Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco Super. Ct. No. FDI-03-755091
Jones, P.J.
Curtis Kekoa, Jr. (Husband), in propria persona, appeals the order requiring him to pay temporary spousal support to Christina Sagonowsky (Wife) and sanctions in the form of attorney fees to Wife’s attorney. He contends there is insubstantial evidence to support the amount of monthly income the court imputed to him or the amount of back support payments he owed. He also contends sanctions are not warranted because there was insufficient evidence of egregious conduct.
BACKGROUND
The parties married on January 24, 1992. They separated on October 1, 2003, and Wife filed a petition for dissolution on November 10, 2003.
The separation date is taken from Wife’s declaration. As noted, ante, Husband has ignored her requests to allege the date of separation.
Wife’s Motion for Temporary Support
On or about July 21, 2005, Wife moved for an order of temporary spousal support pursuant to the temporary support guidelines, retroactive to October 1, 2004. She also requested, inter alia, that Husband pay attorney fees of $20,000 and that a judgment of dissolution--status only be entered.
In support of her motion Wife declared: Husband was employed as a pilot for United Airlines during their marriage. His average gross monthly income in 2003 was $18,000. His April 16, 2005 pay stub showed regular monthly gross income of $14,372.43.
During the parties’ marriage, Wife’s primary occupation was acquiring, renovating, and managing income-producing property. She is a licensed real estate broker and has a law degree but has never taken the bar examination. The parties’ 12 community income properties--9 in San Francisco and 3 in Honolulu--now have a net worth of more than $10,000,000, but “that equity is tied up in the properties,” and Wife “is struggling” to pay bills. Income from the rental properties has generally been sufficient to pay the properties’ expenses and generate some cash flow. Since their separation, Husband has occupied one rental unit from which the annual income would be approximately $35,000. Because of vacancies, repairs and increased expenses since their separation, income from the rental properties has been significantly reduced and at time negative.
During their marriage, Husband’s salary paid for most of the parties’ living expenses. When they separated, Husband “assured” her that he would deposit his paycheck in their joint account to enable her to have funds for her living expenses and to cover any negative cash flow from the rental properties. In return, she agreed to continue managing the properties and pay the bills Husband did not pay. Husband repeatedly asked her not to file a motion for temporary support. Husband also agreed to continue paying scheduled electronic payments, such as the parties’ telephone bills, car insurance, etc. He stopped making these payments and stopped depositing his paycheck in their joint account in September 2004.
Husband agreed to file joint tax returns for 2003 and 2004 and divide the anticipated $88,000 tax refund with her. In July 2005 he informed her that he now planned to file separate tax returns for 2003 and 2004. By filing separate returns the parties were in jeopardy of losing more than $40,000 of the refunds.
Wife’s primary occupation since the separation has been management of the parties’ community income properties. She has attempted to earn income as a real estate broker, but her business had a cash loss in 2004. She anticipated a net annual income of $8,717 in 2005.
Hearing on Wife’s motion was scheduled for August 23, 2005.
Husband’s August 18, 2005 Response
Husband’s August 18, 2005 response sought a continuance of the August 23 hearing due to his work schedule and his recent substitution of attorneys and asked for a “long cause” hearing a month later. He declared:
He was addressing the issues raised in Wife’s motion on a “preliminary” basis because he had not had a sufficient opportunity to review the voluminous material he recently received from Wife. At the long cause hearing he intended to prove there were sufficient funds from the rental income to make temporary support to Wife unnecessary. He did not file the 2003 or 2004 tax returns jointly because he did not receive sufficient requested information from Wife regarding the properties. He agreed to a judgment of dissolution--status only.
He ceased entrusting his paycheck to Wife after she asked him for $30,000 to pay taxes on the rental properties but refused to provide him detailed information about the financial status of the properties. He also learned that she had used community assets for her separate property or her family’s property.
In his present employment as a United Airlines pilot he is provided a “‘line guaranty’” of a minimum of 65 hours per month, at an hourly rate of $180, for a salary of $11,700 per month. Any hours worked beyond the minimum is considered overtime. If the press of litigation forces him to modify his schedule to less than his minimum-hour guarantee, his income will be substantially reduced.
The hearing was continued to October 14, 2005.
Husband’s September 14, 2005 Declaration
On September 14, 2005, Husband filed another declaration in support of his opposition to Wife’s request for spousal support and attorney fees. He declared:
During 2001, 2002, and 2003, Wife “made more” than $71,000 annually. According to the parties’ 2004 income tax records, profits from the income property were $88,625. Wife also owns separate rental properties, which can be a source of income for her, and has experience doing legal work. Husband made no promise to deposit his paycheck into the parties’ joint account in exchange for Wife’s agreement not to petition for support, nor did he agree to make the electronic payments. As to his income, “it is public knowledge that United Airlines is in Chapter 11 bankruptcy and as a result of the same, my pay to date has been cut by approximately 50 percent. . . .” He has continued to work after separation, and there has been no lapse in his work effort.
Judgment of Dissolution
Judgment of dissolution of marriage--status only was entered October 14, 2005, with marital status deemed ended September 22, 2005.
January 25, 2006 Findings and Conclusions
Hearing on Wife’s petition for temporary spousal support took place on October 14, 2005. Following the hearing, the court made the following findings pertinent to this appeal: Husband was employed at a monthly salary of $17,443. Wife was self-employed as a real estate broker and was responsible for the management of the community’s real estate holdings. The court adopted the factors used in the DissoMaster printout submitted by Wife as the findings required for the calculation of temporary support.
Husband agreed informally to pay support following the parties’ separation. He ceased paying support on September 1, 2004. “The resulting calculation requires a payment of $4,896 per month from Husband to Wife commencing September 1, 2004, and continuing until a date the trial court determines Husband no longer has the ability to earn $17,443 per month, or until Wife becomes self-supporting, or until trial, whichever event occurs first. The court would retain jurisdiction over the issue of any modification of this amount commencing November 1, 2005.
Husband had made the dissolution process “far more litigious” than appropriate or necessary or contemplated by the Legislature’s policy stated in Family Code section 271 that parties to a dissolution cooperate to promote settlement and reduce the cost of litigation. Therefore, Husband was to pay $30,000 to Wife from his portion of the community Charles Schwab brokerage account.
The January 25, 2006 “Findings and Conclusions” were made by a commissioner and approved the same day by a judge. Although the document is captioned “Findings and Conclusions,” it is in substance an order and has been construed as such by the parties and the court. On February 6, 2006, Wife’s attorney filed and served “Notice of Entry of Order,” identifying the January 25, 2006 document as the order and attaching it thereto. On February 8, 2006, Husband moved to “vacate, clarify and/or modify” the “order” issued on January 25, 2005. On May 2, 2006, the court issued an order denying Husband’s February 8 motion to vacate/modify the January 25, 2006 “order.”
Husband moved to stay and to vacate, clarify, and/or modify the January 25, 2006 order based, in part, on the reduction in United Airlines pilots’ rates of pay due to United Airlines’s bankruptcy and on his inability to be employed as a pilot since November/December 2005 due to his medical condition. His motion was denied on May 2, 2006. He now appeals the January 25, 2006 order.
Husband’s notice of appeal lists the May 2, 2006 order as one of the orders appealed from. We deem any challenge to that order waived, insofar as Husband’s appellate briefing does not raise any issues regarding the propriety of that order. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
DISCUSSION
Standard of Review
During the pendency of a dissolution proceeding, the court may order either party to pay “any amount” necessary for the support of the other party. (Fam. Code, § 3600.) The amount is based on the ability of one party to pay and the need of the other party. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) The purpose of temporary support is to maintain the parties’ living conditions and standards in as close to their preseparation status quo position as possible pending trial and the division of the parties’ assets and obligations. (Ibid.; In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932.)
The court looks at the “big picture” and is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount. (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) Many courts, pursuant to local rules, use recognized computer programs to determine temporary support. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3.) Pursuant to rule 11.7(A)(2)(b) of the local rules for the San Francisco Superior Court, the court that heard Wife’s petition for temporary support uses the DissoMaster program.
Orders for temporary spousal support are appealable. (Winter, supra, 7 Cal.App.4th at p. 1932.) They are reviewed under the abuse of discretion standard. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454; Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Amount of Temporary Support
Husband does not challenge the temporary support award per se. The import of his contention is that the court abused its discretion in the amount of the award, $4,896 per month, because, he asserts, the monetary figures the court entered into the DissoMaster program for the parties’ income were incorrect. He specifically argues that the court’s finding of his monthly salary as $17,443 was wrong, because his August 2005 income and expense declaration showed a monthly income of $11,629, and Wife’s supporting declaration stated that his April 2005 pay stub showed regular monthly pay of $14,372. He argues the DissoMaster figure of $1,893 per month for his “other taxable income,” which he characterizes as rental income, is wrong because Wife retained all the net rental income for 2004 and 2005; he did not receive any rental income. He argues the DissoMaster figure of $234 as Wife’s self-employment income is wrong because Wife declared that her projected monthly earnings from her real estate business is $726.
We conclude the amount of the award was not an abuse of discretion. Wife’s petition sought temporary support retroactive to October 1, 2004 because, according to her declaration, between their separation and that October 1, 2004 date Husband had contributed his paycheck to their joint account to provide funds for her living expenses, in return for her agreement not to seek a temporary support order. Thus, the court could infer that when he ceased depositing his paycheck, he, in effect, ceased his temporary support. To best preserve the preseparation “status quo position” of the parties in making its temporary support award (Wittgrove, supra, 120 Cal.App.4th at p. 1327), the trial court could reasonably determine that Husband’s appropriate income figures to use in the DissoMaster program were his income as of October 1, 2004. There was no evidence that Husband’s salary and his other taxable income as of that date were other than the figures entered into the DissoMaster program. Furthermore, although Husband declared that, as of August 2005, his “‘line guaranty’” salary was $11,700 per month, he also declared that any work over the line guaranty was overtime, and that there had been no lapse in his work effort since the parties’ separation. Because there had been no lapse, the court could infer that, absent persuasive evidence to the contrary, his October 2004 salary was his customary monthly salary, and consisted of line guaranty and overtime. It could also find that his declaration that his pay had been cut as a result of United Airlines’s bankruptcy was insufficient, without further documentation, to show a different monthly salary. Indeed, the court’s order left open the possibility of modifying the support order on a showing that Husband no longer had the ability to earn the salary it submitted to the Dissomaster program.
Similarly, the court could conclude that Husband did not present persuasive evidence that the figures entered in the DissoMaster program for his “other taxable income” and Wife’s “self-employment income” were inappropriate. Husband’s declaration in opposition to Wife’s petition argued at length that she should receive no spousal support at all because, based on the profits the rental properties “should be” producing, there “is” sufficient rental income for her support, and she “is” not presently working at her earning capacity. However, Husband presented no evidence at the hearing on Wife’s petition from which the court could definitively find that he had not received any “other taxable income” or that Wife’s 2004 income was other than $234 per month. Moreover, because Wife’s supporting declaration only “projected” a 2005 monthly income of $726 as of the time of her petition, the court did not abuse its discretion in using her established 2004 income as the DissoMaster entry for her self-employment income, particularly in light of the language in the order that does not foreclose modification of the amount of support.
Past Support Payments
Husband also contends there was insufficient evidence to support the court’s determination that he pay “back support of over $82,000.” His reference to “back support” is apparently to the court’s requirement that he pay Wife $4,896 per month in temporary support commencing September 1, 2004. He contends that this amount is not supported by the evidence because not only were the DissoMaster figures incorrect, there was insubstantial evidence that he informally agreed to pay support following the parties’ separation.
Husband’s $82,000 figure is apparently derived by multiplying $4,896, the amount of the monthly support payment the court required Husband to pay, by 17, the number of months between September 1, 2004, the beginning date of the payment, and January 25, 2006, the date of the court’s order.
Because the parties submitted conflicting declarations as to the existence of such an agreement, resolution of the issue turned on the question of credibility, which is within the exclusive province of the trier of fact. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.) Wife’s declaration contains details of the parties’ post-separation arrangement whereby Husband agreed to deposit his paycheck into their joint account, of Wife’s agreement not to move for temporary support, and of Husband’s rationale for her not doing so. Husband’s declaration simply denies that the parties made any such promises. Because there was substantial evidence by which the court could find Wife’s evidence the more credible, it did not abuse its discretion in finding Husband agreed to an informal support arrangement.
Attorney Fees
Husband contends the court abused its discretion in requiring him to pay Wife’s attorney fees as sanctions because substantial evidence does not support the finding that he “has made the process of this divorce far more litigious than appropriate or necessary. . . .”
The court ordered Husband to pay attorney fees pursuant to Family Code section 271, which provides that a court may base an award of attorney fees on the extent to which the conduct of a party frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between parties and attorneys. An award of attorney fees under section 271 is in the nature of a sanction. These sanction awards are reviewed under the abuse of discretion standard. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178.)
We find no abuse. The record discloses conduct by Husband that the trial court could reasonably characterize as dilatory and/or obstructive and which has hence protracted the settlement of the proceedings and made them more costly by requiring more involvement by their attorneys.
In addition to abruptly ceasing payment of household bills and the deposit of his paycheck in the parties’ joint account, thereby compelling Wife to petition for spousal support, Husband reneged on his assurance that he would file joint tax returns for 2003 and 2004 and instead, through their attorneys, informed Wife in July 2005 that he would file separate returns.
Husband implied or represented to his first two attorneys (Gregory Maple, Barry Schneider) that he agreed the court would retain jurisdiction to make a retroactive spousal support award and an order respecting Wife’s request for property management fees, but he refused to sign a formal stipulation to that effect prepared by Wife’s attorney.
Wife agreed to his proposal to bifurcate the issue of marital status from the issue of property settlement, but rather than negotiate the stipulations for the bifurcation, Husband filed a motion to bifurcate without notice to Wife’s attorney. Wife attempted to negotiate a satisfactory stipulation with Husband through their attorneys, but Husband then unilaterally dismissed his motion, refusing to have a bifurcation issued without any conditions at all.
Husband did not respond to Wife’s attorney’s repeated requests for a property settlement proposal.
Husband abruptly ceased payments on an automobile the parties leased during their marriage and then did not cooperate with Wife and her attorney in deciding the appropriate disposition of the automobile.
Husband has ignored the repeated requests of Wife and her attorney to identify a date of separation, leading to the probability the separation date will be a subject of litigation, and he has threatened to “‘expense’” Wife out of the dissolution with his litigation tactics.
Husband refused to deal directly with Wife and insisted that all communications go through their attorneys. His then-attorney (Schneider) subsequently directed him to send all email for Wife directly to her because “[d]irect communication between [them] by email is the only way to keep this case above water.”
Husband has filed a separate civil action against Wife and her mother for mismanagement of community property assets and conversion of community property rental account monies.
As of the time of Wife’s July 21, 2005 motion for spousal support, Husband’s second attorney (Schneider), who had represented him only since April 2005, had moved to withdraw from representation on grounds of breakdown of attorney/client relationship and Husband’s refusal to follow his attorney’s advice. Husband was represented by a third attorney (Cindy Lee) when he responded to Wife’s petition.
Husband arrived at the October 14, 2005 hearing on Wife’s motion for temporary support 42 minutes late. He offered no explanation for his tardiness.
The court had more than sufficient evidence from which it could reasonably conclude that Husband’s behavior was tantamount to flouting the statutory policy favoring settlement and cooperation during dissolution proceedings in order to limit costs. Therefore, it did not abuse its discretion in awarding sanctions in the form of attorney fees under section 271.
In the last two sentences of his argument regarding sanctions, Husband argues that “sanctions are improper” because “it is clear in [his attorney’s] remarks in her supplemental ‘declaration’ to [the trial] court that notice of sanctions was required and never given.” To the extent this is a claim of error, we do not address it for two reasons. First, we discuss only those arguments that are sufficiently developed to be cognizable. (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1214, fn. 4.) Husband’s two sentences do not meet this criterion. Second, the attorney “remarks” to which Husband refers appear in the points and authorities filed in conjunction with his motion to vacate/modify the January 25, 2006 order. Because Husband has not challenged the order denying his motion to vacate/modify, the pleadings that gave rise to that order are not pertinent to the issues on appeal.
DISPOSITION
The order of January 25, 2006, is affirmed.
We concur: Simons, J., Needham, J.