Opinion
B224947
09-13-2011
In re Marriage of DENNIS EDWARD and JENNIFER JANE VITT. DENNIS EDWARD VITT, Respondent, v. JENNIFER JANE VITT, Appellant.
Law Offices of Mark J. Warfel, Mark J. Warfel; and Ernest S. Gonzales for Appellant. Helms & Myers and Sterling E. Myers for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GD042017)
APPEAL from an order of the Superior Court of Los Angeles County, Mary Lou Katz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Mark J. Warfel, Mark J. Warfel; and Ernest S. Gonzales for Appellant.
Helms & Myers and Sterling E. Myers for Respondent.
Appellant Jennifer Vitt appeals from an order denying her request for temporary spousal support from respondent Dennis Vitt. We find no abuse of discretion and affirm.
Because the parties share the same last name, they will be referred to individually by their first names.
FACTS AND PROCEDURAL BACKGROUND
Request for Temporary Spousal Support
Jennifer and Dennis married in January 2001. Dennis filed a petition for dissolution of the marriage on December 12, 2007. The petition stated the date of separation was January 2, 2005. On October 16, 2009, Jennifer filed a response which stated that the date of separation was March 1, 2007. Jennifer also filed an order to show cause requesting an award of temporary spousal support retroactive to the date that Dennis filed the petition for dissolution.
In an accompanying declaration, Jennifer stated the following facts in support of her request for temporary support. She lives in an apartment in Monrovia, while Dennis lives in their former marital residence in Arcadia. She is a self-employed skin care therapist and earns approximately $1,200 per month. Dennis is an elevator mechanic. He earned more than $156,000 in 2008 and was on track to earn more than $189,000 in 2009.
During the marriage, Jennifer did not need to work full-time. She completed three years of college prior to the marriage. She underwent gastric bypass surgery in 2002 and hired a trainer to lose additional weight. The couple spent weekends at NASCAR races, took vacations to Las Vegas a few times per year, and took a vacation to Ireland for two weeks. They purchased a custom motorcycle, new cars, a flat screen television, a pool table, and a washer and dryer. She has none of these items after the marriage, while Dennis enjoys the same lifestyle or better.
After the marriage ended in March 2007, Jennifer rented an apartment. Dennis gave her some cash and paid some of her bills, but she needed assistance from her parents in order to meet her monthly expenses. In March 2008, Jennifer had surgery to remove excess skin on her triceps and upper chest. The result was unacceptable and required corrective surgery in May 2008. In June 2008, she broke both legs in a motor-scooter accident. As a result of her medical issues, she was unable to work from March through October 2008.
She requested an award of temporary support in order to attain job security equivalent to Dennis. She planned to return to college to obtain her bachelor's degree and earn a nursing credential afterward in a two-year program.
Jennifer filed an income and expense declaration stating that she worked between 20 and 25 hours per week and earned approximately $1,200 per month. She listed monthly expenses of $2,200, including $1,450 for rent, $300 for groceries, and $25 to dine out. Her "boyfriend/roommate" Trevor paid some of the household expenses. In total, Trevor and her parents paid approximately $1,000 per month of her monthly expenses. She estimated that Dennis's income was $13,000 per month.
Ernest Gonzales, Jennifer's attorney, also filed a declaration. Gonzales stated that the Vitts filed joint tax returns through 2007. Relying on documents produced in discovery, Gonzales stated that Dennis earned the following amounts: $139,090 in 2005; $140,505 in 2006; $164,508 in 2007; and $180,861 in 2008. Based on his calculations, Jennifer would have been entitled to a temporary spousal support order of $4,374 per month in December 2007. Using Dennis's current earnings, Gonzales asserted Jennifer was entitled to temporary spousal support of $5,054 per month. He requested an award of spousal support retroactive to January 1, 2008, of $5,054 per month. He asserted that an award of temporary spousal support retroactive to the date of the petition for dissolution would save the parties substantial attorney fees and costs by avoiding litigation as to the date of separation. A prospective spousal support order would not be necessary. The issues remaining would be division of the personal property acquired during the marriage and a request for contribution to Jennifer's attorney fees. He noted that Dennis had already been ordered to pay $5,000 for Jennifer's attorney fees and had paid $2,195 to a court reporter.
Opposition to the Request for Temporary Spousal Support
In November 2009, Dennis opposed the request for temporary spousal support and filed a responsive declaration. He stated that he has rented the same 1000 square-foot house for the past nine years. During the marriage, Jennifer and Dennis did not own a house, had one personal car, no savings, traveled very little, and had few possessions. Dennis had the use of a vehicle through his work. Their furniture consisted of used items from friends or Jennifer's family, items purchased at garage sales, and some new items from stores such as IKEA. Jennifer's parents paid for their trip to Ireland, including airline tickets, accommodations, and spending money. They went to Las Vegas together four times, including their wedding. Except for one trip together to a NASCAR race, he attended NASCAR races alone and shared expenses with his male friends on the trip.
Dennis worked long hours and earned overtime. His training was paid for by his company. His earnings increased over the years as follows: $57,920 in 2001; $86,179 in 2002; $117,138 in 2003; $128,537 in 2004; $131,102 in 2005; $140,505 in 2006; $164,508 in 2007; and $180,861 in 2008. In 2002, Jennifer went to school to become a licensed esthetician. The couple paid for her schooling, equipment, supplies, and costs. After working in a few spas for experience, Jennifer entered into an equal partnership with her parents in 2004 to open her own business in a retail location. She built a solid client base, made her own income, received good tips, and worked when she wanted. Jennifer kept the bank account and deposits for her business separate and did not contribute money from her business to the couple's joint account.
In 2005, Jennifer and Dennis moved into separate bedrooms. Jennifer was spending significant time with a personal trainer named Trevor. Dennis paid Jennifer's expenses during this time. Jennifer moved into her own apartment in March 2006. Dennis paid the first and last month's rent, as well as the security deposit for the apartment. Dennis agreed to pay for the car, which she drove, and her car insurance until their divorce was completed. He paid their community debts without any contribution from Jennifer. He kept an old computer and bought her a new computer. Dennis helped her make loan payments on a student loan while she was adjusting to living on her own. He also paid her rent for a period of time so that she could build up a financial cushion. She took money from their joint account for her expenses and Trevor's expenses.
Jennifer told Dennis that she was assaulted in June 2006. She sublet her apartment and stayed in the separate bedroom in the house with Dennis. Since she was living at the house and not paying $1,500 for rent on the apartment, Jennifer asked Dennis to give her the amount of the rent to use as spending money for her upcoming trip to Italy with Trevor. In July 2006, Jennifer went to Italy for three weeks. While she was away, Dennis learned that Jennifer had taken five checks from Dennis's checkbook, written them in increments of $500, and given them to a friend in exchange for the friend charging Jennifer and Trevor's airline tickets to her credit card. When Jennifer returned in August 2006, the Vitts separated their bank accounts. Dennis gave $2,000 to Jennifer to open her own checking and savings accounts. In January 2007, Jennifer told Dennis that she was moving in with Trevor and selling her skin care business. She and Trevor moved into an apartment in the complex where she had previously rented.
In June 2008, Jennifer and her mother asked Dennis for additional money. Dennis gave her $1,000 and paid a credit card bill of $494.43. Although Jennifer claimed not to have been able to work from March to October in 2008 due to her medical issues, her bank statements for 2008 reflect deposits totaling $48,224.95. The deposits included Paypal payments of $9,900.27 from a side business selling items on the internet. Jennifer admitted in deposition that she receives tips from clients, but she could not estimate the amount and does not keep records of tips.
Based on financial documents, Dennis calculated that he had paid the following amounts to Jennifer or for her benefit: $28,219.52 in 2006; $18,638.18 in 2007; and $10,821.38 in 2008. These amounts did not include thousands of dollars that he gave her in cash or money that she withdrew without his knowledge. Jennifer had taken the pool table and kept their personal car.
Dennis did not receive any of the proceeds from Jennifer's sale of her business in 2007. She currently operates out of another shop. Dennis declared that Jennifer has a steady client base for her skin care business and works when she wants to work. In her deposition, she stated that she pays the rent and utilities for her apartment. Trevor pays $725 for half the rent each month. He reimburses half of the utilities if she needs the money. During her deposition on June 15, 2009, she estimated that she had dined out approximately 20 times in the past month. Sometimes she would pay for a meal with Trevor and sometimes he would pay. Some of the meals were with her mother.
Dennis filed an income and expense declaration. His average monthly gross salary was $14,894, including overtime, travel time, and per diem payments. His monthly expenses were $8,449.43, which included $1,320 for rent, $800 for groceries, $400 to eat out, and $942 for monthly payments on a truck. His girlfriend lived with him, paid $1,000 per month for household expenses and paid her own expenses.
Trial Court Ruling
A hearing was held on November 17, 2009. The trial court ruled that Jennifer had made no showing of need and Jennifer's cohabitation was a factor that decreased her need. Dennis paid a substantial amount of money to maintain the status quo since the time of the separation. There was no showing that the marital standard of living was substantially higher than the standard of living that Jennifer currently enjoyed. Therefore, the court denied the request for temporary spousal support.
Jennifer requested a statement of decision with findings as to the amount of money that Dennis paid to Jennifer and the date of separation. The trial court noted that the ruling would be the same under either date of separation. It was not necessary to give Dennis credit for a specific amount, because Jennifer had not demonstrated a need or made a showing of a marital standard of living the justified an award of spousal support. The court stated that Jennifer was able to meet her needs with the assistance of her cohabitant, and the length of the parties' separation, regardless of which separation date was used, militated against an award of spousal support.
On January 19, 2010, the trial court issued its statement of decision containing its findings. This was not a long marriage as construed by California law. After the parties separated, Dennis paid a substantial amount to or for the benefit of Jennifer. The court found Jennifer did not show need or the marital standard of living. Jennifer's cohabitation with her boyfriend decreased her need. Based on the facts, the court did not find an award of temporary spousal support to Jennifer was appropriate. The court denied Jennifer's request for temporary spousal support and retroactive spousal support. The court found it was not necessary to determine the specific date of separation or to credit Dennis with a specific amount paid to or for the benefit of Jennifer after separation in order to justify the ruling on support. The court found the length of the parties' separation was a mitigating circumstance and the date of separation was an issue for trial.
On April 8, 2010, the trial court entered its order denying Jennifer's request for an award of temporary spousal support and her request for retroactive spousal support effective as of November 17, 2009. Jennifer filed a timely notice of appeal.
DISCUSSION
Jennifer contends the trial court abused its discretion by denying her request for temporary spousal support. We hold the trial court's ruling was well within its discretion.
The trial court has broad discretion to award temporary spousal support and may order "'any amount' based on the party's need and the other party's ability to pay. [Citations.]" (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; Fam. Code, § 3600.) An award of temporary spousal support '"is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.' [Citation.]" (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) The court is not required to consider and weigh statutory factors as it does with permanent spousal support. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 335.)
An award of temporary spousal support rests within the broad discretion of the trial court and will not be reversed on appeal absent a showing of a clear abuse of discretion. (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) "[I]n exercising its broad discretion, the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living. [Citation.]" (Ibid.) "Trial courts may properly look to the parties' accustomed marital lifestyle as the main basis for a temporary support order. [Citations.]" (Ibid.)
"Also, a temporary spousal support award can be made retroactively, at least to the date of the order to show cause requesting spousal support. [Citations.]" (In re Marriage of MacManus, supra, 182 Cal.App.4th at p. 337.) "Absent statutory direction, the trial court's exercise of its discretion regarding retroactivity of temporary support must be guided by two overriding concerns: the supported spouse's need and the supporting spouse's ability to pay. In short, 'the trial court should tailor its award on the basis of the equitable rights of the parties in light of their economic needs and abilities' during the period for which a retroactive increase is sought. [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312-313.)
In this case, Jennifer sought temporary spousal support calculated as of January 2008. However, she failed to demonstrate a need for temporary spousal support. The evidence showed that Dennis paid monthly rent of $1,320 for the house where the parties lived during their marriage, while Jennifer paid monthly rent of $1,450 for her apartment. There was no showing that Jennifer cannot afford housing comparable to the parties' living arrangements during marriage. Her need was decreased by the fact that her cohabitant pays half of her monthly rent. In fact, the evidence showed that there are months that Jennifer can afford to pay her cohabitant's utility expenses.
During the marriage, the parties shared the use of one personal car, of which Jennifer now has sole possession. Jennifer has a newer computer now than the parties owned during their marriage. She has the pool table that she referred to in her declaration on the marital standard of living. There is no evidence that Jennifer does not have and cannot afford a television or a personal trainer. The only significant trip that the couple took together during their marriage was paid for by Jennifer's parents. There was no evidence as to how often Jennifer and Dennis dined out during their marriage or how much they spent on groceries. Although Jennifer declared that her average monthly expenses for dining out were $25, she stated during her deposition that she had eaten out approximately 20 times in that month. Jennifer failed to show that she cannot dine out, rent comparable accommodations, or otherwise enjoy the standard of living that she and Dennis enjoyed during their marriage.
Jennifer contends that a determination of the amount that Dennis paid on her behalf after separation is required. However, because Jennifer failed to demonstrate a need for temporary spousal support, it is unnecessary to credit Dennis for any amount that he paid on her behalf after the parties' separation. The trial court also did not need to determine the date of separation, because Jennifer failed to show a need for support after January 2008, regardless of which date of separation is used. There is no issue on appeal concerning Jennifer's need for an award of attorney fees. We note that after the dissolution petition was filed in 2007, the evidence showed Dennis worked 40 hours per week, plus overtime, while Jennifer was underemployed in her skin care business by choice. We affirm, finding no abuse of discretion in the trial court's ruling that Jennifer failed to demonstrate a need justifying an award of temporary spousal support.
DISPOSITION
The order denying the request for temporary spousal support is affirmed. Respondent Dennis Vitt is awarded his costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.