Marriage of Rosenblum

Filed 7/17/06 Marriage of Rosenblum CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from an order of the Superior Court of San Diego County, Alan B. Clements, Judge. Affirmed.

In a marital dissolution proceeding, the court ordered the husband to pay $10,000 of his wife's attorney fees from his share of the liquidation of their condominium. On appeal, he argues the order placed an unequal burden on him. We disagree and conclude the record fully supports the court's order. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Appellant Steven I. Rosenblum (Steven) and respondent Linda D. Rosenblum (Linda) were married August 5, 1979. After 24 years of marriage, Steven filed for divorce on May 6, 2004. At the time of their separation, Steven was employed full time as manager of a retail electronics store. Linda was working 25 hours a week at a salary of $10 an hour as an accounting clerk for an office supply company. She considers herself unable to work full time due to her responsibilities of caring for the parties' developmentally disabled adult daughter. Additionally, her current employer does not have a full-time position to offer her.

On March 9, 2005, the parties stipulated to the division of certain assets, reserving unresolved property and support issues for trial. A trial on the reserved issues was held on May 9, 2005. Most of that proceeding was devoted to the characterization of the parties' condominium. During the marriage the parties had disagreed about Steven's desire to refinance their mortgage and remove equity. Steven wanted to use the money to pay debts and purchase new cars. Linda believed the debts were a result of Steven's bad spending habits and removing equity to pay them would not eliminate the underlying problem. Eventually, $45,000 in equity was removed and Steven signed a quitclaim deed granting his share in the condominium to Linda. Steven believed he had been cheated out of his interest in the condominium and challenged its characterization as separate property in the divorce proceeding.

In its order, the court voided the quitclaim deed, characterized the condominium as community property and ordered its sale. The condominium had approximately $200,000 in equity. Additionally, the court awarded Linda $1,350 a month in spousal support. The court used an estimated $4,246 of monthly income for Steven and $1,100 for Linda to determine the amount she would receive. These figures were based on Steven's 2005 pay stubs and minimum wage for Linda.

On appeal, Steven does not challenge the characterization of the condominium, its sale or the award of spousal support. However, as we explain more fully below these determinations are relevant to the sole issue which Steven raises on appeal: the trial court's attorney fee award. The court ordered that Steven pay his own attorney fees and a $10,000 contribution to the over $11,000 in attorney fees Linda had incurred and that these amounts be paid from Steven's share of the proceeds of the condominium sale.

DISCUSSION

In his opening brief, Steven asserts the only issue on appeal is the award of attorney fees.

I

To ensure access to legal representation, family law courts are authorized to have one party pay the other party's attorney fees "if necessary based on the income and needs assessments." (Fam. Code,^[1] § 2030, subd. (a)(1).) The assessment is made by evaluating "(A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." (§ 2030, subd. (a)(2).) The primary factor in this inquiry is the relative circumstances of the parties. (§ 2032, subd. (b); In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 882-883.)

Further, under section 2032, the fact that a party has the financial resources to pay attorney fees is not necessarily a bar to a fee award to that party. Rather, "[f]inancial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b).) Thus, even if an applicant party has the funds to pay his or her fees, relative need may be established if there is a " 'disparity in the parties' respective circumstances.' " (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315.)

In assessing ability to pay, the court is not restricted to salary alone, but may consider "all the evidence concerning the parties' income, assets and abilities." (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) The court may base its decision on ability to earn, rather than current incomes. (Id. at p. 769.) Additionally, "[t]he court may order payment of an award of attorney's fees and costs from any type of property, whether community or separate, principal or income." (§ 2032, subd. (c).)

A motion for attorney fees and costs in a dissolution action is left to the sound discretion of the trial court and will not be disturbed on appeal without a clear showing of abuse of trial discretion. (In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296.) We will find an abuse of discretion only if, considering all the evidence viewed most favorably in support of the order, no judge could reasonably make the order made. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Steven complains the court's order requiring that he pay most of the attorney fees from his portion of the proceeds from the condominium sale was improper on the basis of need and ability to pay. He argues the court failed to explain the relative circumstances and that an appropriate award would have been based on the difference in the parties' expendable incomes. We disagree.

A disparity in the parties' respective circumstances may constitute "need" even though the applicant spouse admittedly has the funds to pay his or her own fees. (In re Marriage of O'Connor, supra, 59 Cal.App.4th at p. 883; see also In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) Here, factors that were presumably part of the court's reasoning included the parties' 24-year marriage, their middle-class lifestyle, Linda's limited work history and need for spousal support, Steven's opportunity to spend more time at work and the circumstances surrounding the contested characterization of the condominium as community property.

Steven cites In re Marriage of Keech (1999) 75 Cal.App.4th 860, 867, for "[a]n appropriate analysis of the factors for determination of an award of attorney's fees." In that case, the court abused its discretion with respect to a fee award because it made inadequate calculations of the husband's monthly budget and his own outstanding legal fees.^[2] Here, the court's attorney fee award was not paid from Steven's monthly income.

Further, the court did consider Steven's outstanding legal fees and made his, and a portion of Linda's, fees payable from the liquidation of a condominium. Thus, Steven's reliance on Keech is misplaced.

Steven also cites San Diego County Superior Court Rule 5.5.11 I, which states in part: "If liquid community assets exist, an award of attorneys' fees and costs will generally be made from this source." He complains about a perceived deviation from this rule. However, the use of the word "generally" allows the court to deviate from the rule and make an award based on the various statutory criteria and factual circumstances of each case.

II

Because the trial court's determination of the parties' earning capacity was clearly a factor in the trial court's attorney fee award, Steven vigorously challenges the trial court's finding that Linda had the ability and opportunity to earn only minimum wage given her present part time earnings of $10 an hour.

When discussing its findings, the court made a detailed summary of the parties' circumstances at the time of dissolution and said: "The court finds that respondent has an ability to net -- strike that -- to gross minimum wage in the vicinity of $1100 per month. [¶] The court has examined the factors articulated under Family Code section 4320. Notes that this is a long-term marriage. There is limited work history of the respondent. The judgment should contain an admonishment pursuant to Family Code section 4330 that the respondent has an obligation to make efforts to become self-supporting.[¶] . . . [¶] It appears to me that with the conclusion of the divorce proceedings, that husband has an opportunity to spend more time at work, is electing to do that, and that's why I find the higher income is the more appropriate income for today's hearing."

Steven argues the court rejected Linda's testimony that she could not work full time and then incorrectly assessed her earning potential. Steven misreads the trial court's findings. The court's statement of decision cannot be reasonably interpreted to mean Linda could only earn minimum wage or that she is currently able to work full time. Rather, it appears that the trial court merely equated Linda's part-time earning capacity with what a full-time minimum wage worker would earn. We note Linda is obligated to maintain her current income of $1,100 a month and ordered her to make efforts to become self supporting.^[3] Given the evidence of the care Linda provides to her daughter and the amount she actually earns, the trial court's conclusions about her earning capacity are fully supported by the record.

An award under section 2032 is proper when it is "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) Given the parties' relative circumstances, the decision to order Steven to pay $10,000 toward Linda's attorney fees cannot be characterized as so unreasonable that it was an abuse of discretion.

Order affirmed. Linda to recover her costs on appeal.^[4]

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.

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^[1] All further statutory references are to the Family Code unless otherwise specified.

^[2] The husband was left with only $93 per month after he paid all court-ordered obligations and rent. The court-ordered obligations included payments to the ex-wife's attorney and did not consider the husband's own outstanding legal fees during that period. (In re Marriage of Keech, supra, 75 Cal.App.4th at p. 867.)

^[3] If in the future Steven can show changed circumstances, he has the ability to seek a modification of the support order.

^[4] The trial court is directed to determine whether, in addition to her costs on appeal, Linda should recover the attorney fees she incurred on appeal and the amount of any such recovery.