Filed 8/25/15 Marriage of Fivash and Pepper CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Marriage of LISA and RONALD PEPPER. D065598 LISA FIVASH,
Appellant, (Super. Ct. No. DN161179)
v.
RONALD PEPPER,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Thomas R.
Murphy, Judge (Ret.), Tamila Ipema, Judge. Affirmed.
Linda Cianciolo, for Appellant.
Stephen Temko and Dennis Temko, for Respondent.
INTRODUCTION
Lisa Fivash (formerly Pepper) appeals a dissolution judgment contending the trial
court erred in considering the amounts she received in a stipulated predistribution
division of community property from her husband's business as her income when it calculated retroactive temporary spousal support and child support. She also contends
the court erred in awarding certain credits to her husband, Ronald Pepper, and not
awarding her attorney fees. We conclude the court did not abuse its discretion and affirm
the judgment.
BACKGROUND
A
Lisa and Ronald1 were married in 1990. Ronald, a commercial real estate agent,
is a partner in a real estate brokerage company, which helps retailers find sites for new
stores and assists shopping center landlords lease vacant space. Lisa stopped working in
early 1991 at Ronald's request. She gave birth to their daughter in 1993 and was the
primary caretaker for their daughter and the family home.
When Lisa and Ronald separated in June 2010, Lisa filed a petition for dissolution
of marriage requesting support, determination of property rights including use of the
family residence and valuation of Ronald's business, and attorney fees.
B
In September 2010, Lisa requested an accounting and division of commissions.
She advised the court Ronald had provided her with two payments totaling $15,000, but
claimed she had expenses of more than $19,000 per month. Ronald provided her the
community share of an asset they sold and told her to use that for her monthly living
expenses. Lisa contended Ronald was not providing her with adequate temporary
1 Because the parties are referred to throughout the record by a shared surname, we refer to them by first name to avoid confusion. No disrespect is intended.
2 support and stated he was providing substantially less per month than he did before
separation. Lisa stated Ronald earned a monthly salary of $15,000 in addition to his
commissions. She requested an accounting of Ronald's commissions and immediate
payment of her community share of commissions earned prior to separation.
Ronald responded saying if Lisa received her community share of commission
income earned prior to separation, this would be a property distribution and should be
deducted from his income earned since separation when the court determined support.
Ronald also noted Lisa had no mortgage expense for the family residence, her vehicle
was paid for and she had no credit card debt. Ronald disputed Lisa's claims regarding the
amount of liquid assets available and her claim he was not cooperating with documents
needed for the business valuation.
In reply, Lisa disputed Ronald's claims of uncertainty regarding his income and
estimated commissions for calculation of support. She asked the court to consider
pending distributions to Ronald and estimated income for the remainder of the year. She
also asked the court to consider his past earnings since she believed he was not accurately
disclosing his income. Lisa agreed the family home did not have a mortgage, but it
required property taxes and insurance. She also stated their daughter's educational
expenses included horses, lessons, training and shows. In addition, their daughter had
school expenses for books, supplies, uniforms, parking permit and lunches.
Lisa reiterated her request for her share of commissions because she believed
Ronald was not providing enough support to cover her monthly expenses. She stated, "If
I receive this money as a property distribution, I am aware it will not be considered
3 income to [Ronald]. Therefore, as an alternative to setting support as described above I
am requesting the court set support based on the $15,000 salary each month and split all
distributions received between the parties evenly until a review hearing on this matter."
She also requested a contribution to her attorney fees.
C
Based on a stipulation reached by the parties in October 2010, the court issued
findings and an order. The court ordered Ronald to pay Lisa "$17,000 per month until
further order of the [c]ourt or written agreement of the parties, with the [c]ourt retaining
jurisdiction to characterize these payments as spousal support, child support and pre-
distributions of community property." The court ordered Ronald to pay the property
taxes and insurance on the family home, retaining jurisdiction to characterize these
payments as support or predistributions of community property. Each party was ordered
to pay half of their daughter's school expenses and medical expenses not covered by
insurance.
The court set a hearing to reallocate and/or characterize all funds paid by Ronald
to Lisa. The court also indicated the parties' joint forensic accountant was to "provide an
opinion on the reallocation/characterization of sums paid" by Ronald to Lisa. The court
ordered payment to each party's attorney from community property funds. The parties
stipulated to the appointment of Thomas Murphy (ret.), a privately compensated
temporary judge (Cal. Const. art. IV, § 21; Cal. Rules of Court, rules 2.830-2.834), to
decide the matter.
4 D
Judge Murphy (hereinafter "the court") issued an order on January 3, 2012,
adopting the conclusions of the parties' joint forensic accountant. Ronald received
community commissions in 2010 of $637,399, and community commissions in 2011 of
$532,454. The court ruled Lisa was entitled to half of these commissions.
Of the $96,000 paid by Ronald to Lisa ($17,000 per month from July 2010
through December 2010), the court allocated $11,024 as child support and the remaining
$84,976 as a predistribution of community property with no spousal support ordered for
this period. Of the $102,000 paid from January 2011 through June 2011, $36,012 was
allocated as spousal support and the remaining $65,988 was allocated as a predistribution
of community property.
Ronald was charged with owing Lisa $30,672 ($5,112 per month), as retroactive
spousal support for the period of January through June 2011. With respect to spousal
support after July 2011, the court indicated it did not know "what community
commissions have been or will be paid after [July 1, 2011]." The court was "faced with
the same predicament that faced the parties when they entered in to the October 23, 2010
stipulation, i.e. with the exception of the $15,000 per month wages received by Ronald,
how much more in commissions will be paid and what will be their character."
Therefore, the court ordered the prior stipulated order for Ronald to pay Lisa "the
unallocated sum of $17,000 per month shall continue through April 1, 2012 . . . with the
[c]ourt retaining jurisdiction to characterize the payments as spousal support and/or pre-
distributions of property retroactive to July 1, 2011."
5 The court stated Ronald would be entitled to request credits for his payment of
postseparation property taxes and homeowner's insurance "in the final division of
property herein." Lisa, who was to be responsible for future property tax payments,
would also be entitled to credits in the final division of property.
The court also stated Ronald would be entitled to credits for payments made to
counsel and to the joint accountant. All other requests for reimbursements were reserved
for trial. The court ordered Ronald to pay attorney fees for both parties from a business
account, with the court retaining jurisdiction regarding the final allocation.
E
After multiple hearings and two trials at which the joint forensic accountant and
separate experts testified, the court issued a statement of decision. The court set forth the
October 2010 stipulation of the parties for Ron to pay Lisa $17,000 per month with the
court retaining jurisdiction to characterize the payments as support or predistributions of
community property.
The statement of decision noted the parties requested the court in November 2011
"[a)] to consider what portion of monies received by Ronald [as] accounts receivable and
work in progress were community; b) calculate what the support orders would have been
assuming the monies received had been divided; c) consider the fact that the parties had
filed joint income tax returns; d) and then determine what portion if any of the $17,000
per month payments to Lisa were a predistribution of community property." The same
process was used by the parties, experts and the court to allocate payments through trial.
6 The court noted Lisa's counsel objected, for the first time in closing arguments, to
the court's "characterization of the $17,000 payments to Lisa." The court stated,
"Notwithstanding the above stipulation (October 13, 2010) and in particular, paragraph
numbered 4 therein, Lisa's counsel object[ed] to what his client agreed to . . . and to what
a substantial amount of time was spent on during the November-December[] 2011[]
Order to Show Cause and the October[] 2012 - January[] 2013[] trial." The court
overruled Lisa's objections stating "Lisa requested and stipulated, that she be given her
community property half of the commissions received by Ronald. The sum of $17,000
per month was agreed to be given to her with the [c]ourt determining what portion a
property distribution; what portion support."
After obtaining more information from the parties and their forensic accountants,
including tax on various items, the court allocated $511,861 as commissions due to Lisa
from July 2010 through February 2013, $272,955 as retroactive spousal support due to
Lisa from January 2011 through February 2013, and $13,960 as child support due to Lisa
for July through October 2010. Lisa owed Ronald $23,868 in child support from the end
of October 2010 through June 2011 for the period of time their daughter lived with him
before she reached the age of majority.2
2 Lisa's agreement to this allocation was conditional on her standing objection to the court's interpretation of paragraph 4 of the October 13, 2010 stipulation.
7 After considering the factors set forth in Family Code3 section 4320, the court
ordered Ronald to pay Lisa $19,500 per month for spousal support beginning March 1,
2013. The court gave Lisa the option of being awarded the family residence at a fair
market value of $2,550,000. However, she determined she could not afford it and the
property was sold. The proceeds were used for equalization payments.
The court concluded the fair market value of the community interest in Ronald's
business was $1,220,000 as of June 30, 2010. The court noted Lisa received, as
recognized by the court's allocation, $513,800 in predistribution of the community
interest. Ronald was to be charged $706,200 for the award of the business.
The court awarded Ronald Watts credit4 for Lisa's exclusive use of the family
residence after separation. In making the award, the court considered a number of
factors, including the fact the support order did not take into account Lisa had no rent or
mortgage payment. The court charged Lisa with $266,000 at $9,500 per month from
November 2010 through February 2013, which excluded the time their daughter lived
with Lisa while the daughter was a minor.
3 Further statutory references are to the Family Code unless otherwise indicated.
4 In re Marriage of Watts (1985) 171 Cal.App.3d 366.
8 The court awarded Ronald Epstein credits5 for payments he made for (1) the
jointly retained forensic accountant who provided expert opinion regarding Ronald's
income and the value of the business ($106,741.44); (2) the private judge ($50,978.76),
(3) the marriage and family therapist for assistance with their daughter ($1,100), (4) the
special master and the court reporter ($12,361), (5) the fee for preparation of 2010 tax
returns ($1,000), (6) real property taxes ($33,092.32), (7) homeowners insurance
($9,052.88), and (8) medical and school expenses for their daughter ($686.45). The court
denied credit for other expenses claimed by Ronald, such as repair costs for their
daughter's Jaguar and expenses related to their daughter's horse.
The court awarded Lisa Epstein credits for (1) real property taxes and insurance
($16,330.74), and (2) plumbing and appliances for the family home post separation
($3,541.53). It denied her request for credit for other payments, such as maintenance of
the property and life insurance premiums insuring Ronald's life.
The court denied each party's request for sanctions against the other. The court
denied Lisa's request for additional attorney fees of $350,000 noting her counsel had been
paid $38,500 more from a community source than had Ronald's counsel.
Lisa appealed the statement of decision on March 6, 2014. Judgment was entered
on May 8, 2014, and we deemed the appeal to be from the judgment.
5 In re Marriage of Epstein (1979) 24 Cal.3d 76 (Epstein), superseded by statute on other grounds as stated in In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1280.
9 DISCUSSION
I
Allocation of Stipulated Post-Separation Payments and Support Orders
Lisa contends the trial court erred when it considered the allocated division of the
community business as her income when it calculated retroactive temporary spousal
support and child support. She contends charging her with receiving community property
and attributing the same amount to her as imputed income for purposes of support
calculations was a reverse "double dip" and resulted in reduced support awards. Lisa
asks us to reverse and remand for recalculation of child and temporary spousal support
based on Ronald's receipt of his $15,000 per month salary plus the full amount of
commissions he received (including her share). We are not persuaded.
Guiding Principles
We review temporary spousal and child support orders for abuse of discretion. (In
re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) "We examine the
challenged order for legal and factual support. 'As long as the court exercised its
discretion along legal lines, its decision will be affirmed on appeal if there is substantial
evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion
is based on the facts of the case, it will be upheld "as long as its determination is within
the range of the evidence presented." ' [Citation.] [¶] Where a question of law is
presented on undisputed facts, appellate review is de novo." (In re Marriage of
Blazer (2009) 176 Cal.App.4th 1438, 1443.)
10 "Generally, temporary spousal support may be ordered in 'any amount' based on
the party's need and the other party's ability to pay. [Citations.] 'Whereas permanent
spousal support "provide[s] financial assistance, if appropriate, as determined by the
financial circumstances of the parties after their dissolution and the division of their
community property," 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." [Citations.]' [Citation.] The
court is not restricted by any set of statutory guidelines in fixing a temporary spousal
support amount. [Citation.] [¶] Rather, in 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.] Subject only to the general
'need' and 'the ability to pay,' the amount of a temporary spousal support award lies
within the court's sound discretion, which will only be reversed on appeal on a showing
of clear abuse of discretion." (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at
p. 1327.)
Cases Considering Double Counting Issue
In the case of In re Marriage of Marx (1979) 97 CalApp.3d 552, 561, a husband
contended it was error to include accounts receivable in the valuation of his medical
corporation because would it give the wife "half of the accounts receivable in the
distribution of the community property, and then [would give] her the other half or a
substantial portion thereof via spousal and child support." The court disagreed stating,
11 "Wife had a community interest in the accounts receivable existing on the date of
separation, and by including them in the valuation of the business, her interest is
protected. Child and spousal support must be based upon the supporting spouse's future
earnings or income. 'Following separation, the preferred source for payment of support is
the separate property of the supporting spouse that would have been community property
if the spouses were not separated.' " (Id. at p. 561.) In so holding, the court rejected the
husband's argument child and spousal support should be paid from community cash on
hand before he was required to pay spousal support from his separate property. (Ibid.)
In re Marriage of White (1987) 192 Cal.App.3d 1022, concluded there was no
double counting error in awarding a pension to one spouse in the division of community
property and then considering the pension benefits derived from that former community
property as separate property to be considered in evaluating that spouse's ability to pay
spousal support. (Id. at pp. 1027-1029.) " ' "[I]n every case where one spouse receives
permanent spousal support from the other spouse, the source is from the separate property
of the paying spouse, including . . . earnings or property which were once the community
property of both spouses." ' " (Id. at p. 1028.)
The cases cited by Lisa from other states do not conflict with these authorities.
For example, Hommel v. Hommel (1991) 162 Wis.2d 782, 784 [471 N.W.2d 1, 1]
considered whether income derived from investment assets awarded to a spouse in the
division of property in a divorce settlement should be included in calculating that
spouse's income for purposes of revising a spousal support award. The Hommel court
12 concluded this did not violate the rule against double counting. (Hommel v. Hommel,
supra, 471 N.W.2d at p. 5.)
A more recent case from Wisconsin explained the rule against double counting
does not typically apply to income earning assets such as investment property because the
spouse receives the value of the property at the time of distribution. The spouse may sell
the property for its market value or keep the investment property and earn the income.
Therefore, the value of the investment is separate from the income it generates.
(McReath v. McReath (2011) 335 Wis.2d 643, 676 [800 N.W.2d 399, 416].) The court
distinguished investment income from pension benefit payments up to the present value
of the pension awarded to a spouse in a divorce. "[I]t would be double counting to count
the present value of the pension as a divisible asset and also count the future payments as
income, since the income, up to the valuation placed on the pension at the time of the
division, are one and the same." (McReath v. McReath, supra, 800 N.W.2d at p. 415.)
However, once the present value of the pension is reached, then the benefits could be
considered income. (Ibid.) The McReath court cautioned against inflexible application
of rules against double counting stating the focus should be on fairness. (McReath v.
McReath, supra, 800 N.W.2d at p. 416.)
Application
In this case, there is no dispute that Lisa was entitled to her community share of
Ronald's business, valued at the time of separation. The value of the community business
13 in this case did not include a future income stream, but only what had been earned at the
date of separation.
Instead of obtaining temporary spousal support at the outset of the case and
deferring collection of this community asset until the end of the case, Lisa asked to
receive her half of community commissions when Ronald received the commissions on a
monthly basis because she felt Ronald was not providing a reasonable amount of
support.6 In making this request, Lisa acknowledged, "If I receive this money as a
property distribution, I am aware it will not be considered income to [Ronald]."
This understanding comports with the law discussed above. To require Ronald to
pay Lisa her portion of the community commissions and then pay spousal support based
on all of the community commissions received (both her portion and his portion) would
result in an improper double dip into his share of the commissions.
Although Lisa repeatedly states on appeal she did not actually receive the
community commissions, she did receive fixed payments of $17,000 per month until the
time of trial which totaled $521,000. These monthly payments necessarily included
funds Ronald obtained from distributions of community commissions, particularly in the
initial months. Lisa agreed the court retained jurisdiction "to characterize these payments
as spousal support, child support[,] and pre-distributions of community property." Lisa
had the option of using these monthly payments for living expenses or for investment in
other assets.
6 Lisa initially requested $19,000 per month in temporary spousal support and $4,870 in child support.
14 With the assistance of the joint forensic accountant and separately retained
economic experts, the court undertook a thorough evaluation of Ronald's business
income, including an evaluation of the community commissions received by Ronald after
the parties' separation. Based on the evidence presented by way of reports, testimony and
visual aids submitted by the parties, the court ultimately allocated $513,800 of the
monthly payments Lisa received as her portion of community commissions. The court
awarded retroactive spousal support to Lisa totaling more than $270,000 for the period
from January 2011 through February 2013. The court awarded retroactive child support
to both Lisa and Ronald based on the time their daughter lived with each of them after
separation until she reached the age of majority.
In reaching the allocations for retroactive temporary spousal support and child
support, the court did consider Lisa's allocation of the community commissions as her
income for purposes of evaluating her need. It also considered Ronald's share of
commissions along with this monthly salary to determine his ability to pay. The court
noted the majority of Ronald's 2010 income after separation and his income through June
2011 consisted of commissions completed at separation, i.e. the community property.
The court determined Ronald and Lisa's income in the initial months after separation was
nearly equal. As the portion of community commissions Ronald received dissipated over
time and converted to his separate property commissions, the court accordingly adjusted
the spousal support awards.
15 These facts are distinguishable from the case of In re Marriage of Burkhart (1986)
180 Cal.App.3d 198, 201, in which the husband made informal support payments to the
wife and then sought credit for the payments when the court distributed the community
property. The court denied the request for credit because it determined there was an
implicit agreement by the parties the payments were for support and, absent an agreement
to the contrary, the payments were deemed to have been made from separate property.
(Id. at pp. 203-204.) To hold otherwise, the court concluded, would have resulted in a
"joke" on the wife because it would have meant she paid for her own support from the
community asset. (Id. at p. 205.)
There was no joke on an unsuspecting party here. The parties agreed to fixed
monthly payments, which they also agreed the court would later characterize as support
or distribution of property. Lisa understood her portion of predistribution commissions
would not be deemed income for Ronald in calculation of support. The court faithfully
undertook the effort to characterize the payments. It then awarded retroactive temporary
and child support based on evidence of the needs and ability to pay of the parties. We
find no abuse of discretion.
II
Epstein Credits
Both spouses have an equal interest in community assets (§ 751) and a trial court
is obligated to divide community assets equally between the parties upon a dissolution of
the marriage (§ 2550). Generally, debts incurred after the date of marriage but before the
date of separation must also be divided equally. (§ 2622, subd. (a).) The court has
16 discretion to order one spouse reimbursed from community assets for community debts
that the spouse paid from separate property after separation but before trial
(Epstein credits). (Id., subd. (b); Epstein, supra, 24 Cal.3d at pp. 84-85.) A spouse is
generally entitled to Epstein credits unless the payment was in reality a discharge of the
paying spouse's duty to pay support to the other spouse. (Epstein, at pp. 84-85; § 2626.)
Whether to award Epstein credits and in what amount is left to the trial court's discretion
based on equitable considerations consistent with an equitable distribution of the
community property. (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.)
The court awarded Ronald a number of Epstein credits for some postseparation
payments he made. Lisa challenges five of these credits contending Ronald did not
adequately trace the source of payment for these litigation charges to separate funds:
(1) the joint forensic accountant, (2) the private judge, (3) the special master, (4) the court
reporter, and (5) the social worker. Ronald disagrees contending any community funds in
the accounts used to make these payments were exhausted based on Lisa's receipt of her
portion of the community commissions and court-awarded support. By process of
elimination, Ronald argues, the only source for payment of the challenged litigation
charges was Ronald's separate property. We agree with Ronald.
"A spouse is entitled to reimbursement for payment of community obligations
only if those payments are made from the spouse's separate property." (In re Marriage of
Prentis-Margulis & Margulis, supra, 198 Cal.App.4th at p. 1281.) Commingling of
community and separate property funds creates a presumption the funds in the account
are community property. The presumption can be overcome "employing traditional
17 family law tracing methods, such as direct tracing or the family expense method of
tracing. (Ibid.) "Commingling of separate and community property does not alter the
status of the separate property interest so long as it can be traced to its separate property
source. [Citation.] Whether the spouse claiming a separate property interest has
adequately met his or her burden of tracing to a separate property source is a question of
fact and the trial court's holding on the matter must be upheld if supported by substantial
evidence." (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.)
There was no evidence of direct tracing in this case. Therefore, we examine
whether or not there is substantial evidence to support the family expense method of
tracing. The family expense method of tracing is "based upon the presumption that
family expenses are paid from community funds." (In re Marriage of Mix (1975) 14
Cal.3d 604, 612.) If it can be shown the community income in a commingled account
has been exhausted by family expenses at the time of payment, then payments from this
fund were necessarily from separate funds. (Ibid; In re Marriage of Cochran, supra, 87
Cal.App.4th at p. 1058.)
Ronald testified the account he used to pay the litigation charges contained his
salary and commissions (both community and separate). However, he also used that
account for Lisa's $17,000 monthly payments, which the court determined resulted in a
complete pre-distribution of her community share of the business along with spousal
support. Therefore, there was substantial evidence the remaining funds in the account
had to have been separate property funds. We conclude the trial court did not abuse its
discretion in awarding Ronald Epstein credits for the expenses related to this litigation.
18 III
Watts Credit
Lisa next contends the court erred in charging her with reimbursement to the
community for the reasonable rental value of the family residence, which she exclusively
occupied after separation, because she does not believe there was substantial evidence to
support the trial court's determination the reasonable rental value of the home was $9,500
per month. We do not agree.
" ' "Where one spouse has the exclusive use of a community asset during the
period between separation and trial, that spouse may be required to compensate the
community for the reasonable value of that use." [Citation.] The right to such
compensation is commonly known as a "Watts charge." ' " (In re Marriage of
Boblitt (2014) 223 Cal.App.4th 1004, 1011, fn. 3.) A decision to impose a Watts charge
is within the broad equitable discretion of the trial court and we review that decision for
of abuse of discretion. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 818-819.)
The court recognized Lisa had exclusive use of the community residence, "a
$2,500,000 +/- unencumbered community asset . . . which allegedly has a reasonable
rental value of $9,500 per month." The court had before it, an appraisal report setting
forth $9,500 as the estimated fair market monthly rental value. Ronald also testified the
19 rental value of the home was between $9,000 and $10,000 per month based on his
experience regarding real estate in the area.7
In its statement of decision, the court noted it had not adjusted the retroactive
support award to reflect the fact Lisa had use of the 6,700 square foot home, without rent
or mortgage, while Ronald had been living in a three-bedroom rental property he paid for
with separate funds. The court stated, "[c]onsidering the evidence presented and
counsels' arguments, the [c]ourt finds Lisa shall be charged for the use of the . . .
residence the sum of $9,500 per month for the period November 2010 through
February 28, 2013; i.e. excluding the daughter's minority and while living with Lisa."
We also note the court granted Lisa Epstein credits for the property taxes, insurance, and
repair expenses she paid for the community residence post separation. Based on this
record, we cannot conclude the court abused its discretion in imposing the Watts charge.
IV
Attorney Fees
Lisa contends the court abused its discretion in declining to award her a
contribution of $350,000 from Ronald for her attorney fees because his financial
condition is better than hers. We disagree.
"In any proceeding subsequent to the entry of a dissolution judgment, 'the court
shall ensure that each party has access to legal representation, including access early in
the proceedings, to preserve each party's rights by ordering, if necessary based on the
7 An owner of property may testify regarding its value. (Evid. Code, § 813; see also In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 551, fn. 3.)
20 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.' (Fam. Code, § 2030, subd. (a)(1); see In re Marriage of
Sullivan (1984) 37 Cal.3d 762, 768 [the purpose of a pendente lite attorney fees award is
to provide a party, where necessary, with adequate funds to properly litigate the
controverted issues].) [¶] In determining whether to award attorney fees, the court must
consider the parties' respective needs and incomes. [Citation.] The court is not limited to
considering the parties' salaries. The court may also consider all evidence of the parties'
income, assets and abilities. [Citation.] The decision to award attorney fees is left to the
court's sound discretion. [Citation.] We will not disturb the award on appeal absent a
clear showing of abuse, e.g., a clear showing no judge could have reasonably made the
award." (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 902-903.)
In this case, the court considered not only the income of each party, but also the
community assets available and the amounts already paid for attorney fees for each party
from these community assets. The court concluded Lisa's counsel had been paid
$323,500 in attorney fees from a community source, which was $38,500 more than
Ronald's counsel had been paid from a community source. Under the circumstances, the
court declined to order Ronald to further contribute to Lisa's attorney fees. We conclude
the court acted within its discretion.
21 DISPOSITION
The judgment is affirmed. Ronald shall recover his costs on appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HALLER, J.