Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SBF092089, Wilfred J. Schneider, Jr., Judge.
Aviles & Associates and Moises A. Aviles for Appellant.
Law Office of Jim Husen and Jim Husen for Respondent.
OPINION
McKINSTER Acting P. J.
Appellant Javier Rojas (husband) appeals from certain orders of the family law court in this action for dissolution of his marriage to respondent Ana Rojas (wife). More specifically, husband complains of the spousal support order and argues the evidence does not support the lower court’s division of the property and obligations. We affirm.
FACTS AND PROCEDURAL HISTORY
Husband and wife were married in 1982. After 23 years of marriage, wife filed a petition for dissolution in March 2006. Husband’s income and expense declaration stated that he worked as an automobile body repair technician, earning a monthly gross income of $2,500.
In approximately April 2006, husband injured his hand and was unable to work. He had his hand in a cast for a period of time but by September 2006, his hand was no longer in a cast and he was receiving rehabilitation treatment. Husband began receiving disability income of $3,313 a month in approximately May 2006.
Wife had not worked during the marriage. She stayed at home, taking care of the parties’ two minor children. She also claimed disability arising from an automobile accident that occurred in the 1980’s.
Wife filed a request for orders to create a child support trust from husband’s share of the proceeds of the sale of real property to ensure payment of the court-ordered child support. Since the order in September 2006, husband had paid no child support. Wife also alleged that husband had come into possession of seven automobiles in June 2006, and she requested the court award her possession of one of these automobiles. Otherwise, wife had no car and had to rely on public transportation. She amended her order to show cause (OSC) request to include the issue of spousal support, which the court had previously reserved.
The issues of child support, spousal support, and division of property eventually came on for trial in July 2007. In advance of trial, husband filed an income and expense declaration claiming that he still was disabled, receiving disability income of $3,059 a month. He asked that $1,200 a month income be imputed to wife based on wife’s statement in a previous income and expense declaration that she worked 40 hours a week. Husband claimed that he had last filed income taxes for the year 2003, although he also reported that his last employment ended in April 2005, the time of his alleged hand injury. He had rent expenses of $1,500 a month and owed $30,000 for a Nissan Armada automobile for which he paid $725 a month.
Wife’s trial brief recited that, shortly after the parties’ separation, husband had been driving a car owned by their adult daughter and had caused an accident by running a red light. Consequently, a lawsuit was pending against husband. Although husband had been accustomed to earning $49,000 a year as an auto body technician, he had paid no support since the beginning of the proceedings.
The community property home was sold and the proceeds held in trust for both parties by wife’s counsel. As of the time of trial, husband had received a $35,000 direct distribution from his share of the proceeds, $12,496 had been awarded from his share of the proceeds for unpaid child support arrearages, and $5,000 had been distributed to husband’s attorney. Wife had been distributed $5,000 to satisfy a family law attorney real property lien she entered into to begin the dissolution proceedings. The court had ordered an additional $5,000 paid from her share to her attorney. She had also received $30,000 from the trust account. Thus, husband had received $12,496 more than wife from the proceeds.
Other matters to be determined were the liability for the automobile accident, which husband had settled for $20,000. Wife wanted reimbursement of $2,800 she had paid to a family friend who had been named as a codefendant in the lawsuit. Apparently the daughter had purchased the car from the friend; the friend was named solely because the daughter had failed to file a proper release of liability or new registration of the car before husband had wrecked the car.
Wife asserted that the parties had $8,899.81 in outstanding credit card debt and other debts. She requested that the creditors be paid directly from the trust account funds; she feared that if husband were given the funds and ordered to pay the creditors, he would fail to make the ordered payments.
Wife requested spousal support of $500 a month. The marriage was lengthy, over 23 years. Wife had only worked for a short period early in the marriage, in 1983, as a cashier. Otherwise, she was the caretaker of the three children of the marriage and managed the household. Wife was able to make a little money from piece-work sewing and she was employed as a caretaker for an elderly patient, earning $318 a month, up until April 2007, when the patient for whom she was caring died.
At trial, wife testified that her employment history was very limited. In addition, she had been injured in an automobile accident in the 1980’s. Her right side, hand, and arm had been crushed, trying to protect her son. She was able to work, but suffered from pain.
The community had acquired several automobiles, which husband was requesting in his share of the community property. Wife estimated the value of each of the cars based on what husband had told her they were worth.
As to the debts, wife testified that they had been incurred during the marriage. Wife asked that the creditors be paid directly from the community property funds held in trust, because “if you give us our own share of the house account, I know him, he will not come up with the money to pay them. I don’t believe I can trust him.” Family members had also informed wife that husband had moved to Mexico and he had a residence in Tijuana. She feared he would renege on his obligations and leave the country.
Husband testified that he had agreed to settle the automobile accident case for $20,000. He denied that he had traveled to Mexico. He later admitted, however, that he had gone to Mexico, but he never stayed overnight. He acknowledged that he had a history of drug usage, but denied he had used drugs since his last arrest, 18 months earlier. Husband admitted that he had paid nothing in child support and had not voluntarily given wife any funds since their separation in 2005. Husband claimed that he had not sent any money because he was on disability, but admitted that he received disability income of $1,529 every two weeks, or a total of $3,058 a month. Husband claimed he did nothing with his time, but tried to “stay 24-7 in my house.” Husband conceded that, after separation, he had gone out and purchased a new automobile, a Nissan Armada, at a cost of $52,000.
Wife argued to the court that husband’s income and expense declaration claimed monthly expenses of over $5,000 a month, significantly more than the $3,058 a month he received in disability. In addition, he had qualified to purchase a $52,000 vehicle. Wife’s counsel contended that these circumstances belied husband’s claims that he was only receiving disability payments, and that he likely was in fact earning income which he denied at trial.
The trial court issued a statement of decision. As to spousal support, the court found: “[T]his is a marriage of long standing (23 years). [Wife] has a high school education from Mexico, has very limited skills and training whose prospects of viable future employment as a seamstress or seamstress teacher are doubtful. [Wife] has not worked outside the home in many years. She currently is the sole caretaker of the two minor children (ages 4 and 13) which limits [her] employability. She was injured in an auto accident which limits her mobility in the left side and arm which further limits her employability. [Wife] has been the victim of domestic violence at the hands of [husband]. [¶] [Husband] is a highly-skilled auto body repairman who has a highly marketable skill and who claims a current disability of his left hand which did not appear to be credible. [¶] Therefore, [husband] is ordered to pay [wife] as spousal support the sum of $500.00. Payable one-half on the 1st and one-half on the 15th of each month . . . .”
As to division of the property and debts, the court awarded to wife one-half the proceeds of the house sale, from the trust account ($72,090), a sewing machine ($100), kitchen utensils ($500) and camping gear ($250), for a total of $72,940.
Husband was awarded one-half the trust proceeds ($72,090), a Ford automobile ($5,000), a Mercury automobile ($2,500), a Dodge van ($800), a Nissan automobile ($1,400), and a Ford truck ($4,500), for a total of $82,290. With the addition of the $12,496 earlier distribution to husband, he was awarded a total value of $98,786. Wife was due an equalization payment of $12,923.
As to the actual disbursement of the trust monies, the court first deducted the community property credit card debt of $8,899.81, and ordered the creditors paid directly from the funds held in trust. One-half the remaining proceeds was approximately $67,640. Wife was due an equalizing payment of $12,923, and was awarded $80,563.
Husband’s share was therefore $54,717. From this sum, the court ordered $20,000, for the court settlement, paid directly from husband’s share of the funds. The court held that husband should pay to wife $1,400, or one-half the sum she had paid to the family friend to defend the lawsuit caused by husband’s automobile accident. Husband’s share was also charged $4,544 for arrearages on child support since the last court date.
The court found that, “because of [husband’s] refusal to pay support as ordered by the court . . . coupled with [husband’s] purchase of a $52,000.00 Nissan automobile for himself in lieu of honoring his support obligations,” wife required additional protective orders. The court therefore ordered a portion of husband’s remaining share to be held in trust for payment of child support and spousal support for one year. Husband would be reimbursed from the funds held in trust for the child or spousal support payments he actually paid.
After deduction of the lawsuit settlement, reimbursement of one-half the monies paid to the family friend to defend the lawsuit, payment of child support arrearages, and setting aside one year’s child and spousal support monies in trust, husband was to receive the balance of his share, or $9,993.
The court’s judgment was issued in accordance with the findings set forth in the statement of decision.
Husband appeals from the judgment.
ANALYSIS
Husband challenges the spousal support order, and the sufficiency of the evidence to support the court’s ordered distribution of the community property house sale proceeds.
I. Standard of Review
Husband’s argument as to both issues is essentially that the evidence is insufficient to support the trial court’s orders. Appellate review “ ‘begins and ends’ ” with a determination whether there is any substantial evidence that will support the trial court’s findings. (In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1218.)
II. The Spousal Support Order Was Proper
Husband complains that wife failed to produce any evidence of her alleged personal injuries from an automobile accident in the 1980’s. When wife was asked if she had medical records from the time of the alleged injury, she replied, “No. But I will submit to any medical thing or anything that the Court requires to prove that.” Husband appears to contend that, in the absence of producing contemporaneous medical records, wife had failed to proffer any evidence of her disability.
Husband fails to apprehend that wife’s testimony was received without objection. Her testimony furnishes a proper evidentiary basis to establish her disability. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [“ ‘The testimony of a witness, even the party himself, may be sufficient’ ”].) Wife testified that she had sustained injuries to her arm, hand, and leg, which had impaired her ability to work. Husband complains that the court “took her word for it without her presenting evidence.” Wife’s “word for it” was her testimony; her testimony was evidence. That the court “took her word for it” was simply the court’s resolution of the issue of credibility. Far from being illegitimate, it was no less than the court’s duty to weigh and resolve the credibility question.
Husband complains that the court believed wife’s testimony as to her injury and disability, but rejected the medical records that supported his own injury and disability. Although husband submitted medical records and wife did not, the matter is not a mechanical contest of which party presented more paperwork. The court’s duty is to weigh the evidence presented and give it the probative value to which it is entitled. Husband’s medical records may have indicated that he did indeed genuinely suffer an injury in April 2006. Wife’s counsel observed at one hearing that husband had appeared with his arm in a cast at an earlier proceeding, but that the cast had since been removed. The fact of earlier injury was not the whole issue to be decided, however. The question was whether husband was in fact disabled from work and from earning an income at his highly skilled trade. Husband did not appear to be any longer disabled. Husband’s conduct and his financial records suggested that he was less than candid with the court about his ability to work and his sources of income. Husband’s track record showed a consistent disregard for the law, for the courts, and for his obligations to others. That the court disbelieved husband’s claims of disability, even though he provided medical records to substantiate the initial injury, has no bearing on the court’s resolution of the entirely separate question of wife’s credibility with respect to her injury and disability.
Husband complains specifically that “[t]he standards for spousal support [i.e., factors under Family Code section 4320] have not been met,” citing In re Marriage of Geraci (2006) 144 Cal.App.4th 1278.
Under Family Code section 4320, the court in ordering spousal support must consider several factors, including:
“(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account . . . the following:
“(1) The marketable skills of the supported party. . . .
“(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] . . . [¶]
“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
“(d) The needs of each party based on the standard of living established during the marriage.
“(e) The obligations and assets, including the separate property, of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
“(h) The age and health of the parties. [¶] . . . [¶]
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in [Family Code s]ection 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. . . .”
Husband’s focus is on subdivision (g) of Family Code section 4320, the ability of the supported party to engage in gainful employment, reiterating his complaint that the court should have disbelieved wife’s testimony that her ability to engage in employment was limited by her disability.
Geraci is unhelpful to husband’s contention. In Geraci,although the marriage had been of relatively long duration (17 years), the wife had at times during the marriage out-earned the husband. The wife had not been injured and disabled, although she had suffered from depression. The parties lived well beyond their means during the marriage and were accustomed to a fairly affluent standard of living. The family law court recited generally that several of the statutory factors for spousal support favored the wife, without further elaboration. The court awarded substantial spousal support, $3,500 a month, permanently, with no plan to reduce the amount or for the wife to become self-supporting. There was evidence that the wife had, since the dissolution, begun living with another partner and was being supported by him. Under all these circumstances, the Court of Appeal held that the award of substantial permanent spousal support was not supported by a proper consideration of the relevant factors. (In re Marriage of Geraci, supra, 144 Cal.App.4th 1278, 1297-1299.)
The contrasts between the two cases are marked: In Geraci, the wife had a highly marketable skill; here, wife’s marketable skills were negligible. In Geraci, the parties had no children; here, wife must still care for young minor children and she spent much of the marriage devoted to child-rearing. In Geraci, the wife was being supported by a cohabitant; here, there is no such indication. In Geraci, the wife was highly educated; here, wife had only a high school education. In Geraci, the wife was awarded $3,500 a month after a 17-year marriage; here, wife was awarded a modest $500 a month after a 23-year marriage.
There are no glaring discrepancies here, in contrast to Geraci, to show that the trial court failed to properly exercise its discretion in evaluating the relevant statutory considerations. Thus, unlike Geraci, there is no reason to depart from giving the usual deference to the court’s exercise of discretion in setting the spousal support award. (In re Marriage of Geraci, supra, 144 Cal.App.4th 1278, 1299.)
III. Substantial Evidence Supports the Property Distribution
Husband complains that the evidence was insufficient to support the distribution of the community property estate (including payment of community property and separate property obligations). Among other things, husband argues that the court should have disregarded wife’s testimony as too vague to substantiate the community credit card and other debts.
We reject husband’s contention. While wife could not remember all particulars and specifics as to each and every debt, she had produced documents concerning several accounts that were in collection, and testified that the listed debts were incurred during the marriage and were community property debts. She identified one of the credit card debts as having been incurred to buy clothes and shoes for the children. Another was a hospital bill. Another was for a security system husband had had installed in the community property home. Another was for dental treatment. Another debt was incurred to buy groceries. Yet another collection account was for an unpaid loan that had been used to consolidate and pay off three or four other outstanding credit card balances. Wife had used the consolidated credit cards for household items.
Although husband’s brief challenges the sufficiency of the evidence “for [husband] to pay the credit card debts, spousal support, or anything else stated in the judgment,” he proffers no real argument as to any specific issue, except to reiterate that wife failed to support her claim of disability with medical documentation, and that her testimony about the community debts was “vague.”
Upon evaluation of the record, we conclude that these contentions are without merit, and the evidence presented was admissible and sufficient to prove the matters determined.
IV. Mootness
Wife’s counsel points out that husband did not post a bond to stay enforcement of the judgment. Accordingly, payments to creditors and for the settlement of the lawsuit have already been made in accordance with the judgment. Wife argues that no effective relief can therefore be granted to husband as to those matters, and that they are thus moot.
Rather, husband asked for the community property proceeds to be assigned as security in lieu of a bond. In other words, he sought to use the judgment funds themselves to stay enforcement of the judgment. Under the terms of the judgment, husband was to be directly awarded $9,993, yet he sought to tie up $44,724 of the community property trust proceeds to delay enforcement of the judgment.
Husband counters that the amounts of the distributions are still in dispute and could be further adjusted.
In view of husband’s failure to demonstrate any error, however, the technical issue of mootness need not be addressed, as the judgment is affirmed as it stands.
V. Sanctions for Frivolous Appeal
Wife’s counsel requests that this court issue an order to show cause whether husband should be sanctioned for pursuing a frivolous appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646.) Counsel argues that husband’s contentions are objectively unmeritorious and subjectively untenable, suggesting that the sole purpose in pursuing the appeal was mere harassment or delay.
Husband responds that the spousal support issue was objectively “debatable,” and that, with respect to the sufficiency of the evidence claim, his “Opening Brief tried to make reference to [wife’s] evidence, as well as [his own], something many attorneys do not do on Appeal.” Otherwise, husband baldly asserts that he “has not prosecuted this Appeal to delay the proceedings or to present issues that make no legal or logical sense. [Husband] had to work with the record on Appeal that was prepared for him, [and wife] should not expect sanctions to be awarded to her because her attorney is a well-known family law attorney.”
This somewhat colorful response is not an argument, however, but merely a self-serving denial as well as a rather bizarre accusation against opposing counsel.
We have examined the issues presented, and find them substantively without merit. A lack of merit, in itself, does not necessarily establish frivolousness, however. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.) In view of the parties’ mutual claims of injury and disability, and the presentation of differing evidence as to each party, we cannot say as a matter of law that any reasonable attorney would agree it was totally and completely without merit. (In re Marriage of Flaherty, supra, 31 Cal.3d 637, 650.)
Accordingly, the request to set an order to show cause on sanctions is denied.
DISPOSITION
The judgment is affirmed. The request for sanctions for maintaining a frivolous appeal is denied.
Costs on appeal are awarded to wife.
We concur: GAUT J., MILLER J.