Marriage of Baylocq and Wilberding

Filed 4/17/09 Marriage of Baylocq and Wilberding CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Monique Baylocq Wilberding[1] sought under Family Code section 2030[2] attorney fees and costs incurred during proceedings for the dissolution of her marriage to respondent Thomas A. Wilberding, Jr. Thomas sought attorney fees and costs under section 2030 and as a sanction under section 271. The trial court denied attorney fees and costs to either party under section 2030 but awarded $4,000 to Thomas under section 271 as a sanction.

Monique timely appeals the denial of her request for attorney fees and costs. Monique claims that the trial court abused its discretion when it denied her fee request because it ignored a substantial disparity in income between her and Thomas, and did not consider Moniques section 2030 request separately from Thomass request for section 271 sanctions. Monique does not appeal the section 271 sanction award.

We conclude that Monique is unable to demonstrate that the trial court abused its discretion when it denied her attorney fees and costs. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Monique and Thomas were married for over 18 years when Monique petitioned for dissolution of marriage. The trial court entered its judgment of dissolution pursuant to a stipulation. The parties agreed that the issue of attorney fees and costs would be bifurcated and submitted to the court on written declarations. The trial court entered judgment on attorney fees and costs on March 7, 2008. The trial court issued a judgment on reserved issues that denied both parties requests for fees and costs pursuant to section 2030, but awarded $4,000 to Thomas as a sanction pursuant to section 271. Monique appeals the trial courts denial of her request for attorney fees and costs.

Monique has not worked since 2002. She possesses a bachelor of arts degree and earned a master of business administration (MBA) while married. From 1996 to 2000, Monique was employed half-time as a controller for Education Partners. She earned $35 per hour. The trial court appointed a vocational expert to evaluate Moniques abilities and skills. The courts expert reported that Monique was capable of earning $65,000-$75,000 per year.[3] Monique reported spending on average no more than five hours per week looking for a job. She could not find a job during the pendency of the dissolution proceeding. The trial court found that Moniques job search was unreasonable and inadequate.

Thomas has been self-employed as an attorney in the law firm of Valencia & Wilberding since 1997. Thomas declared his income was $331,398 for 2005 and $261,670 for 2006. In the 12 months ending July 31, 2007, he declared his income was $331,817. Thomass income included a regular draw of $15,400 to $16,250 per month, a share of profits (pot splits), and various firm paid fringe benefits.

When Monique initiated these proceedings, the couple had two daughters, 15 and 13 years old. During the first nine months of their separation, Thomas paid Monique $10,000 per month in combined child and spousal support. Commencing on December 1, 2006, Thomas began paying less when the trial court ordered $2,552 per month in guideline child support, and $2,458 per month in temporary spousal support based on the parties submitted financial information. The order also provided for payment by Thomas of approximately eight percent and 17 percent of any pot splits for child and spousal support, respectively.

In November 2007, the parties stipulated to the appointment of Eileen Preville, Judge pro tem. Although they vigorously disputed the valuation of Thomass interest in his law firm, the parties reached a memorandum of agreement that resolved most of their marital issues.

The trial court incorporated the agreement and entered judgment accordingly. Monique received the family home with approximately $853,862 in equity (assuming all debts and encumbrances), all furnishings therein, all personal property in her possession, a car, life insurance in her name, a $100,000 share of an annuity, and 50 percent of Thomass 401(k) and Keogh plans. The settlement provided for child support of $1,374 per month plus approximately 9.5 percent of Thomass future pot splits. The settlement did not provide for spousal support because the agreement reflected Thomass buy-out of his support obligation. Monique assumed a preexisting community debt of $100,000 to her mother. Thomas received the entire community interest in his law firm, the furnishings and personal property in his possession, a wine collection, a country club membership, a $173,849 share of the annuity, 50 percent of his 401(k) and Keogh plans, and a $52,500 equalization payment from Monique. The $52,500 equalization payment was offered by Monique in the settlement discussions as a counter to the approximately $176,374 proposed by Thomas. The family home that Monique received was security for a line of credit that Thomas asserted had $170,000 still available as a draw.

In the proceedings to determine attorney fees and costs, the parties waived oral argument and a statement of decision. Monique sought attorney fees and costs of $34,343 under section 2030. Monique asserted the fee award was just because she borrowed money from her mother to pay her attorney fees. Moniques attorney stated that Monique paid $25,201.07 of legal fees out of her spousal support payments. Later, Moniques attorney concurred that Monique had to borrow the money from her mother. Thomas sought attorney fees and costs of $23,932 under sections 2030 and 271.

The trial court denied both parties requests for attorney fees and costs under section 2030. In denying Monique attorney fees and costs, the trial court stated that it considered the statutory factors, including the parties respective incomes, needs, and the other facts set forth in the declarations of the parties and their counsel regarding ability to pay. The trial court awarded Thomas $4,000 as a sanction under section 271. The trial court entered judgment on attorney fees and costs on March 7, 2008. Monique timely appeals the denial of her request for attorney fees and costs pursuant to section 2030. She does not appeal the decision to award sanctions to Thomas under section 271.

DISCUSSION

I. Attorney Fees and Costs Under Section 2030

Section 2030, subdivision (a)(1) provides that a trial court may order a private party litigant to pay another partys attorney fees and costs incurred in a marital dissolution proceeding in order to ensure that each party has access to legal representation. . . . In making such an award, the trial court should determine that the charged party has an ability to pay and should consider the respective needs and incomes of the parties. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768 [discussing former Civ. Code,  4370]; see  2030, subd. (b).) The burden is on the applicant to show need for an award of attorney fees and costs. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824.) The trial court may consider all of the evidence of the parties income, assets, and abilities in assessing an ability to pay. (In re Marriage of Sullivan, supra, at p. 768.) An award of attorney fees and costs may be in an amount that is just and reasonable under the relative circumstances of the respective parties. ( 2032, subd. (a).) To determine what is just and reasonable, the trial court may consider factors, to the extent relevant, enumerated in section 4320 that governs consideration of spousal support. ( 2032, subd. (b).) Among these factors are a partys earning capacity, marketable skills, obligations and assets, age and health, ability to engage in gainful employment, and any other factors the court determines are just and equitable. ( 4320, subd. (n).) A partys ability to pay its own attorney fees and costs is a factor to be considered, but does not bar the court from awarding a part of the attorney fees and costs. ( 2032, subd. (b).) Income disparity is a relevant consideration, but is not dispositive for granting attorney fees and costs. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1516, 1520-1523.)

II. Standard of Review

An award of attorney fees and costs in a dissolution proceeding is within the discretion of the trial court. (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768.) We will disturb the trial courts determination only if there is a showing of an abuse of discretion. (Id. at p. 769.) Accordingly,  [T]he trial courts order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.  (Ibid., quoting In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296.)

When, as here, a party waives a statement of decision, we will presume that the trial court made necessary findings to support its decision. (In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1219; In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1159; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130.)We will search the trial record for substantial evidence that can support such implied findings. (In re Marriage of Sabine & Toshio M., supra, at p. 1219.)Accordingly, the trial courts order will be overturned only if there is no substantial evidence in the record that can support the trial courts decision.

III. The Record is Sufficient to Support the Trial Courts Judgment Denying Attorney Fees and Costs

Monique asserts that the trial court abused its discretion because it did not consider the disparity in income between her and Thomas. But income disparity alone is not dispositive of whether to award attorney fees and costs under section 2030. (In re Marriage of Huntington, supra, 10 Cal.App.4th at pp. 1516, 1520-1523 [affirming denial of attorney fees and costs where appellant had zero income and essentially zero assets and respondent had $500,000 per year income and $15 million in assets].) As we have discussed and as Monique must recognize in citing Huntington, the relative income of the parties is but only one factor that a court may consider. Other factors include such things as earnings capabilities, ability to work, assets, and other just and equitable considerations. ( 2030, 2032, 4320.) The trial courts judgment states that it considered the statutory factors, including the parties respective incomes, needs, and the other facts set forth in the declarations of the parties and their counsel regarding ability to pay. Monique contends, in spite of this recitation, it is obvious the court did not consider the statutory factors. We will not disregard the trial courts statement to the contrary. Even absent the trial courts recitation, because Monique waived a statement of decision, we presume that the trial court made the requisite findings. (In re Marriage of Sabine & Toshio M., supra, 153 Cal.App.4th at p. 1219; In re Marriage of Dancy, supra, 82 Cal.App.4th at p. 1159.) Thus, if there is substantial evidence in the record that can support the judgment, we must uphold the trial court.

Here, there was evidence that Monique had an earning capacity sufficient to pay her own attorney fees and costs. Earning capacity is one statutory factor that can properly be considered in a section 2030 application for an award of attorney fees. ( 2030, 2032, 4320.) The court-appointed vocational expert reported that Monique had an ability to earn $65,000-$75,000 per year. Monique had an MBA degree from the University of California, Berkeley. She previously worked half time as a financial controller and earned $35 per hour. Her previous earnings rate would translate into a full-time equivalent annual salary of $72,800, which is within the range reported by the vocational expert. The experts testimony and Moniques credentials were sufficient to allow the court to find that Monique had sufficient earning capacity to pay her own attorney fees.

Monique claims that earning capacity and ability were insufficient considerations here because she had no opportunity to work. She claims that she was unable to find work. Monique admitted spending on average at most five hours per week looking for a job. Based on this testimony, the trial court found that Moniques efforts to find employment were unreasonable and inadequate.

The trial court could also have found that Monique could have and did pay her attorney fees and costs from the support payments she received from Thomas. For nine months Thomas paid Monique roughly double the approximately $5,000 per month guideline of spousal and child support that he was later required to pay pendente lite based on his income. The trial court could have found that the payments resulted in an approximate $45,000 windfall for Monique from which she should have paid her attorney fees and costs. The trial court could have found in effect that Thomas provided Monique sufficient funds for attorney fees and costs. The record also contains contradictory statements from Monique and her attorney concerning whether Monique had to borrow money to pay all of her attorney fees and costs or whether she paid a significant amount from her spousal support payments.

Moreover, the trial court could have found that the dissolution settlement compensated Monique adequately for her attorney fees and costs. The trial courts appointed expert valued the community interest in Thomass law practice at $30,000 to $60,000. Monique stated that her settlement counter-offer, reducing her equalization payment to $52,500, implicitly valued the community interest in the law practice at $150,000 to $200,000. The reduced equalization payment was adopted in the dissolution order. The adopted settlement does not appear to differ substantially from Moniques proposed offer. The trial court could have found that under the settlement, Monique was generously compensated $90,000 to $170,000 above what the court could have ordered.

Other evidence in the record that can support implied findings to support the trial courts judgment are the equity (accessible in part through an existing line of credit) in the family home that Monique received in settlement, and the value of Moniques settlement share of the annuity and possibly of the retirement plans.[4] The evidence and implied findings support the trial courts judgment.

Monique cites In re Marriage of Green (1992) 6 Cal.App.4th 584, 593 for the proposition that the trial court had a duty to award attorney fees and costs considering the circumstances of the parties. The duty language in Green should be understood in context. The court in Green was speaking broadly about the trial courts duty under former Civil Code section 4370 to consider a fee request on the merits whether pendent lite or at the end of the case, and to make fee awards considering the circumstances of the parties. (In re Marriage of Green, supra, at p. 593.)

Monique contends that the trial court must consider the award of sanctions under section 271 and her request for fees and costs under section 2030 as separate and distinct matters. Thus, she seems to contend that a denial of attorney fees and costs under section 2030 would be improper if the court allowed a sanction under section 271 to influence its decision. Monique does not cite any authority to support her contention.[5] The trial court sanctioned Monique under section 271 for making unreasonable custody and support demands, threatening to default on a financial obligation, her refusal to cooperate with her vocational evaluation, and her unreasonable and inadequate job search. The trial court found that these tactics frustrated the public policy to promote settlement, exhibited a lack of cooperation, and represented frivolous and unnecessarily extreme positions, thus justifying the section 271 sanction. As we have discussed, there was evidence, independent of Moniques sanctionable conduct, to support the trial courts judgment to deny her fees under section 2030. The trial court could have considered that Monique was overcompensated when Thomas voluntarily paid nine months of pendent lite support; or the trial court could have considered that Monique was generously compensated under the settlement. We decline to infer that the trial court was prejudiced against Monique because of its award of sanctions against her under section 271, and denied her fees for that reason. There is nothing in the record that supports a conclusion that the trial court punished Monique twice for the same conduct, i.e., under both sections 271 and 2030.[6]

Monique also argues it is crucial that the trial court did not impute the vocational experts suggested earnings capacity to Monique as income. But it was unnecessary for the court to impute income to Monique because the judgment adopted the parties settlement agreement. Monique cites no authority to support a requirement that income be imputed for a court to consider earnings capacity when the court considers whether to award fees and costs under section 2030.

Monique concludes that the trial courts decision did not consider the  financial circumstances of the parties, including their respective income, assets and liability[ies].  But the trial court said just the opposite, and the record contains evidence that supports the trial courts decision.

DISPOSITION

There is substantial evidence in the record in support of the trial courts judgment. We find that there was no abuse of discretion. The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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[1] To avoid confusion, we will refer to the parties by their first names. We mean no disrespect.

[2] All further statutory references are to the Family Code unless otherwise indicated.

[3] The vocational evaluators report does not appear in the clerks transcript.

[4] We need not speculate on the liquidity or illiquidity of the retirement plans here, in light of the other evidence that can support the trial courts judgment.

[5] In In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1157, the Second District Court of Appeal reasoned that a court may consider trial tactics (normally a matter for sanctions) in a section 2030 award. The court in Drake did not order a sanction under section 271, although one was requested.

[6] We have previously mentioned Moniques unreasonable and inadequate job search as a factor that the trial court could have also considered under section 2030. The trial court could have considered it as an equitable factor under section 2030 while having found it sanctionable conduct under section 271. Whether a denial of fees and costs under section 2030 under such circumstances would be improper is an issue we need not reach because there are sufficient alternate plausible findings and evidence to support the judgment, and we should properly look to those when a statement of decision has been waived. We also do not decide here whether a trial court, having found sanctionable conduct, could properly partition the damages arising from such conduct between a sanction under section 271 and a denial of attorney fees and costs under section 2030.