Marriage of Willner CA4/3

Opinion

Filed 8/31/26 Marriage of Willner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of AYAL and GILA WILLNER.

AYAL WILLNER, G065070

Respondent, (Super. Ct. No. 18D004101)

v. OPINION

GILA WILLNER,

Appellant.

Appeal from a judgment of the Superior Court of Orange County, Linda L. Miller, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Quinn & Dworakowski, Stephane Quinn and David Dworakowski for Appellant.

Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M.

Barbero for Respondent.

* * *

Gila Willner appeals from a judgment on two reserved issues in this marital dissolution action involving her former husband, Ayal Willner. Gila1 contends the court abused its discretion by awarding her permanent spousal support of $5,000 per month and in denying her request for attorney fees and accounting costs. We conclude the court did not abuse its discretion and affirm the judgment.

FACTS

After a 29-year marriage, the parties separated in December 2017. Ayal filed a petition for dissolution of marriage in May 2018. Gila, who was 59 years old at the time of trial, was primarily a stay-at-home mother during the marriage but also managed the parties’ four rental properties. She has a college degree and an MBA degree. Ayal, who was 61 at the time of trial, is a practicing physician with his own medical practice. The parties have two adult children. Prior to trial, the parties agreed that Ayal would pay temporary spousal support to Gila in the amount of $16,500 per month.

Trial began in August 2023. The parties agreed to have their divorce proceedings heard by a temporary private judge through JAMS. The parties entered into stipulations resolving all contested issues except for the determination of permanent spousal support and Gila’s request for a contributive share of attorney and accounting fees and costs. They agreed that the marital standard of living was upper middle class.

1 Because the parties share a last name, we refer to them by their

first names to avoid confusion.

3

The parties entered into agreements that resolved the valuation and division of most of the community assets, which were worth approximately $8.7 million, while the total estate was worth approximately $17.5 million. Ayal’s cash flow was agreed to be $47,000 per month pre-tax.

Ayal was awarded: (1) his portion of community retirement accounts, totaling $1,545,930; (2) stocks, bonds, and other securities, totaling $108,137; (3) real estate equity valued at $5,226,249, which included his office building for his medical practice, one-half the equity of the Laguna Beach rental which the parties agreed to sell (Fairview Street rental), one- half the equity of the Hawaii rental (which was ordered sold), and one-half equity of the Laguna Beach rental property the parties sold in June 2017 (Coast Highway rental); (4) his medical practice valued at $690,000; (5) life insurance policies valued at $195,842; and (6) a $450,000 equalization payment on the Newport Beach family residence.

Gila was awarded: (1) the Newport Beach vacation rental, which generated approximately $12,000 in monthly income; (2) her portion of community retirement accounts, totaling $1,545,930; (3) cash accounts totaling $180,368; (4) stocks, bonds, and other securities totaling $108,137; (5) real estate equity valued at $7,900,950, which included the family residence she was awarded, one-half the equity of the Fairview Street rental, one-half the equity of the Hawaii rental property, and one-half the equity of the Coast Highway rental property; (6) life insurance policies worth $129,041; and (7) compensation for her management of the rentals for the period after the parties separated, which was valued at $575,000.

Aside from the community assets, Gila had $1,849,040 in separate property accounts, bringing her total assets to $10,604,298. Gila’s separate property had been used to pay Ayal an equalization payment but

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was expected to be replenished through the eventual sale of the Hawaii and Laguna Beach properties.

Gila sought spousal support in an amount similar to the temporary spousal support she was receiving of $16,500 a month. Gila incurred approximately $341,964 in attorney fees and costs and $269,283.03 in accounting fees. She sought a contribution from Ayal of $100,000 towards her attorney fees and costs and $165,000 towards her accounting fees.

In July 2024, the trial court issued its written tentative decision on the remaining issues of permanent spousal support and attorney fees and costs and accounting fees, awarding Gila $5,000 per month in permanent spousal support and denying her request for a contribution of attorney fees and costs and accounting fees. Gila requested a statement of decision and proposed findings.

On August 25, 2024, the trial court issued its statement of decision. The court, in considering the factors set forth in Family Code2 section 4320, concluded Gila was entitled to $5,000 per month in permanent spousal support, continuing until the death of either party, Gila’s remarriage, or further order of the court.

The trial court found Gila had developed skills in property management and other related areas which were transferable to other forms of employment; it concluded that permanent spousal support in the amount of $5,000 per month was appropriate based on Gila’s available resources, anticipated rental income, and ability to generate future income.

Regarding attorney and accounting fees, the court ordered each party to bear their own attorney fees and costs and accounting fees. The court

2 All further statutory references are to the Family Code.

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concluded that, although Ayal had greater income, Gila had greater access to liquid assets, including a substantial separate estate to fund her litigation. The court determined that requiring Ayal to contribute to Gila’s fees and costs would be inequitable given the parties’ relative financial circumstances.

DISCUSSION

I.

PERMANENT SPOUSAL SUPPORT Gila argues the trial court abused its discretion in imputing earning capacity without a finding or evidence of opportunity to work and failed to properly weigh the mandatory section 4320 factors in awarding her $5,000 per month in spousal support. We disagree. A. Legal Standard “‘Permanent spousal support “is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.” [Citations.] The statutory factors include the supporting spouse’s ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property; and any other factors pertinent to a just and equitable award.’” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 108 (Ciprari).)

“‘“In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. ‘The issue of spousal support, including its purpose, is

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one which is truly personal to the parties.’ [Citation.] In awarding spousal support, the court must consider the mandatory guidelines of section 4320.”’” (Ciprari, supra, 32 Cal.App.5th at p.108.)

“‘“In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the ‘court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.’ [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support.”’” (Ciprari, supra, 32 Cal.App.5th at p. 108.)

The marital standard of living is the first of the section 4320 factors to be evaluated and “‘is relevant as a reference point against which the other statutory factors are to be weighed.’” (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 601 (Diamond); § 4330.) However, the weight to be given the marital standard of living as a factor in evaluating need for support ordinarily decreases with the postseparation passage of time. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1247.)

A spouse’s separate estate and the reasonable income potential therefrom may be grounds for withholding or limiting spousal support. (§ 4321, subd. (a); In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1490 (Brandes) [court was required to consider whether wife’s substantial separate estate required downward modification of spousal support award].) Furthermore, all sources of income, whether separate or former community property, must be considered as available for support. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1365.)

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“[W]e review spousal support orders under the deferential abuse of discretion standard. [Citation.] 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 justified by the evidence presented.”’” (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.) B. Analysis We address each of Gila’s arguments regarding earning capacity and application of the section 4320 factors in turn.

1. Earning Capacity “The Family Code does not define earning capacity, but its meaning has been established through case law. [Citation.] ‘“Earning capacity is composed of . . . the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications . . . and . . . an opportunity to work . . . .”’” (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1246.) “The ‘opportunity to work’ exists when there is substantial evidence of a reasonable ‘likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income.’” (In re Marriage of Smith (2001) 90 Cal.App.4th 74, 82.) “‘“When the ability to work or the opportunity to work is lacking, earning capacity is absent and application of the standard is inappropriate. When the payor is unwilling to pay and the other two factors are present, the court may apply the earnings capacity standard to deter the shirking of one’s family obligations.”’” (McHugh, supra, at p. 1246.)

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Here, the trial court observed that Gila “present[ed] evidence of her marketable skills” in managing the parties’ four rental properties, “though she did so in connection with seeking ‘reasonable compensation’ for her work on the vacation rental ‘business.’” The court noted: “[Gila’s] own expert espoused her skills and claimed that she did the work of four . . . fulltime jobs. She listed a litany of skills as well, such as accounting, bookkeeping, design, property, construction, and project management and general management, computer, and people skills[,] as well as overall organization.” The court concluded these skills “are ultimately transferable if [Gila] chooses to do so.”

Gila’s expert witness testified that the reasonable compensation for her services managing the six rental units between January 1, 2018, and June 30, 2023, was either $1,167,000 or $1,573,000, depending on which of the two analyses the expert used. Although the court stated it was “unclear how much [Gila] could or should earn as no testimony [w]as adduced,” Gila’s “work . . . does have value as indicated in the agreed $92,000 yearly of reasonable compensation when all six . . . properties were managed” postseparation . The court found that, although Gila’s “marketable skills . . . were initially impaired by” raising two children, she now has time to devote to paid work, and her MBA degree would be “useful in the success of the real estate ventures.” The court also found that Ayal had “been paying support for over 6 years and [Gila had] done nothing to plan for her future other than to live off of the proceeds of all the properties she wanted to sell and expected spousal support.”

We conclude the trial court’s finding that Gila had the ability and opportunity to work was supported by substantial evidence. The court made explicit factual findings regarding Gila’s earning capacity. While

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acknowledging her age and the fact she had been out of the labor market for many years while raising the parties’ children, the court noted that Gila had advanced degrees and marketable skills in property management. The parties had agreed that Gila’s management of the six rental units was valued at $92,000 a year, thus establishing Gila’s potential earning capacity in terms of ability to work. As to willingness to work, the court impliedly found that Gila had not made any effort to find employment and had not planned for her future.

As to opportunity to work, there was substantial evidence that the court acted within its discretion in finding that Gila could, with reasonable effort, apply her skills, education, and experience in property management to produce income. Although the court acknowledged there was no testimony regarding how much Gila could earn or what income could be imputed to her, we reasonably interpret the court’s findings as imputing a salary of $92,000 per year based on the parties’ agreement that her property management services were worth that amount. Further, the court could reasonably conclude, based on her testimony, that Gila was actually working in property management by managing the parties’ rental properties.

We recognize that there was an absence of evidence in terms of whether jobs were available in the relevant labor market. The court, however, had sufficient evidence to find that spousal support in the amount of $5,000 per month was equitable when considering all of the section 4320 factors in their totality. As noted, earning capacity is just one of many factors a trial court must consider under section 4320. “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and

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presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).)3 Gila also argues the trial court made various errors in its statement of decision, including the amount of interest she would receive on her investment income, failure to consider investment returns on the assets Ayal was awarded, and improperly equating taxable rental receipts with nontaxable spousal support. However, by failing to object and asking the court to clarify any alleged ambiguities in the statement of decision, Gila waived these issues on appeal. (Arceneaux, supra, 51 Cal.3d at pp. 1133–1134 [“[I]f a party does not bring such deficiencies [in a statement of decision] to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment”].)

Accordingly, we conclude the trial court properly considered Gila’s earning capacity as one of the enumerated section 4320 factors it was required to balance when determining an award of permanent spousal support.

2. Section 4320 Factors Gila also argues the trial court did not properly weigh the mandatory section 4320 factors in assessing her entitlement to spousal

3 Gila argues the doctrine of implied findings does not apply here

because the trial court stated that, “[o]ther than somewhat incredible testimony of that expert as to the dollars she should be compensated for and the skills she had, there was no credible testimony of what income should be imputed to her.” However, the court’s comment did not preclude it from considering the agreement between the parties that Gila’s reasonable yearly compensation for the management of the six properties was $92,000. In other words, the record provided credible evidence of a specific income figure that the court could reasonably have relied upon.

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support. We note, however, that Gila has failed to articulate which factor or factors the court did not properly weigh and how any such alleged failure affected the award of spousal support. “‘“[I]t is the appellant’s responsibility to affirmatively demonstrate error”’” by “‘“supply[ing] the reviewing court with some cogent argument supported by legal analysis and citation to the record.”’” (Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497.) An appellate court is “not required to develop a party’s argument for it” nor to independently “search the record” for legal issues. (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 955.)

Our own review of the statement of decision reveals the trial court explicitly considered the section 4320 factors to the extent they were relevant. For example, the court noted Gila’s “marketable skills” and “job market for those skills” (§ 4320, subd. (a)(1)); the fact Gila’s earning capacity was “impaired by periods of unemployment that were incurred during the marriage” while she raised the couple’s two children (id., subd. (a)(2)); Ayal’s ability to pay spousal support (id., subd. (c) [“Husband does have the ability to pay support and he has been paying it for over six . . . years at a fairly high level that can no longer be sustained”]); “[t]he needs of each party based on the standard of living established during the marriage” (id., subd. (d)); “[t]he obligations and assets, including the separate property, of each party” (id., subd. (e)); “[t]he duration of the marriage” (id., subd. (f) [“The Willners were married for 29 years”]); “[t]he age and health of the parties” (id., subd. (h)); “[t]he immediate and specific tax consequences to each party” (id., subd. (j) [“Wife has deductible mortgage and property tax payments; “Support will not be federally taxable to Wife”]); “[t]he balance of the hardships to each party” (id., subd. (k)); “[t]he goal that the supported party shall be self-supporting

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within a reasonable period of time” (id., subd. (l)); and “[a]ny other factors the court determines are just and equitable” (id., subd. (n)).

In particular, the trial court focused on the fact that a key goal of awarding spousal support is that “the supported party shall be[come] self- supporting within a reasonable period of time.” (§ 4320, subd. (l).) Here, at the time of the divorce proceedings, Ayal had been paying temporary spousal support to Gila for over six years, and Gila had not actively sought alternative employment. The court specifically noted that “[n]eed should ordinarily decrease with the passage of time,” and the “idea is to transition the supported spouse to generat[e] income to provide for their reasonable needs/living expenses,” something that Gila made no attempt to do.

The trial court also properly considered Gila’s separate property, as well as her share of community property assets, when determining the appropriate amount of spousal support. (§ 4320, subd. (e) [in determining spousal support, a court must consider the “assets, including the separate property, of each party”]; Brandes, supra, 239 Cal.App.4th at p. 1490.) Here, as the court found, Gila had substantial separate and community property assets: $1,849,040 in separate property accounts and $8,755,258 in community assets for a total of $10,604,298. The court implicitly found that Gila had sources of actual income based on her real property assets and her ability to earn a rate of return on her separate property. Despite these substantial assets, we note that the court found there was still a need for permanent spousal support in the amount of $5,000. Thus, Gila’s substantial separate and community property supported the court’s award of spousal support in an amount less than she requested.

Once a court considers section 4320’s mandatory guidelines and ties its reasoning to evidence in the record, as the trial court did here, the

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ultimate decision regarding spousal support rests within the court’s “broad discretion” and may not be reversed absent abuse of that discretion. (In re Marriage of Grimes & Mou (2020) 45 Cal.App.5th 406, 424; Diamond, supra, 72 Cal.App.5th at pp. 602–603.) The court complied with its responsibility in balancing the applicable statutory factors.

Giving deference to the lower court’s factual findings and consideration of the section 4320 factors, we cannot say the court abused its discretion under these circumstances. (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50 [“Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing [spousal support] orders”].)

II.

ATTORNEY FEES AND ACCOUNTING COSTS Gila argues the trial court abused its discretion by declining her request for needs-based attorney fees and costs and accounting fees pursuant to section 2030. As noted, Gila sought a contribution from Ayal of $100,000 in attorney fees and costs and $165,000 in accounting fees. Gila contends the court failed to properly apply the statutory framework for award of fees and costs and neglected to consider that Ayal had a consistent monthly income of $47,000 while Gila’s separate income had been depleted by a $900,000 equalization payment to Ayal. We find no error. A. Legal Standard The purpose of need-based attorney fees under section 2030 is to “ensure that each party has access to legal representation” in marital dissolution matters. (§ 2030, subd. (a)(1).) To determine whether a party is entitled to fees, the court must make findings on “whether an award of attorney’s fees and costs . . . is appropriate, whether there is a disparity in

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access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” (Id., subd. (a)(2).) The court then proceeds to determine what amount of fees would be “just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) This requires the court to consider the section 4320 factors. (Id., subd. (b).)

We review an attorney fees award under section 2030 for abuse of discretion. (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 903 (Marriage of M.A.) “We will not disturb the award on appeal absent . . . a clear showing no judge could have reasonably made the award.” (Ibid.) B. Analysis In its statement of decision, the trial court considered the statutory basis for an award of fees under section 2030 and declined to award Gila attorney fees and costs. The court considered the parties’ respective income and expense declarations, documents, testimony, and the section 4320 factors. The court found no disparity in the parties’ access to funds to retain an attorney: “It is unclear how, as a result of the division of assets, [Ayal] will have greater access to liquid funds than [Gila]. They will be virtually equal except for her separate estate. The difference in income is not enough to warrant an award of fees in this matter.”

The court further considered the parties’ ability to pay and concluded that Ayal did not have the ability to pay Gila’s fees: “Absent the equal division of the community estate[,] including the equalization payment from [Gila] . . ., [Ayal] does not have the ability to make a contributive share of [Gila]’s fees in the amount requested and to make such an award would be unjust under the circumstances.” The court acknowledged that Ayal had a regular monthly income but noted that Gila had greater access to liquid assets, including her separate property, to pay her attorney fees and

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accounting costs. (See Marriage of M.A., supra, 234 Cal.App.4th at p. 903 [in considering the parties’ respective needs, the court must consider the parties’ income and assets].)

When considered in the light most favorable to the trial court’s decision, the record demonstrates the court explicitly considered the parties’ respective circumstances and reasonably declined to award Gila any attorney fees and costs or accounting fees.

DISPOSITION

The judgment is affirmed. Ayal is entitled to recover his costs on appeal.

SCHWARM, J.*

WE CONCUR:

GOODING, ACTING P. J.

SCOTT, J.

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.