Marriage of Clarke-Katzenberg and Katzenberg

Filed 10/20/06 Marriage of Clarke-Katzenberg and Katzenberg CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Regina H. Clarke-Katzenberg appeals from a judgment dissolving her marriage to Daniel R. Katzenberg.[1] Regina contests the trial court’s jurisdiction, its imposition of attorney fee sanctions pursuant to Family Code section 271,[2] its denial of her request for further attorney fees under section 2030, its award of child and spousal support, and its denial of rehabilitative support.[3] We affirm.

BACKGROUND

Daniel and Regina were married on June 12, 1989, and separated on February 11, 2002, after a marriage of over 12 years. Daniel filed a petition for dissolution of marriage on February 11, 2002. The couple has two children, Benjamin, born in February 1991, and Adlai, born in July 1992. At that time, Daniel was 43 years old, and employed as a physician with monthly earnings of over $14,000 based on a full-time position with Santa Clara Valley Medical Center supplemented by self-employed income. Regina was 39 years old and employed part-time at Stanford University as a Life Science Research Assistant, III, Transplant Surgery Division with a monthly income of around $2,625. A trial of contested issues took place before Superior Court Commissioner McKenna over four hearings in April and May 2004. Marital status was terminated as of December 31, 2004, and judgment of dissolution and judgment on reserved issues was entered on January 4, 2005. Notice of appeal was timely filed on February 24, 2005. Other facts will be adduced below as necessary to the discussion of issues presented.

DISCUSSION

A. Authority of Commissioner and Peremptory Challenge

1. Doctrine of Tantamount Stipulation

Regina asserts she never stipulated her case be heard by Commissioner McKenna. Therefore, she contends the June 28, 2004, order for section 271 attorney fee sanctions and the January 4, 2005, Judgment on Reserved Issues are void.

The California Constitution directs that the “jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties’ stipulation. (In re Horton (1991) 54 Cal.3d 82, 90 (Horton).) Accordingly, “in the absence of a proper stipulation,” the judgment entered by a court commissioner is void. (Ibid.) However, the Supreme Court has ratified “the doctrine of tantamount stipulation,” by which “a valid stipulation for purposes of the constitutional provision may arise as a result of the conduct of the parties. . . . [C]onduct short of an express oral or written stipulation may be tantamount to a stipulation that a court commissioner may sit as a temporary judge.”

(Id. at pp. 91-92, italics omitted.) Moreover, under the doctrine of tantamount stipulation “not only [is] an express stipulation by the client [] unnecessary, but . . . counsel’s conduct may provide the basis for the tantamount stipulation.” (Id. at p. 93.)

In Horton, supra, a habeas petitioner in a capital case whose case was conducted by a court commissioner argued that “since neither he nor counsel specifically intended to enter a stipulation, none can be found.” (Horton, supra, 54 Cal.3d at p. 98.) The Supreme Court disagreed, stating, “We have explained that ‘[u]nder the ‘tantamount stipulation’ doctrine, . . . an implied stipulation arises from the parties’ common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.’ [Citation.].) (Ibid, italics omitted.) The Court noted, “Here, it is uncontroverted that counsel participated fully and vigorously in the trial, at every point treating the commissioner as competent to rule on matters which rest solely in the discretion of a superior court judge. This conduct was a tacit recognition of, and reliance upon, the authority of the commissioner to act as a temporary judge.” (Ibid.)

As in Horton, the doctrine of tantamount stipulation applies here, and for the same reasons. Regina and her counsel appeared before Commissioner McKenna for hearings on April 6, 21, May 12 and 26, 2004. Commissioner McKenna heard testimony, received evidence, and took argument on numerous contested issues, at the conclusion of which she issued findings on May 26, 2004. At no time during any of those hearings did Regina or her counsel demand a hearing before a Superior Court judge or otherwise object to Commissioner McKenna conducting the hearings. It is clear from the transcripts of the proceedings “the parties’ common intent [was] that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.” (Horton, supra, 54 Cal.3d at p. 98.) Thus, under the doctrine of tantamount stipulation, we conclude an implied stipulation to Commissioner McKenna’s jurisdiction arose from the conduct of the parties. (Cf. Ibid.)

2. Peremptory Challenge as an Objection to Authority of Commissioner

Regina, however, contends she objected to Commissioner McKenna by filing a peremptory challenge under Code of Civil Procedure section 170.6. Regina filed her peremptory challenge against Commissioner McKenna on December 4, 2003. On December 30, 2003, Regina appeared with counsel before Commissioner Du Bois at a hearing on Daniel’s motion to compel responses to discovery and for other relief. Near the conclusion of proceedings, Regina’s counsel requested a continuance of the April 2004 trial date, which prompted the following exchange between the court, Mr. Silvestri, counsel for Regina, and Ms. Nadler, counsel for Daniel:

Court: Well, if the matter’s been assigned to Commissioner McKenna for all purposes, I think that’s a matter that should be taken up with the court.

Nadler: Thank you, your honor.

Silvesrtri: Thank you, Judge.

Court: And also, I think---before you leave, Mr. Silverstri, I think I saw a 170.6 filed on behalf of your client for Commissioner McKenna.

Silvestri: Yeah. My understanding is----

Court: So just for the record, the court’s going to deny that 170.6 filing because there was a prior 170.6 already filed, so that will be stricken.

Silvestri: Okay. We’d already been in front of her----

Nadler: Right. And I think Judge Dylina mentioned it, too.

Silvestri: Yeah. We took care of that.

Court: You took care of that? All right then. Thank you both.

Nadler: Thank you, your honor. But I’ll include that . . . in this order? Because I don’t know that it’s on the record.

Court: That will be fine.

The findings and order from this hearing filed on April 15, 2004, states: “The Court further denies Respondent’s counsel’s current request for his 170.6 filing against Commissioner McKenna as the All Purpose Judge due to a prior 170.6 filing already made by Petitioner’s [sic] counsel.”[4] This order was signed by Regina’s counsel in approval of form and content.

This exchange shows Regina’s counsel recognized his second peremptory challenge was improper and was in accord with the court’s decision to deny it on the basis of the prior filing of a peremptory challenge.[5] Nonetheless, Regina asserts we should construe her improper peremptory challenge against Commissioner McKenna as an objection which both overrides the doctrine of tantamount stipulation and satisfies San Mateo County Local Rule 5.4E.[6] This assertion mixes apples and oranges.

A peremptory challenge is intended to protect the right to an impartial adjudicator, and may be taken not only against a commissioner, but also against a Superior Court judge or referee when “a judge or court commissioner is prejudiced against any party or attorney.” (Code of Civil Procedure section 170.6, subd.(a)(1).) In a nutshell, the peremptory challenge protects the litigant’s interest in protection against the perceived bias of a judge or commissioner.

On the other hand, the provision in the California Constitution contemplating trial by a temporary judge pursuant to stipulation advances the “community interest in judicial efficiency.” (Horton, supra, 54 Cal. 3d at p. 97.) Like the Federal Constitution, the California Constitution is based on the doctrine of the separation of powers. (Ibid.) And though California’s “judicial system is grounded on the existence of a nonpartisan, independent judiciary, . . . our state Constitution, unlike the federal Constitution, also contemplates in the interest of judicial efficiency that the ranks of the regular judiciary may be extended from time to time by qualified temporary judges who serve as officers of the superior court. [Citation.] This community interest in judicial efficiency is of constitutional magnitude, and somewhat tempers the individual’s interest in trial by a regularly appointed judge.” (Ibid.) In sum, the constitutional requirement of stipulation to a temporary judge balances the litigant’s “right to trial by a regularly appointed or elected superior court judge” with the “the community interest in judicial efficiency.” (Id. at pp. 93, 97.)

As shown, the peremptory challenge and the constitutional requirement of stipulation to a temporary judge serve very different policies and objectives. Accordingly, we decline to substitute one for the other.[7] Rather, we conclude Regina’s improper peremptory challenge neither disturbs our application of the doctrine of tantamount stipulation nor serves as an objection to the authority of a commissioner under Local Rule 5.4E.[8]

B. Attorney Fee Issues

1. Procedural Background

At a hearing on September 30, 2003, the trial court granted Regina’s request for attorney fees pursuant to section 2030 in the amount of $20,000, to be funded from the credit line secured by the family residence with Daniel responsible for payments on the credit line. On the same day, Daniel filed a motion seeking modification of terms regarding Regina’s continued occupation of the family residence. Daniel raised the issue of section 271 attorney fees in this motion based on Regina’s alleged “lack of cooperation throughout this proceeding,” and requested that the issue be reserved for trial. At a hearing on December 23, 2003, the trial court reserved for trial the issue of attorney fees for both sides and Daniel’s request for section 271 attorney fees.

In his Mandatory Settlement Conference Statement, filed April 2, 2004, Daniel reiterates he has reserved for trial the issue of section 271 fees to be assessed against respondent. He notes to date he has expended over $80,000 in attorney fees, with trial yet to come. Daniel requested a section 271 award which ordered Regina not only to bear all her own attorney fees and costs, but also to return to him pendente lite attorney fees earlier awarded to Regina by the trial court in the amount of $20,000. Regina’s counsel filed a declaration in opposition to Daniel’s section 271 request for attorney fees on May 12, 2004.

On May 26, 2004, the final day of trial, counsel for Daniel stated Daniel had incurred a total of around $100,000 in attorney fees plus costs of $6,000 or $7,000. Counsel requested no additional fees be awarded to Regina under section 2030, that Daniel be reimbursed the $20,000 pendente lite fees already awarded to Regina, and that Daniel receive $20,000 in attorney fees pursuant to section 271. Regina’s counsel stated his attorney fees and costs were about $70,000, with a current balance of $18,500 owed. Counsel argued due to a disparity in income between the parties, Daniel should reimburse Regina “her fees as her request.”

The trial court announced its findings on the various contested issues, including appraisal value for the home, division of assets and liabilities, value of vehicles, division of retirement accounts, and permanent spousal and child support. The trial court gave Regina 60 days to attempt to buy out Daniel’s interest in the family residence. The trial court ordered Daniel’s counsel to prepare a judgment on the trial court’s rulings. On the issue of attorney fees the trial court stated, “I’ll take that under submission.”

On June 28, 2004, the trial court filed its Order on Submitted Issue. The trial court noted on May 26, 2004, it took under submission “the last unresolved issue, each of the parties’ requests for an award of attorney fees and costs. Regarding attorney fees under section 2030, the court noted there remains a disparity in income between the parties after child support is discounted, and therefore Daniel should contribute to Regina’s attorney fees. The trial court concluded the $20,000 already paid by Daniel in pendente lite fees was adequate, and declined to award Regina any further contribution towards attorney fees.

Regarding Daniel’s request for attorney fees under section 271, the trial court found Regina had “frustrated settlement and prolonged litigation” by her conduct and behavior, and therefore sanctions were warranted. The trial court found Regina had the ability to pay sanctions from her share of proceeds from the sale of the family residence or by adding the amount of the sanction to the “buy out” figure for the home. The trial court awarded section 271 sanctions in the amount of $15,000.

Regina exercised the option to buy out Daniel, but a dispute arose over the amount of the equalization payment due to Daniel. Notice of Entry of Judgment and Judgment were finally filed on January 4, 2005.

2. Discussion

Regina contends Commissioner McKenna abused her discretion in awarding section 271 sanctions against her in the sum of $15,000. Daniel asserts the claim is untimely because Regina failed to appeal from the trial court’s order regarding attorney fees and sanctions filed on June 28, 2004.

We conclude the issue is not properly before us. An order granting sanctions against a party in excess of $5,000 is appealable by the aggrieved party. (See Code Civ. Proc. § 904.1, subd. (a)(12); Rail-Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 473 [section 904.1 “expressly recognizes that the right of appeal lies from a sanctions ‘order’ “].) Taking an appeal is a jurisdictional step, and where no timely appeal is taken from an appealable order, the reviewing court has no discretion to review its merits. (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 158.) The reviewing court must disregard all issues concerning the order even if no objection has been made by the opposing party. (Ibid.) Because an appeal could have been taken from the trial court’s Order on Submitted Issue of June 28, 2004, we are precluded from reviewing that order on an appeal from the subsequent judgment entered on January 4, 2005. (Code Civ. Proc. § 906; In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119 (Weiss); Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1579, f.n. 11 [“Compliance with the time for filing a notice of appeal is mandatory and jurisdictional [Citations]”.].)

The same applies with respect to Regina’s claim the trial court abused its discretion by limiting her attorney fee award under section 2030 to $20,000. This part of the trial court’s Order on Submitted Issue of June 28, 2004, is also immediately appealable. As stated in Weiss, supra, where an order is “‘collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken. [Citations.]’ Such a determination is substantially the same as a final judgment in an independent proceeding. [Citation.] Thus, a direct appeal lies from a pendente lite attorney fees order where nothing remains for judicial determination except the issue of compliance or noncompliance with its terms. [Citations.]” (Weiss, supra, 42 Cal.App.4th at p. 119.) Here, the trial court’s Order on Submitted Issue disposed of the attorney fee issue entirely, and there was nothing remaining “for judicial determination except compliance with its terms.”[9] (Ibid.) Thus, Regina’s failure to appeal from the trial court’s immediately appealable Order on Submitted Issue rendered that order final and binding upon her. Accordingly, Regina’s purported appeal from the attorney fees order is not properly before us. (See Weiss, supra, 42 Cal.App.4th at p. 119 [“The law of this state does not allow, on an appeal from a judgment, a review of any decision or order from which an appeal might previously have been taken.] [Citations.].”)[10]

C. Spousal and Child Support

1. Standard of review

“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 guidelines. [Citation .] 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. ‘The issue of spousal support, including its purpose, is one which is truly personal to the parties.’ [Citation.] 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.] ‘Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.’ [Citation.]” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn. omitted.) “An abuse of discretion will be perceived only if can fairly be said that no judge would . . . make the same order under the same circumstances.” (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 917.) The same deferential standard applies to our review of a child support award. (See County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1105.)

2. Discussion

In its Findings and Order After Hearing, filed August 29, 2002, the trial court ordered Daniel to pay monthly child support to Regina in the amount of $1,850, and monthly spousal support in the amount of $2,211. These amounts were based on the children being with Daniel 44.38 percent of the time, monthly salary attributable to Regina of $2,625, and monthly income attributable to Dan of $11,250 in salary and $3,677 in self-employed income. Regina acknowledges this award was “reasonable” in light of Regina’s part-time employment and Daniel’s earnings.

These amounts were reduced after trial. In its oral ruling on May 26, 2004, and as reflected in the judgment of January 4, 2005, the trial court found Regina should work full time, imputed to her a monthly income of $4,492 based on her current earnings for 20 hours per week, reduced child support from its temporary level of $1,850 per month to a permanent level of $1,504 per month, and reduced spousal support from its temporary level of $2,211 per month to a permanent level of $1,000 per month. Regina contends the trial court’s rulings in these matters were an abuse of discretion.

Regina’s real bone of contention is the trial court’s decision to impute full-time income to her (otherwise child and spousal supports levels would likely have remained the same or similar). With respect to its decision to impute full-time earnings to Regina, the trial court made these findings: “Although [Regina] testified that maybe there might be something she couldn’t really specify any disability that [sic] there is no evidence she physically cannot work. Judge Dylina in [a temporary order] . . . did not feel it was necessary to order any vocational assessment because of her degrees, Master Degree and her work history. . . . There obviously are jobs out there she can qualify for, she felt she can qualify for and that’s why she applied for them that are full-time and the reason for not working full-time is because she has two children and because of the children she needs to leave work. Unfortunately, that is not good enough reason to not work full-time. The Court finds that [Regina] has a financial obligation under the law to support her children as much as [Daniel] has to support the children as well. [Daniel] is working a full-time job plus part-time job and he has 43 percent visitation of his children. The Court finds there is an opportunity for [Regina] to work. The reason that [Regina] is not working is her attitude and attitude is not a good enough reason.” On these findings, the trial court imputed a full-time monthly salary of $4,492 to Regina based on her current earnings for 20 hours per week.[11]

At trial, Regina testified she has a bachelor of science degree and a master of science degree. She testified she is a lab technician and worked in that capacity at Stanford University for 13 years between August 1990 and May 2003 until she was laid off. During that period she worked on average about 55 percent of the time as opposed to full-time. Regina testified she had reapplied for a job at Stanford without success and had also applied to Hewlett Packard, Walgreens, and a “bio job net website” but had not heard anything yet. Subsequently, she testified she had a verbal offer from Stanford at 50 percent time for $25,750 per annum. In response to the court’s question whether there was some physical reason she could not work full-time, Regina replied, “I have two children.” Regina said “My kids always have something, and I end up leaving work[,] . . . [so] there’s no way I can make it eight hours a day.” Earlier in her testimony, Regina stated she intended to continue to “take great care of [the children], especially that now they’re pre-teens. I think teen years have a pretty high risk, [and I’d] like, to be, you know, like--really available to the kids.”

While Regina’s concerns are commendable, we nonetheless conclude the trial court’s findings for imputing a full-time income to her are supported by substantial evidence. Accordingly, we conclude the trial court did not abuse its discretion in basing its support determinations on Regina’s earning capacity, rather than her actual earnings. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 999 [“As long as ability and opportunity to earn exists . . . the court has the discretion to consider earning capacity when consistent with the child or children’s best interests. In the course of exercising this discretion, the court may consider arguments concerning [a party’s] motivations or the reasonableness of [a party’s] actions in light of all the relevant circumstances”].)[12]

DISPOSITION

The judgment of dissolution is affirmed. Each party to bear its costs on appeal.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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[1] Appellant’s unopposed motion to augment the record on appeal, together with an accompanying bound Appendix, received October 14, 2005, was construed as a request for judicial notice by order of the Presiding Justice dated November 10, 2005, and deferred as such to the decision of this appeal on its merits. The request for judicial notice is granted.

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

[3] For convenience, we refer to the parties by their first names. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)

[4] Commissioner Du Bois’ order should have said “due to a prior 170.6 filing already made by Respondent’s counsel.” Silvestri filed Regina’s first peremptory challenge on May 24, 2002, against Judge Steven L. Dylina after the case was assigned to Department 7 for a hearing on Daniel’s motion regarding child custody and support, and spousal support, noticed for May 31, 2002. The hearing on the motion was held on July 12, 2002, before Superior Court Judge Freeman in Department 3. Thus, Regina’s one peremptory challenge in this action, (see Code of Civil Procedure section 170.6, subd. (a)(3)), was exhausted upon reassignment of the case from Judge Dylina to Judge Freeman. (See Truck Insurance Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 148.) Accordingly, we reject Regina’s contentions Commissioner Du Bois’ order was unclear as to whether the challenge was denied because of a prior peremptory challenge by Respondent or by Petitioner and that her first peremptory challenge did not result in a reassignment, and was therefore unexhausted.

[5] At oral argument, counsel for appellant claimed Judge Dylina granted appellant’s second improper section 170.6 motion at a hearing (incidentally, we are at a loss why appellant consented to appearance before Judge Dylina having already challenged him for cause) on December 23, 2003. At the conclusion of the hearing, and having announced its interim ruling on child and spousal support, the court stated: “This is an interim order, and we will give counsel a referral for a two-day setting for trial and there is an affidavit of prejudice against Commissioner McKenna, and this matter will not be set in her department.” Judge Dylina was unaware, however, appellant had already exhausted her section 170.6 challenge. This is borne out by the excerpt from the subsequent December 30, 2003, hearing quoted above, and by Judge Hall’s handwritten and initialed notation on the section 170.6 motion itself, stating: “A prior 170.6 CCP challenge was filed against Dept. 7 - Judge Dylina on 5/24/02.”

[6] In summary terms, Local Rule 5.4E concerns “Cases Assigned to Commissioners,” and mandates that a party will be deemed to stipulate all matters heard in the Family Law Department may be heard and disposed of by a Commissioner unless a written objection is filed within 30 days of the Notice of Assignment to a Commissioner.

[7] Moreover, to do so could inject uncertainty into the judicial process. For example, if a peremptory challenge to disqualify a commissioner was denied as untimely, the party would have 10 days to challenge the decision by writ. (See Code of Civil Procedure section 170.3, subd. (d).) However, if a peremptory challenge is construed as an objection to the authority of the commissioner, then a party who failed to file a writ could effectively challenge denial of the peremptory challenge on appeal after judgment.

[8] Regina contends her first peremptory challenge against Judge Dylina was unexhausted, and therefore the peremptory challenge she filed against Commissioner McKenna was proper. As noted, ante, fn. 3, Regina’s first peremptory challenge to Judge Dylina resulted in change of Department and a hearing before Judge Freeman. Thus, we are at a loss as to how Judge Dylina came to preside over subsequent hearings in the case. But even if Regina’s peremptory challenge to Commissioner McKenna was her first, we would still decline to construe it as an objection to the authority of a commissioner under Local Rule 5.4E, for all the reasons set forth above. And Regina admits she is not appealing from the denial of the peremptory challenge to Commissioner McKenna itself.

[9] Indeed, Regina appears to have complied. In a declaration, filed on November 1, 2004, in response to a request by Daniel for sanctions over the post-trial equalization dispute, she states, “I have already been required to pay sanctions to Petitioner in the sum of $15,000 [and] I do not . . . deserve to be sanctioned for a second time concerning this remaining dispute.”

[10] Regina asserts the judgment and attorney fee order “emanated from the same trial,” and submits “that an appeal from the judgment should be construed as an appeal from all orders made by the Court.” But the attorney fee order was not incorporated into the Judgment entered January 4, 2005. At conclusion of trial on May 26, 2004, the trial court ordered Daniel’s counsel to prepare a judgment incorporating the trial court’s oral rulings on disputed issues. Thus the judgment was intended to include only those issues ruled upon by the court, and the issue of attorney fees was separately taken under submission. We note had there been less delay in entry of judgment, Regina might have appealed the attorney fee order and the judgment in the same notice of appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2005) 3:119.1, p. 3-44. [where separately appealable judgment and order occur close in time and a single notice of appeal is filed, each appealable order must be expressly specified in the notice of appeal].) Here though, Regina’s notice of appeal specifies only appeal of the judgment after court trial. Thus, even if the judgment and the attorney fee order had been contemporaneously filed, we could not have construed Regina’s notice of appeal to include appeal of the attorney fee order. (See Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 [“[w]here several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified-in either a single notice of appeal or multiple notices of appeal-in order to be reviewable on appeal”].)

[11] The court rejected Daniel’s suggested imputed income amount of $4,800 as “unrealistic and too high.”

[12] Regina also contends the trial court abused its discretion by refusing to allow her any “rehabilitative support so that she could pursue her career goals which she had put on hold for 13 years.” As presented, this is merely a restatement of the contention on spousal support. Regina states the trial court “disallowed” her “request” but the trial court’s judgment does not address any separate issue of rehabilitative support, nor did Regina request any such “rehabilitative support” either in her pre-trial statement or at closing argument at trial.