Marriage of Davis CA2/6

Filed 7/17/14 Marriage of Davis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 JESSIE and JAMES 2d Civil No. B243382
L. DAVIS. (Super. Ct. No. 1343373)
(Santa Barbara County)

JESSIE DAVIS,

Appellant,

v.

JAMES L. DAVIS,

Respondent.

Jessie Davis (wife) appeals from a judgment dissolving her marriage to James Davis
(husband). Wife contends that the trial court erroneously (1) denied her motion to continue
the trial, (2) denied her request for attorney fees, (3) refused to impose sanctions against
husband, and (4) failed to order that all spousal support be nontaxable to her. We affirm.
Background
For over 30 years, husband was married to his first wife, Nancy Davis. They
separated in 2006, and their marriage was dissolved in the spring of 2008.
Husband married wife in September 2008. They separated 20 months later. They
did not have any children. On May 7, 2010, wife filed a petition for dissolution of the
marriage. The trial court ordered husband to pay wife temporary spousal support of $10,000
per month, retroactive to May 20, 2010.
 In March 2011 the trial court issued an order to show cause why husband should not
be held in contempt. The grounds for the contempt proceeding were that, in violation of
previous court orders, husband had not made spousal support payments of $83,548 and had
not paid wife's attorney fees of $45,000. In February 2012 all of the issues in the contempt
proceeding were settled by husband's conveyance to wife of residential property in
Kentucky. The property was appraised at $325,000. The court found that wife had received
"improved real property in Kentucky that has no debt and that she is listing for sale at
$325,00."
At the time of trial in April 2012, wife was 41 years old and husband was 69 years
old. After the trial, the court filed a 31-page statement of decision. The court noted that
wife had claimed that (1) she was "unable to work due to . . . back injuries," (2) husband had
"supported [the parties] with his $12 million of earnings during marriage," (3) husband had
"made it clear he had secreted his money in offshore accounts out of reach of his [former]
wife," (4) "there is an estate of $40 to $80 million in dispute with his [former] wife," and (5)
"that the marital standard of living in this marriage was $125,000/mo[nth]; the couple spent
$2.5 million during the 20[-]month marriage." Wife requested that the community property,
including the $12 million in earnings, be divided equally between the parties. After taxes,
her share of the earnings "would be about $3.6 million." Wife estimated that husband's
present income is $10 million per year. She sought spousal support of $62,500 per month
"for up to three or four years, plus one semester."
Wife testified at the trial; the court concluded that she was not a credible witness.
The court stated: "I could not find any plausible evidence from her testimony that husband
ever 'earned' any money during the marriage; in general her testimony was not cohesive; the
documents presented were not convincing; her demeanor in testifying . . . was not
persuasive." "The testimony of offshore accounts . . . appeared implausible; she may well
have speculated or hoped that husband had off shore accounts, . . . but the Court in a
dissolution action needs hard evidence, not speculation."
In contrast to wife, the trial court found Pamela Mannix to be a "very credible"
witness. Mannix testified as follows: In January 2012 an Indiana court appointed her as

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husband's "Guardian Ad Litem." Husband currently lives in two residences: one in
Kentucky and the other in Indiana. He pays monthly rent of $800 for the Kentucky
residence and $600 for the Indiana residence. Husband has "[f]rontal lobe dementia" and
"sits in a rocking chair watching television all day." Husband asked Mannix to assist him in
June 2010. At that time, she believed that he was mentally impaired. The trial court stated,
"I am satisfied that husband has dementia."
Mannix further testified: Husband's monthly social security income is $1,143, and he
has "no other money." To pay for his rent and maintenance, husband borrowed about
$18,000 from Mannix and her husband. He also "borrowed around [$]6,000 two or three
times from his daughter." In addition, husband borrowed $25,000 from Mannix's brother-
in-law to pay for his present attorney. He owes a "big" debt to the Internal Revenue
Service. As Guardian Ad Litem, Mannix applied to the State of Indiana for permission to
sell 12 vehicles owned by husband. He needs to sell them to have funds to pay attorney fees
and "be able to live. He's got to survive, and he has no cash to do so." Mannix estimated
that, if all 12 vehicles are sold, husband will receive approximately $300,000. In 2008 and
2009 husband filed tax returns for his company, Davis Metal Sales. Mannix examined the
returns, which showed that the companies had "[z]ero activity."
The trial court also found Steven Garner, a forensic accountant, to be a "very
credible" witness. He testified that, on the date of husband's marriage to wife in September
2008, husband had financial accounts with a net worth of $2,044,255. On February 29,
2012, the only remaining account was a checking account with a balance of $433. Garner
examined husband's tax returns for 2008, 2009, and 2010. The returns showed that he owed
no tax.
The trial court found husband's former wife, Nancy Davis, to be "a credible witness."
Nancy Davis testified as follows: She and husband have three children. In 2007 their
"money was equally divided," and they each received approximately $2.4 million. They
own a 500-acre farm that has not yet been divided. They purchased the farm for $2.4
million in 1988. If the farm were sold at auction, they probably "could double it [the
purchase price] and get [$]5,000,000." Documents filed by wife have created a cloud on the

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title to the farm. Husband had a metal business that he closed in 2003. Husband owes child
support arrearages, has been unable to contribute to his children's college education, has not
paid the insurance on the farm, and is "behind on the taxes."
The trial court determined that "there was no community property acquired during
the marriage," so "[t]here is no property to be divided." The court granted husband's motion
to terminate spousal support, retroactive to May 19, 2011. The court observed that, as of
that date, wife had been awarded 12 months of temporary spousal support. It explained:
"[T]his was only a 20[-]month marriage and there is no reason not to follow the general rule
that 'permanent spousal support' will equal a duration of 1/2 the length of the marriage or 10
months." The court found that wife "clearly has the necessary marketable skills to be
employed" and that she "can be self[-]supporting."
The court noted that it had previously awarded wife attorney fees of $160,000. It
refused to award additional fees. The court found that husband's total unpaid arrearages for
spousal support and attorney fees were $161,203. The court also found "that wife has now
received [from husband] real property (worth $325,000) [in settlement of the contempt
proceeding] plus she had previously been paid $30,000 in cash and [her] attorney had
received $15,000 in cash." The court concluded that it was "absolutely satisfied wife and
her counsel have been awarded all they are entitled to under the unique facts of the case."
Denial of Continuance
Wife contends that the trial court abused its discretion in denying her request to
continue the trial because husband had not paid her need-based attorney fees and had not
complied with court-compelled discovery. Wife argues: "Without the money [i.e., payment
of her attorney fees, she] was economically cut-off from all possible out-of-state evidence.
She made clear to the court that Kentucky was where the relevant witnesses (and [husband])
could be deposed. Without such evidence, she could not present her case." Wife continues:
"In the days leading to trial, [husband] produced records from only one of at least three
banks, dumping 4,000 statement pages through the day prior to trial confirmation. The
court abused its discretion by denying [wife's] request for continuance so she could at least
have time to review and analyze the massive trove of documents. [¶] Instead, the court set

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trial to commence six days following trial confirmation . . . ." "Without allowing access to
discovery in advance of trial, it was a de facto denial of trial on the merits and a fair day in
court."
"Trial continuances are disfavored and may be granted only on an affirmative
showing of good cause. [Citations.]" (Thurman v. Bayshore Transit Management,
Inc. (2012) 203 Cal.App.4th 1112, 1127; see also Cal. Rules of Court, rule 3.1332(c)
["[E]ach request for a continuance must be considered on its own merits. The court may
grant a continuance only on an affirmative showing of good cause requiring the
continuance."].) A request for a continuance must be made "by a noticed motion . . . with
supporting declarations." (Id., rule 3.1332(b).)
" 'The decision to grant or deny a continuance is committed to the sound discretion of
the trial court. [Citation.] The trial court's exercise of that discretion will be upheld if it is
based on a reasoned judgment and complies with legal principles and policies appropriate to
the case before the court. [Citation.]' " (Thurman v. Bayshore Transit Management, Inc.,
supra, 203 Cal.App.4th at p. 1126.) "It is the appellant's burden on appeal to show the trial
court abused its discretion. [Citation.]" (Cahill v. San Diego Gas & Elec. Co. (2011) 194
Cal.App.4th 939, 957.)
Wife has not carried her burden on appeal. In the argument portion of her opening
brief, wife was required to set forth the affirmative showing of good cause for the
continuance that she had made at the hearing on the motion for a continuance.
In determining whether a trial court abused its discretion, we consider the record before the
court when it made its ruling. (See People v. Thomas (2012) 53 Cal.4th 771, 798.) Wife
was also required to support the showing of good cause by references to the record.
Contrary to these requirements, wife's argument does not set forth the showing of good
cause and does not contain any supporting record references.1 " ' "It is the duty of a party to

1
Wife's reply brief contains numerous record references. But she still does not
present argument with supporting record references establishing the requisite affirmative
showing of good cause for the continuance at the hearing in the trial court. In any event,
argument and record references in the reply brief are "too late because [husband] did not
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support the arguments in its briefs by appropriate reference to the record, which includes
providing exact page citations." [Citations.] If a party fails to support an argument with the
necessary citations to the record, that portion of the brief may be stricken and
the argument deemed to have been waived. [Citation.]' [Citation.] [¶] . . . This rule applies
to matter referenced at any point in the brief, not just in the statement of facts. [Citation.]"
(Sky River LLC v. Kern County (2013) 214 Cal.App.4th 720, 740-741.) " 'The appellate
court is not required to search the record on its own seeking error.' [Citation.] Thus, '[i]f a
party fails to support an argument with the necessary citations to the record, . . . the
argument [will be] deemed to have been waived. [Citation.]' [Citations.]" (Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246.) The application of this rule is particularly
appropriate where, as here, the record is voluminous. The clerk's transcript alone consists of
13 volumes and 3,900 pages.
Even if the trial court had erred in denying wife's motion for a continuance, "[a]
judgment is reversible only if any error or irregularity in the underlying proceeding was
prejudicial. [Citations, fns. Omitted.] Therefore, any error in failing to grant a request for a
continuance . . . is reversible only if it is tantamount to the denial of a fair hearing.
[Citations.] There is no presumption of prejudice. [Citations.] Instead, the burden to
demonstrate prejudice is on the appellant. [Citation.]" (Freeman v. Sullivant (2011) 192
Cal.App.4th 523, 527-528.)
Wife has failed to carry her burden of demonstrating that the denial of a continuance
was tantamount to the denial of a fair hearing. Wife was represented by counsel throughout
the trial. It is speculative whether the granting of a continuance would have led to the
discovery of admissible evidence that would have resulted in a more favorable outcome for
wife.
Denial of Attorney Fees
At the conclusion of the trial, the court refused to award wife attorney fees in excess
of the $160,000 it had previously awarded. In its statement of decision, the court declared:

have the opportunity to respond." (Provost v. Regents of University of Cal. (2011) 201
Cal.App.4th 1289, 1305.)
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"Wife's attorney has requested $250,000 in fees and costs in this case; this Court has
previously awarded $160,000. There was no justification for this trial; wife had no viable
claims to present; there is no basis for husband to have to pay for wife's attorney fees
incurred for this trial or to get ready for this trial. . . . [I]t is clear that any additional fees are
unwarranted." Wife asserts that the trial court abused its discretion because it failed to make
the analysis required by Family Code sections 2030 and 2032.2
" 'It is well established in California that, although the trial court has considerable
discretion in fashioning a need-based fee award [citation], the record must reflect that the
trial court actually exercised that discretion, and considered the statutory factors in
exercising that discretion.' [Citation.] Thus, 'it is an abuse of discretion for trial courts to
deny motions for pendente lite attorney fees and costs in marital dissolution proceedings
without considering the needs of the requesting spouse and the ability to pay of the spouse
against whom the award is sought.' [Citation.] Similarly, trial courts 'have a duty at the
conclusion of the case to make a just and reasonable award of attorney fees and costs,
considering the circumstances of the parties.' [Citation.]" (In re Marriage of
Cheriton (2001) 92 Cal.App.4th 269, 315.)
The trial court did not abuse its discretion. It properly considered the circumstances
of the parties. The court noted that the Kentucky "real property transferred [by husband to
wife] in settlement of the contempt action has a fair market value of $325,000, much more
than what was at issue on the contempt citation." The court pointed out that in the contempt
action "the total demanded was $128,548.39 plus attorney fees and costs in pursuing [that]
action."
The court also properly considered that wife's trial claims were wholly without merit
and that "[t]here was no justification for the trial." A court should not award attorney fees
that were not "reasonably necessary." (§ 2030, subd. (a)(1) ["In a proceeding for dissolution
of marriage, . . . the court shall ensure that each party has access to legal representation . . .
by ordering, if necessary based on the income and needs assessments, one party . . . to pay
to the other party . . . whatever amount is reasonably necessary for attorney's fees . . . ."];

2
All statutory references are to the Family Code.
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Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 252, fn. 15 [" 'An award
measured summarily by what the applicant has been billed or what his or her attorney is
presently owed is an abuse of discretion if it
does not reflect consideration of whether the fees allegedly incurred were reasonably
necessary' "].) (Id. at p. 255.)
On a motion for attorney fees in a marital dissolution proceeding, " '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. [Citations.]'
[Citation.]" (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) In view of the
parties' circumstances and the lack of merit of wife's trial claims, it cannot be said that no
judge could have reasonably limited wife's attorney fees to $160,000.
Sanctions
Wife argues that the trial court abused its discretion by refusing to impose sanctions
against husband pursuant to section 271. "Section 271 provides that a family court may
impose an award of attorney fees and costs 'in the nature of a sanction' where the conduct of
a party or attorney '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.' (§ 271, subd. (a).)" (In re Marriage of Tharp (2010) 188
Cal.App.4th 1295, 1316.) "[S]ection 271 vests family law courts with an additional means
with which to enforce this state's public policy of promoting settlement of family law
litigation, while reducing its costs through mutual cooperation of clients and their counsel."
(Id., at p. 1318.)
Pursuant to section 271, in the trial court wife requested "monetary sanctions of
$3,600,000, representing the after-tax value of the community asset here in dispute [i.e.,
wife's share of the alleged earnings during the 20-month marriage], discovery of which was
dramatically prejudiced by Husband's rebellion against court orders to pay fees, and his
undisputed hiding of hundreds of thousands of dollars by which he could have paid those
fees as ordered." Wife has forfeited this issue because the argument portion of her opening

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brief does not include any supporting record references. (Sky River LLC v. Kern County,
supra, 214 Cal.App.4th at pp. 740-741.)
In any event, the trial court did not abuse its discretion. It found that there was no
community property and that wife's testimony concerning hidden offshore accounts was
"implausible." The court noted that it had previously "granted wife very significant attorney
fees and sanctions . . . in reliance upon her attorney's contention that husband was
consistently uncooperative . . . ." The court concluded that "under all the circumstances
there is no justification for additional sanctions or sanctioned-based fees/costs."
(Underlining omitted.) The trial court's ruling was not unreasonable, especially in view of
husband's strained financial circumstances. "The only stricture imposed by this statutory
provision [section 271] is that the sanctions may not impose an unreasonable financial
burden on the party sanctioned . . . ." (In re Marriage of Falcone and Fyke (2012) 203
Cal.App.4th 964, 995.)
Taxation of Spousal Support
In its statement of decision, the court declared: "Wife's request that her spousal
support payable after April 1, 2011, be nontaxable to her and nondeductible to husband is
granted." (Underlining omitted.) We reject wife's argument that all spousal support,
including support payable before April 1, 2011, should be nontaxable to her because the
parties made an agreement to that effect.
"Spousal support payments that qualify as alimony under federal law
are deductible by the payor spouse and taxable to the payee spouse, although the parties may
elect to characterize the payments as nondeductible and excludable." (11 Witkin, Summary
of Cal. Law (10th ed. 2005) Husband & Wife, § 347, p. 452.) The issue of spousal support
before April 1, 2011, was settled in February 2012 as part of the contempt settlement. The
settlement agreement stated that it "would satisfy and resolve all issues . . . before the
Court" in the contempt proceeding. The Affidavit of Facts Constituting Contempt showed
that, through March 2011, husband had failed to pay spousal support of $83,548. The
settlement agreement mentioned nothing about the taxation of spousal support.

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 During the trial, wife's counsel told the court that the Kentucky property received by
wife pursuant to the contempt settlement had been "traded off" for "spousal support through
March of 2011." The following colloquy then occurred between the court and wife's
counsel:
"THE COURT: Your request, if I understand it correctly, is you want [husband] to be
responsible for the taxes on spousal support only goes back [sic] to the payment that was
due April 1, 2011?
"[Counsel]: Yes.
"THE COURT: And then prospectively thereafter?
"[Counsel]: Yes
"THE COURT: I got it."
Accordingly, the trial court did not err when it granted "[w]ife's request that her
spousal support payable after April 1, 2011, be nontaxable to her and nondeductible to
husband." (Underlining omitted.)
Disposition
The judgment is affirmed. Husband shall recover his costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

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 Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

Randy Warren, for Appellant.

Paul A. Roberts and Marcus S. Bird; Hollister & Brace, for Respondent.

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