Marriage of Fivash and Pepper CA4/1

Filed 8/25/15 Marriage of Fivash and Pepper CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Marriage of LISA and RONALD
PEPPER.
D065598
LISA FIVASH,

Appellant, (Super. Ct. No. DN161179)

v.

RONALD PEPPER,

Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Thomas R.

Murphy, Judge (Ret.), Tamila Ipema, Judge. Affirmed.

Linda Cianciolo, for Appellant.

Stephen Temko and Dennis Temko, for Respondent.

INTRODUCTION

Lisa Fivash (formerly Pepper) appeals a dissolution judgment contending the trial

court erred in considering the amounts she received in a stipulated predistribution

division of community property from her husband's business as her income when it
calculated retroactive temporary spousal support and child support. She also contends

the court erred in awarding certain credits to her husband, Ronald Pepper, and not

awarding her attorney fees. We conclude the court did not abuse its discretion and affirm

the judgment.

BACKGROUND

A

Lisa and Ronald1 were married in 1990. Ronald, a commercial real estate agent,

is a partner in a real estate brokerage company, which helps retailers find sites for new

stores and assists shopping center landlords lease vacant space. Lisa stopped working in

early 1991 at Ronald's request. She gave birth to their daughter in 1993 and was the

primary caretaker for their daughter and the family home.

When Lisa and Ronald separated in June 2010, Lisa filed a petition for dissolution

of marriage requesting support, determination of property rights including use of the

family residence and valuation of Ronald's business, and attorney fees.

B

In September 2010, Lisa requested an accounting and division of commissions.

She advised the court Ronald had provided her with two payments totaling $15,000, but

claimed she had expenses of more than $19,000 per month. Ronald provided her the

community share of an asset they sold and told her to use that for her monthly living

expenses. Lisa contended Ronald was not providing her with adequate temporary

1 Because the parties are referred to throughout the record by a shared surname, we
refer to them by first name to avoid confusion. No disrespect is intended.

2
support and stated he was providing substantially less per month than he did before

separation. Lisa stated Ronald earned a monthly salary of $15,000 in addition to his

commissions. She requested an accounting of Ronald's commissions and immediate

payment of her community share of commissions earned prior to separation.

Ronald responded saying if Lisa received her community share of commission

income earned prior to separation, this would be a property distribution and should be

deducted from his income earned since separation when the court determined support.

Ronald also noted Lisa had no mortgage expense for the family residence, her vehicle

was paid for and she had no credit card debt. Ronald disputed Lisa's claims regarding the

amount of liquid assets available and her claim he was not cooperating with documents

needed for the business valuation.

In reply, Lisa disputed Ronald's claims of uncertainty regarding his income and

estimated commissions for calculation of support. She asked the court to consider

pending distributions to Ronald and estimated income for the remainder of the year. She

also asked the court to consider his past earnings since she believed he was not accurately

disclosing his income. Lisa agreed the family home did not have a mortgage, but it

required property taxes and insurance. She also stated their daughter's educational

expenses included horses, lessons, training and shows. In addition, their daughter had

school expenses for books, supplies, uniforms, parking permit and lunches.

Lisa reiterated her request for her share of commissions because she believed

Ronald was not providing enough support to cover her monthly expenses. She stated, "If

I receive this money as a property distribution, I am aware it will not be considered

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income to [Ronald]. Therefore, as an alternative to setting support as described above I

am requesting the court set support based on the $15,000 salary each month and split all

distributions received between the parties evenly until a review hearing on this matter."

She also requested a contribution to her attorney fees.

C

Based on a stipulation reached by the parties in October 2010, the court issued

findings and an order. The court ordered Ronald to pay Lisa "$17,000 per month until

further order of the [c]ourt or written agreement of the parties, with the [c]ourt retaining

jurisdiction to characterize these payments as spousal support, child support and pre-

distributions of community property." The court ordered Ronald to pay the property

taxes and insurance on the family home, retaining jurisdiction to characterize these

payments as support or predistributions of community property. Each party was ordered

to pay half of their daughter's school expenses and medical expenses not covered by

insurance.

The court set a hearing to reallocate and/or characterize all funds paid by Ronald

to Lisa. The court also indicated the parties' joint forensic accountant was to "provide an

opinion on the reallocation/characterization of sums paid" by Ronald to Lisa. The court

ordered payment to each party's attorney from community property funds. The parties

stipulated to the appointment of Thomas Murphy (ret.), a privately compensated

temporary judge (Cal. Const. art. IV, § 21; Cal. Rules of Court, rules 2.830-2.834), to

decide the matter.

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 D

Judge Murphy (hereinafter "the court") issued an order on January 3, 2012,

adopting the conclusions of the parties' joint forensic accountant. Ronald received

community commissions in 2010 of $637,399, and community commissions in 2011 of

$532,454. The court ruled Lisa was entitled to half of these commissions.

Of the $96,000 paid by Ronald to Lisa ($17,000 per month from July 2010

through December 2010), the court allocated $11,024 as child support and the remaining

$84,976 as a predistribution of community property with no spousal support ordered for

this period. Of the $102,000 paid from January 2011 through June 2011, $36,012 was

allocated as spousal support and the remaining $65,988 was allocated as a predistribution

of community property.

Ronald was charged with owing Lisa $30,672 ($5,112 per month), as retroactive

spousal support for the period of January through June 2011. With respect to spousal

support after July 2011, the court indicated it did not know "what community

commissions have been or will be paid after [July 1, 2011]." The court was "faced with

the same predicament that faced the parties when they entered in to the October 23, 2010

stipulation, i.e. with the exception of the $15,000 per month wages received by Ronald,

how much more in commissions will be paid and what will be their character."

Therefore, the court ordered the prior stipulated order for Ronald to pay Lisa "the

unallocated sum of $17,000 per month shall continue through April 1, 2012 . . . with the

[c]ourt retaining jurisdiction to characterize the payments as spousal support and/or pre-

distributions of property retroactive to July 1, 2011."

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 The court stated Ronald would be entitled to request credits for his payment of

postseparation property taxes and homeowner's insurance "in the final division of

property herein." Lisa, who was to be responsible for future property tax payments,

would also be entitled to credits in the final division of property.

The court also stated Ronald would be entitled to credits for payments made to

counsel and to the joint accountant. All other requests for reimbursements were reserved

for trial. The court ordered Ronald to pay attorney fees for both parties from a business

account, with the court retaining jurisdiction regarding the final allocation.

E

After multiple hearings and two trials at which the joint forensic accountant and

separate experts testified, the court issued a statement of decision. The court set forth the

October 2010 stipulation of the parties for Ron to pay Lisa $17,000 per month with the

court retaining jurisdiction to characterize the payments as support or predistributions of

community property.

The statement of decision noted the parties requested the court in November 2011

"[a)] to consider what portion of monies received by Ronald [as] accounts receivable and

work in progress were community; b) calculate what the support orders would have been

assuming the monies received had been divided; c) consider the fact that the parties had

filed joint income tax returns; d) and then determine what portion if any of the $17,000

per month payments to Lisa were a predistribution of community property." The same

process was used by the parties, experts and the court to allocate payments through trial.

6
 The court noted Lisa's counsel objected, for the first time in closing arguments, to

the court's "characterization of the $17,000 payments to Lisa." The court stated,

"Notwithstanding the above stipulation (October 13, 2010) and in particular, paragraph

numbered 4 therein, Lisa's counsel object[ed] to what his client agreed to . . . and to what

a substantial amount of time was spent on during the November-December[] 2011[]

Order to Show Cause and the October[] 2012 - January[] 2013[] trial." The court

overruled Lisa's objections stating "Lisa requested and stipulated, that she be given her

community property half of the commissions received by Ronald. The sum of $17,000

per month was agreed to be given to her with the [c]ourt determining what portion a

property distribution; what portion support."

After obtaining more information from the parties and their forensic accountants,

including tax on various items, the court allocated $511,861 as commissions due to Lisa

from July 2010 through February 2013, $272,955 as retroactive spousal support due to

Lisa from January 2011 through February 2013, and $13,960 as child support due to Lisa

for July through October 2010. Lisa owed Ronald $23,868 in child support from the end

of October 2010 through June 2011 for the period of time their daughter lived with him

before she reached the age of majority.2

2 Lisa's agreement to this allocation was conditional on her standing objection to the
court's interpretation of paragraph 4 of the October 13, 2010 stipulation.

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 After considering the factors set forth in Family Code3 section 4320, the court

ordered Ronald to pay Lisa $19,500 per month for spousal support beginning March 1,

2013. The court gave Lisa the option of being awarded the family residence at a fair

market value of $2,550,000. However, she determined she could not afford it and the

property was sold. The proceeds were used for equalization payments.

The court concluded the fair market value of the community interest in Ronald's

business was $1,220,000 as of June 30, 2010. The court noted Lisa received, as

recognized by the court's allocation, $513,800 in predistribution of the community

interest. Ronald was to be charged $706,200 for the award of the business.

The court awarded Ronald Watts credit4 for Lisa's exclusive use of the family

residence after separation. In making the award, the court considered a number of

factors, including the fact the support order did not take into account Lisa had no rent or

mortgage payment. The court charged Lisa with $266,000 at $9,500 per month from

November 2010 through February 2013, which excluded the time their daughter lived

with Lisa while the daughter was a minor.

3 Further statutory references are to the Family Code unless otherwise indicated.

4 In re Marriage of Watts (1985) 171 Cal.App.3d 366.

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 The court awarded Ronald Epstein credits5 for payments he made for (1) the

jointly retained forensic accountant who provided expert opinion regarding Ronald's

income and the value of the business ($106,741.44); (2) the private judge ($50,978.76),

(3) the marriage and family therapist for assistance with their daughter ($1,100), (4) the

special master and the court reporter ($12,361), (5) the fee for preparation of 2010 tax

returns ($1,000), (6) real property taxes ($33,092.32), (7) homeowners insurance

($9,052.88), and (8) medical and school expenses for their daughter ($686.45). The court

denied credit for other expenses claimed by Ronald, such as repair costs for their

daughter's Jaguar and expenses related to their daughter's horse.

The court awarded Lisa Epstein credits for (1) real property taxes and insurance

($16,330.74), and (2) plumbing and appliances for the family home post separation

($3,541.53). It denied her request for credit for other payments, such as maintenance of

the property and life insurance premiums insuring Ronald's life.

The court denied each party's request for sanctions against the other. The court

denied Lisa's request for additional attorney fees of $350,000 noting her counsel had been

paid $38,500 more from a community source than had Ronald's counsel.

Lisa appealed the statement of decision on March 6, 2014. Judgment was entered

on May 8, 2014, and we deemed the appeal to be from the judgment.

5 In re Marriage of Epstein (1979) 24 Cal.3d 76 (Epstein), superseded by statute on
other grounds as stated in In re Marriage of Prentis-Margulis & Margulis (2011) 198
Cal.App.4th 1252, 1280.

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 DISCUSSION

I

Allocation of Stipulated Post-Separation Payments and Support Orders

Lisa contends the trial court erred when it considered the allocated division of the

community business as her income when it calculated retroactive temporary spousal

support and child support. She contends charging her with receiving community property

and attributing the same amount to her as imputed income for purposes of support

calculations was a reverse "double dip" and resulted in reduced support awards. Lisa

asks us to reverse and remand for recalculation of child and temporary spousal support

based on Ronald's receipt of his $15,000 per month salary plus the full amount of

commissions he received (including her share). We are not persuaded.

A

Guiding Principles

We review temporary spousal and child support orders for abuse of discretion. (In

re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) "We examine the

challenged order for legal and factual support. 'As long as the court exercised its

discretion along legal lines, its decision will be affirmed on appeal if there is substantial

evidence to support it.' [Citations.] 'To the extent that a trial court's exercise of discretion

is based on the facts of the case, it will be upheld "as long as its determination is within

the range of the evidence presented." ' [Citation.] [¶] Where a question of law is

presented on undisputed facts, appellate review is de novo." (In re Marriage of

Blazer (2009) 176 Cal.App.4th 1438, 1443.)

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 "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, if appropriate, as determined by the

financial circumstances of the parties after their dissolution and the division of their

community property," temporary spousal support "is utilized to maintain 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. [Citation.] [¶] Rather, in 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." (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at

p. 1327.)

B

Cases Considering Double Counting Issue

In the case of In re Marriage of Marx (1979) 97 CalApp.3d 552, 561, a husband

contended it was error to include accounts receivable in the valuation of his medical

corporation because would it give the wife "half of the accounts receivable in the

distribution of the community property, and then [would give] her the other half or a

substantial portion thereof via spousal and child support." The court disagreed stating,

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"Wife had a community interest in the accounts receivable existing on the date of

separation, and by including them in the valuation of the business, her interest is

protected. Child and spousal support must be based upon the supporting spouse's future

earnings or income. 'Following separation, the preferred source for payment of support is

the separate property of the supporting spouse that would have been community property

if the spouses were not separated.' " (Id. at p. 561.) In so holding, the court rejected the

husband's argument child and spousal support should be paid from community cash on

hand before he was required to pay spousal support from his separate property. (Ibid.)

In re Marriage of White (1987) 192 Cal.App.3d 1022, concluded there was no

double counting error in awarding a pension to one spouse in the division of community

property and then considering the pension benefits derived from that former community

property as separate property to be considered in evaluating that spouse's ability to pay

spousal support. (Id. at pp. 1027-1029.) " ' "[I]n every case where one spouse receives

permanent spousal support from the other spouse, the source is from the separate property

of the paying spouse, including . . . earnings or property which were once the community

property of both spouses." ' " (Id. at p. 1028.)

The cases cited by Lisa from other states do not conflict with these authorities.

For example, Hommel v. Hommel (1991) 162 Wis.2d 782, 784 [471 N.W.2d 1, 1]

considered whether income derived from investment assets awarded to a spouse in the

division of property in a divorce settlement should be included in calculating that

spouse's income for purposes of revising a spousal support award. The Hommel court

12
concluded this did not violate the rule against double counting. (Hommel v. Hommel,

supra, 471 N.W.2d at p. 5.)

A more recent case from Wisconsin explained the rule against double counting

does not typically apply to income earning assets such as investment property because the

spouse receives the value of the property at the time of distribution. The spouse may sell

the property for its market value or keep the investment property and earn the income.

Therefore, the value of the investment is separate from the income it generates.

(McReath v. McReath (2011) 335 Wis.2d 643, 676 [800 N.W.2d 399, 416].) The court

distinguished investment income from pension benefit payments up to the present value

of the pension awarded to a spouse in a divorce. "[I]t would be double counting to count

the present value of the pension as a divisible asset and also count the future payments as

income, since the income, up to the valuation placed on the pension at the time of the

division, are one and the same." (McReath v. McReath, supra, 800 N.W.2d at p. 415.)

However, once the present value of the pension is reached, then the benefits could be

considered income. (Ibid.) The McReath court cautioned against inflexible application

of rules against double counting stating the focus should be on fairness. (McReath v.

McReath, supra, 800 N.W.2d at p. 416.)

C

Application

In this case, there is no dispute that Lisa was entitled to her community share of

Ronald's business, valued at the time of separation. The value of the community business

13
in this case did not include a future income stream, but only what had been earned at the

date of separation.

Instead of obtaining temporary spousal support at the outset of the case and

deferring collection of this community asset until the end of the case, Lisa asked to

receive her half of community commissions when Ronald received the commissions on a

monthly basis because she felt Ronald was not providing a reasonable amount of

support.6 In making this request, Lisa acknowledged, "If I receive this money as a

property distribution, I am aware it will not be considered income to [Ronald]."

This understanding comports with the law discussed above. To require Ronald to

pay Lisa her portion of the community commissions and then pay spousal support based

on all of the community commissions received (both her portion and his portion) would

result in an improper double dip into his share of the commissions.

Although Lisa repeatedly states on appeal she did not actually receive the

community commissions, she did receive fixed payments of $17,000 per month until the

time of trial which totaled $521,000. These monthly payments necessarily included

funds Ronald obtained from distributions of community commissions, particularly in the

initial months. Lisa agreed the court retained jurisdiction "to characterize these payments

as spousal support, child support[,] and pre-distributions of community property." Lisa

had the option of using these monthly payments for living expenses or for investment in

other assets.

6 Lisa initially requested $19,000 per month in temporary spousal support and
$4,870 in child support.

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 With the assistance of the joint forensic accountant and separately retained

economic experts, the court undertook a thorough evaluation of Ronald's business

income, including an evaluation of the community commissions received by Ronald after

the parties' separation. Based on the evidence presented by way of reports, testimony and

visual aids submitted by the parties, the court ultimately allocated $513,800 of the

monthly payments Lisa received as her portion of community commissions. The court

awarded retroactive spousal support to Lisa totaling more than $270,000 for the period

from January 2011 through February 2013. The court awarded retroactive child support

to both Lisa and Ronald based on the time their daughter lived with each of them after

separation until she reached the age of majority.

In reaching the allocations for retroactive temporary spousal support and child

support, the court did consider Lisa's allocation of the community commissions as her

income for purposes of evaluating her need. It also considered Ronald's share of

commissions along with this monthly salary to determine his ability to pay. The court

noted the majority of Ronald's 2010 income after separation and his income through June

2011 consisted of commissions completed at separation, i.e. the community property.

The court determined Ronald and Lisa's income in the initial months after separation was

nearly equal. As the portion of community commissions Ronald received dissipated over

time and converted to his separate property commissions, the court accordingly adjusted

the spousal support awards.

15
 These facts are distinguishable from the case of In re Marriage of Burkhart (1986)

180 Cal.App.3d 198, 201, in which the husband made informal support payments to the

wife and then sought credit for the payments when the court distributed the community

property. The court denied the request for credit because it determined there was an

implicit agreement by the parties the payments were for support and, absent an agreement

to the contrary, the payments were deemed to have been made from separate property.

(Id. at pp. 203-204.) To hold otherwise, the court concluded, would have resulted in a

"joke" on the wife because it would have meant she paid for her own support from the

community asset. (Id. at p. 205.)

There was no joke on an unsuspecting party here. The parties agreed to fixed

monthly payments, which they also agreed the court would later characterize as support

or distribution of property. Lisa understood her portion of predistribution commissions

would not be deemed income for Ronald in calculation of support. The court faithfully

undertook the effort to characterize the payments. It then awarded retroactive temporary

and child support based on evidence of the needs and ability to pay of the parties. We

find no abuse of discretion.

II

Epstein Credits

Both spouses have an equal interest in community assets (§ 751) and a trial court

is obligated to divide community assets equally between the parties upon a dissolution of

the marriage (§ 2550). Generally, debts incurred after the date of marriage but before the

date of separation must also be divided equally. (§ 2622, subd. (a).) The court has

16
discretion to order one spouse reimbursed from community assets for community debts

that the spouse paid from separate property after separation but before trial

(Epstein credits). (Id., subd. (b); Epstein, supra, 24 Cal.3d at pp. 84-85.) A spouse is

generally entitled to Epstein credits unless the payment was in reality a discharge of the

paying spouse's duty to pay support to the other spouse. (Epstein, at pp. 84-85; § 2626.)

Whether to award Epstein credits and in what amount is left to the trial court's discretion

based on equitable considerations consistent with an equitable distribution of the

community property. (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.)

The court awarded Ronald a number of Epstein credits for some postseparation

payments he made. Lisa challenges five of these credits contending Ronald did not

adequately trace the source of payment for these litigation charges to separate funds:

(1) the joint forensic accountant, (2) the private judge, (3) the special master, (4) the court

reporter, and (5) the social worker. Ronald disagrees contending any community funds in

the accounts used to make these payments were exhausted based on Lisa's receipt of her

portion of the community commissions and court-awarded support. By process of

elimination, Ronald argues, the only source for payment of the challenged litigation

charges was Ronald's separate property. We agree with Ronald.

"A spouse is entitled to reimbursement for payment of community obligations

only if those payments are made from the spouse's separate property." (In re Marriage of

Prentis-Margulis & Margulis, supra, 198 Cal.App.4th at p. 1281.) Commingling of

community and separate property funds creates a presumption the funds in the account

are community property. The presumption can be overcome "employing traditional

17
family law tracing methods, such as direct tracing or the family expense method of

tracing. (Ibid.) "Commingling of separate and community property does not alter the

status of the separate property interest so long as it can be traced to its separate property

source. [Citation.] Whether the spouse claiming a separate property interest has

adequately met his or her burden of tracing to a separate property source is a question of

fact and the trial court's holding on the matter must be upheld if supported by substantial

evidence." (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.)

There was no evidence of direct tracing in this case. Therefore, we examine

whether or not there is substantial evidence to support the family expense method of

tracing. The family expense method of tracing is "based upon the presumption that

family expenses are paid from community funds." (In re Marriage of Mix (1975) 14

Cal.3d 604, 612.) If it can be shown the community income in a commingled account

has been exhausted by family expenses at the time of payment, then payments from this

fund were necessarily from separate funds. (Ibid; In re Marriage of Cochran, supra, 87

Cal.App.4th at p. 1058.)

Ronald testified the account he used to pay the litigation charges contained his

salary and commissions (both community and separate). However, he also used that

account for Lisa's $17,000 monthly payments, which the court determined resulted in a

complete pre-distribution of her community share of the business along with spousal

support. Therefore, there was substantial evidence the remaining funds in the account

had to have been separate property funds. We conclude the trial court did not abuse its

discretion in awarding Ronald Epstein credits for the expenses related to this litigation.

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 III

Watts Credit

Lisa next contends the court erred in charging her with reimbursement to the

community for the reasonable rental value of the family residence, which she exclusively

occupied after separation, because she does not believe there was substantial evidence to

support the trial court's determination the reasonable rental value of the home was $9,500

per month. We do not agree.

" ' "Where one spouse has the exclusive use of a community asset during the

period between separation and trial, that spouse may be required to compensate the

community for the reasonable value of that use." [Citation.] The right to such

compensation is commonly known as a "Watts charge." ' " (In re Marriage of

Boblitt (2014) 223 Cal.App.4th 1004, 1011, fn. 3.) A decision to impose a Watts charge

is within the broad equitable discretion of the trial court and we review that decision for

of abuse of discretion. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 818-819.)

The court recognized Lisa had exclusive use of the community residence, "a

$2,500,000 +/- unencumbered community asset . . . which allegedly has a reasonable

rental value of $9,500 per month." The court had before it, an appraisal report setting

forth $9,500 as the estimated fair market monthly rental value. Ronald also testified the

19
rental value of the home was between $9,000 and $10,000 per month based on his

experience regarding real estate in the area.7

In its statement of decision, the court noted it had not adjusted the retroactive

support award to reflect the fact Lisa had use of the 6,700 square foot home, without rent

or mortgage, while Ronald had been living in a three-bedroom rental property he paid for

with separate funds. The court stated, "[c]onsidering the evidence presented and

counsels' arguments, the [c]ourt finds Lisa shall be charged for the use of the . . .

residence the sum of $9,500 per month for the period November 2010 through

February 28, 2013; i.e. excluding the daughter's minority and while living with Lisa."

We also note the court granted Lisa Epstein credits for the property taxes, insurance, and

repair expenses she paid for the community residence post separation. Based on this

record, we cannot conclude the court abused its discretion in imposing the Watts charge.

IV

Attorney Fees

Lisa contends the court abused its discretion in declining to award her a

contribution of $350,000 from Ronald for her attorney fees because his financial

condition is better than hers. We disagree.

"In any proceeding subsequent to the entry of a dissolution judgment, 'the court

shall ensure that each party has access to legal representation, including access early in

the proceedings, to preserve each party's rights by ordering, if necessary based on the

7 An owner of property may testify regarding its value. (Evid. Code, § 813; see also
In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 551, fn. 3.)

20
income and needs assessments, one party, except a governmental entity, to pay to the

other party, or to the other party's attorney, whatever amount is reasonably necessary for

attorney's fees and for the cost of maintaining or defending the proceeding during the

pendency of the proceeding.' (Fam. Code, § 2030, subd. (a)(1); see In re Marriage of

Sullivan (1984) 37 Cal.3d 762, 768 [the purpose of a pendente lite attorney fees award is

to provide a party, where necessary, with adequate funds to properly litigate the

controverted issues].) [¶] In determining whether to award attorney fees, the court must

consider the parties' respective needs and incomes. [Citation.] The court is not limited to

considering the parties' salaries. The court may also consider all evidence of the parties'

income, assets and abilities. [Citation.] The decision to award attorney fees is left to the

court's sound discretion. [Citation.] We will not disturb the award on appeal absent a

clear showing of abuse, e.g., a clear showing no judge could have reasonably made the

award." (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 902-903.)

In this case, the court considered not only the income of each party, but also the

community assets available and the amounts already paid for attorney fees for each party

from these community assets. The court concluded Lisa's counsel had been paid

$323,500 in attorney fees from a community source, which was $38,500 more than

Ronald's counsel had been paid from a community source. Under the circumstances, the

court declined to order Ronald to further contribute to Lisa's attorney fees. We conclude

the court acted within its discretion.

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 DISPOSITION

The judgment is affirmed. Ronald shall recover his costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HALLER, J.

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