Opinion
F040011.
7-3-2003
In re the Marriage of WANDA E. and FRANCIS W. WITTICH. WANDA E. BARNETT, Respondent, v. FRANCIS W. WITTICH, JR., Appellant.
Maroot, Hardcastle & Hatherley and Wayne Hardcastle for Appellant. James B. Preston for Respondent.
Appellant Francis W. Wittich, Jr., (Francis) claims the trial court abused its discretion in establishing the amount of permanent spousal support, valuing community property, and awarding attorney fees to his former wife, Wanda. We reject these claims and will affirm the judgment.
We will refer to the parties by their first names in order to avoid confusion. No disrespect is intended.
PROCEDURAL AND FACTUAL SUMMARY
Francis and Wanda were married in 1984 and separated after 15 years of marriage. Wanda filed a petition for dissolution of marriage on August 2, 1999. Wanda sought and obtained temporary spousal support in the amount of $ 1,389 per month. At the time this order was issued, both parties continued to live in the marital residence, with Francis paying the mortgage and utilities.
By order dated October 27, 2000, the amount of temporary spousal support payable to Wanda was increased to $ 1,962. At this time, Wanda no longer was living in the marital residence, and was paying her own mortgage and utility expenses.
The parties resolved all issues between them except for the amount and duration of permanent spousal support; the value of their respective community and separate property interests in the marital residence; and payment of attorney fees.
The trial on the reserved issues commenced on May 14, 2001. The trial courts tentative decision on the reserved issues was filed on October 23, 2001. Permanent spousal support was fixed at $ 1,500 per month, payable for 10 years; the fair market value of the real property at the time it was deeded to the community was fixed at $ 53,000; and Francis was ordered to pay $ 22,000 in attorney fees and costs incurred by Wanda. The judgment on reserved issues was entered on December 26, 2001.
DISCUSSION
Spousal Support
Francis argues that the initial temporary spousal support in the amount of $ 1,389 per month was sufficient to maintain Wanda at the marital standard of living and that the higher permanent spousal support of $ 1,500 per month is an abuse of discretion. Wanda points out that at the time the temporary support of $ 1,389 was fixed, she was still residing in the marital home with Francis, and Francis was making all mortgage and utility payments. Thereafter, Wanda moved out of the marital home, with the furnishings and appliances remaining in the marital home with Francis. Wandas expenses increased when she moved out of the marital home and she incurred mortgage, utility and other expenses relating to her new residence. Consequently, the trial court increased temporary spousal support to $ 1,962 per month.
Francis failed to mention this fact in either his opening or reply briefs.
Awards of temporary spousal support rest within the broad discretion of the trial court. Permanent spousal support, by contrast, is governed by numerous statutory factors set forth in Family Code section 4320. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) In awarding permanent spousal support, however, the trial court possesses broad discretion in balancing the applicable statutory factors and determining the weight to be accorded to each. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 132.)
References to code sections are to the Family Code unless otherwise specified.
Factors to be considered pursuant to section 4320 include whether the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; the needs of each party based upon the marital standard of living; the obligations and assets of each party; the duration of the marriage; age and health of the parties; tax consequences; and a balancing of the hardships between the parties.
Cases have noted that after separation it is difficult for both parties to continue to maintain the marital standard of living due to the additional expenses incurred by the party who leaves the marital home. (See, e.g., In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 482, 274 Cal. Rptr. 911.) Section 4320, however, does specify that in determining spousal support the trial court should consider the respective earning capacity of each party and endeavor to set a figure that allows both parties to maintain the marital standard of living. ( § 4320, subds. (a) & (c).) It is the earning capacity at the time the support determination is made that is to be considered. (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234-235, 841 P.2d 931.)
The trial courts tentative decision specifically states that it has considered the factors set forth in section 4320. That decision notes the age of the parties, their current respective incomes, income during the marriage, and the standard of living enjoyed by the parties during the marriage. Evidence established that there were no minor children of the marriage and that both parties had been employed in their present jobs for a lengthy period of time prior to the date of separation. The trial court also had before it income and expense statements from the parties and testimony from both parties regarding the relevant factors set forth in section 4320. The trial court found Wandas total yearly income to be $ 19,485 per year (exclusive of spousal support); Franciss was determined to be $ 71,604 per year, including approximately $ 20,000 of nontaxable disability income.
Once the trial court has considered and weighed the various statutory factors, it may fix spousal support at an amount greater than, equal to, or less than what the supported spouse may require to maintain the marital standard of living in order to achieve a just and reasonable result. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 308.) We conclude that based upon Franciss monthly income of $ 5,967 and Wandas monthly income of $ 1,623, exclusive of spousal support, as well as the trial courts reliance on and weighing of the factors set forth in section 4320, the sum of $ 1,500 per month payable by Francis to Wanda as spousal support is just and reasonable. (Ibid.)
Francis apparently also objects to the 10-year duration of the spousal support. This was a marriage of long duration as defined in section 4336, subdivision (b). The trial court did consider the factors set forth in section 4320 but is not constrained to limiting spousal support to one-half the duration of the marriage, as Francis seems to intimate. ( § 4320, subd. (l).) Nor should there be an absolute termination of spousal support in 10 years rather than the contingent termination evidenced by the step-down provision. An absolute termination of spousal support in the case of a long-term marriage at this point in time would be inappropriate. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 308-309, 311.)
As for Franciss contention that the trial court should have admonished Wanda of the need to become self-supporting, Wanda was already self-supporting within the meaning of In re Marriage of Gavron (1988) 203 Cal. App. 3d 705, 250 Cal. Rptr. 148. The Gavron court articulated the concept of self-supporting as that of having a supported spouse develop marketable skills in order to become gainfully employed. (Id. at p. 711.) Wanda, born in 1942, began working for the Tulare County Office of Education in 1968 and continues to be gainfully employed at that same job. Under these facts, the burden is on Francis to justify a termination of spousal support. (Ibid.)
It appears from the record that the trial court considered and weighed all relevant factors set forth in section 4320. There is nothing to indicate that the trial courts weighing or application of these factors was arbitrary or capricious. Therefore, we conclude the trial court did not abuse its discretion in fixing spousal support in the amount of $ 1,500 per month, payable by Francis to Wanda for a period of 10 years. (In re Marriage of Lynn, supra, 101 Cal.App.4th at p. 132.)
Attorney Fees
We next address Franciss claim that the trial court abused its discretion in ordering Francis to pay $ 22,000 in attorney fees and costs incurred by Wanda because there was no substantial disparity of income.
As with spousal support orders, trial courts enjoy broad discretion in awarding attorney fees. (In re Marriage of Lynn, supra, 101 Cal.App.4th at p. 133.) The exercise of that discretion is governed by statute. In determining what constitutes a just and reasonable award of attorney fees under the circumstances, the trial court must consider various factors set forth in section 2032, subdivision (b). Trial courts have a duty at the conclusion of a case to make a just and reasonable award of attorney fees and costs, considering the circumstances of the parties. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 315.)
The trial courts tentative decision awarding attorney fees specifically stated that in exercising its discretion it had relied on the factors set forth in section 2032. Circumstances to be considered in determining an award of attorney fees include an ability to pay and a need for representation. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 318.) Access to the family law courts through adequate representation is critical to a just resolution of a family law case. (Ibid.)
Prior to the award of spousal support, Franciss monthly income was $ 5,967, compared to Wandas monthly income of $ 1,623. The trial court specifically stated that it found "there is a substantial earning disparity between the parties." There is a monthly differential of $ 1,344, even after the $ 1,500 per month spousal support is factored into the equation. That differential is increased when the tax consequences are considered. A large portion of Franciss income is tax-free; Wandas income is taxable. A disparity in the parties relative circumstances may itself be sufficient to establish "need" within the context of section 2032, subdivision (b). (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 315.)
In this case, Wanda was required to file two motions for spousal support and to respond to a third motion to reduce spousal support; assets acquired during the 15-year marriage, including real and personal property, bank and investment accounts and retirement plans, needed to be allocated between separate and community property and divided between the parties; and there was a contested trial on the valuation of the real property, spousal support and award of attorney fees. Francis does not dispute the amount of Wandas attorney fees and costs.
The trial court, in considering an award of attorney fees, also may consider the factors set forth in section 4320. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630.) Prior to awarding attorney fees, the trial court had analyzed the factors set forth in section 4320 in connection with determining an amount to be fixed as spousal support, which included the parties income, expenses, assets and ability to pay. Clearly, at the time the award of attorney fees was made, the trial court had engaged in an analysis of the factors set forth in section 4320 and section 2032.
Francis also asserts, in one sentence without citation to authority or the record, that he already had paid toward Wandas attorney fees and that Wanda had sufficient other assets with which to pay her fees.
First, there is no finding by the trial court that Francis previously paid any portion of the fees included in the attorney fees request that was pending before the trial court. The record does reflect, however, that $ 3,000 of the fees incurred by Wanda was paid from community funds and that Francis, pursuant to a court order, subsequently paid $ 1,000 of Wandas attorney fees. There is no allegation, however, that the services paid for by these sums were included in the fee request pending before the trial court. In addition, the fees and costs awarded were less than the amount requested, with a differential of $ 6,818.75. Therefore, whether specifically articulated or not, any sums previously paid by Francis or the community apparently were accounted for in the award.
Francis also contends, without supporting authority, that Wanda must deplete other assets to pay attorney fees before receiving a fee award. Established authority indicates otherwise. Wanda is not required to deplete her assets, particularly when her liquid assets consist primarily of retirement funds that, if expended, would create significant tax consequences. (In re Marriage of Stachon (1978) 77 Cal. App. 3d 506, 509, 143 Cal. Rptr. 599.)
In the absence of a clear showing of abuse, and no such showing has been made here, this court will not disturb the trial courts discretionary determination on an award of attorney fees and costs. (In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 630.)
III. Valuation of Real Property
When Francis and Wanda married in April of 1984, Francis was purchasing 38.32 acres of unimproved land in Tulare County. The property was mortgaged with a loan balance of $ 7,850 at the time of the marriage. After the marriage, the mortgage was paid off in 1984 using Wandas separate funds in the amount of $ 5,000, plus community funds.
In December 1984, Francis conveyed the property to himself and Wanda as joint tenants. The parties obtained a construction loan from Bank of the Sierra and commenced building a home on the acreage in 1985. After completion of the home, the parties refinanced the property through Cal-Vet. At the time of trial, the parties stipulated the value of the residence and acreage to be $ 275,000, with an outstanding loan balance of approximately $ 129,300.
The trial court found Wandas expert appraiser, Karen Strong, to be the more credible witness. The value of Franciss separate property interest in the equity was fixed at $ 34,551; Wandas separate property interest was fixed at $ 11,522; and the community interest was set at $ 103,011.
Francis challenges the trial courts reliance on Strongs appraisal in determining the value of the community and separate property interests in the marital residence. Francis maintains that the trial court should have rejected Strongs testimony and instead found his appraisers to be the more credible witnesses. In essence, Francis is asking this court to reassess the credibility of witnesses and conclude his witnesses are more credible than Strong. An appellate court, however, does not reweigh conflicting evidence or determine the credibility of witnesses. (People v. Poe (1999) 74 Cal.App.4th 826, 831.)
Francis contends, however, that there is no substantial evidence to support the trial courts finding on the valuation of the real property. Substantial evidence is evidence that is reasonable, credible and of solid value. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In reviewing for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. (In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 994.)
Four appraisers testified. Norm Schumacher, who worked for Cal-Vet and testified as an independent expert, appraised the real property as of September 27, 1985, at $ 103,700 using a replacement cost approach. The residence was valued at $ 92,700 and the land at $ 24,000. The price Francis had paid for the bare land in 1974 was $ 23,000. Schumacher was not at that time, nor at the time he testified, a certified appraiser.
Dennis Schneider and Gordon Moore testified for Francis. Schneider testified that he was acquainted with Francis, as the Bank of the Sierra was his number two client in terms of gross revenue. Although his usual charge for an appraisal was $ 2,500, he charged Francis $ 400. Schneider did not consult county records or any real estate agents in making his appraisal. He simply looked through his own files and records for information he could use in the appraisal. Schneider also acknowledged that the marital residence was not the type of property that he usually appraised. Moore testified that Bank of the Sierra also was a "very good client" of his. Moore charged Francis $ 300 for the appraisal. Three of the comparables used by Moore were the same as used by Schneider.
Karen Strong, the appraiser the trial court found most credible, testified as an expert witness for Wanda. Unlike Schneider and Moore, Strong had no prior connection to Wanda or Francis. Strong had 11 years experience as an appraiser at the time of trial and had appraised numerous different types of properties. She had testified as an expert appraiser approximately 12 times.
Strong had reviewed the appraisals of both Schneider and Moore and expressed several criticisms. According to Strong, the comparables used by Schneider were not similar in topography or location to the subject property. A private road accessed the marital residence, and all but five acres of the subject property were very hilly. The comparables used by Schneider, on the other hand, were accessed by county roads and were considerably more flat than the subject property. Because Moore used three of the same comparables as Schneider, his appraisal suffered from the same infirmities. Moores fourth comparable, in Porterville, was criticized by Strong as too distant from the subject property.
Strong admitted that initially she had been under the impression the subject property was not eligible to be subdivided. Within a few days of completing her appraisal, however, she discovered the subject property was eligible to be subdivided and reevaluated her appraisal. Strong concluded that because only five acres realistically were developable, the ability to subdivide the subject property did not have any effect on its value. The fair market value at the time the real property was deeded to the community was fixed at $ 53,000.
Examining the evidence in the light most favorable to the prevailing party, it is clear there is substantial evidence to support the trial courts finding on the valuation of the marital residence. (In re Marriage of Hokanson, supra, 68 Cal.App.4th at p. 994.)
DISPOSITION
The judgment on reserved issues is affirmed. Costs on appeal are awarded to Wanda.
WE CONCUR: DIBIASO, Acting P.J., and LEVY, J.