Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 03D003564, Nancy A. Pollard, Judge.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant.
Brian G. Saylin for Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Karen S. Strausman appeals from a judgment of dissolution of her marriage to Harvey Kamens. She disputes the amount awarded for spousal support, certain reimbursements, and attorney fees. We agree there were errors and so reverse.
FACTS
The parties were married in 1994 and separated in 2002, after a marriage of 8 years and 3 months. They have no children. Kamens is a self-employed mortgage broker and Strausman a licensed vocational nurse. The instant action was commenced 2003. Trial concluded in November 2007 and judgment was entered in May 2008. The findings and evidence reveal the following.
The facts are drawn from the statement of decision. We consider the evidence most favorable to the judgment, under the rule that a judgment of the lower court is presumed correct and all inferences must be indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
In 1996, Strausman decided to take some time off, resigned her position, and never returned to work. Following separation, Strausman continued to reside in the family residence in Los Alamitos. From separation through trial, Kamens voluntarily paid spousal support consisting of all Strausman’s expenses (mortgage, taxes, utilities, maintenance, gardener, property and health insurance, dog care, and automobile expenses) plus $1,100 per month. At the time of trial, the residence was listed for sale, but neither the listing price nor an estimate of value was in evidence.
In 2003, Strausman inherited a one-half interest in her mother’s Long Beach house. Although Strausman commenced a partition action soon thereafter, she never again spoke with the attorney and the house remained empty, with Strausman paying the mortgage and utilities. Strausman testified she could not estimate the value of the house. No other evidence of its value was introduced.
The same year, Strausman filed for social security disability benefits, claiming a variety of medical conditions left her in constant pain, unable to sit, stand, or walk for any length of time. The claim was granted in 2006. Strausman was awarded benefits of $896 per month and received a retroactive lump sum payment of $28,000.
At trial, Strausman testified she was incontinent, in pain so severe she could sit or stand for only 30 minutes at a time, walk for 15 minutes at a time, and often was bedridden 2 days a week. Nonetheless, she had been able to take several trips to Cambria and one to Las Vegas in March 2007, during a break in the trial. The Las Vegas trip was to attend a convention on glassmaking, a hobby of Strausman’s. She owned two kilns and made jewelry by fusing glass, although she never sold her creations. The conference lasted two days, and Strausman attended all sessions, saw a show, gambled one day for an hour or two, and went out for dinner once or twice. According to a girlfriend who accompanied Strausman, they stopped during the drive five or six times because Strausman could not sit in one position very long, Strausman came back to the room “often” to lie down, took many meals in the room, and they stayed over an extra day with Strausman confined to bed. Despite her ailments, Strausman maintained a fitness club membership and kept her nursing license current.
Dr. Jack Berger, a pain management specialist who has treated Strausman since 2000, testified she suffers chronic pain from multiple conditions and was taking multiple medications. Berger explained his diagnoses were based mainly on what Strausman told him orally and in her patient history. As he put it, “chronic pain is a disease in itself.... There is no objective measure of it. [S]o you have to take what the patient tells you as the truth unless they prove otherwise.” Berger said spinal problems made it difficult for Strausman to sit in one place for more than 20 minutes, and incontinence precluded socializing or spending time in public places. Strausman would have good days and bad ones, but “her conditions are the kinds of pain diagnoses that don’t tend to get better.” At the present time, Strausman “is unable to do the normal amount of housework, shopping, cleaning, things that a normal person would be able to do.... When she exerts herself excessively because she is having a good day in terms of her pain, she suffers from it on the... subsequent days.” Berger opined Strausman was unable to work, because she could not perform any job that required lifting, walking, standing, or sitting, and “there are very few jobs in which you are permitted to get up... every... 15 minutes and walk around.”
The trial court found Strausman needed $5,000 per month to maintain her marital standard of living. Looking to her assets, it said Strausman “can be expected to have cash... of approximately $250,000 from her mother’s estate and more than $200,000.00 from the sale of the family residence.” It then imputed a “conservative investment return of 5.5%” and calculated this would produce income of $2,100 per month. Adding in $896 per month in social security disability benefits, the court found Strausman had income of approximately $3,000 per month.
In fixing support, the trial court found Kamens’ annual income was $60,000-$70,000 per year over the past four years, and he had estimated his net worth of $4.5 million in rental properties. Taking into account the marriage lasted 8 years and Kamens voluntarily paid support for 5 years after separation, and the other evidence introduced, the court awarded Strausman $1,000 per month in support for 6 months (September 1, 2007 to March 1, 2008), reduced to $500 per month for another 6 months (through October 1, 2008), at which time support and jurisdiction over support would terminate.
The family residence was ordered sold at a mutually agreed price. Kamens was to pay “any costs to prepare [the] house for sale” and entitled to reimbursement from the sale proceeds. After deducting all expenses, the net proceeds were to be divided equally between the parties, save for offsets awarded in the judgment.
Kamens was awarded reimbursement of $107,405 for post-separation mortgage payments on the family residence, to be made from Strausman’s share of the house sale proceeds. In the statement of decision, the court said Kamens was not entitled to a tax deduction for his voluntary spousal support, so it was fair to credit him with one-half of the mortgage payments. The judgment, however, directed reimbursement of the full $107,405, not the one-half requested.
Thus doubly compensating Kamens for the mortgage portion of the five years of support the court had considered in calculating the length of its support order.
Strausman was denied reimbursement for one-half of $6,000 community funds Kamens used shortly before separation to start his mortgage brokerage business. The trial court reasoned Kamens supported Strausman during separation with earnings from the business, so she was not entitled to credit on this item.
The fee awarded was $10,000 out of $55,324.45 requested. No explanation was given. The fee sought consisted of $30,535.65 for Strausman’s two prior attorneys and $24,787.80 for trial counsel. In a supporting declaration, Strausman said she had already paid the fees of prior counsel, along with $15,000 toward her obligation to trial counsel. A declaration from trial counsel attested to his fee.
I
Strausman argues the amount of spousal support, the duration of the award, and the step-down provision were all an abuse of discretion. We agree the award is unsupported by the record.
Family Code section 4320 sets out the factors that must be taken into account in ordering spousal support (“the court shall consider all of the following circumstances”). Those relevant here are the earning capacity of each party, ability of the supporting party to pay, needs of each party, their assets and obligations, duration of the marriage, ability of the supported party to engage in gainful employment, age and health of the parties, and the goal the supported party shall become self-supporting within a reasonable time, which is defined as one-half the length of the marriage subject to an exception not applicable here. (§ 4320, subds. (a), (c)-(h), (l).)
All further statutory references are to the Family Code.
An award of spousal support is discretionary, but it must be based on weighing all of the relevant statutory factors. (See, e.g., In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297 [insufficient to list factors and state they support an award without any analysis to explain the weight of each factor and which were relied upon].) And it must be based on evidence of the parties’ circumstances at the time of trial, not speculation. (See, e.g., In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1106-1108 [support order reversed where court failed to consider wife’s needs, husband’s ability to pay, and future earnings attributed to wife were speculative when based on earnings during marriage that depended on husband’s participation].)
The infirmities in the support order before us are numerous. To begin with, there is no evidence supporting the finding Strausman would receive $2,100 a month in income from investing a $250,000 inheritance, $200,000 for her share of the family residence, at a return of 5.5 percent. Nothing was introduced to show how either sum was arrived at, or what would be a reasonable rate of return for someone in Strausman’s position investing the bulk of her savings. The $250,000 and $200,000 figures were argued by Kamens in closing, but that is not evidence, and if there was evidence supporting them, it did not find its way into the record.
It appears the trial court believed Strausman was capable of earning $1,000 per month, but again there is no evidence to support such a finding. In fact, no evidence whatsoever was offered to show what Strausman could earn. Strausman claimed she was unable to work as a result of chronic pain. The trial court said it did not believe her, particularly after the Las Vegas trip and testimony about her jewelry making (“The [c]ourt thinks [Strausman] exaggerates her physical condition in spite of the finding of disability by the Social Security Administration”). But we are unable to find any evidence of what Strausman might reasonably earn. There appears to us to be neither expert testimony nor past earnings records to support the number chosen.
We arrive at this number by taking the $5,000 number necessary to match the marital standard of living, and subtracting the roughly $900 is disability payment, $2,100 in putative investment income, and $1,000 in support. Presumably, the $1,000 necessary to reach $5,000 per month was what the court concluded Strausman could earn.
Another problem is the trial court’s failure to weigh Kamens’ ability to pay against other factors in setting the amount of support. It found “[Kamens] is able to pay support...[since] his annual income over the past four years ranged in the high $60,000’s [and he] estimates his net worth [in] properties he owns to be about $4.5 million.” But the court appears to have made no calculation of how much Kamens could pay. Merely listing the support factors without any analysis and weighing is an abuse of discretion. (In re Marriage of Geraci, supra, 144 Cal.App.4th at p. 1297.)
Strausman assails the duration of support and the use of a step-down order. We need only address these issues briefly. Since the trial court on remand must consider Strausman’s needs and the extent to which she may be able to satisfy them in part through future earnings, its findings on these issues will inform a new decision on the duration of any support as well as its amount. As for the decrease in support over time, “step-down provisions are not per se objectionable.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 309.) The issue on remand will be whether Strausman can reasonably be expected to obtain gainful employment in the future, and if so, at what point in time a step-down in such an amount may be appropriate.
Strausman also argues the trial court ignored Dr. Berger’s testimony about her medical condition, because it never mentioned it in the statement of decision. We cannot agree on this one. The trial court found Strausman was not credible on the extent of her disability, something within its discretion as the trier of fact. The court said it “heard testimony from... witnesses for [Strausman] as to her physical condition and her inability to work. [¶]... The [c]ourt finds that although suffering from a variety of medical conditions, the [c]ourt questions the extent of [Strausman’s] health/disability. ... [¶]... [Strausman] has traveled... recently to Las Vegas, Nevada where she remained several days to gamble and attend jewelry making classes. She owns two... kilns used for melting elements used in her jewelry making hobby. The [court] questions that she can lift the heavy fire brick lid of a kiln without help, yet has to rest up for a day before changing laundry from the washer to the dryer. The [c]ourt thinks... [Strausman] exaggerates her physical condition in spite of the finding of disability by the Social Security Administration.” So while Strausman understandably is disappointed the trial court did not find her totally disabled, the decision was within its discretion.
Kamens contends the support order was within the trial court’s discretion because, in essence, Strausman had the capacity to earn an income and had not been diligent in seeking a job or managing her assets. Kamens’ position is that after voluntarily paying support for four and one-half years following an eight-year, three-month marriage, he fulfilled his obligations. But the argument is shot through with flaws.
The most obvious problem is the one already discussed – the court’s double consideration of Kamen’s support: using it to reduce the length of the support obligation but then ordering the mortgage part of the amount of that support be reimbursed to him from sale of the rental residence. The more important problem, however, is the absence of any evidence Strausman could obtain any gainful employment, how long the search might reasonably take, and what she could earn. Terminating support after one year is also problematic. While it is true the duration of support may be shorter in a marriage of shorter duration, there still must be evidence suggesting a reasonable cut-off date. In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260 does not help Kamens. There, after a two-year marriage, support was ordered for one year, with jurisdiction retained to reconsider the issue at the end of that period. The court held the retention of jurisdiction was error, since wife had a permanent job that provided sufficient income to support herself. The case is easily distinguishable, for here Strausman does not have a job and there was no evidence she can support herself.
Likewise wide of the mark is Kamen’s reliance on cases that hold where the supported spouse intentionally fails to prepare for or seek employment, support may be denied (In re Marriage of Mason (1979) 93 Cal.App.3d 215) or stepped-down after a period of time. (In re Marriage of Berland (1989) 215 Cal.App.3d 1257, 1264; In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 748-749.) All are distinguishable.
For example, in the denial of support case (In re Marriage of Mason, supra, 93 Cal.App.3d at p. 221), the court found wife was a credentialed high school teacher who could have maintained her standard of living by obtaining a teaching job. Here, to the contrary, there was no evidence what jobs Strausman could perform, or what she could earn. In the step-down cases (In re Marriage of Berland, supra,215 Cal.App.3d at p. 1261; In re Marriage of Sheridan, supra, 140 Cal.App.3d at pp. 748-749), substantial support had already been ordered for a period of time and the wife moved to continue support, so the burden of showing diligence was on the wife. In this case, there was no prior support order or other notice that Strausman was required to make reasonable efforts to contribute to her support, so there was no basis for denying support for lack of diligence. For these reasons, the trial court went beyond its discretion in making the support order.
II
Strausman contends Kamens’ reimbursement for post-separation mortgage payments must come out of the entire proceeds of the residence sale, not her share. She is right.
The general rule is a spouse who pays post-separation community obligations out of separate earnings is entitled to reimbursement from community property. Exceptions exist where the parties agree to no reimbursement, a gift was intended, or the payment discharged a duty of support agreed upon when the parties separated. (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85.)
Kamens was entitled to reimbursement out of community funds – the proceeds of the sale of the house – not Strausman’s share, since it is not claimed any of the exceptions apply. We note that is what Kamens sought in his closing argument. And that is what the statement of decision gave him – one half of the mortgage payments from Strausman’s share of the sale proceeds. Somehow, though, half from Strausman’s share ended up as all in the judgment. That was a mistake. To avoid any possibility of confusion, let us be clear: Kamens is entitled to either reimbursement of one-half of the payments from Strausman’s share of the sale proceeds, or full reimbursement from the community in the form of the entire proceeds (which amounts to the same thing, since, effectively, half will come from Strausman’s share).
Kamens seeks to save this windfall by arguing Strausman should be charged for the reasonable rental value of the residence she occupied, and the rental value is equal to half of the mortgage payments. But Kamens never sought rental value below and there was no evidence of that amount. So there is no basis upon which to charge Strausman for the rental value of the residence. Kamens is entitled to reimbursement for what he sought at trial, one-half of the post-separation mortgage payments.
III
We consider together Strausman’s arguments on two reimbursement matters, issues not decided, and attorney fees.
Strausman argues it was unfair to award Kamens reimbursement of the costs to prepare the family residence for sale, to be paid from the proceeds, since no reasonableness requirement was imposed. We disagree. The point relies on Gossman v. Gossman (1942) 52 Cal.App.2d 184, 194, but it is inapt. That case holds entry of a new judgment radically different from the initial one, without any apparent reason, was an abuse of discretion. Nothing of the kind occurred here, so we fail to see how the case is relevant.
Strausman contends it was error to deny her reimbursement for one-half of $6,000 in community funds Kamens used to start his mortgage business shortly before the parties separated. But she overlooks the reason for the denial. The trial court found Kamens used the earnings from the business to support Straussman for the four and one-half years following separation, and for that reason denied reimbursement. We cannot say this call was unreasonable. While the usual rule is the community is entitled to reimbursement for its funds used to improve separate property of one spouse (see, e.g. In re Marriage of Allen (2002) 96 Cal.App.4th 497, 501), in this case Strausman received ample benefit from the use of the modest sum in issue and the trial court acted within its discretion in denying reimbursement for this item.
Another argument is the trial court failed to “adjudicate the balance” in two bank accounts in Kamens’ name, one containing $25,251.78 and the other $11,827.81. But Strausman never explains what adjudication she sought, or why, nor does she point to anything indicating the issue was raised below. So this point was waived.
Finally, Strausman asserts the fee award of $10,000 was inadequate and unreasonable in light of the $55,324.45 requested. She reasons leaving her to shoulder $45,324.45 in fees is unfair in light of Kamens’ substantially greater income. Since we reverse the judgment, the trial court on remand will need to make a new fee award, after it reconsiders spousal support and corrects the amount of reimbursement for mortgage payments. In doing so, it must bear in mind that fee requests “shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay.” (§ 2030, subd. (a)(2).)
Since the award of spousal support to Strausman and reimbursement to Kamens for post-separation mortgage payments are not supported by the evidence, the judgment appealed from is reversed and the matter remanded. Strausman is entitled to costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.