Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. DN148786, Jeannie Lowe, Commissioner.
O'ROURKE, J.
David Karp appeals from an order for temporary spousal support. His sole contention is that the court abused its discretion in awarding Elizabeth Karp 38 percent of his pretax bonus as additional temporary support. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, Elizabeth petitioned to dissolve the parties' over 26-year marriage. Based on David's $41,666 monthly salary, the parties later stipulated that he would pay Elizabeth $10,000 in non-deductible, non-taxable support for December 2007, and, commencing January 1, 2008, $16,000 a month in temporary spousal support, which would be deductible to David and taxable to Elizabeth. This calculation was premised on David's monthly salary "exclusive of his substantial annual bonus." The parties agreed that the terms of their proposed stipulation were "interim in nature, and without prejudice to the entry of subsequent and retroactive orders, except as specifically set forth hereinbelow."
We refer to the parties by their first names for clarity and not out of disrespect.
The family court heard the matter of temporary spousal support in December 2009. It did not take testimony from either party, instead basing its decision on the parties' lodged income and expense declarations and wage statements, and other documentation. It initially ordered David to pay $18,000 in monthly spousal support commencing January 1, 2008, plus an additional 38 percent of David's gross separate property interest in his 2008 bonus. The same percentage was ordered paid from David's 2009 bonus and every year thereafter until the order was modified.
In May 2010, the court issued written findings and an order after hearing. In part, it found: (1) the status quo was that the parties were good investors; (2) their spending did not exceed their income and they had money to invest separately; (3) to base support only on Elizabeth's needs would deny her the opportunity from December 2008 forward to continue the marital pattern of investing and only David would have sufficient funds to invest; (4) for purposes of retroactive support, David's gross monthly income without his yearly bonus was $54,671; (5) for 2009, David's and Elizabeth's incomes changed and their gross monthly incomes were $62,348 and $5,929 respectively. The court ordered David to pay Elizabeth $18,000 per month in spousal support commencing January 1, 2008, until December 31, 2008, and $19,000 per month commencing January 1, 2009, until further order of the court. As additional support, it ordered Elizabeth would receive 38 percent of David's separate property interest of the gross bonus received by him in 2008, and 38 percent of David's bonus received in 2009 and every year thereafter until modification of the order.
We grant Elizabeth's unopposed request to augment the record on appeal with the family court's May 20, 2010 findings and order after hearing issued for the December 10 and 11, 2009 proceedings. (Cal. Rules of Court, rule 8.155(a)(1)(A) [on the motion of any party, the reviewing court may augment the record to include any document filed or lodged in the case in superior court].) We deny Elizabeth's request to augment the record with materials not before the court at the time of its orders: the transcript of the July 20, 2010 hearing on David's motion to set aside the court's December 11, 2009 order and the September 3, 2010 findings and order after hearing. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Elizabeth did not ask that we take judicial notice of these items (Evid. Code, §§ 452, subd. (d), 459; see In re Karen G. (2004) 121 Cal.App.4th 1384, 1390), nor did she move this court to take additional evidence on appeal. (Code Civ. Proc, § 909; Cal. Rules of Court, rule 8.252(c)(1).) We express no opinion on the success or failure of any such requests, had they been made.
On March 1, 2010, David filed notices of appeal from the family court's December 11, 2009 order. The record reflects a minute order entered on that date. We will liberally construe David's notice of appeal as an appeal from the court's May 20, 2010 findings and order after hearing. (See Cal. Rules of Court, rules 8.100(a)(2) [notice of appeal must be liberally construed], 8.104(d), (e) [reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered its judgment, as filed immediately after entry of the judgment; a judgment includes an appealable order].
DISCUSSION
I. Temporary Spousal Support — Principles and Standard of Appellate Review
Family Code section 3600 authorizes temporary spousal support. It provides in part: "During the pendency of any proceeding for dissolution of marriage... the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband...." Such an award is "based on 'a showing of two conditions: the moving party's needs, and the other party's ability to pay....' " (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159.)
Thus, "temporary spousal support may be ordered in 'any amount' based on the party's need and the other party's ability to pay. [Citations.] 'Whereas permanent spousal support "provide[s] financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property, " 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 and the division of their assets and obligations." [Citations.]' [Citations.] The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount." (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove); see also In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 [awards of temporary spousal support do not serve the same purposes as permanent spousal support awards and are not governed by the same procedures].) " 'Temporary support... usually is higher than permanent support because it is intended to maintain the status quo prior to the divorce.' " (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442.)
A reviewing court will reverse an award of temporary spousal support only upon a clear showing of abuse of discretion. (In re Marriage of Dick, supra, 15 Cal.App.4th at p. 165; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312 (Cheriton.) "[I]n exercising its broad discretion, the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living." (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) We will not substitute our judgment for that of the family court, but only decide if any judge reasonably could have made such an order. (Ibid.) We review the family court's factual findings for substantial evidence. (Ibid.)
II. David's Factual Showing is Deficient and He Forfeits Points Made Without Authority
Preliminarily, we point out that David's factual recitation and briefing is of little assistance to us in assessing the family court's order and its exercise of discretion. With the exception of some preliminary facts, David refers only to the reporter's transcript of the hearing reflecting the arguments of counsel. Unsworn arguments by a party or attorney are not evidence. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454; South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139.)
David makes factual assertions in his statement of facts and argument sections concerning his monthly income and bonuses without any record citation to the documentation lodged with the court. For example, he asserts without support: "If [David's] company financial plan goals are not met David has to repay [his] draw bonus." He makes the bare assertion that "David's ECAP is calculated on his Draw Bonus and Annual Bonus thus, including that into David's base income means it is counted twice." It is not our obligation to search the record for evidence supporting his points. (ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1270.) The absence of record citations in violation of court rules (Cal. Rules of Court, rule 8.204(a)(1)(C)) allows us to disregard such unsupported points. (See In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888.)
See also David's opening brief at page five: "In actuality, David's monthly income did not change between 2008 and 2009 and had remained the same since 2005. The only change from 2008 to 2009 was an increase in his annual employer 401K ECAP contribution due to his increased performance bonus that year." On the same page, David asserts: "David's performance bonus for 2006, paid in 2007 was $480,000. His performance bonus for 2007 was $482,000, paid in 2008. After separation, his bonus increased to $676,000." David asserts at page nine of his brief: "David's bonuses had been much smaller during marriage. They are based on David's performance at work, which occur [sic] post separation." None of these assertions is supported by a citation to the record.
Finally, David makes assertions of family court error without a separate heading or any supporting legal or factual analysis. Specifically, David asserts the family court gave no reasoning behind its decision, and also "failed to make all of the appropriate findings regarding tax implications." We disregard undeveloped contentions that are made without separate headings. (See California Rules of Court, rule 8.204(a)(1)(B); Teachers Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1038, fn. 6; see Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the court erred, and leave it up to the appellate court to figure out why"].)
III. David Has Not Shown the Family Court Plainly Abused its Broad Discretion in Ordering Additional Spousal Support of 38 Percent of His Bonus
David contends the family court abused its discretion by ordering that he pay Elizabeth 38 percent of his pretax bonus in addition to $18,000 per month in temporary spousal support. His challenge is premised in part on the assertion that his bonus is postseparation separate property earnings that should not be considered because Elizabeth's needs to save or invest are met by the $18,000 monthly spousal support award. David compares the circumstances to In re Marriage of Kerr (1999) 77 Cal.App.4th 87 (Kerr), which involved the family court's award of certain percentages (initially 40 percent, then later 25 percent) of husband's future stock option income as permanent spousal support. He also analogizes Elizabeth's request to that made in In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351 (Hoffmeister), which, he argues, requires a supported spouse to show his or her needs at the time of separation are not being met. David argues that when the original spousal support order was made in this case, the court made no finding that Elizabeth's needs were not being met. He also maintains that after tax deductions, he would receive only 12 percent of his bonus, which "puts [him] in the position of being unable to save at the marital level."
We are unable to ascertain how David calculates this figure. He asserts, "The Court ordered David to pay 38 [percent] of his pretax bonus to Elizabeth in addition to $18,000 per month as temporary spousal support. After tax deductions from this bonus of 50 [percent], David would end up receiving only 12 [percent] of his bonus." But if David retains 62 percent of his bonus, he would be left with 31 percent if taxed at a 50 percent rate. David provides no other explanation or calculations showing how, after taxes, he is left with 12 percent of his bonus.
None of David's arguments or authorities persuades us to conclude the family court abused its broad discretion in ordering temporary spousal support to include a percentage of David's future bonuses.
As for David's reliance on the principle that his postseparation separate property should not be considered, he asserts (without record citation) that Elizabeth's living expenses were $15,000, and thus the monthly spousal support award of $18,000 "allowed her to save." The question, however, is not whether Elizabeth can save some amount of money, it is whether her ability to save and invest is in keeping with the parties' standards during their marriage, and whether David has an ability to pay so as to maintain that standard. (See In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932-1933; In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) In Wittgrove, supra, 120 Cal.App.4th 1317, this court emphasized that for purposes of assessing an order for temporary support, the ability to pay " 'encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for... temporary spousal support' " and the court is not limited by a supported spouse's living expense needs when the parties' marital standard of living included savings and investment, as the family court found was the case here. (Id. at pp. 1327, 1329.) David does not address the parties' pre-separation investment history, nor does he assert a sufficiency of the evidence challenge to the family court's factual findings concerning Elizabeth's ability to meet the marital pattern of investing. His cited cases (In re Marriage of Smith (1990) 225 Cal.App.3d 469 and In re Marriage of Weinstein (2001) 4 Cal.App.4th 555) involve permanent spousal support orders. (Smith, at pp. 475-477 [supported spouse's motion to modify a permanent spousal support order]; Weinstein, at pp. 560-561 [order for permanent spousal support after trial].) As we have pointed out above, different goals and criteria are involved in setting temporary spousal support, which is aimed at maintaining the status quo pending the final determination of property and permanent support issues, rendering these cases of little relevance to the question at hand. David cites to general principles in Smith and Weinstein without attempting to explain how they are relevant in this different temporary support scenario. We find nothing in David's arguments on these points convincing us the family court's order was an abuse of discretion.
Kerr, a case from this court, involved a husband's appeal from an order setting permanent spousal support, which included as additional support a percentage of his undetermined post dissolution stock option income. (Kerr, supra, 77 Cal.App.4th at p. 92.) That case presented "unique circumstances" (id. at p. 90), namely, an enormous increase in the value of the stock. At the time they divided their property, the parties valued the husband's company stock at $39 per share, but the stock had increased "more than twentyfold" since that time. (Kerr, supra, 77 Cal.App.4th at p. 90, fn. 1.) The husband argued that as a result, the percentage award was not based on his wife's or children's needs. (Id. at p. 92.)
In Kerr, there was evidence the husband's yearly stock options produced substantial additional income during their marriage, which the parties used to enhance their standard of living. (Kerr, supra, 77 Cal.App.4th at p. 91.) This court observed that by its support order, the family court properly intended to address the disparity in the parties' present financial positions (the wife had been a homemaker, and the husband's annual salary was over $159,000 at the time of the court's order), and that contrary to the husband's claim, any income he received upon exercising an option was properly considered for purposes of setting support. (Id. at p. 94.) We endorsed the family court's use of percentages as a means to "avoid an indefinite number of future hearings" and "beneficially remove the need for further litigation with its attendant costs, and oftentimes, emotional upheaval." (Id. at p. 95.)But in that case, due to the enormous increase in value of the stock, we concluded the percentage order would far exceed the parties' standard of living, even considering their investment and reinvestment history during or at the end of their marriage. (Ibid.) Accordingly, we reversed that portion of the permanent support order for the court to determine an amount of support that was just and equitable using the parties' marital standard of living as a point of reference. (Ibid.) We emphasized that, after doing so, the court was free to make a percentage support award based on husband's exercised stock option income as long as it set a maximum amount proportionate to its findings of the marital standard of living. (Ibid.)
Kerr instructs that post separation stock option income is properly considered in setting support, and that percentage orders are permissible where the percentage does not cause support to vastly exceed the parties' marital standard of living, including their saving and investment. Applying Kerr, David must demonstrate that the 38 percent of his bonus income far exceeds his and Elizabeth's marital standard of living, including their amounts of investment and savings. But as stated above, David does not discuss the parties' pre-separation investment or saving history in his briefing, nor does he meaningfully challenge the family court's factual findings on the issue. The record demonstrates that David's "officer bonus" for the period from April 1, 2007, to March 31, 2008, was $480,000. His officer bonus for the period of April 1, 2008, and March 31, 2009, was $676,400. This is not at all similar to the enormous increase in income presented in Kerr, which involved a twentyfold increase in the subject stock's value after the parties' property division occurred, resulting in a massive increase in exercised stock option income. Kerr's underlying principles favor Elizabeth's position, but its facts are not analogous, and it does not compel us to reverse the challenged portion of the family court's temporary support order on the same grounds as we did in Kerr.
We observe that Elizabeth submitted a declaration prior to the December 10, 2009 hearing in which she stated that "saving and investing for our future was a key component of our standard of living, as shown by the assets that we amassed while we were married." She also states that during their marriage, they "had huge savings in excess of $1 million, plus deferred compensation of approximately $1 million and stock." Elizabeth's December 3, 2009 income and expense declaration submitted before the hearing states her IRA contribution is $500, but that she "cannot afford to save and invest at marital levels."
Finally, we agree that Hoffmeister is in apposite. As with the other cases, Hoffmeister involved a trial court's order modifying an award of permanent support. The appellate court reversed the order, ruling that an increase in permanent spousal support could not be based solely on the husband's increased ability to pay. Rather, the wife had to show not only a significant change in material circumstances, but also that she "had a standard of living at the time of separation of the parties that was higher than that provided" by the initial award of permanent spousal support. (Hoffmeister, supra, 191 Cal.App.3d at pp. 363-364.) The trial court did not make these findings, and the appellate court declined to imply them. (Id. at p. 364.) Absent credible evidence permitting the court to make such findings, the court held the respondent's motion to modify spousal support was merely an improper attempt to collaterally attack the prior decree. (Id. at pp. 364-365.)
Here, David's reliance on Hoffmeister is grounded in a mischaracterization of the record. He suggests the family court's award was the result of a request for modification of support "based on Elizabeth's request to increase the amount of temporary spousal support she and David had previously agreed to." But the parties' prior agreement was simply an interim agreement, subject to a retroactive order. Indeed, the parties agreed at the December 10, 2009 hearing that Elizabeth's order to show cause was for the purpose of having the court issue the initial temporary spousal support order, not an order modifying a temporary support award. Thus, the court was for the first time assessing Elizabeth's needs and David's ability to pay for purposes of the temporary support award. Even assuming Hoffmeister applied to these circumstances, David does not demonstrate the court here relied upon its experience "to provide evidence which [was] otherwise absent" (Hoffmeister, supra, 191 Cal.App.3d at p. 363)to assess Elizabeth's general need and David's ability to pay, which circumscribe the temporary spousal support order. (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) In fact, the family court had before it Elizabeth's and David's income and expense information, as well as David's declaration describing the amounts of his bonuses. Elizabeth's declaration revealed total monthly expenses of $20,436 and gross income of approximately $5,900 a month.
Hoffmeister does not govern these circumstances, however, and it does not compel us to reverse the family court's order awarding 38 percent of David's future bonus income as additional temporary spousal support. In view of the family court's ability to view the " 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living" (Wittgrove, supra, 120 Cal.App.4th at p. 1327), we hold David did not carry his burden of showing an abuse of discretion based on Hoffmeister.
Shortly before oral argument in this matter, David submitted an untimely letter request that this court reverse the temporary support order on grounds it was impermissibly retroactive under this court's recent decision in In re Marriage of Gruen (2011) 191 Cal.App.4th 627. This matter, however, differs from Gruen in many ways, including the fact that David and Elizabeth here stipulated that the court would retain jurisdiction to enter "subsequent and retroactive [support] orders...." Gruen is inapposite.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.