial court, in calculating child support, may not give him a deduction for the spousal support he pays to Dianne." He then adds and deletes a vague and grudging acknowledgement of Corman in a statement of barely comprehensible syntax and incongruous logic: "While it may arguably be inferred that inasmuch as that same spousal support may not be imputed to Dianne as 'other income' (In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1501-1502), such a deduction would by parity of reasoning, also be barred, there is no statute or caselaw saying so.... At least none that has been unearthed by counsel." If this is an oblique suggestion that Corman is somehow inapplicable, he makes no attempt to distinguish or refute that court's analysis.
We need not address William's further suggestion that "it would have been entirely appropriate... for Judge Cox to impute income to Dianne based on her ability to realize income from the $347,500 she was to net from the sale of her equity in the family residence, as he was urged to do by William." We will not issue advisory opinions on extraneous points raised by a respondent through the back door of the other party's appeal.
The court could not avoid the Legislature's implied exclusion of spousal support in the determination of parental income by recharacterizing its order as "much more like a family support order." Family support is not a label one can affix to a judicially fashioned combination of factors that do not comport with the state guideline formula. " 'Family support' means an agreement between the parents, or an order or judgment, that combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support." (§ 92, italics added.) "Orders and stipulations otherwise in compliance with the statewide uniform guideline may designate as 'family support' an unallocated total sum for support of the spouse and any children without specifically labeling all or any portion as 'child support' as long as the amount is adjusted to reflect the effect of additional deductibility." (§ 4066, italics added.) The spousal and child amounts ordered in this case unquestionably cannot be called family support, as they were derived separately and did not meet the criteria set forth in the statutory scheme. Thus, to the extent that the court was attempting to combine the parties' separate child and spousal support obligations and relabel them as family support, the result of that effort was unauthorized.
The inevitable conclusion from these facts is that the court erred. Although the family court has discretion in making child support orders (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753), that exercise of discretion must be " 'an informed and considered' " one. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) And while we do not reverse such orders absent an abuse of discretion, " 'we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]'... In short, the trial court's discretion is not so broad that it 'may ignore or contravene the purposes of the law regarding... child support. [Citations.]' [Citation.]" (Ibid.) In this case the court unreasonably added William's payment of spousal support to his list of deductions and to Dianne's imputed income. As this act was not permitted by the governing statutory scheme, it cannot stand.
Since child support will have to be recalculated, the family court will have an opportunity to reconsider all of the relevant factors bearing on its exercise of discretion. We therefore will not address Dianne's contention that the court failed to take into account the cost of her health insurance while giving William a deduction for his. William has not responded to this argument, but will be able to do so should Dianne bring the issue to the family court's attention on remand.
3. Reimbursement
Citing In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (superseded by statute on another ground), Dianne next contends that the court abused its discretion by requiring her to reimburse William for half of the community expenses he paid from his separate property after the parties separated. Her point is not, as William assumes, that the evidence does not support the amounts or necessity of the expenses incurred; instead, she argues that an equal division of those expenses was unfair because she has no "actual income," whereas William earned $17,000 a month and "continues to live a lifestyle in a million dollar home that equals or exceeds the martial [sic] lifestyle."
Dianne offers no basis for reversal on this ground, however. She did not present it to the family court in her closing argument, but only contested William's reimbursement claims for reasons specific to the source of the individual expenses paid. The only exception was the claim for litigation-related expenses, such as the vocational evaluator, the neuropsychologist, and Judge Cox; for those costs Dianne did request an allocation "based on the parties' respective incomes and abilities to pay." In its order, however, the court subtracted those litigation costs, as well as the expenses related to the parties' residence (where William remained), from the total reimbursement amount claimed. Dianne's argument regarding the unfairness of the reimbursement order due to the disparity in income has been forfeited for purposes of this appeal. In any event, it appears that the court carefully considered the claimed costs and Dianne's specific objections to them; it made certain adjustments it found appropriate and explained the reasons for the resulting award in its order. Dianne's brief argument demonstrates no abuse of discretion in awarding reimbursement for post-separation costs claimed by William.
To the extent that the disposition of William's reimbursement claims is affected by the trial court's recalculation of support, the court has discretion to revisit the issue on remand.
Disposition
The order is reversed. The matter is remanded for recalculation of child support consistent with sections 4050-4063. The trial court shall allow any appropriate further proceedings to enable it to reconsider the child support award in light of the evidence already submitted. Dianne is awarded her costs on appeal.
WE CONCUR: RUSHING, P. J.PREMO, J.