Marriage of Molle CA2/4

Filed 8/20/14 Marriage of Molle CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re Marriage of DANIEL LEE
MOLLE and REBECCA JANE
MOLLE
B245304
DANIEL LEE MOLLE, (Los Angeles County
Super. Ct. No. KD077970)
Appellant,

v.

REBECCA JANE MOLLE,

Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Rocky Lee Crabb, Judge. Affirmed.
Law Offices of Jeffrey S. Benice and Jeffrey S. Benice for Appellant.
Robert D. Lipscomb for Respondent.
 Appellant Daniel Lee Molle challenges a judgment entered in the underlying
action regarding the dissolution of his marriage to respondent Rebecca Jane Molle.
He contends the family court erred in valuing a community asset, namely, a
business in which he has an ownership interest, determining his earning capacity,
and issuing an award of attorney fees. We reject his contentions and affirm.

FACTS
A. Background1
Daniel and Rebecca married in 1985, and soon had two children.2 Rebecca
was a homemaker and “soccer mom,” and Daniel worked as an elevator technician.
In 1992, Daniel met Kelli Clarke, whom he dated for a period.
In 1999, Daniel formed a closely held corporation, Superior Alliance
Elevator Corporation (Superior), which maintains, repairs, and upgrades elevators.
Daniel held a 75 percent interest in Superior, whose business arose primarily from
elevator maintenance contracts. Superior had 10 employers, six or seven of whom
were elevator technicians. Aside from acting as Superior’s president, Daniel
worked as an elevator technician.
In 2008, Daniel began dating Clarke again. After Superior hired Clarke as a
consultant, she became Superior’s operations manager. On January 2010, Daniel
and Rebecca separated.
B. Underlying Action
On January 25, 2010, Daniel initiated marital dissolution proceedings. The
parties reached agreements on several matters, but were unable to resolve their

1 Our summary of the background facts relies on findings of the family court not
challenged on appeal.

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disputes regarding the value of the community interest in Superior, spousal
support, and attorney fees.3 Among Rebecca’s contentions was a claim that Daniel
misappropriated funds from Superior with Clarke’s assistance.

1. Trial
On August 20, 2012, trial began on the issues in dispute. The limited record
before us discloses that the following evidence was presented.4

a. Daniel’s Case-In-Chief
Daniel testified that although he had three partners when he created
Superior, after 2003 only he and William Lee held ownership interests in Superior.
Daniel owned 1,000 shares of Superior’s stock, which represented 75 percent of
the total stock.5 Lee was responsible for Superior’s “financials,” and worked out
of an office in his home. Daniel acted as Superior’s president, and managed the
field labor, employees, and jobs.
Daniel further testified that in or after 2005, Superior encountered financial
difficulties because Lee failed to bill clients for services. Daniel discovered that
Lee had misused Superior’s credit cards and engaged in other improper conduct.
In November 2010, Daniel filed a lawsuit against Lee. In June 2012, Lee agreed to

2 Because the key parties share a surname, we refer to them by their first names. (In
re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
3 By the time of the dissolution action, Daniel and Rebecca’s children were adults.
4 The reporter’s transcript provided by Daniel omits the testimony of his valuation
expert, James O’Leary, and lacks portions of the direct examination, cross-examination,
and re-direct examination of Rebecca’s valuation expert, Robert MacBurney.
5 Although Daniel testified that he believed his shares represented 66 percent of
Superior’s stock, his counsel conceded that Daniel owned 75 percent. The parties further
agreed that at the time of trial, Lee’s wife owned the remaining 25 percent.

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the entry of a judgment that obliged him to pay Daniel and Superior $850,000, and
give back his stock in Superior. Daniel acknowledged that the judgment was not
listed as an asset in Superior’s financial records. According to Daniel, the
judgment was “uncollectable” because Lee had no resources to pay the judgment.
Daniel further testified that he first met Clarke in 1992, when they had a
dating relationship. In March 2008, they began dating again. In 2008 or 2009,
Superior hired Clarke as a consultant to assist with its financial operations. Her
tasks included bookkeeping and the reconciliation of Superior’s credit card
records. In 2011, after the “corporate lock out” of Lee, Clarke became Superior’s
operations manager, overseeing its budget, insurance, and “financials.”
According to Daniel, Clarke occasionally loaned funds to Superior, and
permitted Superior to use her house in Rancho Cucamonga as a business location.
Superior paid Clarke’s son $3,600 per month as the house’s property manager.
Clarke did not live in the house, which was occupied by a subcontractor who
performed vehicle maintenance for Superior. Superior’s shipments were sent to
the house, and several employees worked there.
Daniel further testified that in 2010, he underwent foot surgeries that
disabled him, and that Superior paid him no salary. He acknowledged that during
2010, he charged over $100,000 to Superior’s credit cards, but maintained that all
but $20,000 of those expenses were for business purposes. He also acknowledged
that in 2010, Superior paid all the expenses related to his use of a Dodge Viper.
Daniel further testified that from January 2012 to the time of the trial in
August 2012, he drew only $26,000 in salary, even though Superior’s annual gross
revenues ranged from $3.5 to $3.7 million. Daniel stated that Superior had little
income to pay his salary, in view of its high operating expenses and debts. He also

4
maintained that Superior was obliged to pay certain outstanding taxes and union
fines. Daniel opined that at the time of trial, Superior had no positive net value.
Clarke denied that she and Daniel renewed their dating relationship in early
2008. According to Clarke, she had experience as an administrator in several
businesses. In 2008, Daniel contacted her, described problems he had at Superior,
and sought her assistance.
Clarke further testified that she discovered deficiencies in Lee’s billing and
bookkeeping practices. In examining Superior’s operations, she found checks with
Daniel’s forged signature, improper fund transfers, misuse of Superior’s funds, and
inaccurate bookkeeping. Moreover, an Internal Revenue Service audit of Superior
for 2008 showed improperly documented personal uses of Superior’s credit cards.
According to Clarke, she attempted to root out financial irregularities, and believed
that she had rectified 80 percent of them.
Clarke also testified regarding her own financial circumstances, and denied
that Daniel used her to extract funds from Superior. According to Clarke, a
dissolution action regarding her marriage began in mid-2008. She received no
funds through the eventual marital settlement agreement. She acknowledged that
in July 2008, she filed an income and expense declaration in that action stating that
she earned $23.81 per hour in a position at the Hospice at the East Bay and had
$240 in her bank accounts, but maintained that she failed to read the declaration
before it was filed. She also acknowledged that in December 2008, she filed an
income and expense declaration in her marital dissolution action stating that she
earned $1,538 per week at the Hospice at the East Bay, had no “outside” income or
income from self-employment, and held $5,803 in her bank accounts.
Clarke further testified that in late 2008 and early 2009, she bought a house
in Rancho Cucamonga for $351,000. In July 2009, her bank accounts contained at

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least $110,000. In August 2009, she made a $50,000 loan to Superior, which it
soon repaid her. In October 2009, Lee agreed to pay Clarke approximately $2,100
per week for 21 hours per week as a financial consultant. Clarke performed most
of her services for Superior from her home in Rancho Cucamonga. At the same
time, she held a 40-hour per week position in West Covina. In January 2010, her
bank accounts contained at least $173,000. In 2010 and 2011, Clarke made loans
totaling $105,000 to Superior, which it repaid with interest.
James O’Leary, Daniel’s valuation expert, opined that at the time of trial,
Superior was worth $407,100.6 That value represented a weighted average of
estimates of Superior’s worth derived from several distinct methodologies.
O’Leary’s calculation gave the greatest weight to the “Adjusted Book Value
Method -- Going Concern” and the “Capitalization of Excess Earnings Method.”
In applying those methodologies, O’Leary relied on Superior’s financial records.7

b. Rebecca’s Evidence
Robert MacBurney, Rebecca’s valuation expert, rejected O’Leary’s
application of the “adjusted book value” and “capitalization of earnings” methods,
as those methodologies required accurate and reliable financial records for the
period from 2008 to 2012.8 According to MacBurney, the most recent year for

6 Because Daniel has not included a reporter’s transcript of O’Leary’s testimony,
our summary is based on the family court’s statement of decision and the exhibits
admitted at trial, including O’Leary’s report.
7 Aside from these witnesses, Corey Seitz, a Superior employee, testified that
Superior paid $10,000 of an $18,000 union fine imposed on him for failure to pay his
union dues. Stephen Souter, a vice-president of P. S. Elite Management, testified that
Superior paid his company $3,000 per week to provide telephone-related services.
8 MacBurney also testified that in valuing Superior, O’Leary erroneously overstated
Superior’s debts and tax liabilities.

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which there was reliable financial documentation regarding Superior was 2008, as
the Internal Revenue Service had audited Superior’s 2008 corporate tax return.
MacBurney further testified that the only reasonably credible financial information
for the period from 2008 to 2012 concerned Superior’s gross revenue, which was
approximately $3.5 million to 3.7 million per year. In light of Superior’s relatively
stable gross revenue, MacBurney opined that at the time of trial, Superior was
worth $2.3859 million, based the “market data” method, which relies on sales of
comparable businesses.
MacBurney also testified regarding Daniel’s “sustainable cash flow” from
Superior. Based on Daniel’s W2 statements for 2008 and 2009, as well as
Superior’s financial statements for 2008, MacBurney estimated that Daniel’s
earnings, employment benefits, and payments from Superior averaged $35,700 per
month.9 According to MacBurney, his estimate rested on “the most reliable last
information” regarding Daniel’s “sustainable cash flow.”
In addition, MacBurney offered testimony regarding Clarke’s financial
circumstances while employed by Superior. Following an examination of Clarke’s
bank records, he determined that from January 2008 to June 2012, she deposited
approximately $2.67 million in her bank accounts.
Rebecca testified that she and Daniel had lived “a really good life.” They
owned a large house, “nice cars,” and several recreational vehicles. In addition,
they had a barn for her horses. Until the early ‘90s, Rebecca devoted most of her
time to raising their two children. From 1995 to 2003, she earned as much as

9 MacBurney focused on Daniel’s income in 2008, with adjustments to reflect
information regarding his income in 2009. So adjusted, Daniel’s total income for 2008
was $428,000. That sum encompassed Daniel’s average annual earnings of $229,000 in
2008 and 2009 (as reflected on his W2 statements), $166,000 in dividends and additional

7
$20,000 per year as a part-time dental assistant until she developed carpal tunnel
syndrome, which forced her to give up that employment. In 2006, she obtained a
conditional license as a realtor, but was unable to keep it because her marital
problems prevented her from acquiring required college credits. She also
competed in horse riding competitions, from which she earned $12,000 in prizes in
2009.

c. Daniel’s Rebuttal Evidence
Clarke testified that the deposits to her bank accounts described by
MacBurney reflected legitimate transactions with Superior, or otherwise were
made for legitimate business purposes related to her employment. She further
testified that after 2008, Superior’s net income diminished, due to an increase in
employee salaries and union dues, the imposition of penalties and interest for
unpaid taxes, and a loss of lucrative “modernization jobs,” that is, contracts
involving the full replacement of elevators.
Daniel testified that Rebecca stopped working as a dental assistant solely
because she disliked driving to work.

2. Findings and Judgment
Following trial, on September 4, 2012, the family court issued a tentative
statement of decision, which became its final statement of decision. Regarding the
community’s interest in Superior, the family court found that Superior’s financial
records were unreliable, as maintained by Daniel and Clarke; that Daniel’s and
Clarke’s testimony regarding Superior’s diminished profits after 2008 was not

payments from Superior in 2008, and payments made by Superior for Daniel’s use of the
Dodge Viper in 2008.

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credible; and that Superior’s income had been diverted to Daniel’s and Clarke’s
benefit in connection with Clarke’s house. The court rejected O’Leary’s valuation
of Superior, noting that the information on which he relied was “of questionable
validity.” Based on MacBurney’s testimony, the court determined that Superior’s
fair market value at the time of trial was $2.385 million, and thus concluded that
the community’s 75 percent interest in Superior was worth $1,788,750. The court
awarded Superior to Daniel, and directed him to pay $894,375 to Rebecca.
Regarding spousal support, the family court found that the parties had lived
at an upper middle class level. Relying on MacBurney’s testimony regarding
Daniel’s “sustainable cash flow” from Superior, the court found that Daniel’s
earning capacity was $20,000 per month, in view of his 75 percent interest in
Superior. After determining there was insufficient evidence to impute income to
Rebecca, the court directed Daniel to pay $4,250 per month in spousal support.
Regarding Rebecca’s request for an award of attorney fees, the court
concluded that because Daniel had control of Superior, Rebecca “was required to
chase the truth through litigation, which of course is often times an expensive
effort.” Based on declarations submitted by the parties and the testimony at trial,
the court ordered Daniel to pay $75,000 “as a contributive share” of Rebecca’s
attorney fees and costs. On November 2, 2012, a judgment was entered reflecting
the family court’s determinations.

DISCUSSION
Daniel challenges the sufficiency of the evidence to support the family
court’s determinations regarding Superior’s value and Daniel’s earning capacity.
In addition, in view of those purportedly erroneous determinations, Daniel

9
contends the court abused its discretion in issuing the fee award to Rebecca. As
explained below, Daniel has failed to establish his contentions.

A. Limitation of Daniel’s Contentions Due to Incomplete Record
At the outset, we examine the extent to which the partial record provided by
Daniel circumscribes the challenges that he may assert on appeal. “A fundamental
rule of appellate review is that ‘“[a] judgment or order of the lower court is
presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.”’
[Citations.]” (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841, italics
omitted.) To overcome this presumption, appellants must provide an adequate
record that demonstrates error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
As explained below, Daniel’s failure to provide a full reporter’s transcript of the
trial limits the scope of his challenges to the sufficiency of the evidence.
The record before us omits the testimony of Daniel’s expert, O’Leary,
significant portions of the testimony of Rebecca’s expert, MacBurney, as well as
the declarations submitted by the parties pertinent to Rebecca’s fee request. In the
absence of a complete evidentiary record, we must presume that the evidence
supports the family court’s determinations regarding Superior’s value, Daniel’s
earning capacity, and Rebecca’s entitlement to a fee award, unless error appears on
the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210
Cal.App.3d 510, 521-522; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154
(Ehrler).) Rule 8.163 of the California Rules of Court (rule 8.163) provides: “The
reviewing court will presume that the record in an appeal includes all matters
material to deciding the issues raised. If the appeal proceeds without a reporter’s

10
transcript, this presumption applies only if the claimed error appears on the face of
the record.”
The courts have long interpreted rule 8.163 to mean that an appellant who
proceeds on a partial evidentiary record must provide a record capable of
establishing the kind of error the appellant asserts. As explained in Utz v. Aureguy
(1952) 109 Cal.App.2d 803, 806-807, under that rule, “if an error appears on the
face of a judgment roll or other partial transcript it is not to be presumed on appeal
that the error was cured by some proceeding not appearing in the transcript
[citations][,] but it is still incumbent on an appellant to present a transcript which
affirmatively shows on its face that an error occurred [citations].” Accordingly, in
the case of challenges to the sufficiency of the evidence, error ordinarily cannot be
shown in the absence of the full evidentiary record. (In re Silva (1931) 213 Cal.
446, 448; Miller v. Checkeroski (1963) 217 Cal.App.2d 590, 591.) This is because
in examining such challenges, “the power of an appellate court begins and ends
with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination [of
the trier of fact] . . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Although Daniel broadly maintains there is insufficient evidence to support
the family court’s rulings, the primary focus of his contentions is on MacBurney’s
expert testimony. Generally, “an expert’s opinion based on assumptions of fact
without evidentiary support [citation], or on speculative or conjectural factors
[citation], has no evidentiary value [citation] . . . .” (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; see Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771
(Sargon Enterprises) [“An expert opinion has no value if its basis is unsound,”
quoting Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564].) Daniel

11
argues MacBurney’s testimony regarding Superior’s value, Daniel’s earning
capacity, and other matters was too speculative or conjectural to constitute
cognizable evidence.
As noted, Daniel failed to include the entirety of MacBurney’s testimony. In
view of the principles discussed above, Daniel has forfeited his challenges to the
sufficiency of the evidence, with the exception of certain limited contentions
potentially capable of being established by the partial record, namely, that the
family court based some findings solely on testimony from MacBurney that
indisputably constituted speculation. As explained below, we reject those
contentions; moreover, notwithstanding the limited record, we would also reject
Daniel’s other challenges to the sufficiency of the evidence were we to address
them, as the partial record discloses ample evidence to support the family court’s
rulings.

B. Unreliability of Superior’s Financial Records
We begin with Daniel’s challenge to the family court’s finding that
Superior’s financial records were insufficiently reliable to support O’Leary’s
valuation. Daniel argues that the finding relied solely on speculation from
MacBurney. However, for the reasons discussed above (see pt. A., ante), Daniel
has forfeited his contention, as the family court’s statement of decision establishes
that it predicated the finding on evidence from several witnesses, including
Daniel’s expert O’Leary. Furthermore, we would reject the contention were we to
examine it.
“We review factual findings of the family court for substantial evidence,
examining the evidence in the light most favorable to the prevailing party.
[Citation.] In reviewing evidence on appeal, all conflicts must be resolved in favor

12
of the prevailing party, and all legitimate and reasonable inferences must be
indulged in order to uphold the trial court’s finding. [Citation.] In that regard, it is
well established that the trial court weighs the evidence and determines issues of
credibility[,] and [that] these determinations and assessments are binding and
conclusive on the appellate court. [Citation.]” (In re Marriage of Hill &
Dittmer (2011) 202 Cal.App.4th 1046, 1051-1052.)
Here, MacBurney testified that he had examined Superior’s financial
records. According to MacBurney, Superior lacked sufficient source
documentation to ensure the reliability of the financial statements upon which
O’Leary relied for his valuation. MacBurney’s review of the use of Superior’s
credit cards disclosed charges totaling $833,000 for which there was no
documentation establishing that the charges were business-related. MacBurney
further testified that after 2008, when Clarke had few assets, she “acquire[d] a new
home, [got] a new car, and ha[d] hundreds of thousands of dollars in bank
accounts.” From 2008 to 2012, Clarke deposited over $2.6 million into her own
accounts. MacBurney also testified that in 2010, when Daniel was purportedly
receiving only disability payments, he deposited $110,000 in his bank accounts,
often in the form of cash, and charged $104,000 on Superior’s credit cards.
Clarke too provided testimony that undermined the credibility of Superior’s
financial records. She acknowledged that in 2008, she filed income and expense
declarations stating that she had less than $6,000 in her bank accounts, and that she
later made loans to Superior totaling at least $155,000. In addition, she testified
that in 2011, when she gained full access to Lee’s financial records, she found so
many “miscategorizations” that she wanted to “zero[] out” his books and “start[]
over,” but did not do so due to the litigation against Lee. There is thus ample

13
evidence to support the family court’s finding regarding the unreliability of
Superior’s financial records.
Daniel contends that MacBurney’s testimony was speculation, arguing that
MacBurney conceded he found no evidence that Daniel or Clarke took funds not
properly documented as a loan repayment, salary payment, or business expense.
We disagree. MacBurney maintained that the evidence, viewed as a whole,
demonstrated the unreliability of Superior’s books, notwithstanding the absence of
certain types of conclusive “smoking gun” evidence.
Although MacBurney acknowledged that he found no document expressly
showing an improper transfer from Superior to Clarke’s bank accounts, he noted
that Clarke had supplied only redacted bank statements that omitted descriptions of
many deposits. Although MacBurney also acknowledged that he found no
document expressly showing that Daniel improperly transferred funds from
Superior to his own bank account, he observed that many of Daniel’s deposits were
in cash, and that Daniel testified in his deposition that he did not document his
credit card use to establish whether he incurred business expenses. In response to
an inquiry whether Superior’s credit card transactions appeared in its records,
MacBurney agreed that “[t]here [was] nothing off the books trying to be hid,” but
nonetheless maintained that Superior’s books were unreliable, in view of the lack
of documentation regarding the purpose of many of the credit card transactions.
Viewed in context, MacBurney’s remarks cannot reasonably be regarded as
rendering his testimony speculation. Accordingly, Daniel has failed to show error
in the family court’s finding regarding the unreliability of Superior’s financial
records.

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 C. Valuation of Superior
We turn to Daniel’s challenge to the family court’s valuation of Superior,
which relied on MacBurney’s expert testimony.

1. Governing Principles
Generally, the family court is obliged to divide the community estate
equally. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631-632
(Duncan).) “In this regard, the court has broad discretion to determine the manner
in which community property is divided and the responsibility to fix the value of
assets and liabilities in order to accomplish an equal division. [Citations.] The
trial court's determination of the value of a particular asset is a factual one and as
long as that determination is within the range of the evidence presented, we will
uphold it on appeal. [Citations.]” (Ibid.)
Here, the family court was required to divide Superior, a closely held
corporation. “‘The determination of the value of infrequently sold, unlisted,
closely held stock is a difficult legal problem. Most of the cases illustrate there is
no one applicable formula that may be properly applied to the myriad factual
situations calling for a valuation of closely held stock. [Citation.]’” (Duncan,
supra, 90 Cal.App.4th at p. 632, quoting In re Marriage of Hewitson (1983) 142
Cal.App.3d 874, 888 (Hewitson).)
The family court has “broad discretion” to assess the value of a closely held
corporation, for purposes of allocating it to the parties. (Duncan, supra, 90
Cal.App.4th at p. 632.) In exercising that discretion, the court “‘makes an
independent determination of value based upon the evidence presented on the
factors to be considered and the weight given to each. The trial court is not
required to accept the opinion of any expert as to the value of an asset.’

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[Citations.] Differences between the experts’ opinions go to the weight of the
evidence. [Citations.] Rather, the court must determine which of the recognized
valuation approaches will most effectively achieve substantial justice between the
parties. [Citation.]” (Duncan, supra, at p. 632, quoting In re Marriage of
Bergman (1985) 168 Cal.App.3d 742, 753.)

2. Evidence and Findings
Relying on the “market data” method, MacBurney estimated Superior’s
value at the time of trial to be $2.3859 million. In applying that method,
MacBurney noted that from 2008 to 2012, Superior’s gross revenue was
approximately $3.5 million to 3.7 million per year. After consulting several
databases, MacBurney found five closed sales of businesses comparable to
Superior in the standardized category for elevator installation, conversions, and
repairs. Those sales occurred between 1999 and 2008, and involved businesses
located outside of California with gross revenues from $596,000 to $1,559,296.
MacBurney found that the ratios of the sales price to the gross revenue for the
transactions ranged from 1.44 to .513. To compensate for potential differences
between Superior and the other businesses, MacBurney focused on the two
transactions with the lowest ratios, which occurred in 2004 and 2008, and
determined that the appropriate ratio of sales price to gross revenue for his
evaluation was .6. Applying that ratio to Superior’s estimated gross revenue for
2012, McBurney arrived at his opinion regarding Superior’s value.
As additional support for that opinion, MacBurney pointed to the
“capitalization of [excess] earnings” method, as employed by O’Leary.
MacBurney testified that if O’Leary, in applying that method, had used the reliable
financial data from 2008, rather than certain ill-founded figures that O’Leary

16
derived from Superior’s records, O’Leary would have arrived at a valuation for
Superior very close to MacBurney’s estimate of Superior’s value.
Noting that the parties’ experts effectively agreed that Superior’s gross
revenue was approximately $3.6 million annually from 2008 to 2012, the court
accepted that figure as “a true fact.” The court also adopted MacBurney’s
valuation of Superior, stating that MacBurney’s “conservative .6 ratio factor
derived from the five comparable sales is a reasonable method of calculating fair
market value, particularly where the books and records of Superior are not
otherwise generally reliable.” The court further noted that MacBurney had
performed a “sanity check” regarding his estimate, that is, tested it against
O’Leary’s application of the “capitalization of excess earnings method,” as
adjusted to reflect reliable financial information from 2008.

3. Daniel’s Contention
Daniel asserts that on cross-examination, MacBurney admitted his valuation
of Superior was flawed because the comparable sales were too “remote.”
However, because Daniel failed to include that testimony in the record, he has
forfeited his contention of error. (See Ehrler, supra, 126 Cal.App.3d at pp. 153-
154 [appellate courts do not review “evidence” described only in a party’s trial
brief].)
Furthermore, to the extent Daniel suggests that the limited record
demonstrates that MacBurney’s valuation was speculation, his contention fails.
The record shows that O’Leary and MacBurney agreed that the market data
method is an acceptable approach to valuing a business; that MacBurney identified
the sale of five comparable businesses; that he compensated for potential
differences between those businesses and Superior by focusing on relatively recent

17
sales and adopting a conservative “sales price to gross revenue” ratio; and that he
performed a “sanity check” on his valuation. In our view, the trial court did not err
in crediting MacBurney’s assessment of Superior’s worth.
Daniel’s reliance on Sargon Enterprises, supra, 55 Cal.4th at p. 771,
Hewitson, supra, 142 Cal.App.3d 874, and In re Marriage of Rives (1982) 130
Cal.App.3d 138 is misplaced. In each of those cases, the reviewing court held that
an expert’s evaluation of a business failed to constitute substantial evidence, as the
record demonstrated that the expert applied a defective method or made factually
unfounded assumptions. (Sargon Enterprises, supra, at pp. 776-778 [in assessing
small business’s lost profits, expert improperly assumed future market share far
greater than actual market share, and compared business to significantly larger
businesses]; Hewitson, supra, at pp. 884-886 [expert erred in valuing a closely held
corporation by reference to sales of large publicly traded corporations, in view of
differences between the two types of corporation and the scarcity of comparable
companies]; In re Marriage of Rives, supra, at pp. 150-151 [in valuing business,
expert improperly assumed future production levels far greater than any actually
achieved, and considered husband’s post-marital contribution to business].) As
explained above, the record before us discloses no such error. In sum, Daniel’s
challenge to the family court’s valuation of Superior fails.10

10 In a related contention, Daniel argues that the family court’s statement of decision
improperly disregarded the effect of Lee’s misconduct on Superior’s value. However,
because the record discloses no objections by Daniel to the statement of decision, we will
imply any findings necessary to support the court’s rulings. (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1132.) As the court expressly found that Superior’s
financial records were unreliable, it could reasonably have concluded that Daniel failed to
show that Lee’s misconduct diminished Superior’s value at the time of trial.

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 D. Daniel’s Earning Capacity
Daniel contends the family court erred in finding that his earning capacity
was $20,000 per month. He argues that the court improperly credited
MacBurney’s “speculation” regarding his earning capacity, rather than accepting
his own testimony regarding his earnings, which he characterizes as
“uncontradicted.” We disagree.
Permanent spousal support is controlled by Family Code section 4320 and
related statutes, which specify factors the family court must assess in determining the
amount of support. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304,
320.) Because a key factor is the supporting party’s “ability to pay,” which
encompasses assets as well as income, the court may in suitable circumstances look
beyond the supporting party’s income to assets controlled by that party. (Id. at pp.
304 -305.) In this regard, “California courts have approved support awards based
upon the earning capacity, instead of the actual income, of the supporting spouse in
cases where ‘“it appears from the record that there is a deliberate attempt on the
part of the [spouse] to avoid his [or her] financial family responsibilities . . . .”’”
(In re Marriage of Simpson (1992) 4 Cal.4th 225, 232, quoting In re Marriage of
Nolte (1987) 191 Cal.App.3d 966, 973.)
Here, the family court concluded that Daniel had engaged in that type of
misconduct, as it found that Daniel kept unreliable financial records, offered
untrustworthy testimony regarding Superior’s financial condition, and diverted
Superior’s income to himself and Clarke. Because Daniel has failed to provide a
full evidentiary record, he may not challenge that conclusion on appeal; moreover,
we would reject any such challenge were we to consider it, in view of the evidence
disclosed in the partial record.

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 Nor can MacBurney’s opinion concerning Daniel’s “sustainable cash flow”
be regarded as speculation. According to MacBurney, his opinion was predicated
on the then most recent reliable information regarding Daniel’s earning capacity,
namely, Daniel’s W2 statements for 2008 and 2009, as well as Superior’s financial
statements for 2008. We therefore reject Daniel’s contention that MacBurney
“speculated without evidentiary foundation.” In sum, we see no error in the
determination regarding Daniel’s earning capacity.

E. Attorney Fee Award
Daniel challenges the award of attorney fees and costs to Rebecca, arguing
that it relies on the family court’s determinations regarding Superior and his
earning capacity. As Daniel’s contentions concerning those determinations fail, he
has shown no error in the award.

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 DISPOSITION
The judgment is affirmed. Rebecca is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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