Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 05D002113, Michael J. Naughton, Judge.
Charles G. Kinney for Appellant.
Dawn E. Wardlaw for Respondent.
OPINION
O’LEARY, J.
This appeal follows the trial court’s denial of Fernanda Kroft’s request for temporary spousal support. Fernanda argues the court abused its discretion because it relied on inappropriate factors. We disagree and affirm the order.
We will refer to the parties by their first names for the sake of clarity. No disrespect is intended. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476.)
I
After meeting and dating for a little over five months, Fernanda and Kevin married. They separated two years and a few months later. They dispute the actual date of separation, but this fact is not relevant to the issues raised on appeal. Suffice it to say, the marriage ended sometime during February 2005.
Kevin is an accountant. He was unemployed for the first 11 months of the marriage, so the couple paid their living expenses from Kevin’s separate property assets. They lived in Kevin’s Laguna Beach residence, paying the mortgage with Kevin’s separate property assets.
In 2003, Kevin was hired and began earning approximately $85,000 to $100,000 per year. By the time of separation in February 2005, he was earning $225,000 per year plus an automobile allowance of $900 per month. In 2005 and 2006, Kevin received an additional $20,000 to $25,000 in deferred compensation. Fernanda worked during the marriage, but her earning capacity as a fitness instructor was much less.
During the marriage, the couple purchased a $45,000 Lexus automobile with money from Kevin’s separate property bank account. They also purchased an $8,000 Volkswagen. After their separation, Fernanda kept driving the Lexus, and Kevin kept the Volkswagen.
On April 22, 2005, Kevin filed a marital dissolution action. Within a week, Fernanda filed an Order to Show Cause (OSC), requesting Kevin pay her spousal support and fees. At the end of August 2005, Kevin filed a motion to amend his response, stating he wanted to nullify the marriage based on fraud. His motion was granted, and in mid-October he filed an amended response. At the end of October, Fernanda’s OSC for fees and costs was taken off calendar.
The following year, on December 11, 2006, Fernanda again filed an OSC requesting spousal support and fees. After several continuances, the matter was heard in June 2007. The court denied the request due to Fernanda’s failure to comply with California Rules of Court, rule 5.128 (financial declaration rule).
A few months later, in October 2007, the court considered Kevin’s nullification issue. It determined the marriage was valid, and in January 2009, it issued a statement of decision. The court determined there was uncontradicted testimony a civil ceremony took place in Las Vegas, followed by a religious marriage ceremony in Brazil. It concluded the parties lived together in Laguna Beach as husband and wife and they had a sexual relationship. The court noted there was evidence Fernanda now had a permanent resident card (green card), but unlike other published cases of marital fraud, there was no evidence she intended not to have a sexual relationship with Kevin or that she was only interested in obtaining her green card.
At the end of its statement of decision the court surmised: “[T]he period of time for courtship before the marriage was relatively short. [When Fernanda] spent less time with [Kevin] after the marriage and went to visit friends in Los Angeles, [Kevin’s] ego may have gotten in the way and he didn’t want to know. Because of the speedy courtship, [Kevin] ‘jumped off the diving board too soon’ when he got married.... [Kevin] knew [Fernanda] became more and more friendly with her friends in Los Angeles, but he didn’t do anything for two years; he should have said something. The court can only conclude [he] did not want to know. Without making a determination as to the sexual desirability of [Kevin], it is possible that [Kevin] did not get enough sex during marriage, but... many marriages are sexually dysfunctional.” The court denied Kevin’s request for an annulment.
In March 2008, Kevin lost his job. He began collecting unemployment benefits. In May, Fernanda filed her third request for spousal support and fees. After several continuances, Kevin filed a responsive declaration in August. The following month, the court denied Fernanda’s request without prejudice because the income and expense declarations were not current. By the end of October, the parties had filed updated income and expense declarations. In addition, Fernanda filed a reply to the OSC.
Fernanda’s income and expense declaration stated she worked full time and was earning approximately $1,000 per month. Her expenses totaled over $5,000 per month. She claimed to owe her attorney $37,020.75. At the hearing, she testified that after the separation she rented an apartment for seven or eight months. When she could no longer afford the rent she moved in with her paramour, her female employer. Fernanda had a verbal agreement to pay her girlfriend $1,800 for rent when she was financially able. Fernanda worked as a fitness instructor at a gym, receiving $45 per hour for five to six classes per week. The gym was owned by her girlfriend, Ms. Keagan. Fernanda said she worked seven to eight hours a day managing and overseeing various aspects of the gym, but she was not paid for this work. Fernanda claimed she also spent four hours a day working at her own company, F.R. Brazil Incorporation. Her business involved importing and selling fitness clothing made in Brazil.
Kevin’s income and expense declaration stated he was currently unemployed and receiving $1,170 per month in unemployment compensation. Over the past five months he had collected approximately $700 per month from consulting fees. His monthly expenses were $12,583.81 per month. Kevin testified he had approximately $1 million in Merrill Lynch accounts. His life insurance policy had a cash value of over $100,000. He was meeting the monthly expenses by drawing upon his savings.
The parties stipulated Kevin had paid $5,350 towards Fernanda’s attorney fees, and $5,464 for her health insurance premiums. He was paying a $4,551 insurance premium covering the Lexus she still drove. The parties stipulated Kevin gave Fernanda two $3,000 spousal support payments soon after filing for divorce, in April and June 2005. Kevin later testified he also made a third payment to Fernanda for $1,000. Kevin had already paid his attorney approximately $55,000. He testified he paid $9,863.55 for community property debts after the date of separation. Fernanda did not assist in making any community debt payments.
At the end of October 2008, the court held a hearing on the OSC. Kevin and Fernanda testified. After considering counsel’s arguments, the court denied Fernanda’s requests. With respect to her attorney fees, the court denied the fees citing to California Rules of Court, rule 5.128. It reasoned, “The date of the marriage was 2002, the date of separation was February 2005. That means we have three years eight months gone by before anybody made a meaningful request for spousal support. The last time [Fernanda] asked for it, I denied it for failure to comply with [California Rules of Court, rule] 5.128.... that seems to be an ongoing problem with [Fernanda], because the same thing [occurred] in the current [income and expense declarations], which is part and parcel of... all of that which is filed. It’s not completely filled out. It doesn’t comply with the California Rules of Court, [rule] 5.128.... [¶] More to the point, [Fernanda] let slip that she doesn’t have to [pay] her attorney anything unless the judge ordered it. I’m looking through his bills. He’s advancing a number of costs, assuming these bills are accurate, and I think they probably are.... [E]ven if there was compliance with [California Rules of Court, rule] 5.128, I’m not going to sanction that kind of fee arrangement. They used to call that maintenance and champ—in the olden days.”
As for spousal support, the court stated several reasons for denying the request. The court first noted Fernanda’s testimony was “inherently incredible” and it “gave it no weight at all.” Next, it focused on section 4323’s creation of a rebuttable presumption there is a decreased need for spousal support when the ex-spouse begins cohabitating with a “‘member of the opposite sex.’” The court decided this provision should be read to include same sex relationships to “pass constitutional muster[.]” It concluded the support Fernanda was receiving from Keagan must be taken into account. Finally, the court noted back spousal support would not be warranted: “This court was open for business from the date of inception of this [case].... [¶] Even if I was going to award spousal support, I wouldn’t go back to any time earlier than the filing of [the] OSC.” The court concluded Fernanda had “existed for three years and eight months with very little help... which leads me to conclude she is a survivor and she’s figured out someway to go and support herself between then and now....”
All further statutory references are to the Family Code.
In short, the court refused to award temporary spousal support for three reasons: (1) Fernanda’s testimony was not credible; (2) she was now cohabitating in a same-sex relationship with her employer who was supporting her; and (3) she had waited three years and eight months before seriously pursing spousal support. Fernanda appeals from the court’s ruling on support and fees.
II
A. Temporary Spousal Support
Temporary spousal support is authorized under section 3600, which provides that “[d]uring the pendency of any proceeding for dissolution of marriage... the court may order... the husband or wife to pay any amount that is necessary for the support of the wife or husband,... as the case may be.” The purpose of a temporary support order is not to determine the merits but “‘solely to preserve the family and the wife’s separate property intact until the court eventually determine[s] the case on the merits.’ [Citations.]” (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1038.)
“We... review temporary spousal support orders under the abuse of discretion standard. [Citation.] Generally, 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.]’ [Citation.] The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount. [Citation.]” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove).)
“Rather, in 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. [Citation.] 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.]... Trial courts may properly look to the parties’ accustomed marital lifestyle as the main basis for a temporary support order. [Citations.]” (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Looking at the big picture, the court properly determined Fernanda did not require Kevin’s support to maintain the status quo or to preserve her separate property (of which she had none). During the marriage, Fernanda’s lifestyle was dependent on Kevin’s residence, income, and savings. Although she worked during the marriage, the couple was not dependent on her earnings. At the time of the hearing, Fernanda’s lifestyle was much the same, although now she was relying on a different caretaker for her expenses and residence. She even drove the same luxury car (which Kevin paid to keep insured).
The parties dispute whether the court could properly consider Fernanda’s cohabitation with a same-sex partner or the presumption against spousal support discussed in section 4323. Fernanda argues the rebuttable presumption applies only when an ex-spouse is being supported by a person of the opposite sex. Kevin asserts cohabitation was just one factor the court can consider. He is right.
Section 4323, subdivision (a)(1), provides: “Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with [s]ection 3650) of Part 1.”
As noted above, the court has broad discretion to consider whatever is relevant to the overall “big picture” concerning the parties’ needs and abilities. It was not an abuse of discretion for the court to consider all aspects of Fernanda’s current lifestyle and her living arrangement to determine if her status quo had changed. The court’s specific reference to section 4323 subdivision (a)(1), was to generally acknowledge courts may consider whether an ex-spouse needs support when he or she is cohabitating and being financially supported by someone new.
Contrary to Fernanda’s contention, the court did not actually apply section 4323 because that particular provision relates only to the reduction of existing permanent spousal support. And as such, we need not weigh in on whether the rebuttable presumption applies in a same-sex cohabitation arrangement. All that matters is that nothing in section 4323 constrains the court’s discretion in determining if temporary spousal support is warranted. As noted above, courts making temporary spousal support orders are not restricted by the statutory guidelines regarding permanent spousal support. Trial courts are given broad discretion to determine the amount of support, if any, necessary 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.” (Wittgrove, supra, 120 Cal.App.4th at p. 1327, citation and quotation marks omitted.)
The big picture concerning the parties’ needs and abilities would not be complete if the court were limited to review of Fernanda’s current limited earnings and assets. The true picture of Fernanda’s life is that she has managed to maintain the status quo of her previous married life. She receives the benefit of a home, vehicle, food, expenses, and employment due to the presence of a new caretaker in her life. Once the court determined Fernanda did not need support, the court had no reason to determine Kevin’s ability to pay.
Fernanda points out that she lived briefly in her own apartment before meeting Keagan, and support can be retroactive. However, during those seven or eight months she lived on her own, Kevin paid spousal support totaling $6,000 or $7,000. And as noted by the trial court, Fernanda never actively pursued a temporary spousal support order at that time. Her first OSC requesting support was taken off calendar after several months. She then waited over a year before filing a second OSC, which was nearly two years after the date of separation (from a marriage lasting only two years). The second OSC was rejected as being incomplete, yet Fernanda waited several more months before trying again. The court reasonably concluded Fernanda’s actions spoke louder than her words (which the court did not find credible in any event). Waiting several years to actively pursue spousal support suggests Fernanda did not truly have a financial need. Fernanda’s third OSC was filed three years and eight months after the date of separation, and we note the court evidently did not find credible her excuses for failing to pursue the matter sooner. We have no reason to second guess the trial court’s ruling on her credibility. Based on the record before us, we conclude the trial court did not abuse its discretion in denying Fernanda’s request for temporary spousal support.
B. Attorney Fees
The court denied the motion for attorney fees citing Fernanda’s failure to comply with California Rules of Court, rule 5.128. This rule concerns a party’s duty to file complete and accurate financial statements/declarations, from which the court can assesses his or her need for attorney fees. The trial court concluded Fernanda’s statement was deficient. It specifically noted, “It’s not completely filled out[]” and this was the same problem with her prior OSC.
California Rules of Court, rule 5.128, provides: “(a) A current Income and Expense Declaration (form FL-150) or a current Financial Statement (Simplified) (form FL-155), when such form is appropriate, and a current Property Declaration (form FL-160) must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. ‘Current’ is defined as being completed within the past three months providing no facts have changed. Those forms must be sufficiently completed to allow determination of the issue.” (Italics omitted.)
Fernanda claims she complied with the rule, because her income and expense declaration was “sufficiently completed to allow a determination of the issues.” She acknowledges she left “blanks” on the form, but those items mostly related to assets she did not possess. She asserts the issue of whether she complied with rule should be reviewed de novo. We disagree. This is not an issue of statutory construction, but rather a factual determination of whether the declaration was sufficiently completed to allow the trial court to determine Fernanda’s financial situation. For these types of situations, our standard of review is established. The motion “‘is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) The appellate bar is set high, and Fernanda cannot hurdle it.
We agree with Kevin’s claim, and the trial court’s conclusion, Fernanda’s income and expense declaration was incomplete and inaccurate. At the hearing, the problems were highlighted during Fernanda’s cross-examination. Counsel asked Fernanda why she left item 2-C blank, a question asking for her to state the number of college years completed. She said the omission was an oversight. Fernanda testified she obtained a bachelor’s degree from a college in Brazil. Counsel asked Fernanda why she had left blank the question asking about her income from F.R. Brazil Inc., when she had testified she worked part time for her company and sold product in 2007 and 2008. Fernanda conceded she had worked. She did not provide reports or discuss the company’s profits and losses. She did not offer any documentation concerning the value of F.R. Brazil Inc.
Counsel asked Fernanda why she left blank the question asking her to list the people she lived with. She clarified only Keagan lived with her. She did not explain why this fact was omitted from her financial statement. Counsel also questioned Fernanda about her list of expenses contained on page 3, paragraph 13, and questioned how she managed when the expenses exceeded her stated income by over $4,000. Fernanda had listed $1,600 per month for rent, but she clarified this was not a current expense. She explained she presently had a “‘loan arrangement’” with her current roommate, and the $1,600 figure represented the rent she paid three years ago. She indicated she would like to get her own apartment again. Fernanda admitted the listed expense costs for health care, utilities, and life insurance was not currently being paid by her. She anticipated she may have to pay these expenses in the future. Fernanda testified she used her credit card to pay for F.R. Brazil Inc. business expenses and her personal expenses. Her declaration stated she made $600 payments to those cards each month.
As summarized by Kevin’s counsel on appeal, Fernanda claimed she did not profit from F.R. Brazil Inc., but the documentation she provided to the court made it impossible for the court to determine her true financial situation. Given the incomplete and inaccurate statements about her current expenses, income, and roommate, it was not an abuse of discretion for the trial court to conclude Fernanda had failed to comply with the California Rules of Court, rule 5.128. Very telling is that Fernanda’s prior OSC was dismissed for the very same reason. She was on notice an incomplete financial statement would not be acceptable. Finally, as noted by the court, Fernanda will not be without counsel at trial due to the unique nature of her counsel’s retainer agreement. Thus, on this record, viewed most favorably in support of the order, we cannot say it was an abuse of discretion at this time to deny Fernanda’s request for attorney fees.
III
The order is affirmed. Respondent shall recover his costs on this appeal.
WE CONCUR: SILLS, P. J., MOORE, J.