Filed 7/11/17 Marriage of Maximova and Maximov CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


In re the Marriage of LIDIA MAXIMOVA and STANISLAV MAXIMOV.
H042593
(Santa Clara County
Super. Ct. No. 6-13-FL011440)

LIDIA MAXIMOVA,

Respondent,

v.

STANISLAV MAXIMOV,

Appellant.


Appellant Stanislav Maximov appeals from a judgment awarding child support, spousal support, and attorney’s fees to respondent Lidia Maximova. Appellant contends that the trial court erred when it calculated support by: (1) treating reinvested stock proceeds as income for temporary support; and (2) weighing impermissible factors in setting permanent spousal support. He also contends that the trial court abused its discretion when it awarded attorney’s fees to respondent. The judgment is affirmed.



I. Procedural and Factual Background
The parties were married on July 15, 1993, and immigrated from Russia to the United States in 1999. They were separated on July 28, 2013. They have two children. At the time of trial, their son was 18 years old and their daughter was 12 years old. In October 2014, their son began attending a university. Respondent paid for his tuition and living expenses. According to respondent, “[i]t was always expectation that parents are going to support children through the college complete,” because their parents had supported them through college. Appellant did not recall whether he and respondent discussed the costs of sending their children to college prior to separation.
Appellant was employed during the marriage. In 2010, his base salary was $140,000 per year. He also received an RSU grant which paid him $30,000 per year for four years. In 2013, he began working at Sentons where he earned $12,500 per month. He received a starting bonus of $10,000 in 2013, but he did not receive a bonus in 2014.
Respondent worked as an accountant in Russia for three years before their son was born. She took English classes from 2000 to 2002. She also took accounting classes from 2007 to 2009 and received a certificate in accounting. In 2010, appellant attended a computer school and obtained a certificate in quality assurance. She had an unpaid internship from fall 2010 through 2011. Respondent began working at Hewlett Packard as a contract employee in January 2012 and made $58,000 per year. In November 2013, she began working full time as a quality assurance engineer. Her base salary was $5,834 per month. In 2014, she received a bonus of approximately $8,500.
During the marriage, appellant pushed respondent several times and threw bottles, shoes, food, and a remote controller at her. He also threw items at their children. Appellant was verbally abusive to respondent while their children were present. He also called their children demeaning names. In March 2011, appellant hit their son with a closed fist and he fell to the floor. Appellant also hit their son on other occasions. Respondent described an incident in September 2013. After appellant pushed her, grabbed her, and started to shake her, their son called the police.
Respondent petitioned for dissolution of marriage in November 2013. In April 2014, the trial court made an order for temporary support and the parties agreed upon the division of their property.
In June 2014, appellant sold Broadcom stock held in a Merrill Lynch brokerage account for $56,747.50, which included a capital gain of $14,778.05. In November 2014, appellant transferred funds from the Merrill Lynch account to another account.
In November 2014, respondent filed a motion to modify support and for attorney’s fees. Following trial in March 2015, the trial court issued a statement of decision. In June 2015, the judgment, which incorporated the statement of decision, was filed. It provided, in relevant part, that respondent pay: (1) $6,873 as retroactive temporary spousal and child support related to the proceeds from the sale of the Broadcom stock; (2) $1,500 in permanent monthly spousal support; and (3) $40,000 in need-based attorney’s fees.

II. Discussion
A. Temporary Support
Appellant contends that the trial court erroneously included reinvested capital gains from stock proceeds as income available for temporary support.
On June 16, 2014, appellant sold shares of Broadcom stock held in his Merrill Lynch account for $56,747.50, which included a recognized capital gain of $14,778.05. The Merrill Lynch account held only Broadcom stock and about $1,430 in cash. As of June 30, 2014, the cash balance in the account was $58,401.13. On July 31, 2014, the cash balance was $58,401.13. At the end of August 2014, the cash balance was still $58,401.13. There is no Merrill Lynch statement for September 2014. The cash balance was $58,449.02 on November 1, 2014. On November 3, 2014, appellant’s TradeKing account, which had a prior balance of $0, received a wire funds transfer of $58,441.52 from the Merrill Lynch account. Nine days later, appellant bought shares of Vanguard funds for $41,366.95. The remaining cash balance after this transaction was $17,074.57. In December 2014, appellant used the same TradeKing account to purchase additional Vanguard shares for $15,810.95.
Appellant testified that he sold and reinvested all of the Broadcom stock except for $1,000 and that he had not withdrawn any proceeds from the sale for expenses or personal use. According to appellant, the delay in reinvesting the proceeds was due to the demands of preparing for trial and finding replacement investment funds and a new brokerage. Appellant did not report the sale of his Broadcom stock on his income and expense declarations of September 19 and October 20, 2014.
The trial court found: “There is insufficient credible evidence that Husband sold the stock and reinvested it and that this should exempt the dividends and capital gains from being considered income for support. [¶] The evidence is that Husband sold Broadcom stock on June 19, 2014, for $56,747, of which $14,778 were long term capital gains. He also received $543 and $793 in dividends in 2014. These figures were not disclosed to Wife in the Schedules of Assets and Debts. Husband contends that he reinvested the gains in other stock and that the gains should, therefore, be excluded from child support guideline consideration. [¶] To support his position, Husband submitted documents that show the sale of the stock on June 19, 2014, the transfer of $58,442 to another account on November 3, 2014, and other stocks purchased in November and December, 2014. There is no evidence of what became of the proceeds in the five (5) months between the sale of the stock and the transfer of cash in November. There is inadequate evidence to show a direct tracing of the sales proceeds into the purchase of the new stock. [¶] Even if there were sufficient evidence to show the stock sale proceeds were reinvested in other stock, this would not prohibit the Court from counting the capital gains and dividends as income for support. These are taxable income items and are available income for support.”
In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361 (Pearlstein) is instructive. In Pearlstein, the reviewing court recognized that a supporting party’s assets may be relevant in determining income for support purposes. (Id. at p. 1373.) “For example, where the supporting party has chosen to invest his or her funds in non-income-producing assets, the trial court has discretion to impute income to those assets based on an assumed reasonable rate of return. [Citations.]” (Id. at pp. 1373-1374.) The court also concluded that the market value of unsold shares of stock, which the appellant received for the sale of his business, was not considered income in calculating child support. (Id. at p. 1375.) The court further stated: “[T]o the extent that [the appellant] sold the shares only for the purpose of reinvesting them in income-producing assets, the resulting gain also was not income, but merely the replacement of one capital investment with another. [Citation.] [¶] On the other hand, to the extent [the appellant] sold the shares and spent the proceeds, as opposed to reinvesting them, the trial court had discretion to treat the realized gain as income. Additionally, in the court’s discretion, a reasonable rate of investment return could be imputed to the value of the stock that was available for sale, and that amount added to [the appellant’s] gross income . . . .” (Id. at pp. 1375-1376.)
Respondent concedes that reinvested capital assets are not income which is available for support. She argues that there was no error under Pearlstein in connection with the sale of the Broadcom stock, because the trial court found that there was insufficient evidence that appellant reinvested the proceeds.
“ ‘In general, in reviewing a judgment based upon a statement of decision following a bench trial, “any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]” [Citation.] In a substantial evidence challenge to a judgment, the appellate court will “consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]” [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]’ [Citation.]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765.) We defer to the trial court’s factual findings “because those courts generally are in a better position to evaluate and weigh the evidence. [Citation.]” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 385.)
In the present case, the documentary evidence to support appellant’s position was incomplete. There was documentary evidence that appellant sold the Broadcom stock in June 2014 and purchased Vanguard stock in November and December 2014. But there was no Merrill Lynch statement for September 2014, which would have shown any transactions that occurred during that period. Absent this documentary evidence, the trial court could have reasonably concluded that appellant had failed to show a direct tracing of the proceeds from the sale of the Broadcom stock into the purchase of the Vanguard stock. Relying on In re Marriage of Mix (1975) 14 Cal.3d 604, appellant argues that his testimony supplemented the incomplete documentary evidence. However, here, the trial court specifically found that there was “insufficient credible evidence” to support appellant’s position, thereby finding that defendant’s testimony was not credible. Thus, there was substantial evidence to support the trial court’s finding that appellant had not shown that he reinvested the Broadcom stock.
Relying on In re Marriage of Heiner (2006) 136 Cal.App.4th 1514 (Heiner), appellant also contends that the trial court erroneously placed on him the burden of proving that the Broadcom proceeds should not be included in the support calculation.
In Heiner, the appellant sought to include a portion of the respondent’s personal injury recovery as income for child support purposes. (Heiner, supra, 136 Cal.App.4th at p. 1524.) The Heiner court stated: “[B]ecause the issue involves fact finding upon evidence, the burden of proving allocation would lie with the party requesting it. Thus, for example, the party seeking to include in the child support calculation a portion of a personal injury award representing lost income or earning capacity must present sufficient evidence upon which the allocation can be made. Similarly, the party wishing to exclude from a personal injury award treated as income some allocable portion for pain and suffering or future medical costs bears the burden of presenting sufficient evidence for that determination. [Citation.]” (Id. at p. 1525.) Here, respondent introduced evidence that appellant sold the Broadcom stock, which included a capital gain of approximately $15,000 that was income for support purposes. It was then appellant’s burden to show that all the proceeds had been reinvested, which he failed to do.
Appellant next contends that the trial court’s finding that it could count capital gains and dividends as income available for support improperly restricts his ability to manage his money, because if he “sells stock next year to diversify into another asset, under the court’s logic he will arguably owe support on the recognized capital gains and dividends even though he has only traded one asset for another.” To support his contention, appellant relies on the following portion of the statement of decision: “Each of the parties is potentially eligible for bonus income through his or her employment. It is, therefore, appropriate to include a Smith/Ostler calculation for each party to reflect any bonus or other additional income and the guideline calculation for child support.” However, the issue of whether any potential future capital gains will be considered income for support by the trial court is not presently before this court.

B. Permanent Spousal Support
1. Evidence of Domestic Violence
Appellant contends that the trial court erred when it considered evidence of domestic violence, which had not been documented by respondent, in ordering spousal support.
After summarizing the parties’ testimony regarding domestic violence perpetrated by appellant, the trial court stated: “It appears that there is no written documentation of the allegations of domestic violence or abuse. That, in and of itself, does not prevent the Court from considering other evidence of alleged abuse or domestic violence and any emotional distress as a result of any such abuse. See Family Code §4320(n). [¶] The Court finds that the testimony of the Wife regarding the alleged abuse and domestic violence that occurred during the marriage was credible and believable. It was very clear from Wife’s testimony that the domestic violence and abuse she and the children incurred or witnessed caused emotional distress to Wife, as well as to the children. The Court does not find the testimony of the Husband to be credible on these issues.”
Appellant argues that Family Code “section 4320(i) permits the court to consider as a factor ‘documented evidence’ of domestic violence, and clause (n) permits it as a catch-all to consider ‘other factors’; which is to say, factors not already addressed elsewhere in the statutory list.”
“Our first duty in interpreting a statute is to be guided by the words that appear on the face of the enactment.” (Howard v. Babcock (1993) 6 Cal.4th 409, 417.) “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) “Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage. [Citation.]” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) The interpretation of a statute is a question of law which this court reviews de novo. (Pearlstein, supra, 137 Cal.App.4th at pp. 1371-1372.)
Section 4320 provided that “[i]n ordering spousal support under this part, the court shall consider” several factors, including “[d]ocumented evidence of any history of domestic violence . . . between the parties or perpetrated by either party against either party’s child . . . .” (§ 4320, subd. (i).) Subdivision (n) provided that the trial court should consider “[a]ny other factors the court determines are just and equitable.” (§ 4320, subd. (n).) Contrary to appellant’s interpretation, the use of “other factors” in subdivision (n) did not limit the trial court’s consideration to factors completely unrelated to the factors listed in the previous subdivisions of the statute. Instead, subdivision (n) authorized the trial court to consider factors that it “determine[d] are just and equitable.” (§ 4320, subd. (n)). Thus, here, the trial court properly considered other evidence of domestic violence, that is, respondent’s testimony, in ordering spousal support.
2. Effect of Bonus or Other Income on Marital Standard of Living
Appellant next contends that the trial court abused its discretion when it failed to address the effect of respondent’s bonus income on the marital standard of living and to set a maximum amount of support in light of that standard.
The trial court found that the parties had a middle class lifestyle during their marriage and set permanent spousal support at $1,500 per month. The trial court also found that “[e]ach of the parties may have flexible income in the future. Both may receive bonus or other income from employment, as they have earned in the past. The Court has insufficient evidence before it to determine the amount of any future bonus or other income for either party at this time.” Thus, the parties were ordered to provide written documentation of any additional income to the other party. In the event that appellant received a “bonus or other additional income,” the trial court ordered him to pay respondent 25 percent of that amount as additional spousal support. Respondent was ordered to notify appellant of the amount of any gross bonus or additional income amount that she received and the trial court reserved jurisdiction to adjust spousal support based on any additional income.
“An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory [factors].” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).) This court reviews spousal support orders under the abuse of discretion standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) “ ‘As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.’ [Citations.] ‘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 (2009) 176 Cal.App.4th 1438, 1443.) “Generally, the use of percentages to determine support will beneficially remove the need for further litigation with its attendant costs, and oftentimes, emotional upheaval. [Citation.]” (Kerr, supra, 77 Cal.App.4th at p. 95.)
Here, appellant had been employed throughout the marriage and his base salary was $12,500. He had also received a grant of an additional $30,000 per year from 2010 to 2014 and a bonus of $10,000 in 2013. After an extended period during which respondent raised the parties’ children, she had been employed for a relatively short period. Her base salary was $5,834 per month and she received a bonus of approximately $8,500 in 2014. Under these circumstances, the trial court did not abuse its discretion in ordering appellant to pay a percentage of any bonus or other additional income and placing the burden on appellant to incur the cost of a modification proceeding in the event that respondent received a bonus or additional income.
Relying on Kerr, supra, 77 Cal.App.4th 87, appellant argues that since the trial court failed to place a cap on the payment of a percentage of his bonus or additional income, spousal support would significantly exceed what was necessary for respondent to maintain the marital standard of living. Kerr is readily distinguishable from the present case. In Kerr, the appellant’s annual salary was approximately $110,000 when the parties separated and appellant received annual stock options, which produced substantial additional income during the marriage. (Id. at p. 91.) The trial court ordered the appellant to pay spousal and child support, which included as additional support 40 percent of any future stock options while their children were minors and then 25 percent of the option income as spousal support. (Id. at p. 92.) The Kerr court reversed the order to the extent that it required the appellant to pay a percentage of any future stock options due to the “unique circumstances” of the case. (Id. at pp. 94-95.) The court reasoned that since the value of the stock had increased twentyfold since the parties had divided their property, the percentage support order would significantly exceed the marital standard of living. (Id. at pp. 90, fn. 1, 95.) In contrast to Kerr, the present case involves significantly less potential additional income.

C. Attorney’s Fees
Appellant also argues that the trial court abused its discretion when it awarded attorney’s fees to respondent.
The trial court ordered appellant to pay attorney’s fees of $40,000 to respondent. It found: there was a substantial disparity in income and access to funds; respondent was in need of a portion of her fees and costs; appellant had the ability to pay the fees; and the order would not cause any undue hardship to appellant. The trial court also stated that it had considered that respondent was paying the college expenses for their adult son when it made the attorney’s fees award.
We review an award of attorney’s fees under the abuse of discretion standard. (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 903.) Section 2030, subdivision (a) authorizes a need-based award of attorney’s fees to “ensure that each party has access to legal representation” during the dissolution proceeding. The purposes of such an award also “effectuate[s] the public policy favoring ‘parity between spouses in their ability to obtain legal representation.’ [Citations.]” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) Such an award is permitted where “just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “In determining what is just and reasonable under the relative circumstances, the court shall 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, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).) Thus, the factors to be considered in determining the parties’ relative circumstances incorporate the factors that the trial court must consider in awarding permanent spousal support as set forth in section 4320, including “[a]ny other factors the court determines are just and equitable.” (§§ 4320, subd. (n), 2032, subd. (b).)
Noting that the obligation to pay child support ends at the latest when the child reaches age 19 unless the child is incapacitated, appellant argues that the trial court erred in awarding attorney’s fees to respondent based on her payment of their son’s college expenses.
The trial court was authorized to consider any factor it determined was “just and equitable” in awarding attorney’s fees. (§§ 4320, subd. (n), 2032, subd. (b).) Here, there was an expectation that the parties would support their children through college as their parents had supported them. Based on this understanding, respondent was depleting her savings in order to provide their son, who had been verbally and physically abused by appellant, with a college education. Thus, the trial court did not err when it determined that these factors were just and equitable in considering the parties’ circumstances.
Relying on In re Marriage of Chandler (1997) 60 Cal.App.4th 124 (Chandler), In re Marriage of McElwee (1988) 197 Cal.App.3d 902 (McElwee), and In re Marriage of Serna (2000) 85 Cal.App.4th 482 (Serna), appellant claims that the attorney’s fee award indirectly ordered him to support an adult child.
In Chandler, supra, 60 Cal.App.4th 124, the trial court ordered the establishment of a trust for certain child-related expenses. (Id. at p. 126.) The trial court also found that if there were any trust funds remaining when the child became an adult, the balance would be given to her. (Id. at p. 127.) The reviewing court concluded that the trial court’s creation of a trust was an abuse of discretion. (Id. at p. 128.) It reasoned that, among other things, “absent special circumstances such as completing high school or incapacity, a court has no authority to order a parent to support an adult child. [Citations.]” (Id. at p. 130.)
In McElwee, supra, 197 Cal.App.3d 902, the appellant argued that the trial court erred in finding that she could use available equity in her home for her support, because she needed a three-bedroom residence so her adult children could visit her on school vacations. (Id. at p. 910.) The reviewing court stated: “Since [the respondent] could not be ordered to make direct child support payments to appellant, he cannot be ordered to do so indirectly by requiring him to make support payments to appellant sufficient to enable her to provide a residence for the adult children who would use it only intermittently. We conclude that the trial court’s finding as to the availability of the equity in appellant’s residence is supported by the evidence.” (Id. at p. 911.)
In Serna, supra, 86 Cal.App.4th 482, the appellant brought a motion to reduce spousal support payments, which the trial court denied. The reviewing court concluded that the trial court had abused its discretion, because “[wife’s] subsidies, either by way of the additional expenses incurred for the one child (and the two children of that child) still living at home, or directly for the child who had moved [out], should not have been considered. They were [a] form of indirect adult child support . . . [that] were beyond the trial court’s jurisdiction.” (Id. at pp. 485, 487.)
Chandler, McElwee, and Serna are distinguishable from the present case. Each of these cases involved an order which awarded support payments either to an adult child or a parent supporting an adult child. In contrast, here, the award of attorney’s fees did not indirectly provide support for an adult child, but enabled respondent to have sufficient financial resources to pay her attorney.
Appellant next argues that there was no substantial evidence to support the trial court’s finding that there was a substantial disparity in income. He first refers to the February 2014 hearing at which the trial court stated: “[A]fter reviewing the facts and evidence in this matter the Court at this time does not find that there is a substantial disparity in access to funds. There is a disparity in income; however, by the time one adjusts in this matter, by virtue of the ongoing payments that are obligated to be made, in fact mother would have . . . 60 percent of the net spendable dollars and that doesn’t even get to the issue of access to funds. So, at this point the Court denies the request for pendente lite attorney’s fees without prejudice and the issue can be addressed further at a future date.” When the trial court considered whether to award attorney’s fees in February 2014, there had been no trial on disputed issues, respondent was receiving child support for two children, and their son had not yet begun college. Thus, appellant’s reliance on the trial court’s denial of respondent’s pendente lite request is not persuasive.
Appellant next contends that the trial court’s specific income findings are inconsistent with its general conclusion of an income disparity. Here, respondent testified that her liquid assets were a “little bit less” than $200,000 at the time of trial. Appellant’s income and expense declarations, which were dated September 2014 and February 2015, showed that his liquid assets were $266,187. He testified that this figure “might have changed” between September and February, but he was using the same figure for liquid assets at trial. As previously discussed, appellant’s monthly income was significantly greater than respondent’s monthly income. Based on these factors, there was sufficient evidence to support the trial court’s finding that there was a substantial disparity in the parties’ income and access to funds.
Relying on the trial court’s use of the DissoMaster program for its calculation of child support, appellant contends that there was no income disparity between the parties. The Legislature has enacted statutory guidelines for the trial court to follow in setting the amount of child support (§§ 4050-4203) and the guideline amount of child support is calculated by applying a mathematical formula. (§ 4055.) There are no similar statutory guidelines applicable to the calculation of an attorney’s fees award. Thus, we reject appellant’s contention.
In sum, the trial court did not abuse its discretion in awarding attorney’s fees to respondent.

III. Disposition
The judgment is affirmed. Respondent is awarded her costs on appeal.









_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.