REHEARING GRANTED See 169 Cal.App.3d 64 for subsequent opinion.
This scenario in our view falls surely into the "clear and convincing" category we have fashioned. Similarly, the court in In re Marriage of Stich (1985) 169 Cal.App.3d 64 [ 214 Cal.Rptr. 919], which imposed sanctions because the appeal was taken solely for delay (Code Civ. Proc., § 907), characterized the evidence upon which it relied in reaching its decision as "clearly" disclosing such a motive. ( Id., at p. 78.)
Respondent seeks damages contending Hoffmeister I gave clear instruction which the trial court followed on rehearing and thus this appeal is frivolous. Respondent cites In re Marriage of Stich (1985) 169 Cal.App.3d 64 [ 214 Cal.Rptr. 919] in which case the appellate court itself raised the issue of sanctions where the record showed the husband had threatened never to pay wife spousal support unless wife dismissed the dissolution proceeding. In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651 [ 183 Cal.Rptr. 508, 646 P.2d 179] teaches care in imposing sanctions to avoid a "serious chilling effect on the assertion of litigants' rights to appeal."
First, although it is clear respondent court had no obligation to honor real party's request for a statement of decision regarding the denial of petitioner's motion to quash (see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [ 240 Cal.Rptr. 872, 743 P.2d 932]; but cf. In re Marriage of Stitch (1985) 169 Cal.App.3d 64, 76 [ 214 Cal.Rptr. 919] [intimation that statement of decision would be warranted "given the irreconcilable factual conflicts in the declarations submitted in support of and in opposition to [a] motion to quash"]), no authority has been cited for the proposition that the court was powerless to file such a statement. Section 632 and California Rules of Court, rule 232, are directed to situations where a statement of decision is required; they do not limit situations where a statement of decision can be permitted.
Thus, Wife's D.C. action for separate maintenance does not operate as a bar to Husband's attempt to obtain a dissolution of marital status in this state. Wife cites numerous cases in support of her argument that Husband is making an impermissible collateral attack on the decree and jurisdiction of the D.C. court. ( Sherrer v. Sherrer (1948) 334 U.S. 343 [92 L.Ed. 1429, 68 S.Ct. 1087, 1 A.L.R.2d 1355]; Fehlhaber v. Fehlhaber (5th Cir. 1982) 681 F.2d 1015; Peery v. Superior Court (1985) 174 Cal.App.3d 1085 [ 219 Cal.Rptr. 882]; In re Marriage of Stich (1985) 169 Cal.App.3d 64 [ 214 Cal.Rptr. 919]; and Craig v. Superior Court (1975) 45 Cal.App.3d 675 [ 119 Cal.Rptr. 692].) To the extent they do not actually support Husband's petition for dissolution of marriage, the cases cited by Wife are all concerned with the res judicata effect of a jurisdictional finding of domicile in a divorce action.
Civil Code section 4357 allows the superior court to award temporary spousal support during the pendency of the dissolution proceeding. Such awards are within the court's discretion and are based on the relative needs of the parties and their respective abilities to pay. ( In re Marriage of Stich (1985) 169 Cal.App.3d 64, 71-74 [ 214 Cal.Rptr. 919]; Hogoboom King, op. cit. supra, 5:6; Adams Sevitch, op. cit. supra, §§ N.13-N.20.2; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Husband and Wife, § 181, p. 215.) These factors suggest that the judges who fashioned the pendente lite orders for payment of the mortgage in lieu of spousal support exercised their discretion in favor of awarding temporary support; wife's needs exceeded her income, and husband had sufficient income to enable him to pay support — he made more than his monthly living expenses and apparently was sharing these expenses with a companion.
In some cases the court found the appeal was brought for the purposes of delay. (See, e.g., In re Marriage of Stich (1985) 169 Cal.App.3d 64, 75 [ 214 Cal.Rptr. 919] ; Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010 [ 255 Cal.Rptr. 165].) Because Ms. Kabbe is the plaintiff in this action, delay is not a factor here.
The trial court has discretion to award spousal support pending a final judgment in the dissolution proceeding. (Civ. Code, § 4357) The amount of support lies within the trial court's sole discretion based on the needs of the parties and their ability to pay. (Civ. Code, § 4801; In re Marriage of Stich (1985) 169 Cal.App.3d 64, 71 [ 214 Cal.Rptr. 919] .) (6) The trial court did not abuse its discretion in awarding the interim support.
"[A]n award of temporary spousal support is within the sole discretion of the trial court," and will not be reversed unless it amounts to an abuse of discretion. ( In re Marriage of Stich (1985) 169 Cal.App.3d 64, 71 [ 214 Cal.Rptr. 919].) We find no abuse of discretion in this instance.
Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for both temporary spousal support and attorney fees pendente lite. ( Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 299 [ 17 Cal.Rptr. 186]; In re Marriage of Stich (1985) 169 Cal.App.3d 64, 74 [ 214 Cal.Rptr. 919].) (10a) In the instant case, the trial court made the specific and unequivocal finding that husband "has the ability to pay" based on the "extensive assets and nonsalary income at his disposal" which "have been placed by him in the control of others acting for his benefit [and] have a value in excess of $20,000,000."