In Re Marriage of Janssen

48 Cal. App. 3d 425, 121 Cal. Rptr. 701, 1975 Cal. App. LEXIS 1124

• Court: California Court of Appeal
• Decided: May 22, 1975
• Docket: Civ. 44531
• Status: Published

Opinions

Opinion

FLEMING, Acting P. J.

David Janssen appeals an order directing him to pay attorneys’ fees, accountants’ fees, and costs incurred by Ellie Janssen in post-judgment proceedings in the dissolution of their marriage. He contends the record fails to justify the order.

The appeal is on a settled statement which shows these facts:

On 27, 29 and 30 November and 3 December 1973 the trial court conducted a consolidated hearing on Elbe’s motion to hold David in contempt for failure to pay approximately $37,000 in spousal support during 1972 and 1973 and on David’s motion for modification of future spousal support payments. Evidence showed that David earned more than $500,000 per year in 1970, 1971, and 1972, and had a cash flow of more than $336,500 through September 1973. Although David spent large sums for personal pleasure and to improve and furnish a condominium he shared with a woman to whom he was not married, from the latter part of 1972 up to December 1973 he made only one spousal support payment to Elbe. David was steadily employed and preparing to work in a new television series, “Hany-O.” Without spousal support payments, Elbe had been forced to deplete her assets and invade her savings in order to pay her share of David’s back taxes. Her assets totaled $127,000, including $110,000 in real property and mortgages and approximately $13,500 in cash savings.

On 27 December 1973 the trial court vacated its order adjudging David in contempt after counsel reported that David had purged himself of contempt by paying past due spousal support. The court ordered future spousal support payment reduced. On Ellie’s pending motion for fees and costs, Sid Lockitch, accountant, and Marvin Mitchelson, attorney, testified to the nature and value of services they performed for Ellie with respect to the contempt and modification proceedings. David testified that he was unable to pay Ellie’s fees and costs, that he had borrowed $37,000 to bring himself in compliance with spousal support orders. On further examination he testified that the $37,000 was an advance payment for services by the producers of the projected television series.

On 31 December 1973 the court ordered David to pay $4,500 for attorneys’ fees and $1,720 for accountants’ fees and costs incurred by Ellie which were reasonably required by her to defend and maintain the contempt and modification proceedings.

Civil Code section 4370 provides in pertinent part: “In respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorneys’ fees as may be reasonably necessary to maintain or defend any subsequent proceeding therein . . .” The award is within the trial court’s discretion and will be disturbed on appeal only on a clear showing the trial court abused its discretion. (In re Marriage of Lopez, 38 Cal.App.3d 93, 113 [113 Cal.Rptr. 58].) The award is not a reward to the winning party; its purpose is to provide a party with an amount necessary to properly litigate the controversy. The trial court must consider the respective incomes and needs of the husband and wife. (Perry v. Superior Court, 7 Cal.App.3d 236, 243 [86 Cal.Rptr. 607]; In re Marriage of Mulhern, 29 Cal.App.3d 988, 996 [106 Cal.Rptr. 78].)

David initially argues that the trial court in its determination of the award could not ánd did not consider evidence introduced at the hearing on the contempt and modification. We disagree. The hearing on Ellie’s motion for fees and costs was part and parcel of the contempt and modification proceeding and followed immediately upon the court’s resolution of the opposing motions. The order to show cause of 19 November 1973 included ah order that David show cause why he should not be required to pay attorneys’ fees and costs. The issue of fees was thus pending before the court at all stages of the proceeding. In determining Ellie’s need and David’s ability to pay the trial court necessarily considered the history of the entire litigation and the evidence introduced in the earlier phase of the proceeding. (Ganann v. Ganann, 109 Cal.App.2d 346, 349-350 [240 P.2d 722]; see Wittman v. Superior Court, 19 Cal.App.2d 734, 736 [66 P.2d 180].) The record need not expressly reflect this obvious factor in the trial court’s consideration.

David argues that, in any event, the record fails to support the trial court’s implied findings of Ellie’s need and David’s ability to pay. However, we find substantial evidence to support those findings. Ellie had substantial assets, but no evidence showed how much, if any, income those assets produced. She had already depleted part of her assets during the period David was in default in payment of spousal support. Ellie was not required to impair her capital to finance marital dissolution litigation or to secure David’s compliance with existing court orders. (Primm v. Primm, 46 Cal.2d 690, 696 [112 P.2d 231]; In re Marriage of Borson, 37 Cal.App.3d 632, 639 [112 Cal.Rptr. 432]; Sigesmund v. Sigesmund, 115 Cal.App.2d 628, 632 [252 P.2d 713].) The trial court was not required to accept David’s self-serving testimony of his inability to pay Ellie’s fees and costs. (Loke v. Poke, 95 Cal.App.2d 278, 279-280 [212 P.2d 553].) David’s half-million dollar yearly income and seemingly extravagant expenditures permitted an inference that he could afford $6,220 for Ellie’s fees and costs. The trial court clearly concluded that David had the present ability to pay since on the day of the hearing it ordered further spousal support payments.

The order is affirmed.

Beach, J., concurred.