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In re Marriage of Little

California Court of Appeals, Fifth District
Mar 24, 2008
No. F050969 (Cal. Ct. App. Mar. 24, 2008)

Opinion


In re the Marriage of JEFFREY and DONNA LITTLE. JEFFREY LITTLE, Respondent, v. DONNA LITTLE, Appellant. F050969 California Court of Appeal, Fifth District March 24, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. S-1501-FL-578320 Frank A. Hoover, Judge.

Donna Little, in pro. per., for Appellant.

The Law Office of Edward J. Quirk, Jr. and Edward J. Quirk, Jr. for Respondent.

OPINION

HARRIS, Acting P.J.

INTRODUCTION

Appellant Donna Little (Donna) and respondent Jeffrey Little (Jeffrey) were married for more than eight years and had one child. Prior to their marriage, they signed a prenuptial agreement in which each waived their community interest in the other party’s retirement and pension benefits, and also waived “maintenance” payments upon dissolution. Jeffrey filed for dissolution and moved to enforce the terms of the prenuptial agreement. Donna asserted the agreement was invalid and she signed it under coercion and duress. The trial court held the agreement was enforceable except for the waiver of spousal support. Thereafter, the court conducted further evidentiary hearings which dealt with property division, child custody, spousal support, and attorney fees. The court reduced spousal support and denied Donna’s motions for attorney fees, retroactive spousal support, and her continual challenges to terms of the prenuptial agreement. Jeffrey and Donna were represented by counsel throughout the proceedings in the trial court.

We refer to the parties by their given names for the sake of clarity only; we intend no disrespect. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 280, fn. 1 (Cheriton).)

On appeal, Donna represents herself and contends the court was biased against her as to all its rulings in this case, and the matter must be reversed and remanded to another bench officer. She also asserts the court abused its discretion because it prevented her from challenging the retirement provisions in the prenuptial agreement as ambiguous, and improperly denied her motions for retroactive spousal support and attorney fees.

This case began in 2001, when Jeffrey filed the petition for dissolution, and the trial court’s final ruling in this case was issued in 2006. The intervening five years were characterized by extremely contentious exchanges between the parties on virtually every legal and procedural issue. The court repeatedly expressed its frustration that the parties were unable to resolve even the simplest property issues, and that Donna filed motions which repeatedly raised the same issues.

We have reviewed the entirety of the record and found absolutely no indication of any judicial bias against Donna, either express or implied, and further conclude the court did not abuse its discretion and its rulings are supported by the evidence in this case. We will affirm.

FACTUAL AND PROCEDURAL HISTORY

The Prenuptial Agreement

Jeffrey and Donna met in either 1989 or 1991. Donna was living in Bakersfield when they met. Jeffrey was previously married and his divorce was final in December 1991. Jeffrey and Donna became engaged in February 1992. In May or June 1992, Donna moved to Syria to live with Jeffrey, who was employed there as a general field engineer for a petroleum company. They set the wedding for December 1992.

Jeffrey and Donna lived in Syria until November 1992. On or about November 29, 1992, they traveled from Syria to Boulder, Colorado, where Jeffrey’s mother lived.

On December 2, 1992, Donna and Jeffrey signed a prenuptial agreement in Boulder. The agreement stated that each party had the benefit of independent counsel in connection with the negotiations, and identified Jeffrey’s attorney as Linda Shoemaker and Donna’s attorney as Matt Humphrey, both of Boulder. The agreement stated each party had the opportunity to thoroughly review the terms with their respective attorneys. The agreement further provided that each party would retain separate control and ownership of their separate property, and they had included financial statements as to their assets.

Article 3.1(a)-(c) defined separate property as all property owned prior to marriage, property acquired during marriage by gift or inheritance, and income from separate property. Article 3.1(d) also defined separate property as:

“Deferred employment benefits, including corporate stock, stock options and stock purchase rights, pension plans and profit sharing accounts.”

Article 3.1(f) further defined separate property as “[a]ny other property described in this Agreement which is specifically described as separate property.”

“Separate property as defined herein will remain separate property during the time the parties live in a community property state. The fact that the parties live in such a state will not give rise to any community property rights.”

Article 3.2 defined marital property as all property acquired by either or both parties during the marriage “which is not defined as separate property, but not limited to, income earned or accrued by the personal efforts of either party through self-employment or employment by others, excluding deferred employment benefits.”

Article 6.1 contained a statement of rights upon the dissolution of their marriage, that if a dissolution action was filed, the marital property would be divided and each party entitled to half of the net value of all marital property, and separate property would remain the separate property of the parties.

Article 6.2 stated the parties waived all rights as to certain property of the other acquired during the marriage, and subdivisions (a), (b), and (c) defined which assets the waiver applied to. Article 6.2(a) stated the waiver applied to “[a]ny rights to a division of nonmarital property upon dissolution of their marriage.” Article 6.2(b) stated the waiver applied to “maintenance” payments, and that each party waived:

“Any rights to payments of maintenance upon dissolution of their marriage. The parties understand that Section 14-2-307 of the Colorado Revised Statutes (1973), as amended, provides that any maintenance provisions in a marital agreement may not be enforceable if, at the time of enforcement, they are unconscionable (the issue of unconscionability to be decided by a court as a matter of law). The parties agree that neither will claim any right to maintenance payments from the other party so long as this provision regarding maintenance payments is not unconscionable at the time of dissolution of their marriage.” (Italics added.)

As we will explain post, the trial court interpreted this provision as meaning a waiver of spousal support, and found the clause invalid.

Article 6.2(c) stated each party waived their rights to the following retirement benefits:

“Any rights to receive benefits from any pension plan, profit sharing plan, deferred compensation plan, retirement benefit plan or any life insurance policy (here in before and hereinafter referred to as ‘deferred employment plans or benefits’) which have or may accrue for the benefit of the other party or the other party’s employer. Each party agrees to execute such documents as are necessary to effectuate such waiver as may be required by the terms of such deferred employment plans or benefits, state law or federal law.”

As we will also explain post, the trial court interpreted this provision as a valid waiver of community interest in the other party’s retirement and pension benefits accrued during marriage.

Article 14 provided for attorneys’ fees and costs:

“If either party should retain counsel for the purpose of enforcing or preventing the breach of any provision of this Agreement or for any other judicial remedy relating to it, then the party who substantially prevails shall be entitled to reimbursement by the other party or the other party’s estate for all costs, expenses and witness fees incurred by the prevailing party, including, but not limited to, reasonable attorneys’ fees and costs.”

The prenuptial agreement also included each parties’ statements of their premarital assets.

On December 12, 1992, Donna and Jeffrey were married in Bakersfield. They went on a honeymoon and then returned to Syria. Their only child was born in 1999. They lived in several different places throughout their marriage, including Scotland, Houston, and Virginia, and then settled in Bakersfield.

The Initial Custody and Support Orders

On May 23, 2001, Donna and Jeffrey separated. They had been living in Bakersfield. On or about that date, Jeffrey filed for dissolution in the Superior Court of Kern County.

In the course of the dissolution action, Jeffrey moved to enforce the provisions of the prenuptial agreement. Donna asserted the entire agreement was invalid because of fraud, undue influence, and coercion. The court granted the petition as to status only. On December 11, 2001, the parties stipulated to bifurcate the issues of the enforcement of the premarital agreement from other issues involving child custody, spousal support, and property division. The parties also stipulated that the court would apply California law as it was in effect on November 1, 2001, to determine the validity and enforceability of the prenuptial agreement.

On May 31, 2001, Commissioner Goldner issued domestic violence restraining orders against Donna and excluded her from the family residence. The court granted joint legal custody of the child to Jeffrey and Donna, with Jeffrey to have primary physical custody and Donna to have visitation. The court ordered Jeffrey to pay $3,500 to Donna for relocation expenses.

On June 28, 2001, after a contested hearing, Commissioner Compton granted physical custody of the child to Jeffrey, with Donna to have supervised visitation. The supervised visitation order was based on Donna’s “drug use,” “domestic violence,” and because she was “a danger to the child.” Donna was ordered to stay at least 100 yards away from Jeffrey, his residence, car, place of employment, and the child’s school.

In the course of the lengthy hearings in this case, Jeffrey’s attorney advised the court that Donna failed to have any contact with the child for one year after the supervised visitation order was issued. Donna did not deny the statement but claimed Jeffrey kept the child away from her.

On February 20, 2002, Judge Turner ordered Jeffrey to pay Donna temporary spousal support of $662 per month and attorney fees of $1,500, with such payments charged against Donna’s interest in community property if the court subsequently determined she waived her rights to such payments in the prenuptial agreement.

In July 2002, Judge Turner appointed an attorney to represent their minor child.

On September 30, 2002, Judge Hoover ordered Jeffrey to continue paying monthly spousal support of $400 until the trial on the bifurcated issues. The court also ordered supervised visitation by a therapist, and for Donna to take all medication prescribed by her psychiatrist.

On October 1, 2003, the court granted Donna’s motion for appointment of an expert pursuant to Evidence Code section 730 as to the custody and visitation issues. On April 22, 2004, after months of disagreement, the parties agreed on the identity of the expert to conduct the evaluation.

On April 13 and 22, 2004 and May 4, 2004, the court conducted further hearings and declined to modify spousal support until the time of trial on the bifurcated support issues, continued Donna’s supervised visitations, and appointed the expert to conduct the custody and visitation evaluation pursuant to Evidence Code section 730.

Validity of the Prenuptial Agreement

In March, July, and September 2003, Judge Hoover conducted evidentiary hearings on the validity of the prenuptial agreement.

At the hearing on March 4, 2003, Donna appeared without counsel and requested a continuance so she could conduct discovery. Jeffrey’s attorney advised the court that Donna had been represented by four attorneys, extensive discovery had already been conducted, he was ready for trial, and an out-of-town witness was present. The court decided to proceed with the examination of the witness, Jeffrey’s mother, but declined to conduct the full hearing and agreed to continue the matter so Donna could obtain counsel.

On March 18, 2003, Gregory Jackson assumed representation of Donna, and remained her attorney throughout the proceedings on the validity of the prenuptial agreement.

At the evidentiary hearings, Donna’s testimony and argument were that she never spoke to an attorney before she signed the prenuptial agreement, Jeffrey never told her about the agreement until they arrived in Colorado 10 days before their scheduled wedding, she became upset because Jeffrey’s mother demanded the agreement, she decided to cancel the wedding, she reconsidered because Jeffrey explained the agreement would only protect his premarital separate family property, she never talked to her own attorney, she never read the document before she signed it, and she felt forced to sign it.

Jeffrey’s testimony and argument were that he discussed the prenuptial agreement with Donna before they returned to Colorado, his attorney presented a proposed draft to her, Donna consulted with an independent attorney who made revisions to the proposed draft, and she was not forced to sign anything.

As noted ante, the prenuptial agreement stated that Donna was represented by Matthew Humphrey of Boulder, and that she consulted with him prior to signing the agreement. Humphrey did not appear at the evidentiary hearing and his deposition testimony was introduced. In his deposition, Humphrey stated that he could not recall meeting with Donna or discussing the prenuptial agreement with her. However, Humphrey’s deposition testimony was refuted by documentary evidence and billing records from his files, which showed that he conferred with Donna about the prenuptial agreement though personal meetings and telephone conversations, he reviewed the draft prepared by Jeffrey’s attorney, he submitted revisions to Jeffrey’s attorney, and his revisions were incorporated into the final draft.

Also during the course of the evidentiary hearings, the court noted the parties had agreed that it would first determine whether the prenuptial agreement was enforceable or completely invalid, and then turn to the other issues raised in the dissolution case. The parties agreed with the court’s statements. The court further acknowledged the parties’ arguments about the prenuptial agreement: Donna claimed she never read or saw the document before she signed it and it was invalid, and Jeffrey claimed Donna had a lawyer who reviewed the agreement and advised her about it. The court ordered the parties to file closing briefs and the matter would be submitted.

In her closing brief, Donna apologized to the court for the protracted nature of the evidentiary hearings as “somewhat longer than counsel intended.” Donna asserted she was forced to sign the prenuptial agreement, she never consulted with an independent attorney, Jeffrey misrepresented the contents of the agreement to her, she never read the agreement until after their separation, and Jeffrey took advantage of a hurried situation to force her to sign it. Donna further argued that Humphrey’s deposition testimony, that he could not recall advising her about the prenuptial agreement, was credible, and she did not address the contradictory notes in his records.

In his closing brief, Jeffrey argued the prenuptial agreement was valid because Donna consulted with an attorney who made revisions to the agreement, she was not forced or coerced into signing the agreement, and her trial testimony was refuted by her deposition admissions that Jeffrey talked to her about the prenuptial agreement before they returned to Colorado. Jeffrey argued Donna’s testimony was further refuted by Humphrey’s records of their meetings and his review and revision of the prenuptial agreement, such that her testimony that she was forced to sign the agreement as a result of coercion and undue influence lacked credibility.

The Court’s Order on the Prenuptial Agreement

On December 12, 2003, Judge Hoover issued his ruling and found the prenuptial agreement was valid and enforceable. The court found both parties discussed a prenuptial agreement prior to leaving the Middle East, and that the agreement would cover Jeffrey’s separate property along with retirement and pension benefits accrued during the marriage. The court found Donna and Jeffrey consulted with non-associated attorneys in executing the agreement. The court found Jeffrey’s mother selected Humphrey, the attorney who Donna consulted with, and Jeffrey paid that attorney for his services, but the court found “no facts” that Donna’s attorney “was compromised in any way.” The court further found Donna executed the agreement without duress or menace, she was not under Jeffrey’s control, and Jeffrey did not exercise any undue influence over her.

However, the court found invalid article 6.2(b), waiver of “maintenance” payments, because the agreement did not define maintenance as either alimony or spousal support, the parties never discussed this issue, Jeffrey did not testify that he mentioned the topic to Donna prior to the execution of the agreement, and there was nothing in the notes or testimony of Donna’s attorney to show any discussion regarding waiver of alimony or spousal support. The court concluded there was “no common understanding of this waiver” and declared the provision invalid. In addition, the court found any waiver of spousal support would have been unconscionable, even if there had been some agreement between the parties, since Donna was not employed during their marriage.

On February 3, 2004, Judge Hoover filed the order finding the premarital agreement was valid and enforceable except as to the waiver of spousal support. On April 2, 2004, Donna filed a notice of appeal (F045348) of the ruling which found the premarital agreement valid. On August 19, 2004, this court dismissed Donna’s appeal as having been taken from a non-appealable order in a bifurcated family law hearing.

In the course of the bifurcated proceedings, Donna’s attorney conceded the appeal was premature and should be dismissed.

Bifurcated Proceedings on Custody, Property Division, and Support

After the court found the prenuptial agreement was valid, except for the spousal support waiver, the court set the matter on calendar for trial on the bifurcated issues, and the parties filed opening briefs. The instant appeal (F050969) is taken from the court’s judgment which ultimately resulted from the protracted bifurcated proceedings, which were spread out from June and July 2004, to January, April, and May 2005.

On June 4, 2004, Jeffrey filed his opening trial brief on the pending custody, visitation, property division, and spousal support issues. As to spousal support, Jeffrey argued the court should impute an income to Donna as a real estate salesperson, with a monthly earning capacity of at least $2,000, because she had earned her license and had three years to seek employment since the separation but failed to do so. Jeffrey also argued he should receive attorney fees pursuant to the terms of the prenuptial agreement as the prevailing party.

On June 10, 2004, Donna filed her opening trial brief on the bifurcated issues. Donna acknowledged the court already found the prenuptial agreement valid except for the spousal support waiver, but claimed the court had deferred ruling on the validity of other terms of the agreement. Donna asserted articles 6.2(b) and 6.2(c), as to waiver of retirement benefits, were vague and ambiguous as to what exactly she waived.

Donna was represented by Dean Miller, of the law office of Dean Miller and Gregory Jackson, for the rest of the proceedings in the trial court. Mr. Jackson also made appearances for her.

As to spousal support, Donna argued she had just received her real estate license and did not have the necessary capital to effectively perform in the profession. She requested monthly spousal support of $2,500, retroactive to the date of separation. Donna’s income and expense declaration stated she had been working for four months and her monthly gross income was $600. As to attorney fees, Donna argued she had incurred over $30,000 in attorney’s fees during the three years of litigation, she had limited income, and it was just and reasonable for Jeffrey to pay her fees in full since she prevailed on the spousal support issue.

Trial Briefs on the Retirement Accounts

On June 14, 2004, Judge Hoover convened the “never-ending saga” of Jeffrey and Donna to begin the trial on the bifurcated issues. The court reviewed the history of the case, found the prenuptial agreement was valid and enforceable and Jeffrey validly set aside his retirement account as separate property. The court acknowledged Donna was going to challenge Jeffrey’s contributions to the retirement account as community property, and instructed the parties to file briefs on that issue. Both parties agreed to submit briefs on that particular issue and the court would take the allocation of retirement and pension benefits under submission.

The court was clearly frustrated with the lengthy nature of this matter and commented:

“But that’s—I’m getting sick and tired—I saw Mr. Little in the store. I felt like crawling under the nearest shelf and—so that’s the way I feel—by the time I get to hear it 10, 12 times, I get to see the same people on these cases, I get the feeling the entire system ought to be sent out to be overhauled.”

On July 1, 2004, Donna and Jeffrey filed simultaneous briefs as ordered by the court on the property issues. In her brief, Donna acknowledged the court already found the prenuptial agreement was valid and enforceable, but again attacked the retirement provisions contained in article 6.2(c) as vague and ambiguous, and cited her hearing testimony that she only thought she was waiving her interest in Jeffrey’s premarital separate property when she signed the agreement. Donna further argued her “purported” attorney was hired by Jeffrey, he never reviewed or explained the agreement to her, and she was forced to sign the agreement shortly before her scheduled wedding.

Donna further argued article 6.2(c) did not waive her community interest in Jeffrey’s pension plan, even though Jeffrey relied upon that article to “attack [Donna’]s interests that accumulated and/or accrued.”

“… The specific language of this Article supports [Donna’s] testimony that she believed she was executing a document that only addressed assets that were owned prior to marriage. Based on the candid and definite language in Article 6.2(c), the court must make a finding that the monies and assets that accumulated and/or accrued in these various accounts during the parties’ marriage to be community property subject to equal division.”

Donna further argued that to the extent article 6.2(c) conflicted with other provisions of the agreement, or if the court found article 6.2(c) was indefinite or uncertain, then that article “would necessarily be ambiguous.” Donna asserted article 6.2(c) was ambiguous because it failed to clarify whether “deferred compensation” excluded community property interests, and the terms of that article were “buried in an inconspicuous location in the Agreement.”

In support of her ambiguity claims, Donna submitted a declaration from an attorney unrelated to the case, who stated her expert opinion that the provisions of the prenuptial agreement were vague and ambiguous as to the definitions of separate property, and purported waivers of pension and retirement benefits.

In his brief, Jeffrey stated the court found the prenuptial agreement valid, which included Donna’s waiver of her community interest in his retirement and pension plans. “The only property which is defined [in the agreement] as separate property which would have been community property under community property laws, is the deferred employment benefits” and the terms were not vague or ambiguous. He objected to the expert’s declaration attached to Donna’s brief because the court only ordered the parties to file legal briefs and not present evidence on the property issues.

The Evidentiary Hearings

On July 13, 2004, Judge Hoover convened the continued hearing on the property issues. The parties stipulated to the assessed value of the family residence as $390,000 as of June 2004.

The court cited the trial briefs and was upset that Donna was “once again, going to lay siege to this prenuptial agreement and talk about whether or not there was ambiguity in the retirement clause.” Mr. Miller, Donna’s attorney, stated the court had previously agreed to consider challenges to specific clauses in the agreement even though it found the agreement valid. The court replied:

In section III, post, we will address Donna’s contentions that the court abused its discretion and refused to allow her attorney to challenge the retirement provisions as ambiguous.

“We met—I don’t know—a month ago or so, and I remember having a heated discussion with you and Mr. Jackson and [Jeffrey’s attorney] in my office wherein I was annoyed that, once again, it appeared that what we wanted—what you guys want to keep talking about is the prenuptial agreement.”

The court stated it already found the agreement valid but the bifurcated trial would determine the remaining community property issues, but that Donna could not relitigate Jeffrey’s retirement accounts as community property. Mr. Miller conceded the amount accumulated in Jeffrey’s retirement accounts prior to the marriage were separate property. The court continued:

“And I have ruled that his retirement plan is the subject of—is a proper subject of the prenuptial agreement, and that she has entered into a prenuptial agreement that is valid in the sense that she waives an interest in his retirement plan.”

The court asked if Mr. Miller was going to continue to argue that Jeffrey’s retirement plan was community property. Mr. Miller replied that during the hearings on the validity of the agreement, the court stated it would consider ambiguity challenges to certain portions of the agreement after it ruled on the agreement’s validity. The court replied:

“... Mr. Jackson and [Donna] have requested that we litigate the validity of the prenuptial agreement at length.

“And it’s been done over the course of over a year this Court has been litigating the validity of the prenuptial agreement. [¶]…[¶]

“… Last—now, you tell me, ‘Well, sure, that’s right, except now we’re going to present evidence that part of the retirement plan was included and part of it wasn’t, and it doesn’t really mean what it says.’

“And that is something that I reacted to a month ago.

“And Mr.—you and Mr. Jackson—we ended up discussing that. I certainly listened to a trial about whether or not something was purchased before or after the marriage, the things that are community property, the items of property, and the evidence as it relates to the need for support.

“But I believe [Jeffrey’s attorney] objected to a lawyer’s [declaration] about what’s ambiguous, as I find—and I found that to be a legitimate objection.

“... [I]f all you can do is litigate this and litigate this and litigate it until you get what you want, first of all, why in the world would the Supreme Court have gone to the trouble of validating a premarital agreement?

“And how can you stand there in all conscious[ness] and ask for attorney’s fees when you do this for a year and a half, get a ruling, and then proceed to litigate that which the Court has spent a year and a half dealing with?”

Jeffrey’s attorney stated that when the parties last met, they agreed the prenuptial agreement was an integrated agreement and no evidence would be taken as to its terms, and the terms as to Jeffrey’s retirement plans were very clear. The court agreed it would hear evidence as to “the difference between a savings account and a retirement account,” or whether Jeffrey improperly “squirreled away thousands of dollars of earnings into something which he calls a retirement account.” The court continued:

“But just so that you’re clear, we’re not going to relitigate what it is that she gave up.

“She gave up what I ruled she gave up in this—and that was everything that’s stated in the prenuptial agreement, except what the agreement calls maintenance, which I’ve referred to as spousal support, and which other courts have referred to as alimony over the years. [¶] Do I make myself clear?”

Mr. Miller “respectfully disagreed” and again stated that the court previously agreed to consider Donna’s ambiguity arguments after it ruled on the validity of the prenuptial agreement. The court replied:

“Ambiguity isn’t—doesn’t mean ambiguity about what is property purchased after the marriage, but I get the distinct impression from both you and Mr. Jackson and the words that you write that you want, once again, to tell me that she didn’t know she was giving up her retirement benefits or that the contributions he made into his retirement plan were not to be divided up if they got a divorce.

“And I’m not—that has been decided. She’s given up her interest that she would have acquired if they hadn’t done a prenup.

“Why else would there be a prenup?

“Or the Court would have taken a year and a half—if I’m going to take a year and a half to go over this, Mr. Miller, and then somehow come back and have a hearing on … what is meant by the retirement account or that she didn’t really understand it was the retirement account, then I—then you can disagree with me all you want .... Because your logic makes little, if any, sense to me.

“If that’s what you believe your logic tells you is that I’ve heard the entire mountain of evidence about their meetings in Colorado and their trip throughout the world, and their lives together and their—how tired they were and running all around Colorado, and then signing the premarital agreement.

“If I’ve already decided that, how—your logic escapes me. And perhaps that’s the reason why you disagree with me is you and I don’t have the same logic stream.”

Mr. Miller replied the earlier hearings addressed the circumstances surrounding the execution of the prenuptial agreement and whether Donna was subject to fraud, undue influence, or coercion, but the court deferred addressing Donna’s challenges to specific provisions of the agreement as vague and ambiguous. Mr. Miller explained the prenuptial agreement talked about retirement accounts but “doesn’t say what the retirement accounts are. It doesn’t say where they are, what they are, how much is in them.”

The court replied “somebody smarter than I” would have to review the record because it did not believe it had been inconsistent “in saying that I want to determine the validity of a contract, and yet I’m not going to consider the validity of the contract. That’s what I’ve done. [¶] And I’ve ruled that the contract is valid but for the provision that I found to be unenforceable as unconscionable. [¶] So we will not hear about any ambiguity” and “what we’re not going to do is go back and reanalyze the contact.” The court continued:

“I see that if [Jeffrey] has monies that have been squirreled away—as I said before and I’ve tried to make clear, if he has money that he set aside and calls it retirement, and it’s not, then I will hear evidence on that.

“That’s ambiguous to me.

It’s not ambiguous to me in the context that you’ve raised ....” (Italics added.)

The court turned to the issues as to valuation of community property and spousal support and asked the parties for offers of proof. Jeffrey’s attorney discussed the witnesses who would testify about the valuation of the family residence. Mr. Miller stated that one of Donna’s previous attorney would testify that when the court issued the temporary spousal support orders, the court and parties stipulated that spousal support would be retroactive if the court found the prenuptial agreement’s waiver clause invalid. Mr. Miller stated the parties stipulated that Donna “would be able to go back retroactively to the date that the parties actually had filed the petition, the initial petition in the case, in the big case, and be allowed to claim a proper spousal support order from that point forward.” Jeffrey’s attorney replied “that was never the agreement. It’s not in the transcript, it’s not in the Court order,” and he could not imagine that Donna’s previous attorney was going to say that such an agreement existed. “I mean, if so, it was a secret agreement of their side. It certainly had nothing to do with the Court’s ruling.”

The court denied Donna’s request to call her previous attorney “to establish something that hasn’t even been put in dispute yet.” The court stated:

“As far as I know, the agreement that was carved up here was that if the Court invalidated her waiver of spousal support, then her—the spousal support, whatever the Court awarded, would be retroactive to the time that they first asked for it. [¶] And I don’t need [Donna’s previous attorney] to tell me that.” (Italics added.)

Thereafter, Jeffrey extensively testified about the valuation of various community assets, and that he did not deposit any community assets into his retirement and pension plans. Mr. Miller attempted to question Jeffrey as to whether the retirement provisions of the prenuptial agreement were ambiguous. The court permitted Mr. Miller to ask whether Jeffrey deposited other community assets into his pension plans, but again advised Mr. Miller that it already found the retirement provisions in the agreement were valid.

Jeffrey testified that after their May 2001 separation, Donna engaged in several transactions involving community assets without his knowledge or permission. Donna withdrew over $2,000 from an IRA account without notification. Donna took a Jeep which was a community asset, damaged the vehicle, and received an insurance check made out to “Jeff and Donna.” Jeffrey’s insurance company notified him that Donna altered the insurance check so it was made out to “Jeff or Donna,” she cashed the check, and Donna admitted the transaction in her deposition. In October 2001, Donna forged his signature on a credit card application from Lowes, he did not learn about the account until he was sued for the balance due, and he incurred attorney’s fees of over $8,000 to defend against the suit.

At one point in the hearings, the court dealt with a dispute as to the supervisor for Donna’s visitations with the child. The court asked the parties to agree to a new supervisor, the parties concurred, and the court ordered Jeffrey to advise the child’s school as to Donna’s identity and that she could have contact with the teachers. The court stated that Donna wanted to visit the child and encouraged cooperation between the parties to facilitate the visits.

The custody and visitation issues were also addressed at the hearings. Jeffrey testified that after their child returned from visits with Donna, the child made negative remarks to him about his treatment of Donna. The court admonished Jeffrey’s attorney to move along on the custody issue and not make “a mountain out of a molehill.”

Donna introduced the testimony of family and friends as to the close relationship she had with the child, and that there were no problems during the supervised visitations. One friend testified that after the separation, Donna lived in a trailer on his property with her aunt and grandmother because they were refurbishing her grandmother’s house. Two of the people who supervised the visitations testified Donna was currently living with her attorney, Greg Jackson, in his house. When Donna’s aunt completed her testimony, the court advised her that she could leave: “We’re all done. I wish we were all done, but we’re all done with you. [¶] Can you take me with you?”

Barbara Konnoff, a real estate agent in Bakersfield, testified Donna worked with her at Watson Reality but it would take time and money for Donna to develop a successful business.

The court permitted Donna to call Tasha Bollinger, one of her previous attorneys, who testified about the temporary spousal support order. Mr. Miller, Donna’s attorney, asked about the circumstances for that request, and Jeffrey’s attorney objected that all the issues as to the prior spousal support orders were reflected in the court’s orders and the hearing transcripts, and the court’s spousal support order “[s]pecifically does not provide for retroactivity.” Mr. Miller replied there was no order that “specifically precluded retroactivity.” The court stated:

“I’m not aware of [the] ability of a litigant to reopen the beginning date for a request for spousal support, if it is not also reflected in the Court’s minutes.

“If Miss Bollinger requested spousal support … the only legal manner in which to have legal significance to that request is to put it in to the petition, the OSC ...

“And if that has been done, it’s in the court record.

“So her testimony that she did it is going to be superfluous, and if it was not done, it is not going to cause the Court to go back to a date when Miss Bollinger says that she asked for it.”

Mr. Miller replied the court’s previous spousal support order was issued about three years ago on an emergency basis, the matter was not litigated at the time, and the court’s order did not preclude retroactivity. Mr. Miller asserted the court should order spousal support retroactive to “the date of the original filing of the petition.” The court replied it had discretion to order retroactive support regardless of whatever Miss Bollinger stated at the prior hearing. Mr. Miller continued that Miss Bollinger would testify “about what the intention was at the time that the spousal support was made. And what her understanding was at that time,” which was relevant “whether or not the Court should exercise its discretion and go retroactive on the issue.” Mr. Miller further asserted “there was an understanding by Miss Bollinger at that time that the order that was made was not something that could not be retroactive. [¶] It was something that was made, really, on an emergency basis just to get some money to” Donna. The court understood Donna’s position and agreed to later hear argument on the issue, but denied Donna’s request to further question Ms. Bollinger.

Donna testified as to the valuation and division of various community assets, and her contributions to the community residence in Bakersfield. Donna testified she had about five jobs while they were married, all of which involved work as a professional organizer while they lived in Dallas, where she would handle the details of moving, unpacking, and organizing new homes for other families.

Donna testified their child was born in 1999 and she was the child’s primary caregiver. She did not work except for decorating and fixing up their house. Jeffrey did not want her to work outside the house, and she was dependent upon Jeffrey for all her financial needs during the marriage. She believed Jeffrey’s was making $90,000 to $100,000 per year, plus bonuses, when they separated.

Donna testified she needed at least $2,500 in monthly spousal support based on her expenses, rent, utilities, car insurance, and debts, and also based on “what I was told by another attorney at the beginning of all of this would be due to me.” Donna testified she had not been employed since the separation but tried to find a job. She worked as a “mystery” shopper, where she was paid to go into a store and give an evaluation without telling the employees. She had unsuccessfully applied for secretarial jobs at various offices. She also did “contracting” and painting, and hoped to get a contractor’s license in the next few years.

Donna testified she had completed real estate school, obtained her license, and got a job at Watson Reality. She tried to work in real estate but did not sell any homes, and her overhead costs were so expensive that she did “a painting job or something” to pay her real estate license fees. She left Watson and had been working at another real estate office for the past month, but she had the same trouble covering her office expenses.

Donna admitted she had applied for Social Security disability payments based on being bipolar which left her physically and emotionally incapable of working. Donna testified she was about to receive benefits but “I told them just to forget it because I felt they would use that against me to keep [my child] from me.” On cross-examination, Donna admitted her application for benefits was denied.

Donna testified she had not kept track of her earnings over the past year. She did not file an income tax return for 2004 but planned to do so once she was able to pay an accountant.

“Q. Okay. And you can’t give us any idea, however, what your gross receipts were for 2004. Is that true?

“A. When I can get a long chance to sit down, especially with an accountant, I can try.”

On further cross-examination, Donna admitted she forged the signatures of Jeffrey and a witness on an application for a Lowes credit card, purchased thousands of dollars in merchandise, never paid the debt, but “I absolutely meant to.” She “heard” that Jeffrey was sued for the balance due and admitted she was served with the complaint. She never advised Jeffrey about the circumstances of the lawsuit because she was subject to a restraining order and could not contact him. She did not try to tell Jeffrey’s attorney about the matter because she did not think the attorney would tell Jeffrey.

Donna admitted she was arrested for public intoxication at a restaurant just before the separation, she was taken to jail, and the charges were dropped, but claimed a security guard at the restaurant told her that Jeffrey called the police and she was “falsely arrested.”

Donna also admitted she was involved in an automobile accident three years earlier and arrested for drunken driving at that time. She received an insurance check for damage to a Jeep, which was a community vehicle, altered the check to eliminate Jeffrey as a cosigner, and cashed the check because she needed money. Donna admitted she forged Jeffrey’s signature on the registration for that Jeep and another community vehicle because she wanted to sell the cars and get the money. Donna further admitted that just days after Jeffrey filed for dissolution, she charged $3,500 on a credit card for palm trees and landscaping for the community residence, claimed they had already discussed the purchase, and admitted she tried to cancel the purchase and get the refund in cash “to use the money to hire an attorney.”

Donna testified she had taken three drug tests since the separation which were all negative, and she had not used illegal drugs since the separation. Donna admitted previous methamphetamine use and claimed Jeffrey also used drugs, but she denied using drugs at the time of separation. Donna admitted the court issued an order shortly after the separation for supervised visitation with her child, but she did not visit the child for over one year because they could not agree on a supervisor, and accused Jeffrey of manipulating the system to prevent her from seeing the child. Donna testified she also avoided visitations during the first year because she did not trust her father, who was acting as the supervisor, and she did not want Jeffrey to know where she was because she was driving the community Jeep, he wanted to take it from her, and it was the only car she had. Donna testified that once the visits resumed, she had a good relationship with her child and things went well.

Donna testified she had been waiting “for four years to say” something, and launched into a narrative that she believed Jeffrey mistreated their child and took inappropriate photographs of the child while naked. She also believed he downloaded child pornography from the computer before their separation, and reported him to the police. Jeffrey’s attorney vigorously objected to Donna’s narrative as irrelevant and stated that both the police and child protective services had investigated Donna’s allegations over the past four years, Jeffrey’s computer had been thoroughly examined by law enforcement agencies, and all the agencies found no merit to Donna’s claims against him. The child’s attorney concurred that there was no support for any of Donna’s allegations of child pornography or inappropriate conduct.

The court stated that some of these issues were relevant and permitted Donna to testify, with some limitations, regarding her concerns about Jeffrey’s relationship with their child, particularly as to any statements the child made about Jeffrey. The court observed that Donna was angry “and maybe she has a right to be angry with the amount of time that this has taken and the amount of time that it’s been since she’s been with her daughter.”

Thereafter, Donna testified in a lengthy narrative that Jeffrey had viciously destroyed her relationship with the child, he did everything possible to keep them apart, he lied about Donna’s alleged violence toward him, he often called the police before the separation to set up the subsequent custody order, he manipulated the system against her, and he falsely claimed Donna used drugs but denied his own drug use. She claimed that she found child pornography on his computer before their separation, she believed he had too many nude photographs of their child, and the child said they took showers together. Donna was also upset because Jeffrey allowed her mother and father to take care of the child, but Jeffrey knew both her parents and stepfather abused methamphetamine, other drugs, and alcohol. On cross-examination, Donna admitted she had failed to previously raise any concerns about these particular photographs, and further admitted she was present when some of the photographs of the child had been taken and Jeffrey tried out his new digital camera.

Donna testified Jeffrey and her mother conspired with a psychiatrist to claim she was bipolar and had psychiatric problems. Donna went along with the psychiatrist’s diagnosis of being bipolar because they were telling her that she could not see their child until she accepted her mental health problems and took medications. Even after she complied, however, the court still prevented her from seeing the child because Jeffrey complained she was not taking the correct dosages. Donna had since determined the bipolar diagnosis was incorrect, and that instead she suffered from “posttraumatic stress from my child being taken away from me and being kicked out [from the family house] on the streets with no money.”

During the hearing in May 2005, Donna testified to her opinion, as a real estate agent, that the family residence was now worth about $525,000. Jeffrey objected because they already stipulated to the value of the house during the July 2004 hearing, based on a formal appraisal. Mr. Miller replied that stipulation occurred almost a year ago, the property value had increased, and the court could reconsider evidence on the issue since the property had not yet been distributed. The court allowed the evidence since an owner could testify as to the value of property.

Donna testified she had previously been represented by Ed Thomas, Janice Banducci, Barbara Harris, and Tasha Bollinger. She was now represented by Miller and Jackson and owed them about $40,000. On cross-examination, Donna admitted she moved into Greg Jackson’s house in January or February 2004, they had an intimate relationship, and she was contemplating marriage and having a child with Jackson. Donna testified she had continuously lived with Jackson since that time, except for one month when she lived with her grandmother because of an argument with Jackson. Since she had been living with Jackson, she had been decorating and restoring Jackson’s home, “painting, wallpapering, putting up molding. Everything related to not just decorating a home, but restoring it.” Donna had not been able to pay any of her legal fees to Miller and Jackson in cash, but Jackson paid some of her legal fees and gave her money “as I do certain projects.” “I work for the rent ... it’s a trade out.” She had not given Jackson a bill for her work on the house, but she hoped “it would be around” $5,000 to $10,000. She did not present any written record of the time she spent working on the house.

Donna testified she also helped out Jackson and his law partner, Mr. Miller, “for helping me with attorney stuff. And I live there with [Jackson] because he’s my boyfriend.” She helped out Miller “by helping” Jackson organizing his law office, paperwork, and mail. She acted as a clerk or secretary for Jackson when he started his office about two years ago, but now spent most of her time working on his house. Jackson paid all of the household expenses and Donna did not make any monetary contributions.

Donna admitted she slashed her wrists, but testified it happened because the court made her take psychiatric medications as a condition of visitation and “[t]here was a lot that went on the first year” after the separation. Donna had been interviewed by the court-appointed expert as to custody and visitation, and admitted she told the expert that her attorney forced her to claim she was bipolar in order to get out of the prenuptial agreement.

Jeffrey’s attorney repeatedly tried to ask Donna whether she broke into the community residence and her own mother’s house after the separation, and whether she had been arrested or charged with burglary. Donna claimed her Fifth Amendment rights and refused to answer. The court found the questions were “really far afield” and irrelevant.

At the conclusion of Donna’s testimony, on the last day of the evidentiary hearing, Donna again attempted to testify about her list of concerns about Jeffrey. Jeffrey objected and the court stated it had already allowed Donna to testify about those concerns. Donna replied that she lost her train of thought and froze up at the previous hearing because “I have fibromyalgia and I lose my train of thought very badly sometimes.” Donna wanted to testify about her “six main concerns” about Jeffrey. The court allowed Donna to briefly state her additional concerns, but Donna said she needed more time. The court advised Mr. Miller that it had been “very accommodating. I really have,” but they had already gone through this area. Donna started to testify that Jeffrey was a compulsive liar, had no remorse for the pain he caused others, he spoke against her to their child, and he was controlling and manipulative. Jeffrey objected and the court said it understood Donna’s concerns and would not hear any further testimony.

Jeffrey’s attorney made an offer of proof that Jeffrey would deny all of Donna’s allegations about drug use and child pornography. The court instructed the parties to file closing briefs and it would take the matter under submission.

The Closing Briefs

On June 27, 2005, Jeffrey filed his closing brief and summarized the hearing evidence, particularly the report of the court-appointed expert on custody and visitation. The expert’s report addressed Donna’s prior alcohol and drug use, and that she used drugs and alcohol to self-medicate. Jeffrey argued the court should not award any spousal support because Donna’s standard of living with her attorney and boyfriend, Mr. Jackson, was equal to or greater than what she enjoyed while living with Jeffrey. Jeffrey also argued the court should impute an income to Donna based on her real estate license.

On July 28, 2005, Donna filed her closing brief. As to spousal support, Donna argued she had minimal income and asserted she was only living in Mr. Jackson’s house because she had no where else to go. Donna argued spousal support should be retroactive because the temporary spousal orders were minimal and the spousal support waiver clause in the prenuptial agreement was invalid. Donna again argued the retirement waivers in article 6.2(c) and other portions of the prenuptial agreement were vague and ambiguous.

On August 17, 2005, Jeffrey filed a responsive brief, and noted the hearing testimony revealed that his spousal support checks were sent to Donna’s attorney but were not cashed for months, which inferred that she did not need spousal support. As to attorney’s fees, Jeffrey argued that the court’s ruling actually enforced the spousal support clause in the prenuptial agreement, since the agreement stated the waiver was enforceable only if a court found it was not unconscionable.

On August 22, 2005, the minor’s attorney filed a closing brief and summarized the lengthy custody dispute between Donna and Jeffrey. While the court granted Donna supervised visitation in May 2001, the minor’s attorney stated Donna voluntarily had no contact with the child for one year. Donna was represented by an attorney during that time but she took no action on custody and visitation until June 2002. At a hearing in August 2002, Donna disclosed that she had been diagnosed with bipolar disorder, she was taking prescribed medication, and she was able to resume her relationship with the child. The minor’s attorney noted Donna’s declaration was subsequently undermined by her treating psychiatrist, who stated that she was not taking the prescribed medication. Once Donna resumed visits with the child, it was apparent that Jeffrey had encouraged the child to have positive memories of her mother and had not attempted to prejudice the child against her. The minor’s attorney stated the supervised visitations had been problematic and deteriorated because Donna lacked appropriate boundaries with the child and continued to blame Jeffrey for her problems.

On August 26, 2005, Donna filed a rebuttal brief and demanded the removal of minor’s counsel because she displayed a bias against Donna and aligned herself with Jeffrey in the custody dispute. On August 29, 2005, Donna filed her closing brief and explained the delay in cashing Jeffrey’s spousal support checks. Donna declared she was too poor to have a bank account, she endorsed Jeffrey’s spousal support checks to Jackson, and Jackson was too busy to deposit the checks on a regular basis. Donna asserted she should have retroactive spousal support because she had been diagnosed with fibromyalgia and unable to obtain steady employment.

The Court’s Ruling

On November 14, 2005, Judge Hoover issued a lengthy ruling on the bifurcated issues and observed the matter had “languished on and on in this Court for nearly four years.”

“… The Court cannot recall a single motion after the initial OSC regarding custody that was initiated by [Jeffrey]. Throughout these proceedings, [Donna] has complained about being destitute yet she generated a formidable litigation posture. She even appealed a non-appealable decision. From this standpoint, nothing within the realm of due process has been denied to [Donna].”

The court found there were three majors aspects in the case—the prenuptial agreement, property division, and custody and visitation—plus the matter of attorney’s fees. The court noted that the first matter was to determine the validity of the prenuptial agreement, it found the agreement valid except for the waiver of spousal support, but Donna repeatedly attempted to relitigate the validity of the agreement. “It can be fairly well stated that not only was everything fought about, it can also be seen that it was nearly impossible for all the parties, the attorneys and the judge to get together for hearing dates.”

The court noted it had conducted all the evidentiary hearings, listened to professionals and expert witnesses, and observed the behavior of Jeffrey and Donna “both on and off the stand for many hours.” The case and the “complex issues of custody and visitation have caused considerable evaluation, weighing and balancing.” During one of the many hearings, the court learned that Donna and Gregory Jackson “were not only involved in a romantic relationship, but in fact had been co-habitating since February 2004. This was unknown to [Jeffrey and his attorney] as well as to the Court.”

“Another fundamental observation is the vehemence with which [Donna] views [Jeffrey]. Her attitude, indicated mental health issues, and apparent access to unlimited legal services causes the Court to view the never-ending litigation posture on behalf of [Donna] with certain mistrust. Even though [Jeffrey] is a successful engineer in a successful company, there are limits to his resources.”

The court stated that it observed Donna “with great care” during her testimony at the final evidentiary hearings in May 2005.

“… She attempted to manipulate the facts to her own purpose, refused to concede even the most innocuous facts, did not give a direct answer to all but a few of [Jeffrey’s attorney’s] questions, demonstrated great hostility and anger to [Jeffrey] and especially [Jeffrey’s attorney], and blamed most of her problems on ‘you guys’. She negated not only the diagnosis of medical Doctors and Psychologists, but denied things she herself had said. It was revealed she forged [Jeffrey’s] signature to checks, credit applications, and DMV documents. She admitted ... concealed sales of community property. In short, her demeanor while testifying leaves the Court with the conclusion that much of her testimony cannot be trusted because it is not trustworthy.”

The court turned to the pending issues from the bifurcated hearings. The court accepted Jeffrey’s proposed distribution of property, and adopted Jeffrey’s proposed language as the final judgment regarding “his land, his separate property, retirement funds, and the distribution of the household property.” The court retained jurisdiction over the distribution of the miscellaneous personal property and ordered Jeffrey to prepare an itemized listing and values, and equalizing payment, within 30 days. The court declined to award Jeffrey any offset for the attorney’s fees he incurred in defending the lawsuit over the Lowes credit card.

The court found the parties stipulated to the value of the community residence as $390,000, and that Donna had an interest in the residence of $78,443.50. Donna’s attempt “to inject a different value does not conform to the order of the trial.” “The Court will not reward such extreme delay in such proceedings by allowing parties to toss in values at various times during the litigation.”

As for custody and visitation, the court accepted the report of the minor’s counsel and granted Jeffrey sole legal custody of the child, with Donna to continue to receive supervised visitations pursuant to the current order.

“These [supervised] visits will continue until such time as [Donna] can demonstrate actual meaningful participation in therapy and counseling. Throughout these proceedings, [Donna] has viewed the situation through her own rose colored glasses. She consistently attributes cause and effect to others. In her mind, this entire process has been controlled and manipulated by [Jeffrey]. She has engaged six different attorneys and cannot get the situation changed to reflect her mindset.”

It was “clear” that Donna’s difficulties in obtaining unsupervised visitations stemmed “from her personality disorder, not fibromialgia [sic].” The supervised visitation structure was “a reaction to the need that [the child] not be adversely affected by [Donna]. She is definitely so angry toward [Jeffrey] that she cannot help but taint the parent child relationship with him.” The court cited the child’s negative statements about Jeffrey, which were made immediately after the child’s visits with Donna, which came from Donna’s attitude “even in a supervised environment. The Court will not gamble with such anger.”

The court noted that Donna had been presented with several opportunities to convince the minor’s attorney, Jeffrey, and the court that normal visitation was appropriate, but she had failed. Instead, she had convinced the court during trial “that she was even a greater threat than before due to the smoldering anger and hostility she demonstrated.” The court held the supervised visitations would continue until Donna demonstrated she had completed counseling and therapy, accepted the need to change, and satisfactorily changed to warrant another visitation schedule.

As for spousal support, the court noted that it was not properly waived in the prenuptial agreement and would therefore be awarded.

“Very early in these proceedings, [Donna] was given a Gavron warning by Judge Turner. She had not even begun to explore or improve her employability until shortly before the last part of these proceedings and by then, she was cohabiting with Mr. Jackson.

A “ Gavron warning” tells the supported spouse that he or she is expected to become self-sufficient after an appropriate period of time, and if he or she fails to do so, spousal support may be reduced or terminated. (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron).)

“The Court does not have accurate evidence to base support on due to [Donna’s] lack of movement towards establishing an income. Certainly, as a licensed real estate salesperson, she can earn more than minimum wage. The local real estate market remains active. Even with the expenses she describes, her income should exceed $2000.00 per month.

“The Court determines spousal support to be $2500.00, reduced due to cohabitation to $500.00/month. The Court rejects as controlling authority [Jeffrey’s] use of the Murr[a]y case but finds the previous support awards to be temporary in nature, generally not retroactive.” (Italics added.)

As for child support, the court adopted the Dissomaster calculation introduced by Jeffrey of $385 per month.

Finally, the court addressed the parties’ arguments as to attorney’s fees, and that Jeffrey had already paid $1,500 toward Donna’s attorney’s fees. The court found Jeffrey “‘substantially’ prevailed in the contest of the pre-marital agreement. This case was protracted by [Donna]. Each side will pay their own attorney fees and costs.”

Subsequent Motions

Donna filed a motion for new trial and argued the court should reassess the value of the community residence, regardless of the stipulation, because of the protracted nature of the legal proceedings. Jeffrey filed opposition and argued the parties stipulated to the value on the first day of trial in July 2004, there was no good cause to revoke that stipulation, and her motion represented another attempt to relitigate an issue already settled by the court. Donna filed a response and declared the court should reassess the property value because she needed money, and her relationship with Mr. Jackson did not make any difference as to the spousal support award.

On April 6, 2006, the court denied Donna’s motion for new trial and to reassess the value of the community residence, and terminated spousal support as of August 31, 2005.

On June 5, 2006, the court filed the judgment, which granted sole legal and physical custody of the child to Jeffrey, with Donna to have supervised visitation, and terminating spousal support as of August 31, 2005, pursuant to Family Code section 4320, subdivision (i). The court denied Donna’s motion to continue spousal support or order retroactive support. The court found Jeffrey had already paid $1,500 to Donna for attorney’s fees, determined he substantially prevailed in the action, the case was protracted by Donna, and each party would pay their own attorney’s fees and costs. On June 5, 2006, the notice of entry of judgment was filed.

All further statutory citations are to the Family Code unless otherwise indicated.

On July 27, 2006, Donna filed a timely notice of appeal. She represents herself on appeal, and contends we must reverse the trial court’s findings because it was biased against her. Donna also asserts the court abused its discretion when it refused to permit her to challenge certain provisions of the prenuptial agreement as ambiguous, denied her request for retroactive spousal support, and refused to award attorney fees.

DISCUSSION

I.

THE NATURE OF THE APPELLATE RECORD

On appeal, Donna represents herself in propria persona and has attempted to file a declaration and introduce factual issues on appeal which were not before the superior court. We will thus clarify the nature and extent of the record on appeal.

“A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.”’ [Citation.]” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

An appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (In re James V. (1979) 90 Cal.App.3d 300, 304.) “As a general rule, documents not before the trial court cannot be included as a part of the record on appeal. [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) “[T]he function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘[m]atters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’” (People v. Merriam (1967) 66 Cal.2d 390, 396-397, fn. omitted, overruled on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882; see also Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1795.) Matters referred to in an appellate brief that are not a proper part of the record on appeal may be stricken. (See, e.g., C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673.)

Thus, matters not presented to the trial court are not a proper part of the record on appeal and will not be considered by an appellate court. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 711, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28, 33-34.) We cannot consider unsubstantiated factual allegations made in appellate briefs, permit augmentation of the appellate record with matters that were not before the superior court, or make any factual findings outside the appellate record. (In re James V., supra, 90 Cal.App.3d at p. 304; Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688.)

As applicable to the instant case, Donna asserts the trial court’s rulings must be reversed because the court was biased and prejudiced against her. She has attached a declaration to her appellate brief, which purportedly recounts off-the-record incidents she observed and allegedly demonstrate the court’s bias in Jeffrey’s favor. We will not consider any exhibits or factual claims in the parties’ briefs that were not before the superior court since such matters are not a proper part of the record on appeal.

As noted ante, Donna attempted to file an appeal shortly after the court found the prenuptial agreement was valid, and the record of the hearings about the prenuptial agreement were prepared. This court dismissed that appeal as coming from a non-appealable order. In the instant case, Donna has requested this court to take judicial notice of the clerk’s and reporter’s transcript prepared for that appeal in case No. F045348, and we will grant that request. These transcripts are part of the entirety of the record herein since the pending appeal addresses all aspects of the court’s orders in this lengthy dissolution case.

With these guidelines in mind, we turn to Donna’s appellate issues.

II.

THERE IS NO EVIDENCE OF JUDICIAL BIAS

Donna contends the trial court was biased and prejudiced against her, it prejudged the issues in Jeffrey’s favor, and the court’s ruling which found the prenuptial agreement valid must be reversed because of such bias. Donna concedes she was represented by counsel during these hearings and counsel never raised such objections, but contends that a party cannot waive the issue of judicial bias and it may be raised at any time.

Donna has offered a list of reasons to support her assertions about the court’s purported bias: the court repeatedly expressed its “preconceived attitude” to uphold the prenuptial agreement; the court spoke off the record and “prejudged” the validity of the agreement; the court engaged in “jovial conversations” with Jeffrey that were off the record; the court improperly admonished Donna’s attorney during his cross-examination of witnesses; and the court threatened to ignore her legal positions. Donna also asserts the court used “odious” language when it ruled against her, failed to blame Jeffrey for the length of the proceedings, and “unjustly lambast[ed]” her when she tried to have the court reassess the value of the community residence. As we have already explained, however, we will only address those issues raised in the appellate record and will not consider any matters outside that record.

The trial court was presented with numerous issues in this case: the validity of the prenuptial agreement, custody and visitation, valuation and division of community property, child and spousal support, and attorney’s fees. The court conducted lengthy hearings over several years and heard evidence on all of these issues: the nature and circumstances surrounding the drafting and execution of the prenuptial agreement, the parties’ testimony about separate and community assets, the parties’ conduct throughout the entirety of the case, and their relationship with their child.

In ruling upon the contested issues in this case, the court was bound by several well-settled evidentiary and legal principles. As to the validity of a prenuptial agreement, a court determines issues of undue influence, unconscionability, fraud, and duress as questions of law which are subject to de novo appellate review. (See, e.g., In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 632; Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 851; American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1391.) In determining the voluntariness of a premarital agreement, and issues of fraud, undue influence, and duress, a reviewing court should accept the trial court’s factual determinations if supported by substantial evidence. (In re Marriage of Mathews, supra, 133 Cal.App.4th at p. 632; In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) Under the familiar tenets of the substantial evidence rule, we resolve all conflicts in favor of the prevailing party and indulge all legitimate and reasonable inferences to uphold the finding if possible. (In re Marriage of Bonds, supra, 24 Cal.4th at p. 31.)

In ruling upon the custody and visitation issues, the court’s “overarching concern” is the best interest of the child. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) The court has discretion to choose a parenting plan in the child’s best interests, based upon relevant factors including the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents. (Ibid.) On appeal, the standard of review is the deferential abuse of discretion test, and we are required to “uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.]” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; Montenegro v. Diaz, supra, 26 Cal.4th at p. 255.) We review the court’s factual findings pursuant to the substantial evidence test. (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.) Credibility is an issue for the trier of fact to resolve. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.) The testimony of a single witness, even that of the party, may be sufficient to constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) However, the trier of fact is not required to believe uncontradicted evidence. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) “‘[U]ncontradicted testimony in [an] appellant's favor does not necessarily conclusively establish the pertinent factual matter: The trier of fact is free to reject any witness’ uncontradicted testimony; and the court of appeal will affirm so long as the rejection was not arbitrary.’ [Citations.]” (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 368, italics in original.)

The court’s determination of property issues is subject to similar standards. The trial court's findings on the characterization and valuation of assets in a dissolution proceeding are factual determinations which are reviewed for substantial evidence. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; In re Marriage of Walter (1976) 57 Cal.App.3d 802, 805-806; Felder v. Felder (1967) 247 Cal.App.2d 718, 724.) Once again, we review the trial court’s factual findings pursuant to the substantial evidence test. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630; Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal.App.4th at pp. 622-623.) We have no power to substitute our own judgment for that of the trial court if substantial evidence supports the trial court's finding. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)

We have reviewed the entirety of the record in this case and there is absolutely no evidence that the court’s rulings were the result of bias against Donna or favoritism toward Jeffrey, that it prejudged the case in Jeffrey’s favor, or that it made any comments which could be interpreted as showing a bias or prejudice. Donna asserts the court’s rulings in this case, particularly as to the prenuptial agreement, were entirely based upon its alleged prejudice against her, but fails to consider the overwhelming evidence which undermined and effectively destroyed her credibility on nearly every contested issue. As to the prenuptial agreement, Donna testified that she was forced into signing the agreement just before the wedding, she never read the provisions, she never consulted with an attorney, and no one explained the contents to her. Donna’s testimony was completely undermined by the billing records of Mr. Humphrey, the attorney she consulted with in Boulder. While he lacked any personal recollection of meeting Donna, his billing records revealed that he met with her in person and had telephone conversations with her, he reviewed the draft prepared by Jeffrey’s attorney, he suggested modifications to the other attorney, and he advised her about the agreement.

Donna complains the court showed its bias because it made several comments that it determined the prenuptial agreement was valid before it heard any evidence. The court was presented with a document which stated that both Donna and Jeffrey had the benefit of independent attorneys who reviewed the agreement. The court certainly could have recognized the importance of such language, which raised the strong possibility that Donna was fully aware of the contents of the agreement before she signed it. Nevertheless, the court carefully considered Donna’s testimony and legal arguments surrounding the execution of the agreement, and there is no evidence that it prejudged the issue against her. The court rejected Donna’s version of events because her credibility was completely destroyed by the billing records of her attorney, and not because the court was favorably inclined toward Jeffrey. The court’s factual findings on this matter are supported by the entirety of the record.

As with her account of the prenuptial agreement, the court similarly rejected Donna’s credibility as to the property division, custody, and support issues. Donna’s credibility on all these matters was eroded by the undisputed evidence that she forged Jeffrey’s name on a credit application and ran up a huge balance, she altered the named payee on an insurance check on a community vehicle, and she altered the registrations on two community vehicles with the intent to sell the assets and keep the money. She blamed Jeffrey for her failure to visit her child for over one year after the court issued the supervised visitation order, but admitted that she did not visit the child because she was driving a community vehicle, Jeffrey was looking for that vehicle, and she did not want Jeffrey to know where she was because he wanted to take the car away from her. In her income and expense statement, she declared she was destitute and needed spousal support. At the evidentiary hearings, however, it was revealed that she was living at the home of one of her attorneys, they were involved in an intimate relationship, he covered her expenses, and she was contemplating marriage with him. The court referred to this revelation in its ruling and was obviously upset that Donna had failed to mention this key fact. The court’s statements about this issue did not represent any bias, but instead demonstrated another strike against her credibility since neither the court nor Jeffrey were aware of this relationship or the financial support she was receiving from her boyfriend. She also admitted that she did not immediately cash the temporary spousal support payments being made by Jeffrey, and explained that she relied upon her boyfriend to cash the checks since she was too poor to have a bank account. These circumstances, and Donna’s previous failure to disclose her true financial situation, were highly relevant to the court’s evaluation of her credibility when it determined spousal support.

Donna complains about the court’s denial of her request to reassess the value of the community residence. Donna concedes, as she must, that she was bound by the stipulation and the court had valid legal reasons to reject her request. (See In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 34-35 [motion to set aside stipulated value properly denied when solely based on fluctuating market].) However, she asserts the court’s comments when it denied her request represents another instance of the court’s alleged bias against her. As this lengthy record demonstrates, however, the court grew frustrated with many aspects of Donna’s trial strategy, particularly her attempts to reargue issues despite the court’s careful rulings on various topics, such as repeatedly raising her undue influence and duress arguments months and even years after the court found the prenuptial agreement was valid. While she previously stipulated to the value of the community residence, she tried to back out of that stipulation and argued the property value had increased during the lengthy hearings in this case. The court allowed her to testify as to her personal opinion of the current value of the residence, but it was plainly frustrated with these tactics and admonished her attorney accordingly. The court’s comments were not inappropriate in light of Donna’s trial strategy of repeatedly rearguing every issue already resolved by the court without valid legal reasons.

While there is overwhelming evidence to support the court’s rejection of Donna’s credibility, the entirety of the record also reflects the court maintained an evenhanded approach to both parties in this contentious case. The court made several comments about the length of the proceedings and the ferocity of the parties’ dispute, but these comments do not support Donna’s assertions of judicial bias. Indeed, the court made several key rulings in Donna’s favor: it found the prenuptial agreement valid but refused to enforce the spousal support waiver as unconscionable, it repeatedly advised the parties to agree on a supervisor so Donna’s visits with the child could continue without interruption, it ordered Jeffrey to advise the child’s school of Donna’s visitation rights so there would not be any problems, and it prevented Jeffrey from introducing evidence as to her alleged “burglary” of their community residence after the separation. Moreover, the court allowed Donna to testify at length and in narrative form that she had concerns regarding Jeffrey’s alleged conduct toward their child, over Jeffrey’s strong objections.

As the court stated in its ruling, “nothing within the realm of due process” was denied to Donna in this case. The court allowed both Donna and Jeffrey to make all possible oral and written arguments, and to present testimony in support of their respective positions. The court did not rule in favor of Jeffrey because it was biased in his favor and against Donna, but because of the gaping holes in Donna’s credibility about the execution of the prenuptial agreement, the visitation issues, and spousal support. There is no evidence of judicial bias in this case.

III.

DONNA’S AMBIGUITY ARGUMENTS

Donna next contends the court abused its discretion when it refused to permit her to challenge certain provisions of the prenuptial agreement as ambiguous. Donna acknowledged the court first considered the validity of the prenuptial agreement, but contends the court promised to consider the parties’ attack upon specific provisions of the agreement at the bifurcated hearings. Donna asserts the court denied her due process rights when it refused to hear any evidence or arguments on unconscionability at the bifurcated hearings, and “there cannot be any feasible grounds why the Court of Appeal would not send this case back down to the trial court to be heard before a non-bias[ed], neutral magistrate.” In the alternative, Donna requests this court to make an independent ruling that article 6.2(c) of the prenuptial agreement, as to her waiver of community interest in Jeffrey’s pension and retirement plans, is unconscionable as a matter of law.

Donna’s arguments are refuted by the entirety of the record. At the initial evidentiary hearings in this case, the court heard extensive evidence as to the nature and circumstances surrounding the execution of the prenuptial agreement, and clearly considered the validity of the various provisions because it found the agreement valid except for the waiver of spousal support. At the bifurcated hearings, Donna repeatedly attempted to reassert her claims that she was forced to sign the prenuptial agreement because of coercion and undue influence, she did not know or understand the contents of the document, and she did not realize she was waiving any community interest in Jeffrey’s retirement and pension plans.

The court permitted Donna to extensively question Jeffrey about the nature of the assets in his retirement and pension plans, and to determine whether Jeffrey inappropriately “squirreled away thousands of dollars of earnings into something which he calls a retirement account.” But the court refused to let Donna challenge the prenuptial agreement’s retirement provisions as ambiguous: “... I remember having a heated discussion with [Donna’s attorneys] and [Jeffrey’s attorney] in my office wherein I was annoyed that, once again, it appeared that what we wanted—what you guys want to keep talking about is the prenuptial agreement.”

The court rejected the insistence by Donna’s attorneys—Mr. Miller and Mr. Jackson—that it had agreed to hear argument and take evidence as to whether the retirement provisions were ambiguous:

“... Mr. Jackson and [Donna] have requested that we litigate the validity of the prenuptial agreement at length.

“And it’s been done over the course of over a year this Court has been litigating the validity of the prenuptial agreement. [¶]…[¶]

“… Last—now, you tell me, ‘Well, sure, that’s right, except now we’re going to present evidence that part of the retirement plan was included and part of it wasn’t, and it doesn’t really mean what it says.’

“And that is something that I reacted to a month ago.

“And Mr.—you and Mr. Jackson—we ended up discussing that. I certainly listened to a trial about whether or not something was purchased before or after the marriage, the things that are community property, the items of property, and the evidence as it relates to the need for support.

“But I believe [Jeffrey’s attorney] objected to a lawyer’s [declaration] about what’s ambiguous, as I find—and I found that to be a legitimate objection.

“... [I]f all you can do is litigate this and litigate this and litigate it until you get what you want, first of all, why in the world would the Supreme Court have gone to the trouble of validating a premarital agreement?

“And how can you stand there in all conscious[ness] and ask for attorney’s fees when you do this for a year and a half, get a ruling, and then proceed to litigate that which the Court has spent a year and a half dealing with?”

Jeffrey’s attorney stated that when the parties last met, they agreed the prenuptial agreement was an integrated agreement and no evidence would be taken as to its terms, and the terms as to Jeffrey’s retirement plans were very clear. The court agreed:

“But just so that you’re clear, we’re not going to relitigate what it is that she gave up.

“She gave up what I ruled she gave up in this—and that was everything that’s stated in the prenuptial agreement, except what the agreement calls maintenance, which I’ve referred to as spousal support, and which other courts have referred to as alimony over the years. [¶] Do I make myself clear?”

Mr. Miller “respectfully disagreed” and again stated that the court previously agreed to consider Donna’s ambiguity arguments after it ruled on the validity of the prenuptial agreement. The court replied:

Ambiguity isn’t—doesn’t mean ambiguity about what is property purchased after the marriage, but I get the distinct impression from both you and Mr. Jackson and the words that you write that you want, once again, to tell me that she didn’t know she was giving up her retirement benefits or that the contributions he made into his retirement plan were not to be divided up if they got a divorce.

“And I’m not—that has been decided. She’s given up her interest that she would have acquired if they hadn’t done a prenup.

“Why else would there be a prenup?

“Or the Court would have taken a year and a half—if I’m going to take a year and a half to go over this, Mr. Miller, and then somehow come back and have a hearing on … what is meant by the retirement account or that she didn’t really understand it was the retirement account, then I—then you can disagree with me all you want .... Because your logic makes little, if any, sense to me.” (Italics added.)

Mr. Miller complained the prenuptial agreement talked about retirement accounts but “doesn’t say what the retirement accounts are. It doesn’t say where they are, what they are, how much is in them.” The court replied “somebody smarter than I” would have to review the record because it did not believe it had been inconsistent “in saying that I want to determine the validity of a contract, and yet I’m not going to consider the validity of the contract. That’s what I’ve done. [¶] And I’ve ruled that the contract is valid but for the provision that I found to be unenforceable as unconscionable. [¶] So we will not hear about any ambiguity” and “what we’re not going to do is go back and reanalyze the contact.”

The court explained what it meant by “ambiguity.”

“I see that if [Jeffrey] has monies that have been squirreled away—as I said before and I’ve tried to make clear, if he has money that he set aside and calls it retirement, and it’s not, then I will hear evidence on that.

That’s ambiguous to me.

It’s not ambiguous to me in the context that you’ve raised ....” (Italics added.)

The court did not deny Donna’s due process rights in challenging the provisions of the prenuptial agreement. Indeed, the entirety of the record reflects that it considered the specific provisions of the agreement during the initial hearings in this case, it found the agreement valid except for the waiver of spousal support, and it found all other provisions—including the waiver of retirement benefits—to be valid, enforceable, and not ambiguous. While it may not have clearly addressed the validity of the retirement waiver when it found the agreement enforceable, it left no doubt as to the nature of its earlier findings when Mr. Miller attempted to raise the issue: “It’s not ambiguous to me in the context that you’ve raised.”

We thus conclude the court heard and considered Donna’s challenges to the validity of the retirement provisions, the court did not abuse its discretion when it refused Donna’s request to hear this issue again, and her due process rights were not violated.

IV.

THE SPOUSAL SUPPORT ORDER

Donna contends the court abused its discretion when it reduced the spousal support award and refused to make the award retroactive to the date when Jeffrey filed for dissolution. Donna further argues the court improperly relied upon her cohabitation with Mr. Jackson in reducing spousal support because “[t]here was no testimony regarding Mr. Jackson’s standard of living,” and complains the court “blatantly transferred [Jeffrey’s] spousal support obligation onto the shoulders of Mr. Jackson.”

“Spousal support is governed by statute. (See §§ 4300-4360.)” (Cheriton, supra, 92 Cal.App.4th 269, 302.) In determining an award of permanent spousal support, the court must consider and weigh the circumstances set forth in section 4320, to the extent they are relevant to the case before it. (Cheriton, supra, at p. 302.) “The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed. [Citations.] The other statutory factors include: contributions to the supporting spouse’s education, training, or career; the supporting spouse’s ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets of each party; the duration of the marriage; the opportunity for employment without undue interference with the children’s interests; the age and health of the parties; tax consequences; the balance of hardships to the parties; the goal that the supported party be self-supporting within a reasonable period of time; and any other factors deemed just and equitable by the court. (§ 4320, subds. (b)-(l).)” (Id. at pp. 303-304.)

“In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the ‘court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.’ [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error. [Citations.]” (Cheriton, supra, 92 Cal.App.4th at p. 304, italics in original.)

Once the court considers the mandatory guidelines of section 4320, it has broad discretion to determine the amount and duration of spousal support, and an award will not be reversed on appeal absent an abuse of that discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.)

Section 4320, subdivisions (a) and (c), require the court to consider the parties’ earning capacity in setting spousal support. Section 4320, subdivision (l) states that one of the statutory goals is for the supported party to become self-sufficient within a reasonable time. Earning capacity is defined as the income that a spouse is reasonably capable of earning based on his or her age, health, education, marketable skills, employment history, and the availability of employment opportunities. (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) The trial court’s decision to impute earnings to an unemployed or underemployed spouse is reviewed for abuse of discretion. (Ibid.) The standard of review for the calculation of earning capacity is substantial evidence. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 931; In re Marriage of Paboojian (1987) 189 Cal.App.3d 1434, 1438.)

In addition, “[c]ohabitation may reduce the need for spousal support because ‘sharing a household gives rise to economies of scale. [Citation.] Also, more importantly, the cohabitant's income may be available to the obligee spouse.’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.) Section 4323, subdivision (a)(1) states “there is a rebuttal 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....” “‘[T]he Legislature created the presumption ... based on thinking that cohabitation ... creates a change of circumstance so tied in with the payment of spousal support as to be significant enough by itself to require a re-examination of whether such need for support continues in such a way that it still should be charged to the prior spouse.’” (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1298-1299, fn. omitted.) Once the supporting spouse establishes cohabitation, the burden shifts to the supported spouse to overcome the presumption that his or her need for support has decreased. (In re Marriage of Denney (1981) 115 Cal.App.3d 543, 556.) “Generally evidence of cohabitation is invoked as a change of circumstance warranting a modification of an existing spousal support order. But we see no reason why it should not also be a relevant circumstance when setting an initial spousal support award.” (In re Marriage of Geraci, supra, at p. 1299.)

As to the spousal support award, Donna repeatedly claimed that Jeffrey threw her out of the community residence, she was left without a place to live, and she did not have any financial means of support because it was too expensive to work as a real estate agent and she could not find other jobs. During the course of the evidentiary hearings, however, two of the women who supervised Donna’s visitations with her child revealed that Donna was living with one of her attorneys, Mr. Jackson. When she took the stand, Donna admitted she had been living in Mr. Jackson’s house since February 2004, they had an intimate relationship, he paid the household expenses, they were contemplating marriage, and she was redecorating his house in exchange for forgiveness of some of her legal fees.

As the court herein noted, Donna received a Gavron warning very early in the proceedings. Under Gavron, the trial court must give an appropriate warning before it can reduce or terminate spousal support based on the supported spouse’s failure to make at least good-faith efforts to become self-sufficient. (Gavron, supra, 203 Cal.App.3d at p. 712; see also § 4330, subd. (b) [“[w]hen 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”].)

Donna complains the court lacked any evidence to reduce the spousal support award, and the court’s ruling was “certainly suspect” and another indication of its bias against her. As with her other issues, however, the court ruled against Donna because her credibility on her financial situation eroded when she admitted she had been living with Mr. Jackson. Donna never offered any explanation for her failure to disclose her true financial situation, or introduced evidence to “overcome the presumption that her need for support has decreased” because of cohabitation. (In re Marriage of Denney, supra, 115 Cal.App.3d at p. 556.) She similarly failed to offer any evidence as to her actual overhead expenses as a real estate agent, and just offered vague generalities as to how she could not meet her expenses or obtain another job. The court did not abuse its discretion when it reduced spousal support.

Donna similarly complains the court abused its discretion when it declined to make the spousal support award retroactive to the date Jeffrey filed for dissolution. Donna fails to set forth the circumstances in which she demanded retroactive support. During the lengthy bifurcated hearings, her attorney, Mr. Miller, asserted that when the court issued the temporary spousal support orders, there was some type of agreement between the court and the parties that if the spousal support waiver in the prenuptial agreement was found invalid, then the court would order retroactive support. Mr. Miller called one of Donna’s prior attorneys to testify about this alleged side agreement. Jeffrey vigorously objected because the transcripts and orders about temporary spousal support failed to mention any such agreement. Mr. Miller repeatedly claimed there was some sort of retroactivity agreement. The court permitted Donna to call Ms. Bollinger, her previous attorney, but then cut off questioning when Mr. Miller tried to ask about this alleged agreement. Mr. Miller backtracked and argued the temporary spousal support orders did not foreclose a retroactive award. The court acknowledged it had discretion to make the spousal support order retroactive and invited argument on the issue in the parties’ briefs.

“An order for spousal support in a proceeding for dissolution of marriage or for legal separation of the parties may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date.” (§ 4333.) In determining retroactivity, the court must tailor such an award on the basis of the equitable rights of the parties, in light of their economic needs and abilities at the various times of the moving party’s employment and unemployment. (In re Marriage of Jacobs (1981) 126 Cal.App.3d 832, 835-836.)

The court herein did not abuse its discretion when it refused to make spousal support retroactive. As we have already explained, Donna’s credibility as to her true financial condition was destroyed by her admissions about inappropriate financial transactions after separation, and her complete failure to disclose her true financial situation at the time of the evidentiary hearings. She offered no evidence, aside from vague statements about her overhead expenses, as to why she was unable to earn a living as a real estate agent.

We note that Donna is not without relief on this issue. She may file a petition for modification of the court’s existing spousal support order, but it must be supported by the appropriate evidence showing a material change in circumstances. (See, e.g., In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.)

V.

ATTORNEY FEES

Donna’s final issue is that the court should have awarded her attorney fees pursuant to the provisions of the prenuptial agreement because she prevailed on the court’s finding the spousal support waiver was invalid.

A motion for attorney fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.) “We may overturn the trial court’s award only if ‘“no judge could reasonably”’ have made it.” (In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 884.)

Donna’s motion for attorney fees was based on article 14 of the prenuptial agreement:

“If either party should retain counsel for the purpose of enforcing or preventing the breach of any provision of this Agreement or for any other judicial remedy relating to it, then the party who substantially prevails shall be entitled to reimbursement by the other party or the other party’s estate for all costs, expenses and witness fees incurred by the prevailing party, including, but not limited to, reasonable attorneys’ fees and costs.” (Italics added.)

The trial court denied Donna’s motion for attorney fees, found Jeffrey already paid $1,500 to Donna for her attorney fees, and held Jeffrey “‘substantially’ prevailed in the contest of the premarital agreement. This case was protracted by [Donna]. Each side will pay their own attorney fees and costs.”

The terms of the prenuptial agreement, which provided for attorney fees to the party who “substantially prevails,” permitted the court to make an equitable determination of the prevailing party in the action. (See, e.g., Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 149.) In the instant case, Jeffrey filed for dissolution and sought to enforce the provisions of the prenuptial agreement that his retirement and pension benefits were separate property. He sought and received sole custody of their child and supervised visitation for Donna, and the court had ample grounds to rule in his favor on numerous property issues. The court found the prenuptial agreement was enforceable except for the provisions which provided for waiver of “maintenance” payments upon dissolution. The court interpreted that phrase as meaning spousal support, found the parties never contemplated or discussed such a waiver, and the waiver was invalid and unconscionable. While Donna prevailed on the spousal support waiver being invalid, the court did not abuse its discretion in finding that Jeffrey “substantially prevailed” in the entirety of this dissolution action.

Donna argues the court should have granted attorney fees:

“… Slavery was outlawed years ago, and counsels for Donna should not be forced to represent her without just compensation, particularly when Judge Hoover ordered attorney Jackson into the case and to have a substitution of attorney filed by a date certain. The judge made this order notwithstanding that Mr. Jackson had already once substituted out of this case because it was so costly to him in time and money and that it was interfering with other aspects of his legal practice.”

There is absolutely no evidence the court ordered or forced any of Donna’s attorneys to represent her at any time in this case. Indeed, Donna testified that she was redecorating Mr. Jackson’s home, and helping his law partner, Mr. Miller, in exchange for forgiveness of some of her legal fees. Neither Mr. Miller nor Mr. Jackson submitted declarations that the court forced them to represent her and, as with Donna’s other arguments in this case, her challenge to the court’s denial of attorney fees is without merit.

DISPOSITION

The judgment is affirmed. Each party to bear their own costs on appeal.

WE CONCUR DAWSON, J., HILL, J.


Summaries of

In re Marriage of Little

California Court of Appeals, Fifth District
Mar 24, 2008
No. F050969 (Cal. Ct. App. Mar. 24, 2008)
Case details for

In re Marriage of Little

Case Details

Full title:JEFFREY LITTLE, Respondent, v. DONNA LITTLE, Appellant.

Court:California Court of Appeals, Fifth District

Date published: Mar 24, 2008

Citations

No. F050969 (Cal. Ct. App. Mar. 24, 2008)