Marriage of Miller

Filed 5/3/06 Marriage of Miller CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment of the Superior Court of San Diego County, Laura Halgren, Judge. Affirmed.

I.

INTRODUCTION

Appellant Judith Miller appeals from a judgment of the trial court ordering her to pay her ex-husband James Miller^[1] spousal support in the amount of $1,800 per month for one year and $1,000 per month thereafter. Judith contends that the trial court abused its discretion in ordering her to pay this amount of spousal support because the trial court (1) failed to make specific factual findings about the marital standard of living; (2) failed to consider James's income-producing assets when determining his earning capacity and need for support; and (3) failed to consider James's prior mismanagement of marital assets when setting the amount of spousal support. She also contends that the trial court erred in failing to impute to James the capacity to earn a minimum wage.

In his cross-appeal, James asserts that the trial court abused its discretion in ordering an automatic reduction of his spousal support after one year. He further contends that the court erred in (1) finding that he is able to work and that he should be employed within six months; (2) ignoring the property settlement between the parties and considering James's alleged mismanagement of assets during the marriage in setting the amount of the spousal support award and determining that Judith should pay only 25 percent of his attorney fees; and (3) instructing James that it is the goal of the State of California that a supported spouse become self-supporting within a reasonable period of time.

We reject Judith's contentions. The trial court did in fact make findings about the marital standard of living, considered James's income-producing assets and his mismanagement of marital assets, and also considered James able to earn a minimum wage when it calculated the amount of spousal support.

We also reject James's contentions on appeal. The trial court did not abuse its discretion in making a step-down order. The court's determination that James is able to work is supported by the record. Additionally, the trial court did not err in considering James's mismanagement of marital assets in setting the amount spousal support, nor in instructing James as to the express legislative policy encouraging self-support. Further, the trial court did not consider James's pre-separation mismanagement of assets when it determined the award of attorney fees. Because the trial court neither committed a legal error nor abused its discretion in determining the spousal support award or the award of attorney fees, we affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

After a 32-year marriage, Judith filed a petition for dissolution on January 14, 2003, seeking confirmation of separate assets, division of community assets and debts, determination of property rights, and termination of the trial court's jurisdiction to award spousal support to James. James filed a response on February 13, 2003.

James also filed an order to show cause for spousal support and attorney fees on February 13. In his declaration accompanying the order to show cause, he stated that he was unable to work because of physical disabilities, including damage to his legs and loss of his left leg three inches below the knee caused by a vehicle accident in 1968, pain, loss of strength in his arms, and a recent diagnosis of diabetes. Judith filed a responsive declaration.^[2] The trial court awarded James temporary spousal support in the sum of $600 per month beginning April 1, 2003. That order also required that Judith pay all household expenses.

On June 5, 2003, Judith filed a motion to compel, seeking responses to form interrogatories, and a request for production and inspection of documents that she had propounded.

On June 25, Judith filed an order to show cause to take possession of one of the houses the couple owned, to decrease the amount of the temporary spousal support, and for costs and attorney fees. In her income and expense declaration, Judith acknowledged that she had been giving the couple's adult daughter $1,500 per month to pay for education expenses, and an additional $325 per month to pay for her car.

On July 29, the trial court held a hearing on Judith's order to show cause and her motion to compel. It denied Judith's motion to compel and granted James's motion for sanctions in the amount of $2,000. The trial court also determined that "it would be beneficial for [the] parties to live apart," and ordered that Judith move into one of the parties' rental properties, located on Blanco Terrace, on September 1, 2003. The trial

court ordered Judith to pay James $1,500 per month in temporary spousal support. James was to take sole responsibility for the bills for the primary residence.

The parties entered into a stipulated judgment that the trial court signed and filed on October 6. The marriage was terminated effective September 24, 2003. As part of the stipulated judgment, James and Judith agreed to sell their primary residence. They planned to use the proceeds to pay community debts, and then divide the remaining balance equally between them. Eventually, each received half of $405,066.79 from the sale of the family home. As part of the property settlement, James also received a rental property with a stipulated equity of $220,000, and another rental property in Las Vegas, Nevada, with a stipulated equity of $160,000. Judith received a timeshare property and the former rental property on Blanco Terrace. The Blanco Terrace property had a stipulated equity of $330,000. The trial court reserved jurisdiction over the issue of permanent spousal support, indicating that it would set the matter for hearing. The trial court also reduced the amount of temporary spousal support to $600 per month because the increase to $1,500 had been contingent on the parties living apart. Since Judith had been unable to move into the Blanco Terrace property until late September 2003, the parties agreed that temporary spousal support should remain at $600.

The court held a trial on the spousal support issue on March 5 and 12, 2004. Both Judith and James testified. The trial court issued a statement of decision on April 2, 2004. Both parties filed objections to the trial court's statement of decision, and the trial court subsequently issued an order overruling most of the objections and making minor modifications to the statement of decision. On May 10, 2004, the trial court issued an amended statement of decision incorporating those modifications. In both the original and amended statements of decision, the trial court made findings and considered the factors set forth in Family Code^[3] section 4320. The trial court ultimately ordered Judith to pay James $1,800 per month, plus one-half of his health insurance premiums, for one year, after which the amount of spousal support would be automatically reduced to $1,000 per month, plus one-half of James's health insurance premiums. The trial court believed that a step-down order was appropriate because it expected that "within six months, Husband will have determined where he will live and will have become employed at least in a minimum wage job, thereby reducing his need for support." The court also ordered Judith to pay 25 percent of James's attorney fees, or $8,705.

The trial court entered a judgment incorporating the Amended Statement of Decision on September 2, 2004. Judith filed a timely notice of appeal on September 27, 2004, and James filed a notice of cross-appeal on October 18, 2004.

III.

DISCUSSION

The parties appeal from a judgment that awarded James spousal support of $1,800 per month plus one-half of his health insurance premiums for one year, and $1,000 per month plus one-half of his health insurance premiums thereafter. Each party maintains that the trial court abused its discretion and/or erred, on a number of grounds, in determining the spousal support award.^[4] Neither party's contentions are meritorious.

"Spousal support is governed by statute. [Citation.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) When ordering spousal support, a trial court must consider and weigh all of the factors enumerated in the statute to the extent they are relevant to that particular case. (Ibid.) "The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed." (Id. at p. 303.) The full list of factors to be considered by the court is found in section 4320, which provides:

"In ordering spousal support under this part, the court shall consider all of the following circumstances:

"(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

"(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

"(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

"(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

"(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.

"(d) The needs of each party based on the standard of living established during the marriage.

"(e) The obligations and assets, including the separate property, of each party.

"(f) The duration of the marriage.

"(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

"(h) The age and health of the parties.

"(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

"(j) The immediate and specific tax consequences to each party.

"(k) The balance of the hardships to each party.

"(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

"(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

"(n) Any other factors the court determines are just and equitable."

" '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.' [Citation.]" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) "In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.]" (Ibid.)

" 'Although patterns in marital breakups emerge, each couple has such a diverse mix of circumstances that trial courts must have broad discretion in weighing and balancing the various factors in each particular marriage before making a suitable support award. . . . Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.' [Citation.]" (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 499-500.) Despite the wide latitude given to trial courts in fashioning spousal support orders, however, 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 statute], especially their reasonable needs and their financial abilities." (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 655.)

In reviewing findings supporting a trial court's exercise of discretion in the area of spousal support orders, " '. . . this court must accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment. When a finding of the trial court is attacked as being unsupported, our power begins and ends with a determination of whether there is any substantial evidence which will support the conclusions reached by the trial court. [Citation.]' [Citation.]" (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn.5.)

A. The trial court did not fail to make findings regarding the parties' marital

standard of living

Judith contends that the trial court erred in failing to make specific factual findings regarding the marital standard of living. Section 4332 provides: "In a proceeding for dissolution of marriage or for legal separation of the parties, the court shall make specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, the court shall make appropriate factual determinations with respect to other circumstances."

Judith claims there "was no mention of the marital standard of living at all," citing to the amended judgment. However, the amended judgment was prepared by Judith's attorney after the trial court issued an original, and an amended, statement of decision. In both the original and amended statements of decision, the trial court clearly addressed the issue of the marital standard of living and made a factual finding that "[t]he parties maintained a middle-class standard of living while managing to accrue three rental properties." The trial court further found that Judith's income in the year of separation was $3,640 per month. The court noted that Judith and James "did not take expensive or frequent vacations, and the most expensive gift purchased by Husband for Wife was a $2,000 ring for their 30th wedding anniversary." Clearly, the trial court made "specific factual findings with respect to the standard of living during the marriage" as is required by section 4332. The fact that the "Attachment to Judgment on Reserved Issues," drafted by Judith's attorney, does not include a statement that the parties maintained a middle-class standard of living does not mean that the trial court failed to make such a finding. The trial court did make such a finding, and applied this finding in ruling on the reserved issues of spousal support and attorney fees.^[5]

B. The trial court's considering James's income-producing assets in determining

the spousal support award was not an abuse of discretion

Judith contends that the trial court failed to consider James's income-producing assets and his real property assets when it determined his earning capacity. James received two rental properties and half the proceeds from the sale of the primary family residence after joint debts were paid. Judith asserts that James can obtain $1,900 in rental income per month from the Las Vegas property alone,^[6] and that he could earn additional income by investing his share of the proceeds from the sale of the primary residence. She cites section 4322 for the proposition that where a party acquires a separate estate

sufficient for the party's proper support, no spousal support shall be ordered, implying that James's separate property estate is sufficient to support his needs.

Judith acknowledges that the trial court's ruling on this issue is reviewed for an abuse of discretion. "In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]" (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) We conclude that the trial court did not abuse its discretion with regard to James's potential income-producing assets. Specifically, contrary to Judith's assertion, the trial court did consider James's assets, including his income-producing assets, in determining spousal support. In a subsection of the trial court's order entitled "Obligations and Assets," the trial court acknowledged that Judith "lives in one of the former rental properties with no mortgage payment and a current value of approximately $365,000" and that James "received the other two rental properties which have a current net value of approximately $440,000.00 . . . ." The trial court commented that "[b]oth parties used some of the cash from the residence sale to pay down debt and Husband also made an equalizing payment." The trial court then concluded:

"Both parties are viewed as being in relatively equal situations to benefit from appreciation of property (two rental properties for Husband; residential property and investment funds for Wife). Husband also should be able to net at least $400.00 per month from the two rental properties based on past tax returns and testimony regarding current rental values."

Thus, the trial court clearly considered James's assets in determining the relative financial positions of the parties and their needs. The trial court apparently did not agree with Judith's contention that it should reduce James's need for additional income to zero in view of the rental properties he received in the property settlement.

"The Court has read the cases cited by Wife, but rejects Wife's argument that appreciation from Husband's rental properties should be imputed to him as income, thus reducing his need to zero. The Court has wide discretion in this area and finds it would not be equitable to do so in this case, particularly when Husband is in the process of determining if he should trade or sell his rental properties for a residence, Wife is benefiting from the same type of appreciation to her assets and, as a practical matter, Husband cannot live off of such appreciation and has limited other sources of income."

The trial court's rejection of Judith's contention that it should reduce James's need for additional income to zero was not an abuse of discretion. First, the cases Judith cited to support her contentions regarding this issue involve imputing rental income to a parent for purposes of determining child support, not spousal support. (See In re Marriage of Cheriton, supra, 92 Cal.App.4th 269; In re Marriage of Destein (2001) 91 Cal.App.4th 1385; In re Marriage of Dacumos (1999) 76 Cal.App.4th 150.) Although the cases involving child support might provide useful guidance, they are not controlling. Additionally, it was reasonable for the trial court to consider the fact that James might sell the properties in order to purchase a new primary residence, and to consider the fact that property appreciation is not as liquid as other assets, and thus may not provide a practical source of income. Further, even if the trial court assumed that James would be able to keep both properties and rent them, there was substantial evidence to support the conclusion that this would not provide James with sufficient income to reduce his need for other income to zero, as Judith suggests. The parties' 2002 joint tax return established that the income they received from their rental properties "essentially covered the rental expenses." Records showed that the mortgage payments on the Canyon Park Terrace property were increasing to the point where they would soon exceed the rental income. It was thus reasonable for the trial court to conclude that James would receive a certain amount of income from his properties, but not enough to fully support himself.

C. The trial court did not err in considering James's mismanagement of marital assets

Judith contends that the trial court failed to consider James's mismanagement of marital assets when it set the spousal support award. James, on the other hand, asserts that the trial court improperly considered his alleged mismanagement of marital assets when determining the spousal support award. We reject both contentions.

Citing In re Marriage of McElwee (1988) 197 Cal.App.3d 902, 910, Judith contends that the trial court may consider a party's mismanagement of assets when determining spousal support.^[7] Contrary to Judith's assertions, however, the trial court in this case did consider the fact that James had sold, at a loss, community assets that were meant to provide retirement income for both Judith and James, without Judith's knowledge, and that he failed to provide an accounting of his spending. The trial court specifically addressed these issues in its decision:

"The parties settled their disputes over properties and debts before trial. Thus, it was not established to what extent Husband's expenditures in the few years just prior to separation were for the community. However, as a matter of equity, it is appropriate to consider that Husband spent considerable sums in the final years of the marriage and sold many coins that were to be for the parties' retirement. No accounting was provided for these expenditures, of which Wife was unaware."

Judith apparently disagrees with how the trial court dealt with this information. However, she provides no reasoned argument that the trial court abused its discretion or failed to properly take into consideration James's alleged mismanagement of assets, or that the trial court's determination was not supported by sufficient evidence. When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, the point should be treated as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) In any event, it is not appropriate for this court to second-guess a trial court's ultimate conclusion as to spousal support, as long as the support award is reasonable under the circumstances. James agreed to take on more of the community credit card debt than Judith, in part, it appears, as consideration for his prior mismanagement of community assets.^[8] The trial court considered the equities of James's

mismanagement of assets, and the result the trial court reached was not unreasonable.

In his cross-appeal, James contends that the trial court erred in taking into consideration his alleged mismanagement of assets. He asserts that the "rulings of the court were beneficial to Judith and detrimental to James in that [the court's consideration of James's mismanagement of assets] contributed to an award of less spousal support (even initially) than James should have received." However, subdivision (n) of section 4320 clearly grants the trial court the authority to consider "[a]ny other factors the court determines are just and equitable" in setting the amount of spousal support. It was reasonable for the trial court to consider evidence that James could not account for a significant portion of his spending of community assets toward the end of the marriage, in determining the amount of spousal support.

James also appears to suggest that the trial court considered Judith's allegations of mismanagement as true, despite his attempts to refute those allegations. However, the trial court stated that "it was not established to what extent Husband's expenditures in the few years just prior to separation were for the community." The trial court considered simply "that Husband spent considerable sums in the final years of the marriage and sold many coins that were to be for the parties' retirement" and that James failed to account for his expenditures, of which Judith testified she was unaware. These facts are uncontroverted. Nevertheless, James attempted to argue in the trial court that his failure to account for the expenditures was Judith's fault because she did not subpoena bank records, as the court had directed her to do. The trial court did not accept James's argument, noting that James had the burden to make a full accounting in the first instance. The trial court was well within its discretion to consider these facts when determining the spousal support award. In any case, it does not appear that these facts significantly impacted the trial court's award, since the trial court awarded James approximately half of Judith's net monthly income for a year. Placing the parties on equal footing in terms of monthly income is hardly an unfair division of the limited funds available to them. Further, the court's decision to reduce James's monthly award to $1,000 after a year does not appear to be related to the trial court's consideration of James's mismanagement of community assets, but rather, appears to be related to the trial court's conclusions that James would begin working and would have his living situation sorted out by that time, and thus would have less need for additional income.^[9]

D. The trial court did not abuse its discretion in determining the amount of support

Judith must pay to James or in fashioning a step-down order on the basis that

James has the ability to work

Judith contends that the trial court erred in not imputing to James the ability to earn a minimum wage. According to Judith, although the trial court found that James should be able to reenter the job market in a minimum wage job and that he had made no effort to find employment, the trial court nevertheless failed to impute a minimum wage to James when it arrived at the $1,800 per month figure for initial spousal support. James contends that the trial court abused its discretion in ordering an automatic reduction in spousal support from $1,800 per month to $1,000 per month, to occur after a year, and that the trial court erred in finding both that he is able to work and that he should be able to find a job within six months.

Judith's contention rests upon the incorrect presumption that the trial court did not consider James's ability to work when setting the spousal support amount. She argues that "a minimum wage earning capacity should have been imputed to James in determining spousal support." The trial court stated that it "expects that within six months, Husband will have determined where he will live and will have become employed at least in a minimum wage job, thereby reducing his need for support." The trial court then stated, "Commencing November 1, 2004, support shall be reduced to $1,000 per month, plus one-half (1/2) of Husband's health insurance premiums." The trial court clearly based its decision to reduce the spousal support amount after a year on its determination that James's needs would decrease once he began earning a minimum wage. The fact that the trial court awarded James $1,800 per month in spousal support for the first year was not an abuse of discretion, nor did it mean that the trial court was disregarding its finding that James was able to work. Rather, the court could reasonably have concluded that James would require time to find an appropriate employment opportunity, particularly considering his significant physical limitations and the fact that he had been unemployed for a number of years prior to the parties' separation.

James's contentions regarding the amount of the spousal support award, and in particular the automatic reduction, and the trial court's reliance on its finding that he is able to work and should be able to find a job, are equally misplaced. James first takes issue with the trial court's determination that he is able to work and that he should be able to find a job within six months. According to James, "[t]here is overwhelming and substantial, credible, ponderable evidence in the record supporting the fact that James is totally unable to engage in any useful occupation." The trial court determined that James is able to work at a job paying the minimum wage. As long as there is substantial evidence to support this conclusion, there is no basis for rejecting the trial court's determination.

Preliminarily, we note that much of James's argument rests on the presumption that Judith had the burden to establish that James had an earning capacity greater than zero, and that she failed to do so. This presumption is incorrect. James is seeking permanent spousal support; as such, the burden rests on him to establish that he is entitled to support at the level he seeks. (See In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 108 [general rule that " 'a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting' [citation]" applies even where provisions of statute, like spousal support statute, do not mention burden of proof].) Further, even though James may be able to establish that he has had no actual earnings because he has been unemployed since 1994, this does not mean that either the burden of production of evidence to establish that his earning capacity is greater than zero, or the burden of persuasion, shifts to Judith. (See In re Marriage of Stephenson, supra, 39 Cal.App.4th at p. 83, fn. 7 ["On remand, under the circumstances here where [Husband] has no actual earnings due to retirement, once he establishes his actual income is solely his retirement income, the burdens of persuasion and production of evidence to establish the preliminary fact of his ability to earn an income sufficient to defray existing support needs do not shift to [Wife] for her to establish a reasonable inference his earning capacity exceeds his zero actual earnings"].)

We acknowledge that in In re Marriage of Baker, supra, 3 Cal.App.4th at page 500, the appellate court suggested that the supporting party bears the burden of establishing that the supported party "would become fully or more completely self-supporting at some point in the future." However, that court did not provide any legal basis for its assignment of burdens in this context. In light of the fact that the statute requires that the trial court consider James's earning capacity, and not his actual income, unlike cases involving child support in which the supporting party bears the burden of establishing that income should be imputed to the party receiving child support, we see no reason to place the burden of establishing that James has some earning capacity greater than zero on Judith. Rather, because James is seeking an order of permanent spousal support, he must establish that he has no earning capacity as that term is contemplated in section 4320.

"The statutory guidelines for the determination of [spousal] support do not provide a specific definition of earning capacity. Statutory references, however, to the measure of a spouse's ability to obtain employment (§ 4801, subd. (e)), as well as appellate decisions defining earning capacity in various contexts [citations], suggest that for purposes of determining support, 'earning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities." (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.) Thus, James bore the burden of establishing that the combination of his health, age, education, marketable skills, vocational history, and availability of employment opportunities render him unable to obtain employment. He failed to do so.

With regard to James's ability to work, the trial court made a number of findings. As to James's age and health, the court stated,

"Husband is 59 and Wife is 55. Husband's age adversely affects his ability to begin a new career and advance very far, but it does not preclude employment. [¶] Husband's health problems are ongoing, but he agreed that most of his health problems are not new. Husband was active through the marriage in work, driving and frequent travel to Las Vegas. Future problems could include insurability and high medication costs."

Regarding James's employment background, the court notes, "Husband held various jobs during the marriage, mainly in the automotive field as a service advisor or dispatcher. His highest earning level was $3,500 in one month. However, he quit employment in 1994 and since that time was not employed outside the home. He did, however, manage the parties' investments." With respect to earning capacity, the court stated,

"Husband is a left-leg amputee, but had that condition entering the marriage. He is physically in about same [sic] situation he was when working in [the] early 1990s and thus, can work. . . . There is insufficient evidence Husband can reenter the job market in the same type of job he had 10 years ago. However, he should be able to get back into the job market at a minimum wage in a job that does not require physical activity. Husband has made no effort since separation to look for any employment. There is insufficient evidence Husband quit his job for the purpose of devoting time to domestic duties. Instead, being unemployed appears to have been his preference."

There was substantial evidence to support the trial court's findings. The evidence established that James held various jobs during the marriage, that he possessed marketable skills, and that at one time he had both a real estate license and a federal license to sell firearms. Additionally, James admitted that his physical limitations were essentially the same as they were when he last worked. During the trial, James was asked about his physical problems:

"Q: You were suffering from all of your physical mal[adies] that you presently suffer from in 1994 except for diabetes, correct? That's a yes or no.

"A: Yes.

"Q: And with regard to your diabetes, it's being effectively treated with pills, correct?

"A: Yes."

James argues on appeal that his concession that he presently suffers from the same "maladies" as he did in 1994 should not be seen as supporting the trial court's conclusion that he "is physically in about the same situation he was when working in [the] early 1990's and thus, can work." James contends that "maladies" are not the same as "symptoms" and argues that while he may suffer from the same maladies as he did in the early 1990's, his symptoms are worse than they were at that time. We reject this contention. The trial court was in a position to assess the credibility and weight of the testimony of the parties. Our interpretation of James's testimony, like the trial court's interpretation, is that James admitted that he suffers from no new physical disabilities other than diabetes, and that his diabetes is controlled by medication.

James left the house "every day, just about," and was able to drive, shop, cook, and do laundry. There was evidence that James frequently drove to Las Vegas on his own. He admitted that it took him approximately four hours to drive from San Diego to Las Vegas, and that he drove for this length of time without stopping. There was also evidence that James engaged in substantial gambling activity while in Las Vegas, such that he reported gaming income of $44,539 and gaming losses of $43,391 in 2001. In addition, Judith testified that James would spend "hours" using their home computer, and that he took care of all of the accounting pertaining to the parties' rental properties, including collecting rent and paying bills. This evidence supports the inference that James's disabilities did not prevent him from being active. The trial court could reasonably conclude from this evidence that James has the ability to do stationary work at a desk for periods of time sufficient to maintain employment.

Further, the trial court received evidence of advertisements seeking telemarketers to work from home. This evidence showed that there are opportunities for employment that a person with disabilities can do in one's own home. (See In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331 [evidence of teacher want ads in newspaper admissible to show existence of potential jobs].) The trial court could reasonably infer from all of the testimony and evidence that James could engage in telemarketing or a similar type of employment. It was within the trial court's discretion to reject James's testimony that he could not perform a job as a telemarketer because he "can't lift a phone and keep it up . . . all day long, and . . . certainly cannot sit there."

Although James presented some of his medical records, this evidence did not affirmatively establish that he is physically unable to perform any type of work. Rather than offering testimony from a medical practitioner as to his ability to work, James instead offered testimony from his real estate agent and the declaration of an attorney with knowledge of the Social Security disability system, to suggest that he is unable to work. The real estate agent testified that James "has difficulty getting in and out of the car, and due to his physical condition, he can't view many properties." The attorney apparently stated in a declaration that in his opinion James meets the definition of "disabled" contained in the Social Security Act.^[10] There is no suggestion in the record, however, that this attorney possesses any medical expertise. The evidence James presented is not sufficient to establish that he is incapable of working.

The trial court specifically found that James "has made no effort since separation to look for any employment." The court also noted, "There is insufficient evidence Husband quit his job for the purpose of devoting time to domestic duties. Instead, being unemployed appears to have been [James's] preference." This conclusion is supported by Judith's testimony that she did not ask James to stay at home at any time during the marriage, and that she and James had discussions about her desire that he find a job and his failure to do so. After observing the parties and listening to the testimony, the trial court clearly was left with the impression that James was capable of working, and that he had chosen not to do so. We do not substitute our judgment for that of the trial court in these circumstances.

James contends that the trial court abused its discretion in ordering his support reduced from $1,800 per month to $1,000 per month after a year because the step-down order is based on the trial court's speculative determination that he will be able to find a job within six months. It is true, as James notes, that "[o]rders for changes in support to take effect in the future must be based upon reasonable inferences to be drawn from the evidence, not mere hopes or speculative expectations." (In re Marriage of Rosan (1972) 24 Cal.App.3d 888, 896.) James suggests that the trial court based its decision to reduce his spousal support from $1,800 per month to $1,000 per month on "speculative expectations." He contends that "there is no evidence to support . . . an order" that "envision[s] that James must find some type of unspecified, undefined work at minimum wage." However, as we have already concluded, there was evidence to support the trial court's conclusion that James can work. Moreover, the trial court based its step-down order not only on its conclusion that James should be able to find a job within six months, but also on the expectation that James's financial needs would decrease in the near future because he would soon be deciding where to live and whether to sell his rental properties to buy a new residence. At the time the trial court made its findings, James had not established a permanent home and had been traveling to Nevada and Arizona to look for property. The court apparently expected that the high living expenses James had been incurring since his separation would be reduced once James became settled in a primary residence.

Despite the fact that the trial court envisioned that James's needs would decrease within six months, the trial court gave James a cushion of one year before support payments would decrease to $1,000. The record supports the trial court's conclusion that James's financial needs will decrease in the future. We therefore affirm the trial court's order on that ground. If James attempts in good faith to find a job and is unable to do so prior to the time his support is to be reduced, he can return to the trial court with evidence of his unsuccessful efforts to obtain employment and seek to modify the order.

E. The trial court did not err in considering James's wasteful spending and gambling

in awarding attorney fees

James contends that the trial court erred in requiring Judith to pay only one-quarter of his attorney fees. Specifically, James claims that the court "ignor[ed] the effect of the settlement agreement" and improperly considered Judith's allegations that he had spent above the community's means, sold coins meant for retirement at a loss and without her knowledge, and gambled away community funds, failing to account for his expenditures. We disagree with the factual basis of James's argument, and therefore reject this contention.

Section 2030, subdivision (a) allows the trial court to order one party to a dissolution proceeding to pay for some or all of the other party's legal fees. That section provides in pertinent part:

"(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the 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.

"(2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward."

The court may award attorney fees under 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." (§ 2032, subd. (a).)

The trial court determined that Judith was able to contribute to James's attorney fees, and that James was in need of assistance, and ordered Judith to pay 25 percent of James's attorney fees, or $8,705. In awarding James a portion of his attorney fees, the court stated,

"The Court finds that Wife has the ability to contribute to Husband's attorney fees and that Husband has a need for assistance. However, the Court finds that it appears that Husband has not spent money wisely and has incurred extremely high living expenses since separation, for which he has provided inadequate documentation. Wife should not have to bear the full burden of his habits. However, the Court finds that it is reasonable that Wife contribute twenty-five percent (25%) of Husband's listed attorney fees, for a total of $8,705.00." (Italics added.)

Although his argument is not clear, it appears that James contends that the trial court improperly considered allegations that he had sold the coins at a loss, spent above the parties' means, gambled away money, and incurred significant credit card debt in ordering Judith to pay only a quarter of his attorney fees. He asserts that these issues "were settled by the stipulated judgment, [and] the recitals contained in the judgment," and thus should not have been considered by the court. However, the court's statement regarding James's spending does not refer to allegations as to James's conduct before the parties separated (i.e., conduct occurring prior to entry of the stipulated judgment), but rather, appears to refer to the court's finding that James "has excessively spent some of his cash from the home sale (more than should be necessary for basic needs)." The issue regarding James's excessive spending of his portion of the proceeds from the sale of the family home could not have been "settled by the stipulated judgment," since the sale occurred just prior to entry of the stipulated judgment and his excessive spending of those proceeds occurred afterward.

James does not otherwise challenge the appropriateness of the trial court's award of attorney fees. In any case, we see no abuse of discretion in the court's decision to require Judith to pay 25 percent of James's legal fees. Implicit in the trial court's decision is a determination that James has the ability to pay for a majority of the costs of litigating this matter. The evidence supports such a finding in that the parties split the $405,000 in proceeds from the sale of the family home, and each received additional "substantial assets from the property distribution." The court acknowledged that although both James and Judith received proceeds from the sale of their primary residence, James had excessively spent his share without adequate documentation to justify such spending. The trial court was within its discretion in deciding that under these circumstances, where both parties presumably began with assets adequate to cover their own attorney fees and one failed to "spen[d] money wisely," it was "just and reasonable" to require Judith to pay only one-quarter of James's attorneys fees. We affirm the trial court's decision to require that Judith pay 25 percent of James's attorney fees in the amount of $8,705.

F. The trial court did not err in informing James that it is the goal of the

State of California that he become self-supporting

James contends that the trial court erred in instructing him that the goal of the State of California is that a spouse become self-supporting within a reasonable period of time. He asserts that section 4320, subdivision (l) allows a court only to consider the goal that a supported party become self-supporting in making an award of spousal support, but that it does not allow the court to "admonish or order that the supported party should become self-supporting within a reasonable time." According to James, an admonishment as to this goal "puts the burden on the supported party, at a later hearing, of establishing that he is [not] capable of self-support." We disagree.

Section 4330, subdivision (b) gives courts the discretion to advise a party receiving spousal support of the state's policy that a supported spouse make reasonable efforts to assist in providing for his or her own support needs. It provides:

"When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable." (§ 4330, subd. (b).)^[11]

The trial court stated, in an attachment to the judgment regarding the reserved issues, "Husband is instructed that it is the goal of the State of California that he become self-supporting within a reasonable period of time. As Husband notes, his insurance is due to expire in three years, which is all the more reason for him to be using his best efforts to find employment." The court was merely informing James of California's policy regarding supported spouses; the trial court's statement regarding this goal certainly did not, in and of itself, shift any future burdens between the parties. The court was clearly acting within the discretion granted it under section 4330 in ensuring that James was aware of the express policy set forth in section 4320.

IV.

DISPOSITION

The judgment of the trial court is affirmed. The parties are to bear their own costs on appeal.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

IRION, J.

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^[1] For purposes of clarity, we use the parties' first names.

^[2] The record on appeal does not contain Judith's responsive declaration, but contains references to the declaration.

^[3] Further statutory references are to the Family Code unless otherwise indicated.

^[4] James also appeals from the trial court's decision to require Judith to pay only 25 percent of his attorney fees. We address this contention in part III E, post.

^[5] The attachment to the judgment on the reserved issues states, "The Court finds that as is typical in most dissolutions, there is not enough money for the parties to live separately at the same standard they had when together." The trial court was very aware of the parties' standard of living when it evaluated the parties' respective needs and financial situations.

^[6] Apparently the mortgage on this property has been fully paid.

^[7] The McElwee court stated, "[J]ust as lack of diligence in seeking employment may lead to a refusal to award spousal support [citation], so too may improvident management of assets, which were sufficient to provide self-sufficiency in the accustomed lifestyle, justify termination of support and jurisdiction even though such an order may result in an alteration in the supported spouse's lifestyle. To hold otherwise, would encourage profligacy and discourage sound investment and prudent management to the detriment of all concerned." (In re Marriage of McElwee, supra, 197 Cal.App.3d at pp. 909-910.)

^[8] Judith complains that this fact should not be used to James's benefit because he was able to avoid paying the full amount of debt by negotiating with his creditors. Nevertheless, it appears from the record that the court did consider all of these factors when it decided the issue of spousal support.

^[9] The trial court said that it "expects that within six months, Husband will have determined where he will live and will have become employed at least in a minimum wage job, thereby reducing his need for support."

^[10] On this point, James cites to pages that are not in the record, and this declaration does not appear to be included in the record on appeal.

^[11] When originally codified in 1996, the statute required courts to advise the supported spouse of the public policy in all cases. In 1999 the legislature amended the provision to make the admonishment discretionary. (See In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55-56.)