Filed 6/26/17 Marriage of Ippolito CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of LISA and JOSEPH W. IPPOLITO.

LISA IPPOLITO,

Respondent,

v.

JOSEPH W. IPPOLITO,

Appellant.
D070888


(Super. Ct. No. D556082)

APPEAL from an order of the Superior Court of San Diego County, Enrique E. Camarena, Judge. Affirmed.
Joseph W. Ippolito, in pro. per., for Appellant.
Law Offices of Quirk & Quirk and Suzanne M. Quirk for Respondent.
Appellant Joseph Ippolito (Joseph) sought orders (1) modifying temporary child support, (2) terminating temporary spousal support, and (3) declaring an earlier attorney fee order in favor of respondent Lisa Ippolito (Lisa) was "intended to be attributed as a predisposition to [Lisa] of community assets." At the hearing on Joseph's application, the court (1) declared the prior $20,000 attorney fee order would be paid out of Joseph's half of the community assets, and (2) modified the child and spousal support orders. On appeal, Joseph asserts the trial court abused its discretion (1) by ordering the prior $20,000 attorney fee order be paid from his share of the community assets and (2) by denying his request to impute full-time employment income at $17 per hour to Lisa when entering the orders for the modified temporary child and spousal support awards.
FACTUAL AND PRODECURAL BACKGROUND
Joseph and Lisa were married on May 10, 2003. They have two minor children, Isabella, age 13, and Alessandro, age nine. Joseph and Lisa physically separated on December 5, 2015, and share joint legal and physical custody of their children.
At a hearing on January 29, 2016, the court issued orders for temporary child and spousal support. The child support order for both children was $2,239 per month, and the spousal support order was $1,800 per month. The court also noted Joseph had "used a significant portion of the community property" to pay his attorney and, because Lisa "should . . . have equal access" to legal representation, the court ordered Joseph to pay $20,000 in pendente lite attorneys' fees to Lisa's counsel.
Joseph sought an order modifying the January 29, 2016, orders, seeking (1) a child support award based on child support guidelines and (2) an order terminating spousal support. In his supporting declaration of changed facts or circumstances, Joseph asserted Lisa had "accepted employment at considerably less than . . . Young's vocational evaluation has determined is available to her." He requested the court "impute the maximum income possible" that Young's report showed Lisa could have earned.
After considering all the submitted evidence, the court lowered the child support to $1,741 per month and lowered the spousal support to $1,500 per month. Those awards were premised on Lisa's income of $715 per month from her current job, and the court declined Joseph's request to impute a higher income to Lisa. The court also clarified the prior $20,000 attorney fee order was to be paid out of Joseph's half of community assets.
DISCUSSION
1. Imputation of Income
When calculating the modified temporary child and spousal support orders, the court denied Joseph's request to impute income to Lisa that Joseph claimed should be based on both full-time work and a rate of $17 per hour. Joseph contends that because the court instead used Lisa's actual wages of approximately $700 per month based on part-time work, the resulting support orders were an abuse of discretion.
The decision on whether earnings should be imputed to a parent or spouse when making a support order is addressed to the trial court's sound discretion. (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1389-1390; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 301 [court may consider earning capacity in determining spousal support just as it may with child support].) When considering whether to impute income to the supported spouse, the court must consider numerous factors, including the best interests of the children. (In re Marriage of Cheriton, at p. 308 [in setting child support "no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children"]; In re Marriage of Mosley, at p. 1390 ["even in setting spousal support, the court cannot disregard the impact on the children if the supported parent returns to the workforce"].) The modification of either a child- or spousal-support order is reviewed on appeal for abuse of discretion. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 [spousal support order]; In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234 [child support order].) "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." (In re Marriage of Schmir, at p. 47, fn. omitted.)
There is ample evidence to support the trial court's discretionary determination, in light of all relevant factors, that applying Lisa's actual earnings rather imputing the amount requested by Joseph was proper. First, the hourly rate argued for by Joseph was an "outlier." Young's report noted that most of the positions for which Lisa would have qualified were entry level positions earning between $10 to $15 per hour, and Young believed Lisa's current skill set produced an earning capacity of between $11 to $13 per hour. More importantly, the evidence permitted the conclusion that Lisa's part-time work was necessary to permit her to pursue educational opportunities that would be in the long-term best interests of the children rather than mere "dilettantism." (In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 20 (Ficke).) Specifically, Young observed that successful completion of the course of education Lisa was pursuing would provide her with employable skills for medical records and coding for which there is a demand at an increased earning capacity (an initial rate of $16 to $18 per hour). Young's report also noted that Lisa believed acquiring this skill set would permit her to find work in a field that "could be done from home, allowing her to be available to her children." As the Ficke court recognized, "Time spent with children is to be valued. First, there is a body of law that says so. [Citing numerous cases.] Second, the Legislature itself has plainly placed a high value on time with children. [Citation.] . . . [¶] . . . 'Indeed, sometimes "the 'best interests of the children' are promoted when parents [reduce their work hours] so as to be able to spend more time with their children." ' " (Ficke, at pp. 20-21.)
On this record, a trial court could well conclude that Joseph was being unreasonable in demanding that Lisa return to the workplace full time, thereby forgoing opportunities to improve her skills in a manner that would permit her to both increase her earning capacity and spend more time with her children. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 301 [in setting child support "no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children"]; In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1390 ["even in setting spousal support, the court cannot disregard the impact on the children if the supported parent returns to the workforce"].) We conclude the trial court's rejection of Joseph's demand to impute income to Lisa was not an abuse of its broad discretion.
2. Attorney Fees
Family Code section 2030 provides the "[s]tatutory authority for pendente lite attorney fee orders in family law." (Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) Section 2030, subdivision (a) states "the court shall ensure that each party has access to legal representation, including access early in the proceedings . . . by ordering, if necessary based on the income and needs assessments, one party . . . 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." The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.)
A court may award attorney fees under Family Code section 2030 "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (Fam. Code, 2032, subd. (a).) The court shall consider the need for each party "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" (id. at subd. (b)), and "may order payment of an award . . . from any type of property, whether community or separate, principal or income." (Id. at subd. (c).) The parties' "circumstances" as described in section 4320 include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties. Moreover, when "assessing one party's relative 'need' and the other party's ability to pay, the court may consider all evidence concerning the parties' current incomes, assets, and abilities, including investment and income-producing properties." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.)
An order awarding attorney fees is reviewed for an abuse of discretion. Absent a clear showing of abuse, the trial court's considered judgment will not be disturbed on appeal. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630 [appellate court must affirm award of attorney fee pendente lite unless no judge could reasonably make the order made].)
The record shows that Lisa paid her attorney nearly $30,000, over $10,000 of which came from family loans. She lacked access to any of the community assets and had no income until she started working part time in May 2016, at which point she began earning approximately $700 per month. The record indicates that Joseph had paid over $65,000 in attorney fees, using funds from his 401K, and had a monthly income exceeding $11,000. He also owned two rental properties, which apparently were unencumbered by any mortgage debt.
In making the attorney fee order, the court fully considered the disparate economic situations of the parties as well as the policies underlying the equalization of access to legal counsel. Joseph's sole claim on appeal appears to be that the trial court erred when it failed to consider that the high attorney fees were attributable to Lisa's unreasonably litigious conduct. Whether this is true, of course, is an inherently fact-bound determination for the trial judge and it is significant that Joseph spent more than twice as much as Lisa on attorney fees. Joseph offers no reasoned basis to conclude that the order was an abuse of discretion.
DISPOSITION
The order is affirmed. Lisa is entitled to costs on appeal.


DATO, J.

WE CONCUR:



NARES, Acting P. J.



O'ROURKE, J.