Marriage of Grimm CA2/7

Filed 5/12/14 Marriage of Grimm CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN

In re Marriage of DAVID and ANNA B247643
GRIMM.
(Los Angeles County
Super. Ct. No. PD054247)

DAVID GRIMM,

Appellant,

v.

ANNA GRIMM,

Respondent.

Appeal from orders of the Superior Court of Los Angeles County, Michael Terrell,
Judge. Affirmed.
David Grimm, in pro. per., for Appellant.
Anna Grimm, in pro. per., for Respondent.
_________________________
 David Grimm, appearing in propria persona, appeals from family court orders
awarding his former wife, Anna Grimm, temporary spousal support and need-based
attorney fees and costs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Temporary Spousal Support Order and Award of Attorney Fees
1
David and Anna were married on May 1, 2004. Although they separated on
December 21, 2010, they continued to live together with Anna’s disabled mother in a
condominium David had purchased prior to the marriage. A year and one-half later, on
June 5, 2012, David petitioned for dissolution of the marriage in propria persona. On
July 27, 2012 he served Anna with a 60-day notice to vacate the premises.
On August 1, 2012 Anna filed a request for temporary spousal support of $2,980
per month and payment of a portion of attorney fees. In her supporting declaration Anna
asserted David, an engineer employed by a hospital since 2002, earned $8,018 per month
2
in wages and investment income (taxable interest and ordinary dividends). She testified
she was unemployed with no source of income, savings or property. During the prior two
years she had received a master’s degree in teaching English as a second language, but
was unable to find a job. She had been receiving unemployment benefits following her
termination as a customer service representative in August 2010, but the benefits were
exhausted in March 2012. From March 2012 through May 2012 she worked part time as
a door-to-door salesperson earning at most $400 to $500 per month. In support of her
request for attorney fees and costs, Anna’s counsel filed a declaration stating Anna had
paid $4,550 in fees through July 31, 2012 and $12,000 should be sufficient for fees
through resolution of the action. A hearing was set for October 3, 2012.

1 As is customary in family law proceedings, we refer to the parties by their first
names for clarity and convenience. (See In re Marriage of Left (2012) 208 Cal.App.4th
1137, 1139, fn. 1.)
2 Anna included a joint tax return for 2011 with her declaration.

2
 At the outset of the October 3, 2012 hearing Anna’s counsel reiterated Anna was
unemployed, and Anna herself told the court she was applying for jobs daily. In response
David contended he had photographs of Anna’s laptop computer demonstrating she had
been employed since March 2012 by an insurance company. Rather than review the
photographs and other documents David offered during the hearing, the court made a
temporary spousal support order “without prejudice” of $3,229 per month effective
September 1, 2012. The court increased the amount from the $2,980 Anna had requested
based on her assertion David’s monthly income was greater than reflected on the 2011
tax return. The court said it would revisit the issue on November 29, 2012, giving David
the opportunity to file a responsive declaration, which he had not yet done, including
documents challenging Anna’s claim she was unemployed. Finding there was a clear
financial disparity between Anna and David, the court also ordered David to contribute
$5,000 to Anna’s attorney fees, emphasizing it was an “interim order” until the court
could “get a full picture.”
2. The Order Retroactively Reducing Temporary Spousal Support
On October 24, 2012 David, represented by counsel, filed a responsive
declaration, including documents indicating Anna had begun working as an assistant at
Pendo Insurance in March 2012, earning $2,918 per month. David requested the court
deny Anna’s request for spousal support or, alternatively, impute earnings to her in that
amount or at least minimum wage. David also requested the court reduce spousal support
by the fair rental value of his residence ($1,700 per month), order Anna to move out of
the home, order her to undergo a vocational evaluation and deny her request for attorney
fees because she had made fraudulent representations regarding her employment status.
On November 5, 2012 Anna filed an amended income and expense declaration,
stating she had begun working as an assistant at Pendo Insurance in March 2012 earning
a commission. She explained, “I have been paid a total of $19,912.00 in commissions to
date in 2012. When I need money, I request a pay advance. The money is then taken
from the next commission(s) I earn until paid off. I currently owe my boss $5,025. I
have earned a total of $14,887 for the year 2012, the remainder is a pay advance.”

3
 At the November 29, 2012 hearing Anna argued the spousal support order should
not be modified because she would not know until the end of the year whether she would
be required to reimburse her employer for the advances. Anna also argued David had not
paid the full amount of the prior temporary spousal support order or any of the attorney
fee award. The court explained ordinarily support orders are not effective until the
parties live in separate residences and observed it may have overlooked (or was not aware
of) the fact Anna and David were still living together. Anna responded she was trying to
find a separate residence but did not have enough money for a security deposit. Anna’s
counsel suggested, “[I]f we can have a[n] in lieu of support order, have [David] agree to
pay for the security deposit and maybe the first month’s rent as, then, . . . she’s willing to
[move] as soon as she . . . finds a place.” Anna also argued it was difficult to find a job,
even one paying minimum wage, because she was responsible for caring for her mother.
David argued Anna lacked credibility as to her employability because she had
3
misrepresented her employment status at the first hearing, he could not afford spousal
support as demonstrated in part by the fact he had defaulted on his mortgage, he should
be not responsible for subsidizing Anna’s care of her mother, and the court had indicated
spousal support should not commence until the parties lived in separate residences.
After hearing further argument, the court ordered temporary spousal support of
$2,417, retroactive to September 1, 2012, based on a DissoMaster calculation submitted
by David imputing minimum wage to Anna. Because of its concern about awarding
support while the parties were still living together, the court ordered Anna to vacate
David’s home by January 15, 2013. With respect to the attorney fee award, the court
ordered the $5,000 contribution would remain the same, but it was to be split between the
firm that represented Anna at the initial hearing and the new firm representing her at the
current hearing. The court also ordered Anna to submit to a vocational examination to be

3 Anna’s counsel erroneously responded that Anna had disclosed in the July 30,
2012 income and expense declaration she was working at Pendo Insurance, but thought
she was being truthful in stating she had no earnings because she had received
reimbursable advances.

4
paid by David. A status conference regarding the vocational examination was set for
February 8, 2013 and trial for June 18 and 19, 2013.
3. The Motion for Reconsideration
In December 2012 David, once again representing himself, moved for
reconsideration of the November 29, 2012 order. David requested spousal support be
reduced to “take into consideration the effect income taxes, community debt, attorney
fees, & the tax implications of my house being in foreclosure with legal actions taken
solely against me on this asset.” David also argued the DissoMaster calculation had
“several limitations” that did not take his circumstances into account. Anna opposed the
motion on the ground David had failed to identify any new facts warranting
reconsideration. Anna also argued David’s claims of financial hardship were not credible
because he had traveled to the Philippines several times in recent months. A hearing was
set for February 14, 2013.
In a February 6, 2013 vocational assessment report, rehabilitation consultant
Howard Goldfarb opined the likelihood that Anna could secure employment in one of
five categories (for example, administrative assistant or customer service representative)
earning $36,046 annually was “quite good”: “Ms. Grimm presents herself well, has
significant college experience and has had past work experience.”
David and Anna represented themselves at the February 14, 2013 hearing. David
argued his financial circumstances had deteriorated since the last hearing because, for
example, his house was in foreclosure, his wages were being garnished to pay the
attorney fee award and he had not realized spousal support would not be tax deductible.
The court denied the motion for reconsideration, finding David could have presented the
arguments at the previous hearing and there was no new evidence unavailable at that
time. Separately, the court granted David’s motion for bifurcation and directed him to
prepare a status-only judgment. The remaining issues in the dissolution proceedings
remained scheduled for trial on June 18, 2013. David then argued spousal support should
be reduced based on the recently completed vocational report. The court ordered Anna
and David to return that afternoon, giving it an opportunity to review the report.

5
 At the afternoon hearing Anna asserted she had been unsuccessful in her efforts to
obtain interviews with companies listed in the report as having openings in the fields
identified by Goldfarb. She described the steps she had taken to find employment and
difficulty obtaining a job teaching English or as a translator because of her heavy Russian
accent and argued several statements in the report were incorrect or taken out of context.
David argued Anna, who had told Goldfarb “working in an office was boring” and what
“she would really like to do is sleep,” was simply not interested in finding a job and
preferred spending time with her friends. The court found a fair assessment of Anna’s
annual earning capacity was $30,000. Using that number, the court obtained a new
DissoMaster calculation of $1,602 per month and ordered temporary spousal support
reduced commencing April 15, 2013.
At trial, which began on June 18, 2013, the court ordered David pay $1,000
monthly spousal support from July 1, 2013 through December 31, 2013. Spousal support
was set at zero on January 1, 2014 with the court terminating jurisdiction over the issue
as of that date.
CONTENTIONS
David contends the trial court committed several errors in setting temporary
spousal support and awarding attorney fees on November 29, 2012 and abused its
discretion in denying his motion for reconsideration of that order.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Setting the Amount of
Temporary Spousal Support
4
Family Code, section 3600 authorizes the trial court to order temporary spousal
support while a proceeding for the dissolution of marriage is pending. “Generally,
temporary spousal support may be ordered in ‘any amount’ based on the party’s need and
the other party’s ability to pay. [Citations.] ‘Whereas permanent spousal support
“provide[s] financial assistance . . . ,” temporary spousal support “is utilized to maintain

4 Statutory references are to the Family Code unless otherwise indicated.

6
the living conditions and standards of the parties in as close to the status quo position as
possible pending trial and the division of their assets and obligations.” [Citations.]’
[Citation.] The court is not restricted by any set of statutory guidelines in fixing a
temporary spousal support amount.” (In re Marriage of Wittgrove (2004)
120 Cal.App.4th 1317, 1327 (Wittgrove ).)
A temporary spousal support order is directly appealable. (In re Marriage of
Gruen (2011) 191 Cal.App.4th 627, 637.) We review an order for temporary spousal
support for abuse of discretion. (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) “[I]n
exercising its broad discretion, the court may properly consider the ‘big picture’
concerning the parties’ assets and income available for support in light of the marriage
standard of living. [Citation.] Subject only to the general ‘need’ and ‘the ability to pay,’
the amount of a temporary spousal support award lies within the court’s sound discretion,
which will only be reversed on appeal on a showing of clear abuse of discretion.
[Citation.] . . . Trial courts may properly look to the parties’ accustomed marital lifestyle
as the main basis for a temporary support order.” (Ibid.)
David contends the court should have awarded Anna temporary spousal support of
$13,350 for the 10 month period from September 2012 through June 2013 ($1,335 per
month) instead of $22,125 ($2,417 per month for September 2012 through March 2013,
$2,002 for April 2013 and $1,602 per month for May and June 2013). David derived this
number by adjusting the DissoMaster calculation from the February 14, 2013 hearing to
5
reflect Anna’s salary potential as opined by Goldfarb ($36,000) instead of $30,000 as
found by the court to be a fair assessment of her earning potential.
The trial court did not abuse its broad discretion in setting the amount of
temporary spousal support. Contrary to David’s argument, the court was not required to
take into consideration any specific factors, such as marketable skills Anna might have or

5 Goldfarb had opined Anna’s earning potential was $36,046.

7
 6
the tax consequences of a support order, as it must in setting permanent spousal support.
(See § 4320; Wittgrove, supra, 120 Cal.App.4th at p. 1327; In re Marriage of Freitas
(2012) 209 Cal.App.4th 1059, 1071 [“[i]n contrast to an award of permanent spousal
support under sections 4330 and 4320, an award of temporary support does not require
consideration of numerous statutory factors”].) To the extent the court chose to impute
income to Anna based on the vocational expert’s opinion and reduce spousal support
beginning April 15, 2013, it was well within its broad discretion to reduce her annual
earning potential by 17 percent after considering the steps she had taken to find
employment and her argument the vocational expert’s opinion was not reasonable and
contained inaccuracies. (See People ex rel. Brown v. Tri-Union Seafoods, LLC (2009)
171 Cal.App.4th 1549, 1568 [“the trial court is free to reject testimony of a party’s
expert, so long as the trier of fact does not do so arbitrarily”]; In re Brian J. (2007)
150 Cal.App.4th 97, 115 [trier of fact is “not bound by any expert’s opinion” but “should
give each expert opinion the weight [the trier of fact] feel[s] it deserves”]; In re Marriage
of Berland (1989) 215 Cal.App.3d 1257, 1263 [court did not abuse discretion in finding
wife had not diligently pursued gainful employment notwithstanding vocational
evaluation “touting her ‘consistently motivated, well thought out and well executed job
search effort’”].) Because the credibility of experts and the weight to be accorded their
conclusions are matters for the trier of fact, we do not reweigh or reinterpret that
evidence. (See People v. Poulsom (2013) 213 Cal.App.4th 501, 518; California Pines
Property Owners Assn. v. Pedotti (2012) 206 Cal.App.4th 384, 389, fn. 2; In re Marriage
of Ackerman (2006) 146 Cal.App.4th 191, 204 [“‘resolution of conflicts in the evidence,
assessment of the credibility of the witnesses and the weight to be given the opinions of
the experts were all matters within the exclusive province of the trier of fact’”].)
David argues the court admitted it erred in awarding temporary spousal support
while David and Anna were still living together and compounded the error by ordering

6 Section 4059, subdivision (a), cited by David to support his argument tax effects
must be considered in determining temporary spousal support, is applicable to the
calculation of child support, not spousal support.

8
 7
further temporary spousal support even though Anna had not yet vacated the home.
However, Anna’s counsel argued Anna could not vacate the home because she did not
have the money to pay three months rent in advance (first month, last month and security
deposit), and needed the temporary spousal support to allow her to save the money to
move. It was reasonable for the court to credit that explanation and address its concern
about Anna “hav[ing] it both ways[,] . . . getting support and living under [David’s] roof”
by ordering her to vacate the premises in approximately 45 days.
David further argues the temporary spousal support order of $2,417 for seven of
the 10 months was excessive because it was more than 50 percent of his net bi-weekly
earnings of $2,266.06. The measure of his ability to pay, however, is more aptly
compared to his monthly net earnings of $4,532, not his bi-weekly net earnings.
Although David had monthly expenses, including debt payments, Anna also had monthly
expenses, including credit card debt. Unfortunately, the dissolution of a marriage often
imposes financial hardship on both parties. The trial court did not abuse its discretion in
attempting to equitably divide that burden pending finalization of the dissolution.
David also raises several challenges to the October 3, 2012 order of $3,229 per
month for September 2012 through November 2012. Even if his arguments had merit,
any error was harmless because the court’s November 29, 2012 order reduced the award
to $2,419 retroactive to September 1, 2012. (See Code Civ. Proc., § 475 [no judgment
decision or decree shall be reversed absent showing error prejudicial].)
2. The Trial Court Did Not Abuse Its Discretion in Awarding Attorney Fees
Section 2030 authorizes a need-based award of attorney fees and costs to “ensure
that each party has access to legal representation to preserve each party’s rights” in a
proceeding for dissolution of marriage and in any proceeding subsequent to entry of a
judgment of dissolution. (§ 2030, subd. (a)(1).) In determining whether to order one

7 The court explained it usually did not order temporary spousal support while
parties were living together because “it’s sort of silly . . . for one spouse to pay the other
spouse support, which is to some extent to be used to pay for the housing when they’re all
living in the same house.”

9
party to pay another party’s fees and costs and, if ordered, what amount shall be paid, the
court is to consider the respective incomes and needs of the parties and all other
circumstances affecting the parties’ respective abilities to pay for legal representation.
(§ 2030, subd. (a)(2).) “The court may make an award of attorney’s fees and costs under
Section 2030 . . . where the making of the award, and the amount of the award, are just
and reasonable under the relative circumstances of the respective parties.” (§ 2032,
subd. (a); see In re Marriage of Keech (1999) 75 Cal.App.4th 860, 865.)
Although the payee-spouse’s need and the payor-spouse’s ability to pay are the
central factors to be considered, the trial court retains broad discretion in determining the
amount of fees to award pursuant to section 2030, particularly with respect to the nature
and complexity of the litigation. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269,
314; In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 865-866.) “‘The need of a
spouse for an award of attorney’s fees and the amount of that award are matters
addressed to the sound discretion of the trial court. [Citation.] The exercise of this
discretion will not be disturbed on appeal “without a clear showing of abuse.”’” (In re
Marriage of Schaffer (1984) 158 Cal.App.3d 930, 935-936.) “‘The discretion invoked is
that of the trial court, not the reviewing court, and the trial court’s 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.’” (In re Marriage of Keech, at
p. 866.)
David argues the award of attorney fees did not meet the two main criteria for
imposition of fees in section 271, subdivision (a). That section, however, governs the
award of attorney fees as a sanction for conduct that increases litigation costs. (See
§ 271, subd. (a) [“court may base an award of attorney’s fees and costs on the extent to
which the conduct of each party or attorney furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys”; award “is in the nature of a
sanction”]; In re Marriage of Simmons (2013) 215 Cal.App.4th 584, 592 [§ 271 “allows
for a sanctions award of attorney fees and costs based on conduct that frustrates the

10
policies of settlement, cost reduction, and cooperative resolution of litigation”].) Here,
the award of attorney fees was based on section 2030 and was need-based. Any
argument based on the appropriate factors to be considered pursuant to section 271,
subdivision (a), is misplaced.
With respect to the amount of the fee award, the trial court did not clearly abuse its
discretion. Even imputing as much income to Anna as David contends is appropriate,
there was a disparity between that amount and his income and thus the parties’ respective
ability to pay attorney fees. The award of $5,000 was less than half the amount Anna’s
first attorney estimated was necessary through finalization of the dissolution. Indeed,
David included on his December 13, 2012 income and expense declaration an estimate of
$10,000 for his own attorney fees. For the reasons discussed in connection with David’s
challenge to the temporary spousal support award, we cannot say no judge could have
reasonably ordered David to contribute $5,000 to Anna’s attorney fees.
3. The Court Did Not Abuse Its Discretion in Denying David’s Motion for
Reconsideration
A motion for reconsideration under Code of Civil Procedure section 1008 must be
“based upon new or different facts, circumstances, or law.” “[F]acts of which the party
seeking reconsideration was aware at the time of the original ruling are not ‘new or
different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) In addition to
demonstrating there are new or different facts, circumstances or law, the party seeking
reconsideration must provide a satisfactory explanation for the failure to offer the new
evidence earlier. (Ibid.) We review an order denying a motion for reconsideration for
abuse of discretion. (Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 871.)
David’s motion for reconsideration of the court’s November 29, 2012 order was
not based upon any new or different facts of which he was unaware before that hearing
(for example, that he had defaulted on his mortgage payments, the percentage of his net
pay the temporary spousal support constituted and the amount of his outstanding debt).
At the hearing on the motion for reconsideration David explained he had not known
spousal support would not be tax deductible and had not realized the extent of the

11
financial hardship he would suffer as a result of the order. However, David’s lack of
knowledge of the financial ramifications of a spousal support order or appreciation of the
hardship he might suffer as a result of the temporary spousal support award given his
then-existing circumstances does not constitute new or different facts or law warranting
reconsideration. The trial court did not abuse its broad discretion in denying David’s
motion.
DISPOSITION
The orders are affirmed. Anna Grimm is to recover her costs on appeal.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

12