Marriage of Loveman
Filed 6/25/13 Marriage of Loveman CA2/6
Opinion following
rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of MAUREEN
and STEPHEN LOVEMAN.
2d Civil No. B237481
(Super. Ct. No. SD037831)
(Ventura County)
ON REHEARING
MAUREEN LOVEMAN,
Petitioner and Respondent,
v.
STEPHEN LOVEMAN,
Respondent and Appellant.
Stephen
Loveman, proceeding in propria persona,
appeals from (1) a postjudgment order setting permanent spousal support at
$3,000 per month, (2) an order denying his request to set aside the support
order, and (3) an order requiring him to pay the reasonable attorney fees of
his former wife, respondent Maureen Loveman.
We affirm the first and second orders and reverse the third order.
The parties
married in June 1986 and separated in August 2008. They have two adult daughters.
In March
2009 a judgment of dissolution was
entered pursuant to the stipulation of the parties. Appellant agreed to transfer to respondent
$111,250 from his share of a thrift savings plan. Respondent agreed to transfer to appellant
her interest in the family residence and waive spousal support for two
years. Beginning on April
1, 2011,
appellant agreed to pay respondent monthly spousal support of $3,000. This amount was calculated by using the
DissoMaster program.
name="_ftnref1" title="">[1] The exact DissoMaster support figure was
$3,132.
In June 2011
appellant filed an order to show cause for modification of spousal
support. In a supporting declaration,
appellant stated that his "financial situation has deteriorated"
because he "spent over $45,000 to support [his] two daughters in
college." In January 2011 he
withdrew $55,800 from his thrift savings plan.
He used this money to pay "off some of the credit cards that [he
had] used to finance [his] daughters' college expenses." Because of his "current tax situation,
including an early withdrawal penalty, [he] will owe an additional $21,000.00
in taxes . . . ."
Appellant attached an Income and
Expense Declaration showing that his average monthly gross income was $9,838
with deductions of $546 for health insurance premiums and required retirement
payments. His average monthly estimated
expenses were $9,689, including non-mortgage debt payments of $3,834. His total non-mortgage debt was $72,796. He had deposit accounts of $14,000, other
liquid assets of $12,000, and $5,000 equity in his residence. His two adult daughters were living with him,
but they were not paying any of the household expenses.
Respondent
filed opposition to the request for modification of spousal support. Respondent declared that she was 52 years
old, that she had not worked since 1982, that she had "actively sought
employment to no avail," and that she was "living at [her] parent's
house because [she did] not have an income." Respondent filed an Income and Expense
Declaration showing that she had no income and that her average monthly
estimated expenses were $3,170, including rent of $1,500. Her only assets were $30,000 in deposit
accounts. She had no debt.
On July 20, 2011, the trial court conducted a
hearing on the request to modify spousal support. The court considered the request to be a
motion to set permanent spousal support pursuant to paragraph 4.7 of the
stipulated judgment of dissolution.
Paragraph 4.7 provided: "The Parties stipulate and agree that the
Court shall retain jurisdiction to establish a permanent spousal support order
and for the court to consider all factors as enumerated in Family Code
§ 4320. . . . At any time, either
Party may file an OSC [order to show cause] or a Request for Trial Setting to
establish and/or challenge the amount and duration of spousal support."
"this is a de novo proceeding today" and "there is no obligation
to show a change of circumstances in order to . . . adjudicate spousal support
based upon all the factors contained in Family Code section 4320."
The court orally denied appellant's
request to modify spousal support. It set
permanent spousal support at $3,000 per month.
The court stated: "[H]aving
considered the [section] 4320 factors to the extent that such evidence has been
presented, I find that $3,000 a month is a perfectly satisfactory spousal
support order . . . ." Neither
party requested a statement of decision nor asked the court to specify the
section 4320 factors that it had considered.
A written spousal support order was filed in August 2011.
Appellant moved for a new
trial. In October 2011 the court denied
the motion and made additional written findings concerning its ruling on
July 20, 2011. The court found, inter alia, "that the parties
had achieved a middle standard of living at the time of separation." The court also found that respondent "is
living with her parents and paying them rent." The court concluded that appellant's
"continuing contributions to the support of the parties' adult children is
not a factor the court can consider."
In February 2012 the trial court
orally ordered appellant to pay respondent's attorney fees of $10,000. A written order was filed in March 2012. In the written order the court found that
appellant "has the ability to pay the sums awarded and that [respondent]
has the requisite need to warrant this order."
On June 7,
2012, the trial court filed a written order entitled: "Statement of Decision and Ruling on
[Appellant's] Request to Set Aside the Support Order of July 20, 2011, Pursuant
to Family Code Section 3691." (Bold
and some capitalization omitted.) In its
statement of decision, the court noted that the request had been filed on
August 19, 2011. The request, however,
is not included in the record on appeal.
actual fraud and perjury by stating in her Income and Expense Declaration that
she was paying monthly rent of $1,500. In fact, respondent "was then living
rent-free with her parents."
request to set aside the support order.
The court concluded that respondent's "misrepresentation of her
actual expenses did not materially affect the court's order of July 20,
2011."
Appellant's
47-page opening brief fails to comply
with the rules of appellate procedure. â€
'A judgment or order of the lower court is presumed
correct. All intendments and
presumptions are indulged to support it on matters as to which the record is
silent, and error must be affirmatively shown.' " (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) "To demonstrate error, appellant must
present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error. [Citations.]" (In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
"When an issue is unsupported by pertinent or cognizable
abandoned and discussion by the reviewing court is unnecessary. [Citations.]" (Landry
v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; see
also Gunn v. Mariners Church, Inc. (2008)
167 Cal.App.4th 206, 217-218 [" 'an appellant must present a factual
authority on each point made or the argument may be deemed waived' "]).
Many of appellant's arguments are not
supported by meaningful legal and factual analysis with record references.
An example is argument E.1 at pages 32-33 of appellant's opening
brief. In this argument appellant
accuses the trial court of being "a conduit for corruption" because
it granted respondent's request for attorney fees based on her counsel's
"perjurious statements," even though appellant had "brought this
perjurious conduct to the court's attention in his 10/11/2011 Response
declaration."
title="">[6]
The California Rules of Court require
that a brief "[s]tate each point under a separate heading or subheading
summarizing the point . . . ."
(Rule 8.204(a)(1)(B).) "This
is not a mere technical requirement; it is 'designed to lighten the labors of
the appellate tribunals by requiring the litigants to present their cause
systematically and so arranged that those upon whom the duty devolves of
ascertaining the rule of law to apply may be advised, as they read, of the
exact question under consideration, instead of being compelled to extricate it
from the mass.' [Citations.]" (In re
S.C., supra, 138 Cal.App.4th at
p. 408.) "The failure to head an
argument as required by California Rules of Court, rule [8.204(a)(1)(B)]
constitutes a waiver.
[Citations.]" (
(1995) 34 Cal.App.4th 1826, 1830, fn. 4)
Many of appellant's arguments are not
presented under a separate heading. For
example, argument B. on page 23 is headed, "July 20, 2011 Attorney Misconduct
and the Court's Reliance on it."
(Bold omitted.) But in the first
paragraph of the argument, appellant contends that the trial court erroneously
"failed to make a finding as to the parties' marital standard of living .
. . as required under [§] 4332 and simply granted [respondent's] request [for
monthly spousal support]." In the
second paragraph, appellant contends that "the court made its ruling
without considering Appellant's lack of funds available due to his monthly
expenses and $40,000 in debts including debts to the IRS and Franchise Tax
Board, violating paragraph 4.7 of the parties' stipulated agreement, and the
mandatory factors contained in [§] 4320." These contentions have nothing to do with
attorney misconduct.
That appellant is proceeding in
propria persona is no excuse for his failure to comply with the rules of
appellate procedure.
name="_ftnref7" title="">[7] "When a litigant is appearing in propria
persona, he is entitled to the same, but no greater, consideration than other
litigants and attorneys [citations].
Further, the in propria persona litigant is held to the same restrictiv
attorney [citation]." (Nelson
v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.)
We consider only those arguments that
are properly presented under a separate heading summarizing the point to be
made in the argument. In addition, we
consider only those arguments supported by meaningful factual and legal
analysis with pertinent citations to the record and legal authority. All other arguments are waived.
Appellant's cognizable arguments are
threefold.
First Argument
The first cognizable argument is that
the trial court abused its discretion on July 20, 2011, when it set permanent
spousal support at $3,000 per month.
"Permanent spousal support 'is governed by the statutory scheme set
forth in sections 4300 through 4360.
Section 4330 authorizes the trial court to order a party to pay spousal
support in an amount, and for a period of time, that the court determines is
just and reasonable, based on the standard of living established during the
marriage, taking into consideration the circumstances set forth in section
4320.' [Citations.] The statutory factors include the supporting
spouse's ability to pay; the needs of each spouse based on the marital standard
of living; the obligations and assets of each spouse, including separate
property; and any other factors pertinent to a just and equitable award. (§ 4320, subds. (c)-(e), (n).) 'The trial court has broad
applicable statutory factors and determining the appropriate weight to accord
to each, but it may not be arbitrary and must both recognize and apply each
applicable factor.'
[Citation.]" (
Cal.App.4th 1438, 1442-1443.) " '
"Because trial courts have such broad discretion, appellate courts must
act with cautious judicial restraint in reviewing [spousal support]
orders." [Citation.]' [Citation.]" (In re
Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096.)
"[W]e review
spousal support orders under the
deferential
abuse of discretion standard. [Citation.]" (In re
Marriage of Blazer, supra, 176
Cal.App.4th at p. 1443.)
" 'A trial court's exercise of discretion will not be
disturbed on appeal unless, as a matter of law, an abuse of discretion
is shown—i.e., where, considering all the relevant circumstances, the court has
"exceeded the bounds of reason" or it can "fairly be said"
that no judge would reasonably make the same order under the same
circumstances. [Citations.]' [Citation.]" (In re
Marriage of Smith (1990) 225 Cal.App.3d 469, 480.)
" 'To the extent that a trial court's exercise of
discretion is based on the facts of the case, it will be upheld "as long
as its determination is within the range of the evidence presented."
' [Citation.]" (In re
Marriage of Blazer, supra, 176
Cal.App.4th at p. 1443.) Appellant does
not fully appreciate the fair import of these traditional rules of appellate
review. (See e.g., In re Gilkison (1968) 65 Cal.4th 1443, 1448-1449.)
The trial court did not abuse its
discretion. Appellant's income and
expense declaration showed that his average monthly gross income was $9,838
with deductions of $546 for health insurance premiums and required retirement
payments. Although his average monthly
estimated expenses ($9,689) exceeded his gross monthly income after the
deductions ($9,292), these expenses included non-mortgage debt payments of
$3,834. "The obligation to provide
for the wife is not subordinate to [debts] owed other persons." (Rosenthal
v. Rosenthal (1961) 197 Cal.App.2d 289, 298.) Furthermore, a substantial portion of
appellant's non-mortgage debt payments was attributable to expenditures he had
made for his adult daughters' college education. In addition, appellant was subsidizing his
daughters' living expenses. His Income
and Expense Declaration showed that they were living with him, but were not
paying any of the household expenses.
Neither party had a legal obligation to support the adult daughters or
fund their college education. (
Cal.App.4th 482, 489, 491.) It would be
improper to allow "a reduction in what a supporting spouse pays because
that spouse has voluntarily undertaken a duty that the supported spouse has no
obligation to fund." (
Unlike appellant, respondent was
unemployed and had no income. Her Income
and Expense declaration showed monthly estimated expenses of $3,170. In these circumstances, the trial court did
not exceed the bounds of reason in setting permanent support at $3,000 per
month.
Nevertheless, appellant argues that
the trial judge abused his discretion because he "failed to state with
particularity any of the [section 4320] factors he considered in the July 20,
2011 hearing. He simply stated that he
had considered the factors, but failed to delineate which factors, or the
respective weight of each factor."
Section 4320 provides that the court "shall consider all" of
the factors "[i]n ordering spousal support." The statute does not require express findings
on each factor.
title="">[8]
If appellant
wanted an explicit analysis of each of the applicable section 4320 factors, he
should have requested a statement of decision (Code Civ. Proc., § 632) at
the hearing on July 20, 2011. (See
Cal.App.3d 1260, 1274; In re Marriage of
Reilley (1987) 196 Cal.App.3d 1119, 1125-1126 [judgment of dissolution
reversed because trial court failed to render a timely requested statement of
decision on issues of child and spousal support].) If the statement of decision had omitted
applicable factors, appellant would have been required to bring the deficiency
to the court's attention to avoid a waiver.
(In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133-1134; In re
Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) But appellant did not request a statement of
decision. "In reviewing a judgment
without a statement of decision the appellate court indulges every intendment
in favor of the judgment, and assumes the trial court found every essential
fact to support the judgment." (
Cal.App.3d 505, 515.) We therefore
assume that the trial court did what it said it had done: that it had properly
"considered the Family Code § 4320 factors."
the appellate court reversed an award of spousal support because "the
record provide[d] inadequate grounds to accord the usual deference to the
[trial] court's exercise of discretion in making the award of spousal
support." (Id., at p. 1299.) The
appellate court noted that "[o]ther than the [trial] court's general
assertion the factors listed in section 4320 favored an award of spousal
support to [wife] the record provides no insight into how the court weighed the
statutory factors and thus how it exercised its discretion." (Id.,
at p. 1297.) The appellate court
also noted that "the evidence presented in this case raises some question
whether the [trial] court in fact weighed or even gave due consideration to the
statutory factors." (
Unlike the instant case, in
statement of decision. "It is the
statement of decision which allows the court to place upon the record
its view of facts and law of the case.
[Citation.] A failure to request
a Code of Civil Procedure section 632 statement results in a waiver of such
findings; [appellant] cannot now be heard to complain. [Citation.]" (In re
Marriage of Ditto (1988) 206 Cal.App.3d 643, 647.)
Moreover, in contrast to
not indicate that the trial court failed to weigh or give due consideration to
the statutory factors. In its statement
of additional findings filed on October 25, 2011, the trial court expressly
considered several section 4320 factors, including the age and health of the
parties, their hardships, the duration of the marriage, the needs of each party
based on the marital standard of living, and the earning capacity of each
party. The court stated: "The
determination of this issue [permanent spousal support] calls for a
consideration of all of the circumstances or factors set forth in Family Code
section[] 4320 . . . ."
Second Argument
Appellant's second cognizable
argument is that the trial court erroneously denied his request to set aside
the support order of July 20, 2011, pursuant to section 3691. Again we review the denial for abuse of
discretion. (See In re Marriage of King (2000) 80 Cal.App.4th 92, 118.)
Appellant's request is not included
in the record on appeal. Its omission
precludes meaningful review. "It
was [appellant's] burden . . . to present an adequate record for review. [Citation.]
Having failed to do so, the [order denying his request] must be
affirmed. [Citation.]" (Oliveira
v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
In any event, based on the record
before us, the trial court did not abuse its discretion in denying appellant's
request to set aside the support order of July 20, 2011. Section 3691 provides that the grounds for
setting aside such an order are actual fraud, perjury, or lack of notice. The court found that respondent had committed
actual fraud and perjury by stating in her Income and Expense Declaration that
she was paying monthly rent of $1,500 when she was actually "living
rent-free with her parents." But a
finding of actual fraud or perjury is not alone sufficient to warrant the
setting aside of a support order under section 3691. "[B]efore granting relief, the court
[must] find that the facts alleged as the grounds for relief materially
affected the original order."
(§ 3690, subd. (b).)
"[A] support order may not be set aside simply because the court
finds that it was inequitable when made, nor simply because subsequent
circumstances caused the support ordered to become excessive or
inadequate." (§ 3692.)
The trial court found that
respondent's misrepresentation of her rental expense "did not materially
affect [its] order of July 20, 2011."
Appellant has not shown that this finding exceeded the bounds of reason
so as to constitute an abuse of discretion.
He cites no authority requiring that spousal support not exceed the
supported spouse's actual expenses. In
setting spousal support, one of the factors to be considered is "[t]he
needs of each party based on the standard of living established during the
marriage." (§ 4320, subd.
(d).) The trial court determined that
respondent's needs based on the marital standard of living exceeded her monthly
expenses of $1,670 (expenses of $3,170 on the Income and Expense Declaration
less rental expense of $1,500).
name="_ftnref9" title="">[9] The court also impliedly determined that
respondent should not be penalized for living frugally. The court reasoned: "Where, as here, the
supported spouse has no income, largely as a result of the devotion of time to
domestic duties in a marriage of long duration, and the income of the
supporting spouse is insufficient to permit both parties to live at the marital
standard of living, the court's primary task is 'to fairly allocate the funds
that [are] available.'
[Citations.]" The court
concluded that, in view of the parties' middle standard of living and
appellant's gross monthly income of $9,838, monthly spousal support of $3,000
was a fair allocation of the available funds.
The court noted that it had considered "the 'expenses' of both
parties . . . in the context of the 'needs of each party based upon the marital
standard of living.'
[Citation.]"
Third Argument
Appellant's third cognizable argument
is that the trial court abused its discretion in ordering him to pay
respondent's attorney fees of $10,000 at a rate of $850 per month beginning
March 1, 2012. The order was made
pursuant to sections 2030 and 2032.
Pursuant to "sections 2030 and
2032, the trial court [has discretion] to award fees and costs between the
parties based on their relative circumstances in order to ensure parity of
legal representation in the action. It is entitled to take into consideration the
need for the award to enable each party to have sufficient financial resources
to present his or her case adequately."
(In re Marriage of Falcone and
Fyke (2012) 203 Cal.App.4th 964, 974-975, fn. omitted.) The rules attendant to abuse of discretion
are well known and need not be repeated.
(Estate of Gilkison (1998) 65
Cal.App.4th 1445, 1448-1450.)
We consider appellant's last Income
and Expense Declaration filed in January 2012.
Appellant had deposit accounts of $200, liquid assets of $3,000, and
$5,000 equity in his residence. He
continued to have gross monthly earnings of $9,838. His monthly expenses had increased to
$12,418. This was because his monthly
non-mortgage debt payments had increased 63 percent to $6,258, compared to $3,834
in June 2011. Another person (apparently
his eldest daughter) had paid $500 of appellant's monthly expenses, reducing
them to $11,918. Disregarding, for
purposes of discussion, appellant's monthly non-mortgage debt payments, his
monthly unreimbursed expenses (living expenses) were $5,660 ($11,918 - $6,258 =
$5,660). In addition to these expenses,
he was required to pay monthly spousal support of $3,000, increasing his
expenses to $8,660, only $1,178 less than his gross monthly earnings of
$9,838.
Appellant's January 2012 Income and Expense
Declaration includes a statement of earnings from his employer for the
four-week period from November 20, 2011, through December 17, 2011. Appellant's gross income for this period was
$9,083. His total deductions, excluding
deductions of $1,659 for spousal support and $454 for contributions to a Thrift
Savings Plan (TSP), were $5,933.
name="_ftnref10" title="">[10] With these exclusions, appellant's take-home
pay was only $3,150.
From his take-home pay of $3,150,
appellant was expected to pay more than $8,000 in living expenses and spousal
support. Living expenses and spousal
support are relevant factors in apportioning attorney fees. (Alan
S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 253;
Cal.App.4th 860, 867-868.) With only
$200 in the bank and $3,000 in liquid assets, appellant had to rely on his
take-home pay. Moreover, appellant owed
$4,200 for services provided by his former attorney, and his credit card debt
of $47,500 included payments of $12,000 that he had already made to his
attorney.
title="">[11] "[T]he record does not sufficiently
reflect . . . any consideration of
[appellant's] needs to pay his own outstanding legal fees . . .
. Yet the court in making the order was
required to 'take into consideration the need for the award to enable each
party, to the extent practical, to have sufficient financial resources to
present the party's case adequately.' (§
2032, subd. (b).)" (
Cal.App.4th 860, 868.)
When the trial court ruled on the
motion for attorney fees, respondent's last Income and Expense Declaration had
been filed on September 29, 2011. In
that declaration, respondent continued to show expenses of $3,170, including
rent of $1,500. The trial court had not
yet found that respondent had inflated her expenses. But respondent's declaration showed that she
had cash and deposit accounts of $30,000 and an IRA of $130,000. She had no debt. In view of the $3,000 monthly spousal support
order, her financial situation was far superior to appellant's.
Accordingly, we conclude that the trial
court's fee order "exceeds the bounds of reason." (Estate
of Gilkison, supra, 65 Cal.App.4th at p. 1449; see also
Cal.App.4th 1039, 1055 ["The family court is guided by section 2032, which
provides that an award may be made when the award and amount are 'just and
reasonable under the relative circumstances of the respective parties'
"].) Although the trial court found
that appellant "has the ability to pay the sums awarded," that
finding is not supported by the evidence.
The order
requiring appellant to pay respondent's attorney fees of $10,000 is
reversed. The other orders appealed from
are affirmed. The parties shall bear
their own costs on appeal.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
John
W. Smiley, Judge
Superior
Court County of Ventura
______________________________
Stephen Loveman, in pro
per, Respondent and Appellant.
Diane L. Rowley, for
Respondent and Petitioner.
title="">[1] The DissoMaster program is "a privately
developed computer program which was intended to be used to calculate temporary
support." (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 522.)
name="_ftn2" title="">[2] Unless otherwise stated, all statutory references are
to the Family Code.
