Marriage of Nelson CA2/4

Filed 7/22/16 Marriage of Nelson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR

In re Marriage of KELLEY and WILLIAM B266745
L. NELSON.
(Los Angeles County
Super. Ct. No.BD603233 )

KELLEY NELSON,

Appellant,

v.

WILLIAM L. NELSON,

Respondent.

APPEAL from orders of the Superior Court of Los Angeles County, Michelle
Williams Court, Judge. Reversed and remanded with instructions.
Trope and Trope, Thomas Paine Dunlap and Ronald A. Rale for Appellant.
Phillips & Jessner, Gregory W. Jessner and David A. Campbell for Respondent.
 INTRODUCTION
Kelley Nelson appeals from orders entered in her dissolution proceeding awarding
temporary child support and denying her request for attorney’s fees. She contends the
trial court abused its discretion in calculating the amount of child support owed to her by
using outdated and incomplete income information from her husband, respondent
William Nelson. Kelley1 further claims it was error for the court to find that she had not
established a need for contribution toward her attorney’s fees and costs and that none of
the fees she sought were reasonable. We conclude that the court should have used
William’s updated income information to calculate the amount of child support and to
determine whether Kelley needed a contribution toward her attorney’s fees. Because it
did not, its findings were not supported by substantial evidence; the court accordingly
abused its discretion in determining the appropriate award of child support and in
assessing whether Kelley was entitled to any attorney’s fees and costs. Accordingly, we
reverse and remand.
FACTUAL AND PROCEDURAL HISTORY
Kelley filed a petition for dissolution of marriage on June 11, 2014, after almost
thirteen years of marriage. During the marriage, William worked as an attorney and
Kelley stayed at home with the couple’s two children. In her petition, Kelley requested
sole legal and physical custody of the children, then ages 12 and 9.
A. Prenuptial Agreement
The parties entered into a prenuptial agreement in 2001. Under the terms of
section 11 of the agreement, William agreed to pay Kelley a fixed amount of monthly
spousal support, determined by the number of years of marriage. Section 11 also
contained a provision stating that the “parties have also agreed that the amounts payable
to Kelley as provided in this Section 11, should be sufficient to pay all of her reasonable
attorney’s fees and costs in the event of a dissolution and Kelley agrees that Bill shall
have no liability for any of her attorney’s fees and costs, except to the extent provided in

1
We refer to the parties by first name because they share a surname.
2
Section 26 below.” Section 26 allowed an award of attorney’s fees and costs to the
prevailing party in an action to, among other things, “enforce or prevent a breach of any
term or provision” of the agreement.
Kelley initially contested the validity of the prenuptial agreement and sought to
bifurcate that issue for trial. She ultimately stipulated to the validity of the agreement on
April 30, 2015 and the court entered judgment on that stipulation on June 8, 2015.
B. DVRO and First RFO
Kelley filed a request for a Domestic Violence Restraining Order (DVRO) along
with her petition for dissolution on June 11, 2014. She also filed a Request for Order
(RFO) seeking child support, spousal support, and $100,000 in attorney’s fees. The trial
court heard testimony regarding the DVRO over several days, culminating in a hearing
on September 19, 2014. The court made detailed findings on both the DVRO and the
RFO orally at the hearing and then in a written order filed November 14, 2014.
The court denied Kelley’s request for a DVRO, finding her testimony about her
alleged injuries was “not consistent,” that William’s version of the alleged events was
“more credible” than Kelley’s version, and that it appeared that Kelley was the “primary
aggressor.” In denying the DVRO, the court found it had no jurisdiction to make a child
custody order, and therefore no basis to award child support at that time.
Because Kelley was contesting the validity of the prenuptial agreement at the time,
the parties agreed that the court could award temporary spousal support based on the
statutory guideline formula, rather than the amount provided in the prenuptial agreement.
The court ordered spousal support from William to Kelley in the amount of $5,897 per
month. This amount was calculated using William’s income and expense declaration
submitted in August 2014 (2014 declaration), in which he reported the following monthly
amounts: $4,166 in wages and salary, $7,000 in self-employment income, $5,971 in
dividends, and $3,678 in social security received for William and the children.

3
 The court granted Kelley’s request for attorney’s fees in part, pursuant to Family
Code section 20302, ordering William to contribute $25,000 toward Kelley’s attorney’s
fees. William did so by paying off a credit card charge for $25,000 that Kelley already
had made to her attorney, Brett Berman.
Noting that Kelley “doesn’t have income, other than her support,” the court found
that she “does have a need for contribution for attorney’s fees and that [William] does
have an ability to pay.” However, the court further found that “a substantial portion of
the attorney’s fees requested for work that has been done to date is not reasonable.” In
partially granting Kelley’s request and ordering William “to make a $25,000 contribution
to fees,” the court stated that the order was “without prejudice to a future request for
additional attorney’s fees based on work that is done in the future. The court does not
intend that this $25,000 contribution should be adequate in order to allow [Kelley] to
fully litigate the case.”
C. Resolution of Custody
On April 2, 2015, William filed an RFO seeking joint physical custody of the
children. He claimed that Kelley was unfairly restricting his time with the children. The
parties entered into a stipulation and order on June 8, 2015, providing for joint legal
custody and shared physical custody.
D. Kelley’s Second RFO
On May 5, 2015, Kelley filed the RFO at issue on appeal, seeking, as relevant
here, child support, attorney’s fees, and costs. Specifically, Kelley sought an award of
temporary guideline child support.3 In making the guideline calculation, Kelley
requested that the court use William’s 2014 declaration as evidence of his income.

2
All further statutory references are to the Family Code unless otherwise indicated.
3
California uses a “statewide uniform guideline for determining child support
orders.” (§ 4055,1 subd. (a).) This guideline is an algebraic formula based on the
parents’ taxable incomes and other variables. (Ibid.) The court may depart from the
guideline only in “special circumstances” set forth in the child support statutes.
(§ 4052.) Neither party disputes that the guideline was applicable in this case.
4
 Kelley also requested an order that William pay her litigation fees—$250,000 in
attorney’s fees and $75,000 in fees for a forensic accountant. In her declaration
accompanying the RFO, Kelley stated she had retained new counsel, Trope and Trope
LLP, in September 2014, that the “vast majority” of work done by her prior counsel
related to seeking the DVRO, and that none of the fees she currently sought were for
“past services related to the domestic violence proceeding.” She claimed she did “not
have any source of funds” to pay her attorneys or a forensic accountant, as she had
borrowed funds “to retain my current counsel and to pay my living expenses.” Kelley
stated that she was unemployed, and had not worked outside the home since
approximately 1999, at which time she earned $2,833 per month as an assistant teacher.
She was a “full-time stay-at-home mother” for the entirety of her marriage to William.
The RFO also included a declaration from Kelley’s counsel, Ron Rale, as well as
supporting billing statements. Rale stated that Kelley had incurred $135,698.50 in
attorney’s fees and costs from September 2014 through March 31, 2015, of which she
had paid $51,500 from personal loans. Although the billing statements were heavily
redacted, Rale’s declaration provided a monthly breakdown of categories of fees
incurred, including work related to (1) “the validity and enforceability” of the parties’
premarital agreement; (2) “custody matters”; (3) review of the case file and work done by
Kelley’s prior counsel; and (4) the characterization of Undine Farms, a property acquired
by William during the marriage, for which Kelley claimed she was owed a 50 percent
ownership interest. In addition, Rale estimated he would need fees for future work
regarding (1) Kelley’s claim that William breached the premarital agreement4; (2) child
support, particularly “discovery and analysis relative to [William’s] cash flow”; (3) child
custody; (4) the characterization of the parties’ interest in Undine Farms; and (5) further
discovery and preparation of the RFO.

In his declaration, Rale acknowledged that Kelley “has determined that she will
4

not contest the validity of the parties’ prenuptial agreement,” but asserted that Kelley
intended to proceed with a claim that William breached the agreement by “failing to
comply with a requirement to contribute to a community fund each year.”
5
 Kelley’s RFO also included a declaration from her forensic accountant stating that
she had approximately $16,000 in unpaid fees for work done to date and estimating an
additional $75,000 in fees for future services on the case.
Kelley also filed her own income and expense declaration, listing her only income
as $5,897 in spousal support and $624 in Social Security per month. She also listed
approximately $17,500 in banking accounts and other liquid assets. She reported
receiving approximately $7,000 per month in loans “from family and friends,” for a total
of $171,730 in personal loans, none of which she had repaid.
In his response to the RFO, William agreed to guideline child support. He
objected to Kelley’s request for fees as “lack[ing] any foundation in reality,” arguing that
Kelley’s attorneys had incurred the bulk of their fees litigating issues that should have
been easily resolved and that the assessment of future costs was unreasonable.
Kelley filed a reply in support of her RFO on June 15, 2015, arguing that William
had failed to submit a “current” income and expense declaration along with his
opposition, as required by Rules of Court, rules 5.427 and 5.260.5 In his opposition,
William had agreed to Kelley’s request in her moving papers that the court use his prior
declaration.
With respect to her request for fees, Kelley’s reply stated that her request had
“slightly changed” since filing her RFO; she accordingly withdrew portions of her
request and added others. Specifically, Kelley withdrew her claim for prospective fees
related to custody, in light of the parties’ June 8, 2015 custody stipulation, but added
approximately $28,000 in fees incurred on this issue between the end of March (when she

5
Rule 5.260 requires a party responding to a request for a child support order to
file “a current, completed Income and Expense Declaration,” with “current” defined as
having been “completed within the past three months providing no facts have changed.”
Rule 5.427(c) imposes the same requirement when responding to a request for attorney’s
fees and costs under section 2030.

6
filed her RFO) and the beginning of June.6 She also withdrew her request for future fees
related to the ownership of Undine Farms, as she had retained separate counsel for that
issue.
As requested by Kelley, William filed an updated income and expense declaration
on June 17, 2015 (2015 declaration). He reported income of $4,166 in wages and salary,
$0 in self-employment income, $6,921 in dividends, and $3,878 in Social Security
received for himself and the children. He also reported receipt of a one-time inheritance
of $1.3 million, and assets of $60,000 in bank accounts, $2.9 million in liquid assets, and
$3.56 million for real and personal property. He reported that he had paid $160,837 in
attorney’s fees to date from “earnings/savings,” and that he owed an additional $96,014,
plus unbilled amounts.
William’s 2015 declaration included as an attachment a profit and loss statement
for his law firm, Nelson and Nelson, reflecting the firm’s income and expenses for 2013
and 2014. This statement showed net firm income for 2014 of $187,091.87. The listed
firm expenses included a payment for legal fees of $25,000 to “Law Office of Bret” and a
payment to the law firm representing William in his dissolution proceeding in the amount
of $161,583.87.
At the hearing on July 15, 2015, the court noted that the fees requested by Kelley
related to child support and custody were quite high (about $50,000). William’s counsel
argued that the amount Kelley claimed for work on the custody issue, which he
characterized as “one motion and one hearing,” was “bizarre and ridiculous, and that the
entire amount “reasonably . . . can’t be more than, I don’t know, $15,000.” The court
questioned Kelley’s counsel extensively regarding why Kelley was entitled to any fees

6
This request was once again supported by heavily redacted billing statements, but
did not include any breakdown by category in Rale’s accompanying declaration.
7
beyond child custody and support, given the parties’ stipulation to the validity of the
prenuptial agreement.7
The court also noted its prior award of $25,000 in fees. Kelley’s counsel
confirmed that the entire amount had been paid to her prior counsel for his work related
to the DVRO proceeding. William’s counsel argued that the prior $25,000 paid should
be “subject to reallocation,” because at the time of that award, there had been no
determination of the validity of the prenuptial agreement and the fees were awarded as
part of a larger request for fees needed for the entire litigation. However, because the
parties stipulated to the validity of the agreement, he claimed Kelley was only entitled to
fees related to custody and support, and that amount would reasonably be no more than
$25,000.
William’s counsel also argued that forensic accounting fees were unnecessary, as
his “finances are not particularly complicated.” Kelley’s counsel walked the court
through the details of the items on William’s 2015 declaration, and argued that the court
should utilize his law firm’s profit and loss statement to impute additional income to
William. The court took the matter under submission.
The court issued its order on August 11, 2015. It did not reference or discuss
William’s 2015 declaration or the accompanying profit and loss statement. The order
granted child support of $3,793 per month and further ordered the parties to split the cost
of private school tuition for the children. Kelley’s half of the tuition ($2,650) was
deducted from the child support award, for a net monthly award of $1,143. It is
undisputed that the numbers included in the DissoMaster8 report attached to the court’s
order reflected the amounts reported in William’s 2014 declaration, including $7,000 in
self-employment and $9,649 in other taxable income.

7
William does not dispute that Kelley’s right to seek fees for litigation of child
custody and support issues cannot be waived by the parties’ agreement. (See, e.g., In re
Marriage of Joseph (1990) 217 Cal.App.3d 1277, 1285.)
8
The DissoMaster is a computer program used to calculate guideline child support
under the algebraic formula required by section 4055. (In re Marriage of Schulze (1997)
60 Cal.App.4th 519, 524.)
8
 Regarding fees, the court noted the prior award to Kelley of $25,000 in attorney
fees “for this litigation.” Based on the DissoMaster report, the court further found that
Kelley had “50.3% of the total combined spendable income.” The court also stated,
“Both parties have substantial attorney fee obligations. Petitioner has about $17,500 in
liquid assets and an undisclosed amount of other real and personal property. Moreover,
the information Petitioner does disclose supports an inference that she is receiving
additional income to meet her expenses. The court finds that Petitioner has not met her
burden of proving she has a need for attorney fees. In addition, the court finds Petitioner
has not met her burden of proving the reasonableness of the attorney fees she seeks,
because a significant amount of the work completed and for which she seeks a fee
contribution was duplicative as a result of her choice to retain new counsel . . . and her
choice to incur fees to litigate matters covered by the parties’ premarital agreement,
which Petitioner has stipulated is a valid agreement.” The court accordingly denied
Kelley’s request for fees. Kelley timely appealed.
DISCUSSION
Kelley presents two arguments on appeal regarding the court’s August 2015 order.
First, she argues the court erred in calculating child support based on William’s 2014
declaration rather than his 2015 declaration and attached profit and loss statement.
Second, she contends the court abused its discretion in denying her request for fees.
As an initial matter, we note that the appellate briefs filed by both parties were
deficient and failed to assist this court in our understanding of the facts or analysis of the
legal issues in this case. In her opening brief, as she did below, Kelley largely ignores the
existence of the parties’ prenuptial agreement and its limiting effect on her ability to seek
attorney’s fees. For his part, William’s brief makes repeated references to evidence
without any citation to the record as required by Rules of Court, rule 8.204(a)(1). Indeed,
in many instances, our review of the record confirms no evidence supporting these
statements. It is not this court’s task to search the record for evidence that supports a
party’s factual statements, and we may disregard statements not supported by proper
citation. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3 (Tharp);

9
Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.)
Both parties also misrepresent the record in several places.
A. Standard of Review
A trial court’s award concerning child support is reviewed for abuse of discretion.
(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282; In re Marriage of Chandler
(1997) 60 Cal.App.4th 124, 128.) Similarly, “a motion for attorney fees and costs in a
dissolution proceeding is left to the sound discretion of the trial court. [Citations.]” (In re
Marriage of Sullivan (1984) 37 Cal.3d 762, 768.)
“Generally, ‘the appropriate test of abuse of discretion is whether or not the trial
court exceeded the bounds of reason, all of the circumstances before it being considered.
[Citations.]’ [Citation.]” (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191,
197.) To the extent that a trial court’s exercise of discretion is based on the facts of the
case, those factual findings must be supported by substantial evidence. (Ibid.; In re
Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) We do not reweigh the
evidence or make determinations as to credibility (ibid.), and “view[ ] the entire record in
the light most favorable to the prevailing party . . . resolv[ing] all conflicts in the
evidence and draw[ing] all reasonable inferences in favor of the findings.” (In re
Marriage of Duffy (2001) 91 Cal.App.4th 923, 931.)
B. Child Support Order
Kelley contends the trial court erred by using the income information in William’s
2014 declaration to calculate her child support award and “ignoring” William’s more
recent 2015 declaration. Additionally, she argues the trial court should have used the law
firm profit and loss statement filed with the 2015 declaration to attribute to William an
additional monthly amount of $14,811.44 in self-employment income (based on his 95
percent ownership of his firm’s reported net income) and $15,631.99 in perquisites
(based on his firm’s apparent payment of William’s personal attorney’s fees).
It is undisputed that the trial court used the 2014 declaration as the basis for its
child support guideline calculation, but it is unclear from the record before us why it did
so. Neither party contested the applicability of the 2015 declaration, although William’s

10
counsel responded and objected to Kelley’s arguments regarding the import of the profit
and loss statement. Further, while William’s 2015 declaration was filed after Kelley’s
reply brief, she raised no objection to its timeliness (and it was filed at her request). Both
the court and the parties were clearly aware of it, as they discussed it in detail during the
hearing. Indeed, the entire colloquy between both parties and the court during the
hearing focused on the 2015 declaration and Kelley’s counsel expressly requested that the
court use the 2015 declaration and accompanying profit and loss statement as the basis
for the child support calculation. The court did not object to using William’s 2015
declaration, and gave no indication at the hearing that it intended to disregard this
evidence. Despite the parties’ agreement that the 2015 declaration would be used and
their exclusive focus on those figures during the hearing, the court’s order relied upon the
2014 figures without explanation.
Both the guideline statutes and the Rules of Court contemplate using income
information that is current at the time of the support calculation. (See, e.g., § 4060 [court
may adjust monthly net disposable income to “reflect the actual or prospective earnings
of the parties at the time the determination of support is made”], Rule of Court 5.260
[requiring income and expense declarations completed within the past three months].)
Here, the court had William’s updated 2015 declaration in evidence before it. Moreover,
the difference was not trivial—the income amounts reported in 2014 were different than
the amount reports in 2015. Notably, the 2015 figures for William’s income from
dividends and Social Security were higher than the 2014 figures; of course, William’s
income also would increase significantly if the court were to accept any of Kelley’s
arguments imputing his law firm income to him. We therefore conclude that the trial
court lacked substantial evidence for its factual findings, which were based on outdated
income information. As such, the court’s child support order was an abuse of discretion
that must be corrected upon remand.
As noted, Kelley further argues that the court should have attributed additional
income to William based on the profit and loss statement he attached to his 2015
declaration. The court did not discuss the merits of Kelley’s arguments during oral

11
argument (other than to remark that Rale was “doing a very good job of walking me
through the profit and loss statement and the [2015] declaration”) or in its order. We
need not decide for the first time in this appeal whether any or all of William’s law firm
income should be attributed to him. However, we note that—apart from claiming that
Kelley “misunderstands” the profit and loss statement—William offers no authority or
argument suggesting that these amounts could not be considered income “from whatever
source derived” pursuant to section 4058. (See Tharp, supra, 188 Cal.App.4th at p. 1315
[including corporation’s payment of husband’s legal expenses as income].) Further,
William’s contention that the figures on the profit and loss statement were not an accurate
reflection of the current state of his law firm is devoid of any citation to evidence in the
record and ignores the fact that he submitted the document as evidence purporting to
represent his current financial condition.9
As such, we find it appropriate to reverse the child support order and remand for
further consideration.
C. Denial of Additional Attorney’s Fees
Kelley also challenges the trial court’s order denying her request that William pay
her attorney’s fees and costs pursuant to section 2030. She claims that she demonstrated
a need for such contribution and that the fees requested were reasonable. Because the
court’s determination was also based on William’s 2014 income information, we
conclude this order must be reversed as well.
Section 2030 requires that the trial court “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, or to the other party’s attorney, whatever amount
is reasonably necessary for attorney’s fees and for the cost of maintaining or defending

9
William also appears to argue that the court could have used the 2015 declaration
but ignored the accompanying profit and loss statement. However, it is undisputed that
the court used the figures from William’s 2014 declaration. For example, the numbers
entered in the court’s DissoMaster report for William’s self-employment, social security
and dividend interest income match the corresponding amounts reported in the 2014
declaration and differ from those reported in the 2015 declaration.
12
the proceeding during the pendency of the proceeding.” (§ 2030, subd. (a)(1).) This
section “reflects the public policy of providing, ‘“‘at the outset of litigation, consistent
with the financial circumstances of the parties, a parity between spouses and their ability
to obtain effective legal representation.’” [Citation.]’ [Citation.]” (In re Marriage of
Sharples (2014) 223 Cal.App.4th 160, 164.) Accordingly, section 2030 expressly
requires the court to “make findings on whether an award of attorney’s fees and costs
under this section is appropriate, whether there is a disparity in access to funds to retain
counsel, and whether one party is able to pay for legal representation of both parties.”
(§ 2030, subd. (a)(2).)
The trial court may make an award under section 2030 only “where the making of
the award, and the amount of the award, are just and reasonable under the relative
circumstances of the respective parties.” (§§ 2030, 2032, subd. (a).) In making its
determination, the court “shall take into consideration the need for the award to enable
each party, to the extent practical, to have sufficient financial resources to present the
party’s case adequately, taking into consideration, to the extent relevant, the
circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).)
Section 4320 sets forth a nonexhaustive list of circumstances for the court to consider,
including the ability of the supporting party to pay, the needs of the recipient party, the
obligations and assets of each party, the ability of the supported party to engage in gainful
employment, the age and health of the parties, the balance of hardships to the parties, and
any other factors the court deems just and equitable. (§ 4320, subds.(c), (d), (e), (g), (h),
(k) and (n).)
Kelley first argues that the trial court “failed to make a finding as to whether or not
there was a disparity in access and ability to pay attorney’s fees and costs” pursuant to
section 2030. We disagree. Both the court’s statements during the hearing and its
written order demonstrate that the court assessed the respective incomes and assets of the
parties and determined that Kelley had not established a need for an additional award of
fees.

13
 However, as was the case with the child support order, the court’s factual findings
were not based on substantial evidence. In comparing the parties’ incomes, the trial court
relied on the 2014 declaration to establish William’s income and concluded, based on the
resulting DissoMaster report, that Kelley had about half of the “total combined spendable
income” between the parties. To the extent the court adjusts William’s income based on
the 2015 declaration (or an updated declaration upon remand), it must necessarily
reevaluate the equities and determine whether a further attorney’s fees award is
warranted. We also note that William’s 2015 declaration reported additional assets, as
well as an inheritance of over a million dollars, all of which the court may consider as
part of the disparity analysis under section 2030.
We reject Kelley’s contention that it was an abuse of discretion for the court to
consider the “loans” she received from friends and family as income for the purposes of
evaluating her need for fees. As she herself urges with respect to William’s finances, in
determining parity between the parties, section 2032 “not only requires that the court
consider the financial resources of each party, but also requires a broader analysis of the
parties’ relative circumstances.” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039,
1056.) Thus, as part of its disparity analysis, the court could properly consider evidence
that Kelley was receiving thousands of dollars per month from family and friends to
assist with her living expenses and legal fees, none of which had any reported repayment
date. (See In re Marriage of Smith (2015) 242 Cal.App.4th 529, 534 [“It was well within
the trial court’s discretion to consider such regular, substantial infusions of cash as part of
its determination of the relative circumstances of the respective parties and their ability to
maintain or defend the proceedings.”])
The cases cited by Kelley do not hold otherwise. In re Marriage of Alter (2009)
171 Cal.App.4th 718, 737 (Alter) upheld the trial court’s finding that monthly payments
of $6,000 to the husband from his mother were gifts that could be considered as income
for purposes of calculating child support. Thus, “where a party receives recurring gifts of
money, the trial court has discretion to consider that money as income” to the party. (Id.
at pp. 722-723; see also Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 646–647

14
[regular monthly monetary gifts from parent constituted income for purpose of
determining appellant's ability to pay attorney fees].) Kelley also cites to In re Marriage
of Williamson (2014) 226 Cal.App.4th 1303, 1315, which affirmed the trial court’s
determination that past cash advances received from the husband’s family would not be
included as income in determining the amount of his child support obligation. The court
in Williamson acknowledged the holding in Alter, supra, 171 Cal.App.4th at p. 736, that
“regular gifts of cash may fairly represent income,” but concluded the gifts in its case
were distinguishable. (Williamson, supra, 226 Cal.App.4th at p. 1314.) In particular, the
Williamson court noted that the cash advances were made irregularly from year to year
upon request, and, “more importantly,” the husband’s father had testified that he was no
longer making the payments and had no plans to do so in the future. (Id. at pp. 1314-
1315.) As such, the court found it was not an abuse of discretion for the trial court to
“exclude the historical parental cash advances as income.” (Id. at p. 1315.)
Here, by contrast, while Kelley now argues that the “uncontradicted” evidence
established that she “received such cash sporadically to meet her living expenses or
litigation costs,” she ignores the income and expense declaration she submitted, in which
she reports receiving approximately $7,000 per month from family and friends to help
pay her expenses. The trial court did not abuse its discretion in considering these
recurring payments as a source of income for Kelley relevant to its analysis of her
attorney’s fees request.
The court also found Kelley had not met her burden to establish the
reasonableness of the fees she sought. At a minimum, Kelley argues she was entitled to
some amount for the fees incurred related to child custody and support, as well as fees to
pursue her breach of contract action.10 William argues that the $25,000 in fees he already
paid should be reallocated to child support and custody (the only allowable items under
the prenuptial agreement), and that this amount should be sufficient to cover those two

10
Kelley provides no explanation as to how she would be entitled to fees related to
her breach of contract claim, where the prenuptial agreement allows such fees only to a
prevailing party and she has not yet prevailed on her claim.
15
areas. It is clear the court was dubious about the amount of fees Kelley claimed,
particularly given the broad waiver in the prenuptial agreement and the limited litigation
on the nonwaivable issues. However, neither party provides any supporting authority
concerning the reallocation issue, and it is unclear from the record whether the trial court
considered it. As such, we remand to the trial court for further consideration if necessary
following its findings regarding Kelley’s need for fees.
DISPOSITION
The order awarding temporary child support and denying attorney’s fees and costs
is reversed. The matter is remanded for recalculation of child support and further
consideration of Kelly’s request for attorney’s fees consistent with this opinion. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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