Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. BD422466. Scott M. Gordon, Commissioner.
Stolpman, Krissman, Elber & Silver and Dennis M. Elber for Defendant and Appellant.
Harris–Ginsberg, Andrea Fugate Balian; Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Plaintiff and Respondent.
DOI TOD J.
In this family law case, appellant Michael Mellman purports to appeal from the judgment of dissolution and the post judgment orders (1) denying his motion for modification of spousal support, and (2) awarding attorney fees to respondent Kim Mellman. We dismiss the appeal as to the judgment of dissolution on the ground that it was a final judgment that was not timely appealed. With respect to the post judgment orders, we find no abuse of discretion and affirm.
As is customary in family law cases, we shall refer to the parties by their first names for ease of reference and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475–476, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married for 18 years, 8 months. Kim filed a petition for dissolution in March 2005. During the proceedings, two of the parties’ three children were in college and one was finishing high school. Trial took place over four days and the issue of attorney fees and costs was reserved for later determination.
Following trial, on February 22, 2007 the court issued a lengthy statement of decision, discussing in detail all of the numerous factors set forth in Family Code section 4320 for determining spousal support. The court made the following factual findings: During the marriage, the parties lived an upper-middle-class lifestyle in an affluent area of Manhattan Beach, California. Michael, age 55, was a physician practicing internal medicine with a private practice. He also served as a team physician for the Los Angeles Dodgers and the Los Angeles Kings. Between 1999 and 2004, Michael’s income averaged approximately $376,000 per year. His income declined in 2005 and 2006 when the Dodgers’ new ownership reduced his income from $150,000 to $105,000. The court stated: “It is also unclear if he will continue to work with the Dodgers in the future.” The court found that Michael’s “current income and earning capacity is such that it is appropriate and reasonable to attribute an income of $200,000 per year to him. It is also clear that if circumstances change within the professional sports work environment, [Michael’s] capacity to earn income is much greater. However, the Court does find that the evidence surrounding the circumstances, as they are at this time, that have served to reduce [Michael’s] income from a high of $441,038 in 2003 to the present level of approximately $200,000 per year are not the product of conduct by [Michael] to artificially lower his income.”
All statutory references shall be to the Family Code, unless otherwise noted.
During the marriage, Kim, age 51, worked as an office manager for Michael’s medical practice until 1998, earning $32,000 per year. After the parties separated on July 5, 2002, Kim began to work part-time jobs in the retail field, one as a sales assistant in an art gallery for $9 per hour plus five percent commissions on sales, and the other as a personal assistant for $20 per hour. She had recently begun increasing her hours. The court found that Kim had an income of $2,200 per month. The court also noted that the parties’ income and expense declarations filed in April 2006 indicated that Kim had monthly expenses of $7,607, and Michael had monthly expenses of $6,070.
The court ordered Michael to pay Kim spousal support in the amount of $2,500 per month, plus 20 percent of any income he earned between the amounts of $200,000 and $360,000 per year. The court also ordered Michael to make quarterly reports of income to Kim.
The statement of decision also noted that the parties had agreed to sell the family residence and share equally in the proceeds, which were expected to be close to $2 million, and to divide various money accounts. The court denied Michael’s request for reimbursement of his separate funds used to purchase the family residence because the source of the money was not supported by sufficient evidence. The court also denied Michael’s request to charge Kim with certain withdrawals from the parties’ equity line of credit because the evidence was persuasive that the withdrawals were used to pay family expenses.
After Kim filed objections to the statement of decision, the court issued a written ruling stating that it had reached its decision on the issue of spousal support after considering all of the factors in section 4320, as reflected in the statement of decision. The court further stated that it had found that Michael’s “income and opportunities in his specific career field (professional sports team physician) ha[d] greatly changed,” and that the spousal support order “balance[d] the requests of each party, the evidence produced at the trial and the effect of the change in [Michael’s] income.” The court concluded that “[t]he spousal support order made in this case was made with knowledge of the Court’s finding with regard to the income and opportunities that were available during the marriage and the income and opportunities that are available currently.”
Judgment of dissolution was entered on June 22, 2007, and notice of entry of judgment was served the same day.
On May 24, 2007, shortly before the judgment of dissolution was entered, Kim filed her opening brief on the reserved issue of attorney fees and costs, which she sought in the amount of approximately $102,000 pursuant to sections 2030 and 271.
The appellate record also contains Kim’s reply brief on the issue of attorney fees and costs, but does not include respondent’s brief on the issue.
The following day, on May 25, 2007, Michael filed a motion for modification of spousal support (referred to by the court as an order to show cause), requesting that support be “reduced by 20% of income below $200,000 per year.” In his accompanying declaration, Michael stated that he had been fired by the Dodgers, causing him to lose $105,000 in yearly income, and that he had lost two months of income when three physicians with whom he was affiliated divided their practice. He also stated that he had anticipated the possibility that the Dodgers would terminate his employment relationship and that he had begun increasing his private medical practice as early as 2003, which had involved moving to a larger office and increasing operating costs. While he anticipated an increase in gross revenues, these would be somewhat offset by his operating costs. Kim opposed the motion, arguing that Michael had not presented any documentary evidence to show that his income had decreased, only that his employment circumstances had changed.
After the judgment of dissolution was entered, Michael’s motion for modification of spousal support was called for hearing on July 11, 2007. There is no reporter’s transcript of this hearing in the record on appeal. A minute order for the hearing states that Kim was sworn in and testified that the parties were ordered to file and exchange financial records, and that a “further order to show cause” was set for October 24, 2007. There is no reporter’s transcript of the October 24, 2007 hearing in the record before us. A minute order for the October 24, 2007 hearing states that the parties were sworn and conferred with the court, and that the matter was continued to November 27, 2007, at which time the court would also address the issue of attorney fees. Again, there is no reporter’s transcript of the November 27, 2007 hearing in the record on appeal. A minute order for the November 27, 2007 hearing states that the court and the parties conferred on the record, that the cause was argued and the parties rested, and that the matter was taken under submission.
On February 26, 2008, the court issued a 44-page statement of decision addressing the motion for modification of spousal support and the issue of attorney fees. The court began the statement by noting that it had “rendered a final decision and Judgment was entered on June 22, 2007, regarding the matters at issue in the trial.” After repeating verbatim its prior statement of decision with respect to the award of spousal support, the court noted that the “contingency” of Michael losing his employment relationship with the Dodgers was discussed in the evidence at trial and in the court’s prior statement of decision, that the evidence included “the transitions that [Michael] was experiencing in his career,” that the court “took into consideration the evidence presented by [Michael] with regard to changes that were occurring with regard to his income,” and that the spousal support order fashioned by the court at the time of trial “was designed to recognize the changes that had occurred and were likely to occur based on the evidence presented at the time of trial.” The court also noted that Michael’s declaration in support of his modification motion stated that he was expanding his practice and that over time his income would increase. The court found that while the evidence presented in the motion did indicate a change of circumstances, it did not support a modification of the spousal support order. The court found that the evidence showed that Michael’s earning capacity remained the same as the court had previously found. The court therefore denied the modification motion.
The statement of decision next turned to the issue of attorney fees under sections 2030 and 271. After discussing the legal bases for such fees, the court made the following factual findings: “[I]t is clear that during the marriage and during the proceedings in this matter, [Michael] has had a far greater income and earning potential than [Kim]. He has not had to pay any attorney fees and yet has conducted vigorous litigation in this matter. [¶] The trial in this matter, initially estimated as one day by the parties was a four-day trial, the majority of which was consumed by [Michael]. [¶] [Michael] was ordered at one point to pay $3,000 in attorney fees due to discovery issues in this case. [¶] It is clear to the Court that [Michael] did not engage in open and cooperative conduct during the discovery phase of this case. This did in fact cause there to be a greater amount and more complex litigation. The Court finds that [Michael’s] conduct in this litigation caused the consumption of a greater amount of Court time and increased attorney fees for [Kim]. [¶]... [¶] The evidence in this case shows that [Michael] has and continues a much greater income and earning capacity than [Kim].” The court ordered Michael to pay Kim attorney fees in the amount of $50,000 pursuant to section 2030, and fees in the amount of $20,000 pursuant to section 271.
After Michael filed objections to the February 26, 2008 statement of decision, the court issued a written ruling noting that Michael was essentially re-arguing the underlying matter. The court found that “[n]o evidence has been presented that would support a change” in the court’s prior ruling that Michael had an earning capacity of $200,000. The court also stated that in determining the amount of attorney fees, the court had “weighed the substantial documents, pleadings and arguments presented by the parties.”
On July 25, 2008, the court entered a “Further Judgment on Bifurcated Issue of Attorney’s Fees and Costs Related to Dissolution and [Michael’s] Order to Show Cause to Modify Spousal Support.” Michaels’ motions for new trial and to vacate the judgment were denied. On October 16, 2008, Michael filed a lengthy notice of appeal, which essentially set forth the chronology of the case and stated at the beginning of the notice that he was appealing “from the Judgment entered and served July 25, 2008 following a court trial.” The notice concluded that he was appealing “from the court’s rulings and resulting judgment as to both the Dissolution and Order to Show Cause to Modify Spousal Support.”
DISCUSSION
I Motion to Dismiss.
As an initial matter, we address Kim’s motion to dismiss the appeal to the extent Michael is attempting to appeal from the June 22, 2007 judgment of dissolution. Kim argues that this judgment is a final judgment “as to status, permanent spousal support and property division,” and that Michael failed to appeal the judgment within 60 days of the notice of entry of judgment, which was served the same day as the judgment. (Cal. Rules of Court, rule 8.104(a)(1) and (b).) Michael counters that the judgment of dissolution was interlocutory in nature because the bifurcated issue of attorney fees “was of necessity integrated with the trial court’s determination of the support and community property issues.” He also argues that dismissing the appeal would violate the “‘one final judgment’ rule,” which provides that an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matters in controversy. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) We disagree.
As the court stated in In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 115–116: “A court will look to the substance of an order or judgment rather than its chronology or form. Even if it is technically interlocutory, an order dispositive of the rights of the parties in relation to a collateral matter, or directing payment of money or performance of an act, may be subject to direct appeal. For this reason, it has long been established that severable portions of a judgment may be separately appealed, particularly in dissolution cases. [Citations.] The September 16, 1997, judgment of dissolution was appealable, even though the severable issue of personal property remained unresolved. As an appealable judgment, it was subject to the normal rules for the filing of a notice of appeal. Appellant’s failure timely to file such a notice from the judgment is not excused by the fact the trial court reserved jurisdiction to resolve severable issues regarding the parties’ personal property.” (Accord, In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506.)
Likewise here, the fact that the parties and the court agreed to reserve the single issue of attorney fees and costs does not excuse Michael’s failure to timely appeal the judgment of dissolution. In his opening brief, Michael himself refers to the judgment of dissolution as a “final judgment.” On the Judicial Council form judgment of dissolution, the box stating “Jurisdiction is reserved over all other issues... ” is not checked. Indeed, the clearest indication that the June 22, 2007 judgment of dissolution was intended to be a final judgment is found in the court’s February 26, 2008 statement of decision on the issue of modification of spousal support and attorney fees, in which the court stated: “After the trial in this matter, the Court rendered a Statement of Decision, the Court considered and ruled on the parties’ objections to the Statement of Decision and rendered a final decision and Judgment was entered on June 22, 2007, regarding the matters at issue in the trial.” (Italics added.)
When a notice of appeal is not timely filed, the reviewing court lacks jurisdiction to entertain the appeal and dismissal is mandatory. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666–667.) Thus, we lack jurisdiction to entertain any of Michael’s challenges to the judgment of dissolution, including his contentions that the trial court improperly refused to reimburse the community $50,000, improperly refused to reimburse him certain separate property, and improperly sanctioned a fixed tax on speculative future income. The motions to dismiss and to augment the record on appeal are therefore granted.
II Modification of Spousal Support.
We review a trial court’s decision on a motion to modify a support order for abuse of discretion. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47.) “In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court.” (Ibid., fn. omitted.) “Although a trial court has broad discretion in awarding or modifying an award of spousal support, it is without authority to modify an order for spousal support unless there has been a material change of circumstances subsequent to the last prior order.” (In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 634.) “In other words if the circumstances in question existed at the time of the previous order those circumstances presumably were considered when the previous order was made and bringing them to the court’s attention years later does not constitute a ‘change’ in the circumstances.” (In re Marriage of Schmir, supra, at p. 47.) “Appellate courts will interfere only when, in viewing all the evidence most favorably in support of the trial court’s action, it appears from the total circumstances of the case that the trial court has abused its discretion.” (In re Marriage of Kuppinger, supra, at pp. 633–634.)
Initially, as Kim points out, Michael has not included as part of the appellate record the reporter’s transcripts of the hearings on his modification motion (i.e., July 11, 2007, October 24, 2007 and November 27, 2007). Kim argues that the record on appeal is therefore inadequate and that Michael’s challenge to the denial of his modification motion fails as a matter of law. It is a fundamental rule of appellate review that a judgment is presumed correct. “‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To overcome this presumption, the appellant must provide an adequate record demonstrating error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.) The record is inadequate when it “‘appears to show any need for speculation or inference in determining whether error occurred.’” (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1004, fn. 1.)
Michael argues that the reporter’s transcripts are not necessary because the minute orders for the first two hearings indicate that the matter was continued, and the minute order for the last hearing indicated that it involved discussion of the parties’ extensive written arguments previously served and filed. We cannot be so certain that nothing of particular relevance was presented at the hearings. The minute order for the July 11, 2007 hearing states that Kim was sworn and testified, but does not indicate the substance of her testimony. The minute order for the November 27, 2007 hearing does not identify what arguments the parties made or what conference they held with the court. We are sorely tempted to find that Michael has failed to provide an adequate appellate record on the issue of the court’s denial of his modification motion. But considering the merits of his challenge, we find no abuse of the trial court’s discretion.
Michael had the burden of showing that there had been a “material” change in his circumstances. His declaration in support of his motion stated that following the court’s spousal support award, he had been fired from the Dodgers, causing him a loss of $105,000 in annual income, and that he had lost two months’ pay when some physicians with whom he was affiliated divided their practice. But it is abundantly clear from the trial court’s written statements and rulings that when fashioning the spousal support order the court took into consideration the fact that Michael’s relationship with the Dodgers might not continue in the future, as well as the evidence presented by Michael at the trial with regard to changes that were occurring with his income and practice and that were likely to occur. “Circumstances accounted for in the previous order cannot constitute a change of circumstances.” (In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 1133.)
Moreover, the evidence amply supports the court’s finding that Michael’s earning capacity remained the same. “[F]or purposes of determining support, ‘earning capacity’ represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) Michael’s declaration in support of his modification motion stated that he was expanding his private practice and that over time his income would increase. The court also noted that the evidence at trial established that Michael was “an experienced and highly skilled physician.” Thus, Michael had an ongoing and “available” practice, with the skills, training and reputation to grow his practice. To the extent Michael is arguing that the trial court erred in basing the spousal support award on his “earning capacity” rather than on his “actual earnings,” the earning capacity finding became final when the judgment of dissolution was entered and Michael failed to timely appeal the judgment. Michael also argues that Kim presented no expert evidence regarding the earning capacity of internists or any evidence as to how long the transition to a full-time office practice should take. But the burden of demonstrating a material change in circumstances rested with Michael, not Kim.
The Dodgers’ ex-owner, Peter O’Malley, testified at trial that Michael was “extremely highly regarded throughout the medical profession....”
Under the circumstances here, we cannot conclude that the trial court abused its discretion in denying Michael’s motion for modification of spousal support.
III Attorney Fees.
Michael contends on appeal that the trial court abused its discretion in ordering him to pay Kim $50,000 in attorney fees pursuant to section 2030 and an additional $20,000 in fees pursuant to section 271. Initially, we note that Michael’s opening brief on appeal starts out by stating that “[t]his is an appeal from a final judgment of dissolution and a subsequent order denying modification of spousal support.” Although the notice of appeal mentions the award of attorney fees as part of the chronology of the case, it is not entirely clear that Michael’s notice of appeal was directed to the award of attorney fees. Nevertheless, we shall liberally construe the notice of appeal to include such a challenge, especially because the parties have fully briefed the issue. We find no abuse of the trial court’s discretion.
“‘A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283 [“attorneys’ fee awards in marital dissolution cases are also reviewed for an abuse of discretion”].)
Section 2030, subdivision (a)(1) provides that “in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” Subdivision (a)(2) of section 2030 provides that “[w]hether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay....”
Section 2032, subdivision (a) provides that the award shall be “just and reasonable under the relative circumstances of the respective parties.” Section 2032, subdivision (b) goes on to state that “[i]n determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” Moreover, “[t]he fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” (§ 2032, subd. (b).)
Michael challenges the trial court’s particular finding in the February 26, 2008 statement of decision that it “is clear that during the marriage and during the proceedings in this matter, [Michael] has had a far greater income and earning potential than [Kim]. He has not had to pay any attorney fees and yet has conducted vigorous litigation in this matter.” Michael points out that on the prior page of the statement of decision, the court found that as a result of the distribution of the parties’ community property Kim had $367,500 more in assets than did Michael. He therefore argues that the “award is neither justified under § 2030 nor supported by substantial evidence.”
But the evidence does support the court’s finding that Michael had a far greater income and earning potential than Kim. “‘A disparity in the parties’ respective circumstances may itself demonstrate relative “need” even though the applicant spouse admittedly has the funds to pay his or her fees.’” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 315.) Moreover, Michael’s assertion that the trial court made him responsible “for all of Kim’s claimed attorney fees” is wrong. Kim sought approximately $102,000 in attorney fees, but was only awarded $50,000 under section 2030.
Additionally, we find no merit to Michael’s claim that the court erred in considering the fact that “he has not had to pay attorney fees” to his own attorney. Michael cites to In re Marriage of Keech, supra, 75 Cal.App.4th at pages 869 to 870, where the reviewing court stated that to the extent the trial court ordered the husband to pay the wife’s fees in an amount at least equal to his own fees was “not the standard by which the court was to determine the amount of the award.” But here, the fact that Michael has not had to pay fees to his own attorney was simply one factor in the “relative circumstances” of the case and was relevant to the issue of Michael’s ability to pay Kim’s fees.
Michael also contends that the trial court abused its discretion in ordering him to pay Kim an additional $20,000 in fees under section 271. Subdivision (a) of section 271 provides: “[T]he court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities.... In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.”
Michael argues that the trial court imposed $20,000 in sanctions against him without explanation. The record shows otherwise. The court’s February 26, 2008 statement of decision sets forth the court’s reasons for imposing sanctions. The court found that the trial in the matter was initially estimated to last one day, but that it became a four-day trial, “the majority of which was consumed by [Michael]”; that Michael was “ordered at one point to pay $3,000 in attorney fees due to discovery issues in this case”; that he “did not engage in open and cooperative conduct during the discovery phase of this case” which caused “there to be a greater amount and more complex litigation;” and that Michael’s “conduct in this litigation caused the consumption of a greater amount of Court time and increased attorney fees for [Kim].”
Michael essentially complains that the trial court ignored Kim’s unreasonable “settlement posture and litigation approach,” which he claims prolonged the proceedings. But this does not meet Michael’s burden on appeal. “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.] The burden is on the complaining party to establish abuse of discretion. [Citations.] The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
Under the circumstances presented here, we are satisfied that the trial court did not abuse its discretion in ordering Michael to pay Kim attorney fees of $50,000 pursuant to section 2030 and $20,000 pursuant to section 271.
DISPOSITION
The orders denying modification of spousal support and awarding attorney fees are affirmed. Kim is entitled to recover her costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.