Filed 9/26/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re the Marriage of LAUNA and DAVID
MORTON.
LAUNA MORTON, F073689, F074243
Appellant, (Super. Ct. No. S1501FL622454)
v.
OPINION
DAVID MORTON,
Respondent.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Michael R. Kilpatrick & Associates and Michael R. Kilpatrick for Appellant.
Law Offices of Edward J. Quirk, Jr., and Edward J. Quirk, Jr., for Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I., II.C., II.D., II.G., II.H., II.I., and
III. of the Discussion.
Launa Morton appeals from a judgment entered in a marriage dissolution
proceeding, contending the trial court erred in determining (1) child support, (2) spousal
support, (3) attorney fees, and (4) her former husband’s interest in an oilfield service
business was a gift from his father and, therefore, was his separate property even though
acquired during the marriage.
The published parts of this opinion address issues related to determining the
income available for child support and to awarding attorney fees under Family Code
section 2030.1 First, we conclude Launa has established the child support award in the
June 2016 judgment was based on the erroneous exclusion of respondent David Morton’s
income tax refunds from his net income available for child support. Second, we conclude
the exclusion of David’s voluntary contributions to a 401(k) retirement savings plan from
his net income available for child support was error, unless on remand the trial court
provides findings that justify the exclusion of all or part of those contributions from
David’s income. (See § 4059, subd. (c).)
As to attorney fees, we conclude the trial court erred in declining to award Launa
additional attorney fees at the conclusion of the proceeding. Pursuant to mandatory
language added to section 2030, subdivision (a)(2) by the Legislature in 2010, “the court
shall make an order awarding attorney’s fees and costs” if the findings required by that
subdivision “demonstrate disparity in access and ability to pay.” The issues on which the
statute requires findings include “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).) On a novel question of statutory interpretation, we conclude a trial
court must make explicit findings on the issues listed in subdivision (a)(2) of section
2030. Here, the record clearly demonstrates a “disparity in access and ability to pay”
and, as a result, a further award of attorney fees and costs was mandatory.
1 All unlabeled statutory references are to the Family Code.
2.
The unpublished parts of this opinion resolve the following issues. First,
substantial evidence supports the trial court’s explicit finding that David acquired the
interest in his father’s Huddleston Crane business as a gift and its implicit finding that the
gift was not remuneratory. Consequently, the trial court did not err in determining
David’s ownership interest in the business was his separate property. Second, the
questions involving the child support award in the June 2016 judgment are not moot.
Third, the calculation of that child support award erroneously failed to account for the
percentage of time each party had custody of their daughter and did not properly analyze
David’s voluntary contributions to a health savings account (HSA) in determining his net
income available for child support. Fourth, as to permanent spousal support, the trial
court’s determination of David’s income for purposes of evaluating his ability to pay
support erroneously excluded David’s California and federal income tax refunds and did
not properly analyze David’s voluntary contributions to a 401(k) plan and to a health
savings account. Fifth, the trial court’s finding that David’s net rental income is $7,650
per month—a finding that affects both the child support and the spousal support
calculations—is supported by substantial evidence and, therefore, will be upheld.
We therefore reverse the judgment in part and remand for further proceedings
regarding child support, spousal support and attorney fees.
FACTS
David was born in 1965, graduated from high school and attended Taft College for
two years. Starting in high school, David worked weekends and part time for his father’s
business, Huddleston Crane. He finished college a few units short of receiving an AA
degree in petroleum technology. After college, David worked full time for Huddleston
Crane as a mechanic, truck driver and crane operator.
Launa was born in 1967 and was employed as a hairdresser for approximately
eight and one-half years. Launa and David married in April 1991. In March 1996, Launa
stopped working because she was pregnant with their first child. She was a stay-at-home
3.
mother for the rest of the marriage. They had two children, a son born in 1996 and a
daughter born in early 1998. Launa and David separated in July 2012, after 21 years of
marriage. In June 2016, their youngest child graduated from high school and was over
the age of 18.
Huddleston Crane started doing business as an oilfield service company around
1940. David’s father, John Morton (Father), acquired the business sometime before 1984
and owned and operated it as a sole proprietorship. When purchasing assets for the
business, Father preferred to pay cash and was able to do so by accumulating profits and
reinvesting them in the business. This approach avoided debt and was prudent because of
the extreme volatility in the oilfield service business, which could result in dramatic
variations in income from year to year.
The Partnership
In 1992, Father changed Huddleston Crane Service’s form of business
organization from a sole proprietorship to a partnership. According to his accountant,
Father’s goals were to (1) receive $10,000 per month from the business until he died or
retired; (2) transfer ownership of the business to his son and son-in-law, David and David
Noerr (Noerr),2 without costing them anything and allowing them to continue to receive
more than reasonable compensation for their services; and (3) structure the transaction to
minimize or eliminate income and sales taxes. Father contributed the assets of the sole
proprietorship to the partnership, which constituted 100 percent of its capital. The other
two partners, David and Noerr, contributed no capital and their capital accounts started at
zero. Father received the right to 10 percent of the partnership’s future profits, while
David and Noerr each received a right to 45 percent of future profits. The profits were
credited to the partners’ capital accounts. A partner’s draws reduced his capital account.
2 Noerr married Tammy Morton, the daughter of Father and sister of David. Thus,
Noerr was Father’s son-in-law and is David’s brother-in-law.
4.
The record contains a copy of David’s Schedule K-1 (Form 1065) from the
partnership for the year ending December 31, 1993. The Schedule K-1 lists David’s
percentage of profits and losses at 45 percent and his ownership of capital at one percent.
David’s Schedule K-1 contains an “[a]nalysis of partner’s capital account” that states (1)
David’s capital account at the beginning of the year was $1,095; (2) his share of income
and loss was $23,275; (3) his withdrawals and distributions were $65; and (4) his capital
account balance at year’s end was $24,305. If the statement that David owned one
percent of the partnership’s capital was accurate, the total capital of the partnership at the
end of 1993 was approximately $2.4 million.
Huddleston Crane Services, Inc.
On August 1, 1997, articles of incorporation for a corporation named “Huddleston
Crane Services, Inc.” were filed with the California Secretary of State. On September 1,
1997, at the first meeting of the board of directors of the new corporation, the directors
adopted bylaws for Huddleston Crane Services, Inc. and Noerr was named board
chairman, president, chief financial officer and secretary. David was named vice
president. Father, David and Noerr each were issued 10,000 shares of stock. For tax
purposes, Huddleston Crane Services, Inc. is a subchapter S corporation.3
Huddleston Crane Services, Inc. was formed as part of a reorganization of the
partnership. This reorganization resulted in Father, David and Noerr become equal
owners of the business. In effect, David exchanged the value in his capital account in the
partnership and his right to 45 percent of future profits for a one-third ownership interest
in the business’s equity and future profits. Noerr made the same exchange. In
3 An S corporation, like a partnership, does not pay income taxes. (Heller v.
Franchise Tax Bd. (1994) 21 Cal.App.4th 1730, 1733 [tax treatment of S corporations];
Valentino v. Franchise Tax Bd. (2001) 87 Cal.App.4th 1284, 1287.) Instead, its income
and losses are “‘passed through’” on a pro rata basis to its shareholders, who report those
items on their personal tax returns. (Heller, supra, at p. 1733.)
5.
comparison, Father exchanged the value of his capital account and his right to receive 10
percent of future profits for a one-third ownership interest in the business’s equity and
future profits. The appellate record contains no evidence of the value of the partners’
capital accountants immediately before the partnership’s reorganization as a corporation.
As a result, it is not possible to determine who, if anyone, the exchange favored.
H.C.S. Mechanical, Inc.
H.C.S. Mechanical, Inc. is a California corporation incorporated on January 4,
2000. The same day, its bylaws were executed by all four of its directors. H.C.S.
Mechanical, Inc. issued 2,600 shares to Noerr, 2,500 shares to David, 2,500 shares to
Butch Hall, and 2,400 shares to Dennis Perreault. These shareholders were the four
original directors.
H.C.S. Mechanical, Inc. owns equipment that it rents to Huddleston Crane
Services, Inc. for use.4 For income tax purposes, H.C.S. Mechanical, Inc. is a subchapter
S corporation.
Sometime no later than early 2006, David and Noerr had become the only
shareholders and directors of H.C.S. Mechanical, Inc. Tax documents from 2011 state
David owned 50 percent of the corporation’s stock and Noerr owned the other 50 percent.
Papers filed by Launa in the trial court refer to “Huddleston Crane Services, Inc.
and its wholly owned subsidiary HCS Mechanical, Inc.”5 This description of a parent-
4 David’s November 2012 declaration described Huddleston Crane as two
companies—Huddleston Crane Services, Inc., the operating company, and H.C.S.
Mechanical, Inc., which owns equipment used by the operating company.
5 At times, it appears the trial court accepted this description. For instance, its
August 31, 2015, ruling stated: “The sole issue before the Court is the characterization of
Huddleston Crane Services, Inc. and its wholly owned subsidiary, HCS Mechanical, Inc.
as community property or as David’s separate property.” In contrast, the court’s March
2016 judgment uses less specific language to describe the relationship of the two
corporations. It refers to David’s 50 percent ownership interest “in Huddleston Crane
Services, Incorporated, and its related entities, specifically including, HCS Mechanical,
Incorporated.” These documents and the other evidence in the record establish that
6.
subsidiary relationship between the two corporations is not supported by the record.
California’s General Corporation Law (Corp. Code, § 100 et seq.) defines the terms
“parent” and “subsidiary.” (Corp. Code, §§ 175, 189.) When one corporation owns,
directly or indirectly, more than 50 percent of the voting power of a second corporation,
the second corporation is a “subsidiary” of the first. (Corp. Code, § 189, subd. (a); see
Black’s Law Dict. (8th ed. 2004) p. 367 [“parent corporation” means a “corporation that
has a controlling interest in another corporation (called a subsidiary corporation), usu.
through ownership of more than one-half of the voting stock”].)
Here, the corporate records show the shares of H.C.S. Mechanical, Inc. are owned
directly by David and Noerr. Also, the tax returns in the record, including the 2011
Schedule K-1’s (Form 1120S) for H.C.S. Mechanical, Inc. identify David and Noerr as
shareholders. Schedule E to David’s 2014 federal tax return show David receives income
from both corporate entities, which implies the income from H.C.S. Mechanical, Inc. is
received directly by David and is not channeled to him through a parent corporation.
These documents and the other evidence in the record establish that H.C.S. Mechanical,
Inc. is not a subsidiary (wholly owned or otherwise) of Huddleston Crane Services, Inc.
Father’s Exit from the Business
Around 2004, Huddleston Crane Services, Inc. repurchased Father’s shares in the
corporation and retired those shares. After this repurchase, David and Noerr each owned
50 percent of the corporation’s outstanding shares. Father died in 2007.
Taft Property
In 2004, David and Launa purchased just over six acres of real property in Taft,
California. They paid $230,000 for the property and made an additional $200,000 in
H.C.S. Mechanical, Inc. is not a subsidiary (wholly owned or otherwise) of Huddleston
Crane Services, Inc. Instead, both corporate entities are owned by David and Noerr, each
owning 50 percent of each corporation’s outstanding shares. There is no evidence in the
record indicating the source of H.C.S. Mechanical’s capital.
7.
improvements. The property contains several out buildings, including two butler
buildings, and corrals and stalls for the parties’ horses.
In September 2012, David moved from the house to a detached garage, living
there until June 2, 2013. David surrendered his key to the house, but continued to have
access to the butler buildings, one of which contained his office. Launa retained
possession and use of the residence and maintained the horses and other livestock that
were community assets. The court ordered the property sold. In July 2015, it sold for
$600,000. The property was no longer subject to a mortgage and each party received
one-half of the net proceeds from the sale.
David’s Income
The main sources of David’s income are the wages he earns and the S corporation
income. Tax returns for 2009 through 2011 show his wage income as $93,485, $88,653
and $81,083. The S corporation income reported on his income tax returns for these
years was $313,671, $124,132, and $835,575. David’s 2014 federal tax return reported
wage income of $84,236 and S corporation income of $588,289.
David’s cash flow is significantly less than the income reported on his tax returns
because the S corporations retain a significant portion of the earnings for use as capital in
the business.6 The corporations distribute sufficient funds for David and Noerr to make
the necessary quarterly estimated tax payments to both the federal government and
California’s Franchise Tax Board and to cover any tax owed on the final tax return. As to
6 David’s 2014 federal income tax returns show a $250,000 expense deduction
pursuant to Internal Revenue Code section 179 (26 U.S.C. § 179). The deduction related
to the nonpassive income of Huddleston Crane Services, Inc. That tax provision
authorizes a taxpayer to elect to treat the cost of acquiring certain business assets as a cost
(i.e., a current deduction) rather than depreciating that cost over the life of the asset. (See
26 C.F.R. §§ 1.179-1 to 1.179-6.) Thus, the tax deduction taken by David implies that
Huddleston Crane Services, Inc. purchased depreciable assets in 2014 costing over
$250,000. Tax returns filed by the parties before their separation show section 179
deductions of $103,332 (2008), $90,099 (2009), $250,000 (2010), and $14,500 (2011).
8.
direct cash flow from Huddleston Crane Services, Inc., David and Noerr each receive two
monthly checks—one for $6,100 and the other for $4,050—which David describes as
“for equipment rental.”
As to the 2014 cash flow from David’s weekly paycheck of $2,113.77, that
amount was reduced by total withholdings of approximately $400 for state and federal
income tax, social security, Medicare and disability. The gross amount of the paycheck
also was reduced by deductions for health insurance ($58.85), contributions to the 401(k)
plan ($317) and contributions to a health savings account ($118). With these reductions,
David’s net pay came to approximately $1,220 per week. David’s income and expense
declaration dated January 12, 2015, stated the net amount of wages or salary received
each month averaged $5,286.
PROCEEDINGS
In August 2012, Launa filed a petition for dissolution of marriage. She also filed a
request for pendente lite orders addressing (1) child custody, visitation and support; (2)
spousal support; (3) property control; and (4) a business evaluation by a forensic
accountant appointed pursuant to Evidence Code section 730.
In November 2012, Launa was awarded temporary spousal support of $6,000 per
month and further hearings were scheduled. After evidentiary hearings in January and
March of 2013, the trial court issued a written ruling on April 19, 2013. Temporary
spousal support was reset at $3,029 per month. The court denied Launa’s request to join
Huddleston Crane Services, Inc. as a party and denied her request for an expert
evaluation of the business. Based on the evidence presented up to that point, the court
determined David’s interest in the business was acquired by gift and, therefore, was
separate property. The court stated: “Absent evidence of the community’s interest in the
corporation, the court does not believe it necessary or appropriate to value the business at
this time.”
9.
At a July 2013 hearing on a motion to reconsider, a number of issues were
discussed. The trial court clarified a point by stating its determination that David’s
interest the corporation was separate property was made without prejudice to the final
characterization of that interest. The parties and court agreed the characterization of
David’s interest in the business would be addressed in a bifurcated trial after Launa
conducted additional discovery.
In October 2013, the trial court entered findings and order after hearings that
awarded Launa temporary child support of $981 for the parties’ son and $1,634 for their
daughter. The order also awarded temporary spousal support of $2,774 per month. The
order included a DissoMaster report that showed the court’s determinations of various
factors relevant to calculating the support payments. The order denied without prejudice
Launa’s request for the valuation of Huddleston Crane Services, Inc. and any related
corporations. The court concluded that the ownership interest of David was obtained as a
gift from Father.
In December 2014, about a year and a half after David moved from the Taft
property, he requested an order directing the sale of the residence. David also requested
an order directing Launa to pay the community a Watts charge for the use of the
property.7
In April 2015, evidentiary hearings were held on the issue of whether David’s
interest in the family business should be characterized as separate or community
property. These hearings supplemented the testimony received during hearings held in
January and March 2013. On August 31, 2015, the court filed its ruling, which included
7 Where one spouse has 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 its use. (In re Marriage of Falcone & Fyke (2012) 203
Cal.App.4th 964, 978.) This compensation is commonly referred to as a “‘Watts
charge.’” (Ibid.; see In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374 (Watts).)
10.
the findings that “David’s interest in Huddleston Crane Services, Inc. was acquired by
gift and that this interest is his separate property.” On October 13, 2015, the trial court
filed a judgment on reserved issues to implement its ruling as to the characterization of
David’s interest in the family business.
In March 2016, the court filed a judgment of reserved issues to implement the
parties’ stipulation as to the division of many other items of property. For example, the
judgment stated two motorcycles and six all-terrain vehicles (ATV) belonged to their son,
while a 2012 Polaris Razor, a 2006 Yamaha ATV, and 2006 Yamaha Blaster belonged to
their daughter. Launa received (1) a 2011 Chevrolet Suburban, (2) a 1995 Chevrolet
sedan, (3) a 2006 Schwinn motorcycle, (4) a 2004 Honda motorcycle, (5) six ATV’s, (6)
a 1996 Winnebago motorhome, (7) a 2004 Tommy utility trailer, (8) a 1997 Apache
Carrier horse trailer, (9) three horses and tack, and (10) the furniture, furnishings, guns
and shop tools then in her possession. Launa also received one-half of the remaining sale
proceeds generated by the July 2015 sale of the family residence, subject to certain
equalization charges and the subsequent determination of a Watts charge. She also
received one-half of David’s account in a 401(k) plan and one-half of a brokerage
account maintained at Stifel Nicolaus. The 401(k) account had a balance of
approximately $285,150 as of July 31, 2012, and the brokerage account had a balance of
approximately $245,668 as of June 30, 2015.
The March 2016 judgment also confirmed the trial court’s decision that the 50
percent ownership interest David held in Huddleston Crane Services, Inc. and its related
entity, H.C.S. Mechanical, Inc., was David’s separate property. In April 2016, Launa
filed a notice of appeal from the March 2016 judgment for the purpose of challenging this
characterization of David’s interest in the family business.
The March 2016 judgment also identified six remaining issues, including child
support for the daughter, permanent spousal support, and any Watts charge. These issues
were submitted to the court on January 25, 2016, when briefing was completed.
11.
In April 2016, the court served a proposed statement of decision. Launa filed
objections to the proposed statement of decision stating, among other things, that the
decision did not address the issue of child support for the daughter, who had turned 18
earlier that year and was scheduled to graduate from high school on June 1, 2016. In
May 2016, the trial court issued a ruling addressing the objections to the statement of
decision. The ruling included a footnote stating: “The Court notes that it has made
previous orders concerning the payment of child support by [David]. The existing orders
for child support shall continue until statutory termination or further order of the Court.”
The ruling also denied Launa’s request for an additional $115,134.65 in attorney fees and
directed her counsel to prepare a judgment on the reserved issues for the court’s
signature.
On June 10, 2016, the trial court filed a judgment on reserved issues. The
judgment continued the 2013 child support order, which required David to pay $1,634 in
child support for his daughter until she reached the age of 18 and was not a full-time high
school student. As to spousal support, the judgment directed David to pay Launa $2,700
per month beginning on April 1, 2016, until statutory termination or further order of the
court. As a charge for Launa’s exclusive use of the family residence for approximately
25 months, the court determined Launa should reimburse the community in the amount of
$25,000. The judgment also reflected the court’s denial of Launa’s request for additional
attorney fees.
In August 2016, Launa filed a notice of appeal from the judgment entered on June
10, 2016. She also requested this court to consolidate the appeal (case No. F074243)
with her earlier appeal from the March 2016 judgment (case No. F073689). We granted
her request and directed that only one record on appeal be prepared for the consolidated
matters.
12.
DISCUSSION
I. CHARACTERIZATION OF THE BUSINESS*
Launa contends that David’s interest in Huddleston Crane Services, Inc. is
community property based on two alternate theories. First, she argues the interest was
not obtained as a gift and, therefore, was not separate property. Second and alternatively,
Launa argues David’s interest was community property because it was obtained as a
remuneratory gift.
A. General Principles
1. Separate and Community Property
Characterization of property for purposes of California’s community property law
refers to the process of classifying property as separate, community or quasi-community.
(In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291 (Haines).) This classification
process is necessary to determine the rights of each spouse and is an integral part of the
division of property on marital dissolution. (Ibid.)
A fundamental rule of California’s community property system is that all property
acquired during marriage is community property unless it comes within a specific
exception. (Haines, supra, 33 Cal.App.4th at p. 289.) Some of the major exceptions to
this rule identify circumstances in which the item qualifies as separate property. (Ibid.)
Sections 760 and 770 establish the general rule about community property and the
exceptions for separate property. Section 760 defines community property by stating:
“Except as otherwise provided by statute, all property, real or personal, wherever
situated, acquired by a married person during the marriage while domiciled in this state is
community property.” This statute is the basis for “a general presumption that property
acquired during marriage by either spouse other than by gift or inheritance is community
property unless traceable to a separate property source.” (Haines, supra, 33 Cal.App.4th
* See footnote, ante, page 1.
13.
at pp. 289–290.) The presumption is recognized in section 802, which refers to the
“presumption that property acquired during marriage is community property.”
Separate property is addressed in subdivision (a) of section 770, which provides:
“Separate property of a married person includes all of the following: [¶] (1) All property
owned by the person before marriage. [¶] (2) All property acquired by the person after
marriage by gift, bequest, devise, or descent. [¶] (3) The rents, issues, and profits of the
property described in this section.” The provision is based on the California Constitution,
which states that “[p]roperty owned before marriage or acquired during marriage by gift,
will or inheritance is separate property.” (Cal. Const., art. I, § 21.)
The general community property presumption is rebuttable. “[V]irtually any
credible evidence may be used to overcome it, including … presenting evidence the item
was acquired as a gift.” (Haines, supra, 33 Cal.App.4th at p. 290.) In this case, David
contends he overcame the presumption by presenting evidence that his interest in the
business was acquired as a gift from Father.
2. Character Fixed at Acquisition
The statutory references to “property … acquired by a married person during the
marriage” and “property owned by the person before marriage” establish that the time of
acquisition is an important, fundamental factor in characterizing the property. (§§ 760,
770, subd. (a)(1); Haines, supra, 33 Cal.App.4th at p. 291.) It is well settled that the
character of the property is fixed as of the time it is acquired and its character continues
until it is changed in a manner recognized by law, such as by agreement of the parties.
(In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 732 (Rossin).)
3. Accrual of Profits
If property was separate at the time of acquisition, “‘it continues to remain so with
the exception of such increase thereof as may have been due to the contributions of the
community by virtue of capital or industry.’” (Rossin, supra, 172 Cal.App.4th at p. 733.)
14.
In 1971, our Supreme Court acknowledged the general principle that profits accruing
from a spouse’s separate property also are separate property and then set forth the
following principles:
“[L]ong ago our courts recognized that, since income arising from the
husband’s skill, efforts and industry is community property, the community
should receive a fair share of the profits which derive from the husband’s
devotion of more than minimal time and effort to the handling of his
separate property. [Citations.] Furthermore, while this principle first took
root in cases involving a husband’s efforts expended in connection with a
separately owned farm or business [citations] our courts now uniformly
hold that ‘[a]n apportionment of profits is required not only when the
husband conducts a commercial enterprise but also when he invests
separate funds in real estate or securities. [Citations.]’ [Citations.]
Without question, Mr. Beam’s efforts in managing his separate property
throughout the marriage were more than minimal [citations], and thus the
trial court was compelled to determine what proportion of the total profits
should properly be apportioned as community income.” (Beam v. Bank of
America (1971) 6 Cal.3d 12, 17 (Beam).)
In this case, the allocation of profits to David’s efforts during the marriage was an
issue presented to the trial court. On appeal, Launa does not contend the trial court erred
when it analyzed the allocation issue under the principles set forth in Beam. Applying
these principles, the court determined the evidence did not establish (1) an increase in
value from acquisition to separation or (2) how the court should apportion any increase in
value.
4. Elements of a Gift
Civil Code section 1146 states “[a] gift is a transfer of personal property, made
voluntarily, and without consideration.” Civil Code section 1147 states a verbal gift is
not valid unless the means of obtaining possession and control of the thing are given.
Also, if the gift is capable of delivery, there must be an actual or symbolic delivery of the
thing to the donee. Civil Code section 1148 provides that a gift cannot be revoked by the
giver. Taking these statutory provisions into account, California case law defines the
element of a gift as “(1) competency of the donor to contract; (2) a voluntary intent on the
15.
part of the donor to make a gift; (3) delivery, either actual or symbolical; (4) acceptance,
actual or imputed; (5) complete divestment of all control by the donor; and (6) lack of
consideration for the gift.” (Jaffe v. Carroll (1973) 35 Cal.App.3d 53, 59.)
5. Standard of Review
Generally, the trial court’s findings of fact related to whether a particular item is
separate or community property is reviewed on appeal under the substantial evidence
standard. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849.) Where the facts
are undisputed, the application of legal principles to those facts are subject to de novo
review. (See Rossin, supra, 172 Cal.App.4th at p. 734 [in certain situations the issue of
the characterization given property is predominantly one of law subject to de novo
review].) These general principles apply to the specific questions presented here—
namely, whether the transfer of the interest in the Huddleston Crane Service’s business
from Father to David was a gift and, if so, whether the gift was remuneratory.
B. The Transfer Was a Gift
1. Trial Court’s Findings
The trial court found that Father converted the business from a sole proprietorship
to a partnership in 1992, which was after David and Launa were married on April 6,
1991. The capital account for Father contained 100 percent of the equity in the business
and the capital accounts of David and Noerr were zero. As to future profits of the
partnership, Father was to receive 10 percent, while David and Noerr were each to
receive 45 percent. The profits were to be credited to the capital accounts. A partner’s
capital account would be reduced by any draws taken by him. No gift tax return was
filed because Father’s accountant concluded the amount of any gift was below the
reporting threshold.
In 1997, the partnership was reorganized as a California corporation, with Father,
David and Noerr becoming equal owners of the corporation’s stock. In effect, David and
16.
Noerr each exchanged the value in their capital account and their right to 45 percent of
future profits for a one-third ownership interest in the business’s equity and future profits.
Prior to Father’s death in 2007, David and Noerr became equal owners of the
corporation’s outstanding shares as a result of the corporation purchasing and retiring the
shares owned by Father. The repurchase of Father’s shares was completed in
approximately 2004.
One of the theories pursued by Launa in the trial court was that there was no gift
because she and David purchased the interest. Launa testified that she and David paid
$7,500 per month over 10 years, starting in 1992, for their share in the business. The trial
court found her testimony about a purchase was not credible. Instead, the court found the
conflicting testimony of David, Noerr and their accountant credible. They testified that
there was no purchase.
In addition, the court explicitly found that “David’s interest in Huddleston Crane
Services, Inc. was acquired by gift and that this interest is his separate property.” The
court did not explicitly address Launa’s remuneratory gift theory. The court did make
findings relating to whether the community was entitled to receive a share of the profits
and increase in value of the business under the theory that some or all of the profits and
increase were derived from David’s personal efforts. (See Beam, supra, 6 Cal.3d at p.
17.) In addressing this theory, the court found: “David has earned a comfortable living
from Huddleston Crane Services, Inc. receiving a salary of $5,265 per month.… There
was no evidence to suggest David was not paid a salary that reflected the value of the
work he performed to Huddleston Crane Services.” The court also stated, “there is no
evidence before the Court to establish that there has been an increase in value of
Huddleston Crane Services from the time that David acquired his interest to the date of
separation.”
17.
2. Divestment of Control
Launa contends there was no gift because the transfer was not outright—that is,
Father did not completely divest himself of all control. (See Jaffe v. Carroll, supra, 35
Cal.App.3d at p. 59.) Specifically, Launa contends Father failed to deliver and divest
himself of complete dominion and control over David’s 45 percent share of profits.
Launa argues this fact is established by Father reclaiming a portion of the profits, which
happened when the partnership was reorganized as a corporation and Father’s interest in
the profits increased from one-tenth to one-third.
The weakness in Launa’s argument is that it identifies what might have happened,
but the scenario she describes is not the only reasonable possibility. The other
possibilities are that (1) the reshuffling of interests was a fair trade or (2) David and
Noerr came out in a better position. If the latter occurred, Father may have made another
gift to David. Choosing among these possibilities is difficult because there is no
evidence as to the balances in the capital accounts of Father, David and Noerr at the time
of the reorganization. Therefore, the evidence does not establish that David and Noerr
came out of the reorganization in a worse position and Father came out in a better
position, which would support the inference that Father retained control of their profit
interests.
To summarize, the evidence presented did not compel the trial court to find that
Father retained control over the 45 percent interest in future profits that he transferred to
David in 1992. Stated from another perspective, the evidence adequately supports the
inference that Father divested himself of control of the interests he transferred to David
and Noerr.
3. Receipt of Consideration
Launa also contends there was no gift because Father “was using the profits of the
business to receive consideration for his interest in this business. There was not a lack of
consideration, another required legal element of a gift.” (See Jaffe v. Carroll, supra, 35
18.
Cal.App.3d at p. 59 [a gift requires the lack of consideration].) This argument fails from
an accounting perspective. The money paid to Father out of the partnership was a draw
on his capital account, as is explained in the accountant’s November 2012 testimony and
his December 2012 declaration. In short, this evidence supports the finding that Father
was cashing out his retained ownership interest, not receiving consideration for the 45
percent profit interests he transferred to David and Noerr.
In addition to the foregoing theory about Father’s receipt of consideration, Launa
argues the transfer of a portion of future profits to David and Noerr was in consideration
of their future services whereby Noerr would leave his job to become a partner and David
would and did continue to work excess hours in the business. There is no direct evidence
that Father conditioned the grant to David of a 45 percent interest in the business’s profits
on David’s promise to continue to work for the business. For example, there is no
evidence of an agreement that if David was injured and could not continue to work for
the business, his 45 percent interest in the profits would have been revoked. In contrast,
there is evidence that the business was to be held in the family, which supports the
inference that the transfer to David was a gift and not part of a bargained for exchange in
which David committed to continue to work for the business. In addition, David and
Noerr testified that it was their understanding that they would be gifted an interest in the
business for no consideration. Therefore, the evidence supports the inference that Father
did not receive any consideration from David, such as a promise to render future services,
in exchange for the ownership interest transferred to David.
Launa also argues David must have provided consideration for his 45 percent of
future profits because Noerr provided consideration in the form of agreeing to quit his job
and come work for the business. We reject this argument because it is reasonable to infer
that Father gave his son—his direct offspring who already was working for the
business—more lenient terms than his son-in-law. In other words, Father may have made
the transfer to his son-in-law contingent upon Noerr coming to work for the business and
19.
imposed no similar continuing obligation on his own son. Thus, the trial court was not
compelled to infer the transfer to David was in exchange for an agreement to continue to
work for the business because the transfer to Noerr was made after Noerr agreed to come
work for the business. Under the substantial evidence standard of review, when
conflicting reasonable inferences are possible, the appellate court may not reweigh the
evidence and accept inferences that were rejected by the trial court. (Johnson v. Pratt &
Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 623 [when the evidence supports
conflicting reasonable inferences, the appellate court must accept the trial court’s
findings].)
4. Accountant’s Testimony
Mac Parsons is a certified public accountant who provided services to Father from
1984 until his death in 2007. Parsons served as the accountant for (1) Huddleston Crane
Services in it various business forms, (2) the Noerrs, and (3) David and Launa. The trial
court’s order stated, “Parsons’ testimony indicated that the original grant of an ownership
interest through the formation of the partnership between [Father], David and David
Noerr was a gift from [Father] to his son and son-in-law.”
In her opening brief, Launa argues the accountant never testified the transaction
was a gift and, even if he had, it would have been a legal conclusion that “does not
constitute substantial evidence.” In her reply brief, Launa argues “[n]o substantial
evidence supported the court’s finding of a gift based on the CPA’s legal conclusion.”
First, one main point of the accountant’s testimony was that no consideration was
paid by David and Noerr for the transfer of the 45 percent profit interests—an issue that
was disputed in the proceedings below. The accountant’s testimony corroborated the
testimony of David and Noerr and contradicted Launa’s testimony about payments being
made by David to Father.
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Second, Launa appears to argue that the trial court misconstrued the accountant’s
testimony or, alternatively, relied on the accountant’s legal conclusion about the
existence of a gift. We interpret the trial court’s use of the word “indicated” in reference
to the accountant’s testimony about the original grant to mean that the testimony did not
explicitly state the grant was a gift, but provided circumstantial evidence reasonably
supporting the inference that the transfer to David was not a gift. In other words, it was
possible to draw inferences from the accountant’s testimony that supported finding the
transfer to David was a gift. For instance, as to whether the transfer from Father to David
and Noerr was voluntary or compelled from some reason, the accountant testified that he
knew of no reason that it would be compelled. Stated another way, the accountant did
not know of a prior agreement or other legal obligation that compelled Father to make the
transfer to David. The accountant also explained why a gift tax return was not filed,
stating it was “fair to assume” the transfer was not over the minimum amount that
required the file of a gift tax form with the Internal Revenue Service. The court, in its
role as trier of fact, could reasonably interpret the phrase “fair to assume” to mean it was
reasonable to infer from the circumstances that the accountant was able to remember after
20 years that the value of the gift did not exceed the filing threshold. As to the possibility
that the accountant offered his legal opinion as to whether the grant to David was a gift,
we have located no such testimony in the record and Launa admits she could not find any
such testimony. Thus, the trial court did not rely on a legal opinion of the accountant
when the court found the transfer was a gift.
C. Remuneratory Nature of the Gift
1. Launa’s Contentions
Launa contends that if the transfer to David was a gift, it was a remuneratory gift
and thus community property. She relies on Downer v. Bramet (1984) 152 Cal.App.3d
837 (Downer), a case setting forth the principle that a remuneratory gift should be
21.
characterized as community property. The principle recognizes that sometimes
employers make transfers to employees that appear to qualify as gifts (i.e., are voluntary
and without consideration), but the transfer is regarded as remunerative for services
rendered to the employer and the property is characterized as community property to the
extent those services were rendered during the marriage. (Id. at p. 844.) Here, Launa
argues any gift was remuneratory because the transfer was in recognition of, and
dependent upon, David’s working for the business and his ongoing labor, skill and effort.
2. Principles Governing Remuneratory Gifts
In Downer, the parties were married in 1953 and separated in 1971. (Downer,
supra, 152 Cal.App.3d at p. 839.) In August 1972, the former husband’s employer
transferred a one-third interest in a ranch to him, with similar portions going to two other
employees. (Id. at pp. 839–840.) The husband had worked for the employer since 1943
and had become the employer’s righthand man, providing services to several corporate
entities and supervising ranch operations in California, Arizona and Oregon. (Id. at p.
843.) For over 30 years, he was a loyal and trusted employee with practically no social
contacts with his employer. (Id. at p. 843–844.) In 1976, the husband stopped working
after suffering a stroke. (Id. at p. 840.) The parties’ dissolution settlement had been
executed near the end of 1972 and the husband had not informed his spouse about the
August 1972 transfer of the ranch prior to the execution of that agreement. In 1980,
when she learned about the transfer, the former wife filed suit to claim a community
property share of the proceeds from the sale of the ranch. (Id. at p. 841.)
In Downer, the appellate court first considered whether the transfer was a gift.
The court agreed with the trial court that the transfer of the “interest to former husband
was legally in the form of a gift.” (Downer, supra, 152 Cal.App.3d at p. 843.) The court
concluded the transfer was “‘made voluntarily, and without consideration’” because there
was no legal obligation to transfer the ranch and no evidence the former husband was
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induced to stay in the job based on statements purportedly made that the ranch would be
conveyed to the three employees in lieu of a pension program. (Ibid.) The court then
concluded the determination that the conveyance was legally a gift did not ultimately
decide its characterization as separate or community property. (Ibid.) The court stated
the statutory language about gifts being separate property “must be read in the context of
the entire marital property scheme. Earnings or property attributable to or acquired as a
result of the labor, skill and effort of a spouse during marriage are community property.”
(Ibid.) Based on the strong evidence that the gift was made by the employer “in
recognition of former husband’s devoted and skillful services during his lifelong
employment,” the court concluded the grant of nonsuit was error. (Ibid.) The basic
principles about remuneratory gifts are contained in the following paragraph:
“Thus, although the conveyance of the ranch interest to former
husband was in the form of a gift, the evidence would support, indeed
strongly suggests, that it was in whole or part a remuneratory gift in
recognition of former husband’s loyal and skilled efforts for and services to
his employer. [Citations.] To the extent it was and to the extent the efforts
and services were rendered during the marriage [citations], the ranch
interest conveyed to former husband and the proceeds of its sale were
community property. [Citations.]” (Id. at p. 844.)
3. Application of Principles
The trial court impliedly found the transfer of an ownership interest in the business
to David was not a remuneratory gift. This implied finding is supported by substantial
evidence. As discussed earlier, the circumstantial evidence supports the inference that
the transfer to David was not conditioned on his continuing to work for the business. As
an appellate court, we must accept inferences that are favorable to the trial court’s order
and cannot reweigh the evidence. Therefore, Launa has not established that the transfer
to David was in recognition of past and future services. Consequently, she has not
established the gift was remuneratory and we conclude the trial court did not err in
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determining the ownership interest transferred from Father to David was separate
property.
II. CHILD SUPPORT
A. Basic Principles
1. Statewide Child Support Guideline
Child support awards in California are governed by the legislation that established
a statewide uniform child support guideline. (See §§ 4050–4076.) “The court shall
adhere to the statewide uniform guideline and may depart from the guideline only in the
special circumstances” identified in the statute. (§ 4052.) The child support guideline is
a mathematical formula set forth in section 4055 and the amount generated by the
formula is presumptively correct. (§§ 4053, subd. (k), 4057, subd. (a).) The presumption
can be rebutted with evidence of the factors set forth in section 4057, subdivision (b).
The “total net monthly disposable income of both parties” is a component of the
formula used in the statewide uniform guideline for determining child support. (§ 4055,
subd. (b)(1)(E).) Monthly net disposable income usually is computed by dividing the
annual net disposable income by 12. “The annual net disposable income of each parent
shall be computed by deducting from his or her annual gross income the actual amounts
attributable to” items listed in the statute. (§ 4059.) Those deductions include (1) state
and federal income tax liability, (2) contributions to the Federal Insurance Contributions
Act (FICA), (3) amounts paid for retirement benefits if participation is required as a
condition of employment, and (4) health insurance or health plan premiums for the parent
or any children the parent is obligated to support. (§ 4059, subds. (a)–(d).) The term
“annual gross income,” which is used in the calculation of annual net disposable income,
is defined in section 4058 to mean income from whatever source derived, except child
support payments actually received and income derived from any need-based, public
assistance program. (§ 4058, subds. (a), (c).)
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2. Standard of Review
Child support awards are reviewed for an abuse of discretion. (In re Marriage of
Cheriton (2001) 92 Cal.App.4th 269, 282 (Cheriton).) In conducting this review,
appellate courts determine whether the trial court’s factual findings are supported by
substantial evidence and whether the trial court reasonably exercised its discretion—that
is, whether any judge reasonably could have made such an order. (In re Marriage of
Alter (2009) 171 Cal.App.4th 718, 730–731 (Alter).)
The concept of a reasonable exercise of discretion means that trial courts must
follow established legal principles. (Alter, supra, 171 Cal.App.4th at p. 731.) In the
context of child support awards, which are highly regulated by the statewide uniform
guideline, the only discretion trial courts possess is the discretion provided by statute or
rule. (In re Marriage of Smith (2001) 90 Cal.App.4th 74, 80–81.)
B. Trial Court’s Determinations
1. Temporary Support
The court’s October 2013 order established the amount of temporary support8 for
the two minor children at $2,615 per month commencing on August 13, 2012. The order
directed the payment of child support until a further order of the court, until the child
reached age 19, or until the child reached age 18 and was not a full-time high school
student, whichever occurred first. The child support consisted of $981 per month for the
son born in 1996 and $1,634 for the daughter born in 1998.
The order included a DissoMaster report for 2013, which had entries for both
presumed and basic child support of $2,615. The DissoMaster report listed David’s other
nontaxable income and his net (adjusted) income at $12,968 per month. It also listed
David’s net spendable income at $7,579, which equaled his net (adjusted) income of
8 The terms “interim,” “pendente lite” and “temporary” are used interchangeably in
describing temporary support orders. (In re Marriage of Gruen (2011) 191 Cal.App.4th
627, 639.)
25.
$12,968 minus $2,615 in child support and $2,774 in spousal support. The net (adjusted)
income figure of $12,968 per month was based on (1) $5,001 in wages available for
support, (2) net rental income of approximately $7,650 ($10,150 less a $2,500 payment to
David’s mother), (3) one-half of the miscellaneous interest and dividend income of
$1,800, minus (4) other adjustments.
2. Permanent Support
In October 2015, the trial court held a bench trial on the remaining issues not
resolved by the parties’ stipulation, which included child support for the daughter and
permanent spousal support. In April 2016, the court served a proposed statement of
decision. Launa filed objections to the proposed statement of decision stating, among
other things, that the decision did not address the issue of child support for the daughter,
who had turned 18 earlier that year. Launa’s objection represented to the court that the
daughter was scheduled to graduate from high school on June 1, 2016.
In May 2016, the trial court issued a ruling addressing the objections to the
statement of decision. The ruling included a footnote stating: “The Court notes that it
has made previous orders concerning the payment of child support by [David]. The
existing orders for child support shall continue until statutory termination or further order
of the Court.”
On June 10, 2016, the trial court filed a judgment on reserved issues. The
judgment continued the 2013 child support order by requiring David to pay $1,634 in
child support for his daughter until she reached the age of 18 and was not a full-time high
school student.
C. Mootness of Challenges to Permanent Child Support*
David responds to Launa’s various challenges of the child support order contained
in the June 2016 judgment by contending those challenges are moot because the
* See footnote, ante, page 1.
26.
temporary child support terminated before the June 2016 judgment went into effect.
David asserts his support obligation for his daughter terminated on June 1, 2016, when
she graduated from high school and, therefore, the child support order in the June 10,
2016, judgment never required him to make any payments.
Whether the child support issues raised by Launa are moot presents a threshold
question. Consequently, we address mootness before reaching Launa’s contentions about
the errors in the child support order.
1. Basic Principles
Courts decide only justiciable issues. (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1573.) Justiciability means the questions
litigated are based on an actual controversy. (Ibid.) Unripeness and mootness describe
situations where there is no justiciable controversy. (Ibid.) Unripe cases are those in
which an actual dispute or controversy has yet to come into existence. (Ibid.) At the
other end of the spectrum, mootness occurs when an actual controversy that once was
ripe no longer exists due to a change in circumstances. (Ibid.)
Under California law, the test for mootness of an appeal is whether the appellate
court can grant practical, effective relief despite the change in circumstances. (Citizens
for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 362; see In
re Marriage of Olson (2015) 238 Cal.App.4th 1458, 1463; Lester v. Lennane (2000) 84
Cal.App.4th 536, 566.) We conclude this test for mootness under California law applies
to orders granting or denying child support under the Family Code.
2. Child Support Judgment
The daughter of David and Launa turned 18 years of age in early 2016 and
subsequently graduated from high school on June 1, 2016. Pursuant to the terms of the
judgment filed on June 10, 2016, David’s obligation to pay child support for his daughter
terminated once she was 18 and had graduated from high school. Thus, when the
27.
judgment was filed, David no longer was obligated to pay child support. Any relief
entered by this court to vacate or alter the child support order in the judgment would have
a practical impact on the child support obligation only if that relief would apply to
payments made before the termination event—that is, the daughter’s high school
graduation.
3. Retroactive Changes to Child Support
David’s theory of mootness is based on the general principles that (1)
modifications of temporary child support orders cannot be retroactive and (2) the
operative date of a support order is the moment of pronouncement if the court does not
state a commencement date. David argues the moment of pronouncement in this case is
June 10, 2016, when the judgment was filed.
Launa argues the issue of child support is not moot because this court can (1)
require the errors in the calculations of that support be corrected and (2) direct the trial
court to exercise its discretion regarding retroactivity and determine a commencement
date for the increased child support. Launa suggests that November 1, 2015—the first
month after the October 2015 trial—would be an appropriate commencement date and
would be consistent with the stipulation of the parties that 20 percent of the daughter’s
time was spent in David’s custody. At the beginning of the October 30, 2015, court trial
on the remaining issues, the court and counsel discussed which issues remained for the
court to decide. Those issues included child support and spousal support.
First, we conclude the trial court had the discretion to establish a date prior to the
entry of the judgment when the permanent child support order would take effect.
(§ 3653, subd. (a) [retroactive application of modification of support order]; see In re
Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1052 [discretion to make order
modifying child support retroactive].) Here, the trial court ordered a continuation of the
temporary child support and, as a result, had no reason to exercise its discretion relating
28.
to a commencement date for a modification to the previous support order. If Launa
establishes one or more errors as to the amount of child support ordered in the June 2016
judgment, it will raise the question of when the corrected amount should have taken
effect. The statute authorizes retroactivity of a modified support order to “the filing of
the notice of motion or order to show cause to modify” the support. (§ 3653, subd. (a).)
The purpose of the notice of motion or order to show cause is to put the other parent on
notice that the support order could be changed and to allow that parent to plan for the
possibility. Here, prior to the October 30, 2015, court trial on remaining issues, both
parties filed a trial brief on remaining issues that mentioned child support as a remaining
issue. These trial briefs clearly fulfilled the function of providing David notice that his
child support obligation might change. Accordingly, we conclude the trial briefs are the
functional equivalent of “the filing of the notice of motion or order to show cause to
modify” child support for purposes of section 3653, subdivision (a). Requiring Launa to
file a notice of motion or order to show cause at that point would have added additional
paperwork to the court’s file and served no practical purpose. Therefore, we conclude the
trial court had the discretion to make any modification of the support order retroactive to
the filing of Launa’s trial brief.
Second, we conclude an appellate court decision directing the trial court to
exercise discretion is a type of practical, effectual relief. (Cf. In re Marriage of Rosenfeld
& Gross (2014) 225 Cal.App.4th 478, 491 [order denying request for modification of
child support reversed with directions for trial court to consider evidence relevant to
exercise of its discretion].) Accordingly, a remand order directing the trial court to
exercise its discretion relating to the retroactivity of a child support modification would
provide practical, effective relief. Consequently, under California’s mootness doctrine,
the question of whether the child support order in the June 2016 judgment contains error
is not moot.
29.
D. 2016 Child Support—Custody Percentages*
Launa contends the trial court’s decision in 2016 to continue the temporary child
support ordered in October 2013 contained multiple errors relating to the calculation of
David’s income available for support. In addition, Launa contends the court failed to
implement the parties’ stipulation attributing a 20 percent time share to David, the
noncustodial parent. Here, we consider the latter contention.
One of the findings used in the DissoMaster report attached to the trial court’s
October 2013 order was that the children spent 49 percent of their time with David.
During the October 30, 2015, trial, the parties stipulated that David’s share of their
daughter’s custody was 20 percent and the court stated it would accept this stipulation.
Despite the stipulation and the court’s statement, the 2016 judgment simply continued the
child support ordered in October 2013, which was based on DissoMaster calculations
attributing a 49 percent share of custody to David. It follows that (1) the trial court’s
2016 judgment failed to incorporate the parties’ stipulation and (2) the child support
award of $1,634 per month is tainted by the error relating to custody percentages.
Consequently, the issue of child support must be remanded to the trial court for
recalculation using the correct custody percentages. Also on remand, the court must
exercise its discretion as to the retroactivity of the recalculated child support obligation.
E. 2016 Child Support—Tax Refunds
1. Statutory Provision and Its Meaning
As described in part II.A.1., ante, the calculation of a parent’s net disposal income
involves reducing the parent’s annual gross income by deducting items specified in the
statute. (§ 4059.) One of those deductions is “the actual amounts attributable to … [t]he
state and federal income tax liability resulting from the parties’ taxable income.”
(§ 4059, subd. (a), italics added.) Subdivision (a) of section 4059 also states:
* See footnote, ante, page 1.
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“Federal and state income tax deductions shall bear an accurate relationship
to the tax status of the parties (that is, single, married, married filing
separately, or head of household) and number of dependents. State and
federal income taxes shall be those actually payable (not necessarily
current withholding) after considering appropriate filing status, all available
exclusions, deductions, and credits.” (Italics added.)
This text makes no reference to income tax refunds. Consequently, the following
question of statutory construction is presented: When a trial court has excluded all of a
parent’s income tax withholdings and estimated income tax payments from that parent’s
income, how should the court treat income tax refunds when calculating a parent’s annual
net disposable income under section 4059? As explained below, we conclude the state
and federal income tax refunds should be included in the annual net disposable income.
This question of statutory construction involving income tax refunds and section
4059 does not appear to have been answered in a published decision. Consequently, we
begin with the words used in the statute, giving them their usual and ordinary meaning,
because statutory language generally is the most reliable indicator of legislative intent or
purpose. (People v. Castillolopez (2016) 63 Cal.4th 322, 329.) When statutory language
is ambiguous, courts must adopt the interpretation that best effectuates the legislative
intent or purpose. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)
The words of particular interest include the phrase “actual amounts attributable” in
section 4059’s lead-in to the specific deductions. (§ 4059.) Also, the word “liability” is
used in the income tax deduction’s reference to “state and federal income tax liability.”
(§ 4059, subd. (a), italics added.) Most significant for our purposes is the phrase
“actually payable” in the sentence that contrasts taxes actually payable with current
withholding for taxes. That sentence provides: “State and federal income taxes shall be
those actually payable (not necessarily current withholding) after considering appropriate
filing status, all available exclusions, deductions, and credits.” (§ 4059, subd. (a), italics
added.)
31.
The amounts withheld for state and federal income taxes on a taxpayer’s W-2 and
1099 forms and the amounts of the quarterly estimated tax payments to California (form
540-ES) and the federal government (form 1040-ES) are not the “actual amounts
attributable” to “state and federal income tax liability” and are not the taxes “actually
payable.” (§ 4059, subd. (a).) The statute explicitly contrasts taxes actually payable with
current withholdings and warns that they are not necessarily the same. Instead of
representing the actual amount of a parent’s tax liability (i.e., the amount actually
payable), the amounts withheld and the amounts of estimated tax payments are intended
to cover most or all of the taxpayer’s final tax liability—a liability calculated on income
tax returns prepared after the close of the tax year and usually filed on or before the 15th
of April. Consequently, the amounts withheld and the amounts of estimated tax
payments are estimates or predictions related to an income tax liability that ultimately
will be determined sometime after the amounts have been withheld and the estimated
payment submitted. Therefore, we conclude that the subtraction of withholdings and
estimated tax payments from the parent’s gross income does not end the calculation set
forth in subdivision (a) of section 4059. Refunds amounts must be taken into account.
The Legislature’s recognition that taxes actually payable are not necessarily equal
to current withholdings is consistent with judicial decisions in child support cases from
other jurisdictions. Those cases have recognized the inaccuracy of withholdings when
addressing how income tax refunds relate to the income used to calculate child support
payments. (See e.g., Ready v. Ready (Wyo. 2003) 76 P.3d 836 [1999 overpayment
caused significant tax refund to be received in 2000; refund was included in income used
to calculate father’s child support obligation] (Ready); In re Marriage of Pylawka (1996)
277 Ill.App.3d 728, 733 [661 N.E.2d 505, 509] [income tax refund should be added back
to parent’s net income when determining child support obligation under Illinois statute]
(Pylawka).)
32.
The Illinois child support statute provides a comparison useful in this case because
it allows for the deduction of federal income tax from gross income to determine the
parent’s net income used for purposes of calculating child support. (In re Marriage of
Ackerley (2002) 333 Ill.App.3d 382, 390–391 [775 N.E.2d 1045, 1053–1054]; see 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 504, p. 567 [persuasive value of
decisions of sister state courts].) To address overwithholding of salary or wages on a
parent’s W-2 forms, Illinois courts use two approaches. (Ackerley, supra, at pp. 1053–
1054.) The first calculates a parent’s net income by deducting the actual federal income
tax paid from the actual total income received. (Ibid.) The second “begin[s] with net
income and add[s] back in any refunds, which represent overwithholding.” (Ibid.) The
approaches recognize that if income tax refunds were excluded from the calculations, it
would allow a parent owing a support obligation to manipulate his or her net income
simply by overwithholding. (Pylawka, supra, 661 N.E.2d at p. 509.) The potential for
inaccuracy or manipulation also was recognized by the Wyoming Supreme Court:
“A review of the record in this case shows that the court considered the
father’s receipt of a significant tax refund in 2000 for overpaid 1999 taxes
as a matter affecting his cash flow during the year 2000. The father would
have us base his child support obligation not on his actual after-tax income,
but rather on an income that is artificially reduced by temporary
overpayment of taxes. That would not comport with the statutory and case
law definitions of income.” (Ready, supra, 76 P.3d at p. 840.)
Based on the text of section 4059 and the tax refund cases from other jurisdictions,
we conclude California’s statute requires the parent’s state and federal income tax
refunds to be added to the parent’s annual net disposable income when all of the parent’s
income tax withholdings and estimated income tax payments have been deducted from
his or her gross income. A contrary statutory interpretation would allow a parent to
manipulate his or her income by overwithholding or overpaying estimated tax payments.
33.
2. Tax Payments and Refunds—2008 to 2011
The evidence in this case includes the parties’ federal tax returns from 2008
through 2011, the four years prior to the filing of the dissolution proceeding in 2012.
Those tax returns show they overpaid their federal income tax in 2008 ($17,294) and
2010 ($28,403). The 2008 overpayment was applied to the next year’s taxes and $17,905
of the 2010 overpayment was taken as a refund. In contrast, their withholdings and
estimated tax payments for 2009 and 2011 were less than the federal income tax owed by
$25,884 and $81,513, respectively. The federal tax liability for 2011 was paid by check
number 5323 dated April 16, 2012, and drawn on their joint checking account at United
Security Bank.
The parties’ California income tax returns for 2009 through 2011 show
overpayment of taxes of $1,969 and $3,207 in 2009 and 2011, respectively. Most of the
overpayments were applied to estimated tax payments for the next year. The 2010 return
shows they underpaid their taxes and owed $9,438 when the return was completed.
3. David’s Estimated Tax Payments for 2012
The parties’ 2012 income tax returns are not part of the appellate record.
However, information about their estimated tax payments for the 2012 tax year is
available. Their accountant’s April 16, 2012, letter recommended making federal
quarterly estimated tax payments of $40,000 each. The payments for the first and second
quarter were made in April and June 2012 from the parties’ joint checking account using
checks numbered 5322 and 5464.
The accountant also recommended making quarterly estimated tax payments to
California’s Franchise Tax Board of $24,000, $32,000, $0 and $24,000 ($80,000 total).
The parties made the first two payments to the Franchise Tax Board using electronic
transfers from their joint checking account.
34.
4. David’s 2013 Federal Tax Payments and Refund
A redacted excerpt from David’s 2013 federal income tax return shows he had
federal withholdings of $8,374 and made estimated tax payments of $140,000. David’s
total payments of $148,374 exceeded his total federal income tax liability by $38,491.
David requested a refund of $38,478 and applied the other $13 to pay an estimated tax
penalty. We note David’s 2013 tax return had not been prepared when the trial court
ordered temporary child support in October 2013 and, therefore, the information in that
return about the overpayment of federal income taxes and the related refund was not
available to the court at that time.
5. Federal and State Tax Payments and Refunds—2014 and 2015
David’s 2014 federal and California income tax returns are part of the appellate
record. His total income on his federal return was $681,726, of which $84,236 was
wages and $588,289 was his reportable S corporation income. David’s total federal tax
liability was $174,412. He had withholdings of $9,256 and made estimated tax payments
of $240,000. These payments exceeded his federal income tax liability by $74,844, of
which $74,804 was refunded to David and $40 was applied to an estimated tax penalty.
David’s California income tax return for 2014 showed his state income tax
payments totaled $123,214 and exceeded his tax liability by $19,454. David requested
the overpayment of $19,454 be refunded to him.
Accordingly, David’s federal and state refunds for 2014 totaled $94,258 ($74,804
plus $19,454). To place this figure in context, it equaled 112 percent of the wages David
reported on line 7 of his federal income tax return and almost 14 percent of the total
income he reported on line 22. Stated from a cash flow perspective, David’s total tax
refunds for 2014 exceeded the net amount of his paychecks for the year.
When the bench trial was held in October 2015, the 2015 tax year had not yet
closed and David’s tax returns for 2015 were not available. Therefore, the parties and
court could not determine the amounts of state and federal income taxes actually paid for
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2015 as a matter of historical fact. In contrast, final information for 2014 was available
and was presented to the court. Therefore, the court could have determined the amount
of state and federal income tax liability actually paid for 2014 and the amount of the 2014
refunds received in 2015.
6. Ownership of the Tax Refunds
David has relied on his argument that the issues arising from the child support
award in the June 2016 judgment are moot and has not specifically addressed Launa’s
argument that his tax refunds are part of his net disposable income for purposes of section
4059. However, David has presented an argument about ownership of the tax refunds in
responding to Launa’s arguments about spousal support. Accordingly, we will consider
David’s argument about the ownership of the tax refunds in our analysis of the child
support award contained in the June 2016 judgment.
David contends his federal income tax refund of $74,804 for the 2014 tax year
should not be considered part of his income available for spousal support because it
belongs to Huddleston Crane and, thus, is not available to him.
First, we conclude David’s argument that one or both S corporations own the tax
refunds is not supported by direct evidence. There is no direct evidence that David
actually transferred the refunds to either S corporation. In addition, there is no evidence
of a contractual or other obligation requiring David to transfer the refund to either S
corporation. For example, nothing in the corporate bylaws or articles of incorporation
impose such an obligation on David.
Second, we conclude the circumstantial evidence is insufficient to support the
inference that David transferred the refund to the S corporations or was obligated to make
such a transfer. David acknowledges that he testified he received the federal tax refund,
but notes that (1) Launa’s attorney did not ask him if he returned the tax refund to the
company and (2) his accountant’s 2013 testimony established that the corporation was
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paying the taxes for David. The accountant’s testimony resulted from a question about
whether the accountant knew, based on his records, how much David “has historically
been paid in cash flow.” The accountant replied:
“Historically, as a general rule, normally—the business philosophy of
Huddleston Crane is to take amounts out of the company sufficient to pay
the income taxes reported on their individual income tax returns. So
specifically the account amount of 2011—I don’t have a financial statement
sitting in front of me—I couldn’t tell you what that number is.”
This vague testimony does not address the subject of income tax refunds. David
also cited testimony in which Noerr stated he made the decisions as to how much money
the company distributed to the owners and he had denied requests by David to distribute
additional money.
We have reviewed the accountant’s testimony, Noerr’s testimony and the other
evidence cited by David. In addition, we have considered the inferences that might be
drawn from how David and Launa dealt with prior income tax refunds. In particular, the
record shows how the $17,905 refund received in 2011 as a result of the overpayment of
the federal income taxes for the 2010 tax year was handled. Also, a February 11, 2014,
letter from David’s attorney to a certified public accountant states various back-up
documentation was enclosed, including a copy of “a United States Treasury refund check
in the amount of $17,905 reflecting an overpayment of income taxes, as well as a copy of
the deposit slip depositing the money into the parties’ joint United Security Bank
account.” A copy of the letter’s enclosures is not part of the appellate record, but a
schedule of deposits made into the United Security Bank account during 2011 confirms
the $17,905 refund was deposited on May 3, 2011. We have reviewed the monthly bank
statements for 2011 and have located no evidence showing the refund amount was
transferred to one of the S corporations. The bank statements show the federal ($20,000)
and California ($16,556) estimated tax payments were made by checks and were covered
by a deposit of $36,556 made on June 16, 2011. Therefore, the $17,905 refund was not
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used to partially fund the estimated tax payments made the month after the refund was
received.
Based on our review of the record, we conclude the evidence does not reasonably
support the inference that the S corporations owned David’s income tax refunds or,
alternatively, that David returned the tax refunds to the corporations. Noerr’s business
philosophy of retaining earning and avoiding borrowing is insufficient to provide
reasonable support for the inference that David’s tax refund belonged to the corporations.
Rather, David’s claim he did not own the refunds is based on conjecture and speculation9
and contradicts the treatment of the federal income tax refund received in 2011.
Accordingly, we reject David’s ownership theory and his implied argument that his tax
refunds were not part of his annual net disposable income for purposes of calculating
child support.
7. Error in the June 2016 Judgment
The June 2016 judgment continued the child support awarded in October 2013. It
follows that the June 2016 child support award could not have reflected (1) the federal
income tax refund David received in 2014 due to the overpayment of his 2013 income
taxes or (2) the California and federal income tax refunds David received in 2015 due to
his overpayment of taxes on his 2014 income. As a result, the June 2016 child support
award contains error in its underlying determinations of David’s income for purposes of
child support. The $94,258 in state and federal income tax refunds David received in
9 Based on the record before this court, it appears any payment of federal and state
estimated tax payments by the S corporations on behalf of David and Noerr would have
reduced the capital account of the owner who benefited. Conversely, if David or Noerr
had returned a tax refund to the S corporations, that infusion of money into the
corporation probably would have been accounted for as a contribution to capital with a
corresponding increase in that owner’s capital account. Financial records reflecting
changes to the owners’ capital accounts in the S corporations are not part of the appellate
record.
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2015 was money actually available for child support10 and its exclusion from the trial
court’s calculation of David’s net monthly nontaxable income available for support or
from his annual net disposable income for 2015 was error.
On remand, the calculation of David’s income for purposes of child support must
include the state and federal income tax refunds he received in 2015. If the court
calculates David’s income for 2014, that calculation must include the tax refunds David
received in that year.11
F. 2016 Child Support—Contributions to 401(k) Plan
1. Background
Launa contends David’s gross monthly income of $9,151 was improperly reduced
by his nontaxable, voluntary contributions to the 401(k) plan. Launa (1) interprets the
trial court’s written decision as stating David’s contributions to the 401(k) plan were
income available for support and (2) contends the court acted contrary to its statement
when it failed to include the contributions in calculating David’s net monthly after-tax
income as $5,001. Launa’s contention is based on the following statement in the October
2013 order’s discussion of child support: “The court notes that the determination of
income available for support also includes the 401(k) deduction that is made from
[David’s] check each month.” Launa interprets this statement as an expression of the
court’s intention to include David’s contributions to the 401(k) plan in his income
10 The fact that federal law authorizes local child support agencies to enforce child
support orders by intercepting federal income tax refunds (42 U.S.C. § 664) demonstrates
that income tax refunds are available to pay child support.
11 We note the exclusion of the tax refunds from these years is not justified by the
possibility that income tax refunds might not be received in subsequent years. For
purposes of David’s child support obligation, which ended on June 1, 2016, what might
occur in subsequent years is of little practical significance to the funds available to David
to pay child support until June 1, 2016. In comparison, David’s receipt of refunds in
2014 and 2015 prior to the termination date affected the amount of funds available to him
to pay child support through the termination date.
39.
available for temporary child support. Launa contends the court’s DissoMaster
calculations failed to implement this intent because it factually did not include the
contribution as part of David’s income available for support. Launa contends the error
was repeated in 2016 when the court continued the child support it ordered in 2013.
2. Voluntary Contributions as Disposable Income
We conclude that, as a general rule, voluntary contributions to a 401(k) plan are
properly included in net disposable income for purposes of calculating child support.
(See §§ 4058 [annual gross income], 4059, subd. (c) [deduction of contributions to
retirement benefits if required as a condition of employment].) Those contributions,
because they are voluntary, represent funds available to the contributing parent to spend
as he or she desires. (Halpert & Leonard (1998) 157 Ore. App. 276, 279 [970 P.2d 253,
254].) When a trial court excludes voluntary contributions to a 401(k) plan from the
calculation of a parent’s net disposable income, a rationale for deviating from the general
rule should be set forth in the record. (§ 4056.)
In the procedural context presented by this appeal, we need not discuss Launa’s
interpretation of the October 2013 order. It is sufficient for our analysis that the record
shows David’s contributions to the 401(k) plan were not included in the October 2013 or
June 2016 calculation of his net disposable income available for child support and the
trial court did not explain the exclusion of the contributions. Accordingly, on remand
when the trial court is addressing the other errors in the child support award in the 2016
judgment, the court also shall include the 401(k) plan contributions in calculating David’s
income available for child support or, alternatively, provide findings that justify the
exclusion of all or part of those contributions. We note those contributions do not qualify
for the mandatory deduction set forth in subdivision (c) of section 4059, which relates to
retirement contributions that are required as a condition of employment. The record
40.
contains no evidence David’s employment was conditioned on his participation in the
401(k) plan.
G. 2016 Child Support—Contributions to Health Savings Account*
Launa also contends David’s gross monthly wage income of $9,151 was
improperly reduced by his voluntary contributions to an HSA.12 Launa argues the trial
court failed to exercise its jurisdiction (i.e., discretionary authority) to include or exclude
the HSA contributions when determining David’s income available for child support.
These contentions, which are similar to the contentions about the contributions to the
401(k) plan, can be addressed on remand when the trial court addresses the other issues
relating to the child support award in the June 2016 judgment.
H. 2016 Child Support—David’s Rental Income and Expense*
David’s November 2012 declaration stated that the business is organized as two
corporations. Huddleston Crane Services, Inc. is the operating company and H.C.S.
Mechanical, Inc. owns equipment used by the operating company. The declaration stated
David and Noerr each receive two monthly checks for equipment rental totaling
$10,150—one for $6,100 and the other for $4,050. The declaration stated David used
$2,500 of this rental income to pay his mother for the business’s use of certain real estate.
As a result of these transactions, David asserts he receives a net rental income of $7,650
per month. Similar testimony was presented at a January 2013 hearing. The banking
records show many checks predating the dissolution proceeding, drawn on the parties’
joint checking account, and made payable to David’s mother, Eula Morton, in the amount
of $2,500 for “rent.”
* See footnote, ante, page 1.
12 Contributions to the HSA and related deductions and distributions are reported on
federal tax form 8889. David reported contributions of $5,900 in 2011 and $3,300 in
2014.
* See footnote, ante, page 1.
41.
Launa contends the trial court erred in reducing David’s monthly rental income of
$10,150 by an alleged monthly payment of $2,500 when it determined his income
available for payment of permanent child support. Launa contends the alleged monthly
payment to David’s mother is a sham and notes that David did not list it in a November
2012 income and expense declaration or a May 2015 loan application.
The trial court addressed Launa’s arguments in its proposed statement of decision
and in the attachment the June 2016 judgment. The attachment stated:
“[Launa] claims the rental income paid to [David’s] mother is a sham.
Evidence before the Court in the nature of the testimony of [David] and …
Noerr is sufficient to support the Court’s finding that the Respondent is
making a $5,000 per month rental payment.”
The statement about David making a $5,000 monthly payment is incorrect because
David paid one-half ($2,500) while Noerr paid the other half.13 Nonetheless, the trial
court’s statement demonstrates it considered Launa’s argument that the rental payment
was a sham, and rejected it because it found the testimony of David and Noerr about a
total rental payment of $5,000 to be credible.
Launa’s challenge to the trial court’s finding of fact relating to the rent paid to
David’s mother essentially fails to acknowledge that a finding of fact is reviewed under
the substantial evidence standard. (Alter, supra, 171 Cal.App.4th at pp. 730–731.) Here,
the trial court’s findings about the monthly rental payment to David’s mother is
supported by substantial evidence in the form of David’s testimony, Noerr’s testimony,
and the copies of checks from David to his mother for “rent” in the amount of $2,500.
Therefore, we conclude Launa has failed to demonstrate the trial court committed factual
13 The trial court’s October 22, 2013, order accurately described David’s share of the
rental payment to his mother by stating: “Out of the $10,[15]0 monthly rental income,
[David] pays his mother $2,500, which represents his share of the $5,000 monthly rent
paid to her for Huddleston Crane Services, Inc.’s use of certain land to which she hold[s]
title.”
42.
error in finding David made a $2,500 monthly rental payment to his mother for real estate
and that money was not available for the payment of child or spousal support.
I. Challenge to 2013 Temporary Child Support Order*
The child support order in operation until their youngest child graduated from high
school was the temporary support order entered in October 2013. Consequently, we turn
to Launa’s challenges to that child support award.
1. Launa’s Claim of Error
Launa contends the trial court erred in refusing to correct its October 2013 order of
temporary child and spousal support on the grounds that (1) her request for
reconsideration was untimely and (2) the court was not persuaded there was cause to
correct the prior order. Launa refers to the court’s inherent power to reconsider previous
orders and cites Le Francios v. Goel (2005) 35 Cal.4th 1094 (Le Francios) as support. In
her view, the court’s statement that her motion for reconsideration was untimely was
factually incorrect and, furthermore, she demonstrated the 2013 findings and DissoMaster
calculations contained errors.
2. David’s Contentions
David contends Launa’s arguments mischaracterize the trial court’s rationale for
denying her request. He contends the court’s reference to untimeliness refers to the time
constraint applied to Launa’s statutory right to request reconsideration, not a time limit
that applies to the court’s inherent authority to reconsider. David interprets the court’s
statement that it was not persuaded there was cause to correct its prior orders to mean the
court determined its order of temporary support was correctly decided. In David’s view,
Launa’s remedy was a timely appeal from the October 2013 order of temporary support
or a motion to modify the support orders. David argues that, contrary to Launa’s
contention, Le Francios does not require a court to retroactively modify an erroneous
* See footnote, ante, page 1.
43.
support order. Furthermore, David contends the temporary support orders were final and,
therefore, the court lacked jurisdiction to retroactively modify them.
3. Launa’s Reply
Launa’s reply brief disagrees with David’s contention about the lack of
jurisdiction. In her view, the trial court retained inherent jurisdiction to modify is prior
orders. In addition, Launa contends the court’s failure to correct its orders of temporary
support was an abuse of discretion.
4. Trial Court’s Decision
The attachment to the June 2016 judgment stated (1) previous temporary orders
were based on the trial court’s determination of $12,651 as David’s net monthly
nontaxable income available for support and (2) the determination was based on the
court’s “consideration of testimony and evidence presented in a prior hearing and
included in the orders filed October 22, 2013.” The footnote at the end of this statement
reads: “[Launa] requests in her closing argument that the Court reconsider this
determination of income available for support and ‘correct’ the previously issued
temporary orders to reflect [David’s] determination of his actual income. That request
for reconsideration is not timely under Code of Civil Procedure section 1008 nor is the
Court persuaded that there is cause to ‘correct’ the prior orders.”
5. General Principles
An order granting or denying temporary child support is appealable. (County of
Yolo v. Worrell (1989) 208 Cal.App.3d 471, 474, fn. 6; see In re Marriage of Gruen,
supra, 191 Cal.App.4th at p. 637 [“temporary support order is operative from the time of
pronouncement, and it is directly appealable”].) A family law practice guide provides the
following pointer:
“The failure to file a timely appeal from a directly appealable ‘final’
pendente lite order will forever bar the right to challenge the order; once the
time for appeal has run, the order will be entitled to res judicata effect even
44.
if erroneous!” (1 Hogoboom & King, Cal. Practice Guide: Family Law
(The Rutter Group 2018) ¶ 5:534.3a, pp. 5-254, 5-255.)
An application for reconsideration of an order is governed by Code of Civil
Procedure section 1008. As to the timing of the application, the statute provides any
party affected by an order may, “within 10 days after service upon the party of written
notice of entry of the order,” make application to the same court to reconsider the matter
and modify or revoke the prior order. (Code Civ. Proc., § 1008, subd. (a).)
6. Timeliness
As to Launa’s claim that the trial court erred in finding her motion for
reconsideration was untimely, we note the court’s finding specifically referenced
timeliness under Code of Civil Procedure section 1008. The court did not find the
motion was untimely for all purposes. Here, Launa has not established that her
application was filed within the 10 days specified by statute. Consequently, she has not
established the trial court’s finding as to statutory untimeliness was erroneous.
7. Inherent Discretionary Authority to Reconsider
Launa relies on Le Francios as establishing the following rule about a trial court’s
authority to reconsider prior orders: “In response to a party’s suggestions, the Court has
the inherent power to reconsider its previous order on its own motion (sua sponte) at any
time before the entry of judgment, so long as it gives the parties notice and a reasonable
opportunity to litigation the question.” David concedes that Launa accurately stated the
holding of Le Francios. We assume for purposes of discussion that Launa’s suggestion
that the trial court exercise the discretionary authority described in Le Francios was
timely because she made it prior to the entry of the June 2016 judgment.
Launa’s arguments imply that a showing of an abuse of this inherent, discretionary
authority is established once the suggesting party has demonstrated the prior order
contains error. We reject this implication and conclude many more factors are relevant to
the trial court’s exercise of this inherent authority. In particular, the trial court may
45.
consider the reasons for appellant’s failure to (1) file a timely motion under Code of Civil
Procedure section 1008 or (2) make an earlier suggestion that the trial court exercise its
inherent authority. Stated otherwise, an unreasonable delay is a rational ground for
refusing to exercise the inherent discretion. Here, Launa has not explained her delay in
asking for the correction of the October 2013 order in a way that establishes the trial
court acted unreasonably in determining she had not shown “cause” for the exercise of
the court’s inherent authority.14 Thus, it was reasonable for the trial court to decline to
exercise its inherent discretionary power on the ground Launa did not offer a good
enough reason for her delay. Therefore, we conclude the trial court did not abuse its
discretion in rejecting her suggestion that the October 2013 order be corrected. Based on
this determination, we need not address the other grounds presented by David for
upholding the trial court’s decision not to reconsider its prior order.
III. SPOUSAL SUPPORT*
A. General Principles
California law provides for two distinct types of spousal support—temporary and
permanent. (In re Marriage of Mendoza & Cuellar (2017) 14 Cal.App.5th 939, 942–943
(Mendoza); see §§ 3600 [spousal support during pendency of dissolution proceeding],
4330 [spousal support upon dissolution of marriage].)
1. Temporary Spousal Support
The two types of spousal support do not serve the same purpose and are not
governed by the same procedures. (Mendoza, supra, 14 Cal.App.5th at p. 942.) In other
14 By comparison, the reasonableness of a delay is a factor in determining the
timeliness of a motion to disqualify an attorney. (See Ontiveros v. Constable (2016) 245
Cal.App.4th 686, 701.) Also, facts showing a delay in asserting a claim was reasonable
under the circumstances precludes the application of California’s laches doctrine. (See
Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157
[elements of laches].)
* See footnote, ante, page 1.
46.
words, temporary allowances and permanent allowances differ fundamentally in nature
and function. (Ibid.) Temporary spousal support is meant to allow a spouse to continue
to live in the manner to which he or she is accustomed while the dissolution proceeding is
pending. (Id. at pp. 942–943.) In other words, temporary spousal support is designed to
preserve the pre-separation status quo. (In re Marriage of Campbell (2006) 136
Cal.App.4th 502, 507; 11 Witkin, Summary of Cal. Law (11th ed. 2017) Marriage, § 245,
p. 301.) Temporary spousal support, like an interim award of attorney fees and costs,
also may be used to provide a spouse with the resources needed to litigate properly his or
her side of the controversy. (Mendoza, supra, at p. 943.)
2. Permanent Spousal Support
In contrast to temporary spousal support, the purpose of permanent spousal
support is to provide financial assistance, if appropriate, as determined by the financial
circumstances of the parties after their dissolution and the division of their community
property. (In re Marriage of Burlini (1983) 143 Cal.App.3d 65, 68.) Some courts state
permanent spousal support “is intended to make an equitable apportionment between the
parties.” (Mendoza, supra, 14 Cal.App.5th at p. 942.) The main statutory provisions
governing permanent spousal support are sections 4320 and 4330.
Section 4330 states the trial court “may order a party to pay for the support of the
other party an amount, and for a period of time, that the court determines is just and
reasonable, based on the standard of living established during the marriage, taking into
consideration the circumstances as provided in Chapter 2 (commencing with Section
4320).” (§ 4330, subd. (a).) The marital standard of living is not an absolute measure
(either as a floor or a ceiling) of spousal support, but is a reference point against which
the statutory factors may be weighed. (In re Marriage of Smith (1990) 225 Cal.App.3d
469, 485; In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 48, fn. 11.)
47.
Section 4332 requires the trial court to “make specific factual findings with respect to the
standard of living during the marriage.”
Section 4320, subdivisions (a) through (n), set forth multiple factors a trial court
must consider in making a permanent spousal support order. (Cheriton, supra, 92
Cal.App.4th at p. 308.) These include, among other things, the extent to which a party’s
earning capacity is sufficient to maintain the marital standard of living; the marketable
skills of the supported party; the job market for those skills; the ability of the supporting
spouse to pay spousal support; the needs of the parties given their standard of living; the
parties’ obligations and assets; the duration of the marriage; the ability of the supported
party to engage in gainful employment; the age and health of the parties; and any other
factors the court deems just and equitable. (§ 4320.) Evaluating the ability of the
supporting spouse to pay support involves the consideration of the supporting spouse’s
“earning capacity, earned and unearned income, assets, and standard of living.” (§ 4320,
subd. (c).)
Trial courts are required to weigh the factors set forth in section 4320, but have
discretion in completing the weighing process. (Cheriton, supra, 92 Cal.App.4th at p.
304; see In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 [discretion in
determining permanent support is constrained by statutory factors set out in § 4320].)
This discretion must be exercised fairly with the goal of accomplishing substantial justice
for the parties. (Cheriton, supra, at p. 304.) Trial courts do not have the discretion to
ignore any relevant circumstance enumerated in the statute. (Ibid.) Therefore, trial
courts must both recognize and apply each statutory factor when setting permanent
spousal support. (Ibid.) A failure to do so is reversible error. (Ibid.) Stated another
way, “the ‘court may not be arbitrary; it must exercise its discretion along legal lines,
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taking into consideration the applicable circumstances of the parties set forth in [the
statute], especially reasonable needs and their financial abilities.’” (Ibid.)15
The differences in the purposes of temporary and permanent support and in
applicable statutory text has generated the principle that reliance on temporary support
schedules in making permanent support is wholly improper. (See In re Marriage of
Burlini, supra, 143 Cal.App.3d at p. 69 [inappropriate to rely on local support schedule
for temporary support to determine permanent spousal support].) Thus, it is error to base
a permanent spousal support award on a computer program designed to calculated
temporary support. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525.)
B. Trial Court’s Decision
The trial court set permanent spousal support at $2,700 per month, commencing
on April 1, 2016, and continuing until terminated by statute or further order of the court.
About 10 pages of the attachment to the June 2016 judgment set forth the trial court’s
analysis and findings in support of that award. The court addressed the marital standard
of living, which it described as “a benchmark against which the factors in section 4320
may be weighed.” Before addressing the factors in section 4320, the court addressed “the
issue of income available for support.”
The trial court noted its temporary support orders had been based on its
determination that $12,651 of net monthly nontaxable income was available for support,
of which $7,650 was net rental income and the remaining $5,001 was wages available for
support. The court appears to have readopted that finding as it rejected six arguments
presented by Launa “regarding why this determination of income should be revisited for
purposes of setting permanent spousal support.” The court’s discussion of the factors
15 Due to the overlap between the factors listed in section 4320 and the factors that
must be considered in awarding attorney fees and costs, section 4320 and the attorney fee
provisions have been described as forming a “statutory package.” (Kevin Q. v. Lauren W.
(2011) 195 Cal.App.4th 633, 641; see part IV., post [attorney fees].)
49.
listed in section 4320 addressed David’s ability to pay spousal support taking into
account his earning capacity, income, assets and standard of living. (§ 4320, subd. (c).)
The court stated David’s “current earnings are discussed above.” That prior discussion
related to (1) the court’s previous finding that David’s net monthly nontaxable income
was available for support was $12,65116 and (2) the court’s rejection of Launa’s
arguments for increasing that amount. Accordingly, we interpret the decision as finding
David’s income available for permanent spousal support was approximately $12,651 per
month.
C. David’s Income and Ability to Pay
Launa raises several challenges to the trial court’s findings as to David’s income
available for spousal support. Some of those grounds also were raised in Launa’s
challenges to the award of child support, such as income tax refunds and sham rental
payments to his mother.
1. Income Tax Refunds
In part II.E., ante, we discussed David’s California and federal income tax refunds
in the context of child support. Our determinations about tax refunds being income
available to pay child support also apply in the context of a spouse’s ability to pay
spousal support, which takes into account that spouse’s income and assets. (See § 4320,
subd. (c).) Therefore, we conclude the trial court erred when it excluded the California
and federal income tax refunds received by David in its calculation of his after-tax
income for purposes of spousal support.
16 The court also described this figure as David’s “net after-tax income,” which the
court found was the relevant income measurement because the S corporations retained
earnings rather than distributing all the income to the owners, which resulted in David
having a taxable income much higher than the cash flow he received from the
corporations. The retained earnings attributable to David are, of course, part of his
“earning capacity” referenced in subdivision (c) of section 4320.
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The trial court determined David’s after-tax income was approximately $12,651
per month. The federal and California income tax refunds David received in 2015 for the
2014 tax year totaled $94,258 ($74,804 plus $19,454). When spread over the year of
receipt, the refunds averaged over $7,850 per month. This monthly average exceeded
David’s net rental income of $7,650 per month. It also exceeded his monthly wage after
taxes. The exclusion of this large source of after-tax income constituted an abuse of
discretion even though the amount of any future state and federal income tax refunds may
be difficult to predict.
2. Net Rental Income
In part II.H., ante, we concluded the trial court’s finding that David’s net rental
income was $7,650 per month was supported by substantial evidence. The change of
context from the child support award to the determination of David’s income available to
pay permanent spousal support does not alter our conclusion that substantial evidence
supports the trial court’s finding as to net rental income. Accordingly, we conclude the
trial court did not commit factual error in (1) finding David made a $2,500 rental
payment to his mother for real estate and (2) deducting that payment from the rental
payments totaling $10,150 that David received each month.
3. Contributions to 401(k) Plan
Before and after the filing of this dissolution proceeding, David made
contributions to the 401(k) plan through paycheck deductions. In 2014 and 2015, David
contributed $317 from each weekly paycheck. Over a 52-week period, these
contributions would total $16,484, which is the equivalent of $1,373.67 per month.
We conclude David’s voluntary contributions to the 401(k) plan constitute earned
income for purposes of section 4320, subdivision (c). (See Gillis & Gillis (2010) 234
Ore. App. 50, 55 [227 P.3d 809, 812] [contributions husband voluntarily made to
qualified retirement plan are properly treated as part of his income for purposes of
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spousal support]; Geoghegan v. Geoghegan (Fla.App. 2007) 969 So.2d 482, 486
[husband’s contributions to 401(k) plan, as voluntary payments, should have been
considered by trial court in calculating his ability to pay spousal support].) Accordingly,
the trial court’s determination that David’s net monthly nontaxable income available for
support was approximately $12,651 was erroneous because it excluded David’s
contributions to the 401(k) plan.
In addition to being relevant to David’s current ability to pay spousal support, the
contributions to the 401(k) plan are relevant to (1) the standard of living of David and
Launa during their marriage and (2) their respective standards of living after the
dissolution of the marriage. Contributions to a 401(k) plan are a specific type of savings
and, as such, are part of the parties’ standard of living during the marriage. (In re
Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096.) Savings may be considered as
form of deferred expenditure or planned future consumption. (Id. at p. 1097.) Here,
David was able to continue savings through the 401(k) plan and, thus, improved that
aspect of his standard of living as the postseparation contributions are no longer
characterized as community property. In contrast, Launa has not been able to maintain
that aspect of her prior standard of living.
On remand, the trial court’s redetermination of David’s income available for
spousal support shall include David’s voluntary contributions to the 401(k) plan and its
evaluation of the parties’ standard of living and shall consider whether the permanent
spousal support ordered provided an amount sufficient to enable Launa to continue
saving at the level attained during the marriage.
4. Contributions to Health Savings Account
Like voluntary contributions to a 401(k) plan, voluntary contributions to a medical
savings account such as an HSA should be considered in determining a party’s ability to
pay spousal support. (Geoghegan v. Geoghegan, supra, 969 So.2d at p. 486.)
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Accordingly, on remand, the trial court’s redetermination of David’s income available for
spousal support shall include David’s voluntary contributions to the HSA, which was
$118 per week in 2015 and equates to $511.33 per month.
IV. ATTORNEY FEES
A. Statutory Provisions
Chapter 3.5 of part 1 of division 6 of the Family Code contains sections 2030
through 2034, which govern the award of attorney fees in marriage dissolution
proceedings. Sections 2030 and 2032 contain the statutory text applicable Launa’s
claims that the trial court erred in denying her request for additional attorney fees.
1. Historical Overview
The history of section 2030 and its predecessors has been described in published
decisions and will not be repeated in detail here. The Second District traced the lineage
of section 2030 back through its immediate predecessor, former Civil Code section 4370,
to former Civil Code section 137, which was enacted in 1872. (In re Marriage of Hobdy
(2004) 123 Cal.App.4th 360, 368–369.) Section 2030 was enacted in 1993 and did not
make substantive changes to former Civil Code section 4370. (In re Marriage of Hodby,
supra, at p. 369; see Stats. 1993, ch. 219, § 106.1, pp. 1607–1608.)
As a general principle, when new legislation amends statutory text by substituting
the word “shall” for “may,” the new legislation has restricted the discretionary authority
previously granted under the statute. (See § 12 [“‘Shall’ is mandatory and ‘may’ is
permissive”].) The version of section 2030 enacted in 1993 stated the trial court “may …
order” attorney fees in certain circumstances. (Stats. 1993, ch. 219, § 106.1, pp. 1607–
1608.) The 2004 amendment deleted the word “may” and inserted text that used the
word “shall” four times. (Stats. 2004, ch. 472, § 1, p. 3057.) The 2010 amendment
modified section 2030 to include text stating “the court shall make findings” and stating
“the court shall make an order awarding attorney fees and costs” if the findings
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demonstrated certain conditions. (Stats. 2010, ch. 352, § 4, p. 1819.) The textual
changes made by the 2004 and 2010 legislation demonstrate that the discretionary
authority granted to trial courts is not as broad as it once was and, currently, trial courts
must comply with certain mandatory provisions. (See Kevin Q. v. Lauren W., supra, 195
Cal.App.4th at pp. 639–640 [2004 amendment restricted trial court’s discretion].)
Accordingly, we conclude the “broad discretion” referred to in judicial decisions
discussing the version of 2030 predating the 2004 and 2010 amendments no longer exists.
(See e.g., Cheriton, supra, 92 Cal.App.4th at p. 314 [“trial courts enjoy broad discretion
in awarding attorneys’ fees in marital proceedings”].) The Legislature has imposed
limitations on that discretion and it is no longer accurate to refer to a trial court’s “broad
discretion” when describing a trial court’s responsibilities under section 2030 as currently
in effect.
2. Statutory Text
The current version of subdivision (a) of section 2030 provides:
“(1) In a proceeding for dissolution of marriage, … and in any proceeding
subsequent to entry of a related 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 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.
“(2) When a request for attorney’s fees and costs is made, the court shall
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. If the findings demonstrate disparity in access and ability to
pay, the court shall make an order awarding attorney’s fees and costs. A
party who lacks the financial ability to hire an attorney may request, as an
in pro per litigant, that the court order the other party, if that other party has
the financial ability, to pay a reasonable amount to allow the unrepresented
54.
party to retain an attorney in a timely manner before proceedings in the
matter go forward.” (Italics added.)
The word “shall” in this subdivision has been italicized to emphasize the
mandatory nature of the provision. The first two sentences of section 2030, subdivision
(a)(2) were enacted in 2010 as part of Assembly Bill No. 939 (2009-2010 Reg. Sess.),
which became effective on January 1, 2011. (See Stats. 2010, ch. 352, § 4, p. 1819; In re
Marriage of Cryer, supra, 198 Cal.App.4th at p. 1055, fn. 4; Cal. Const., art. IV, § 8,
subd. (c)(1) [effective date of statute].) When considering an application for attorney
fees, the trial court must comply with the mandatory provisions of the statute because
discretionary authority “must be exercised within the confines of the applicable legal
principles.” (Saragon Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 773.)
3. Interpreting the Text—Findings Must Be Explicit
The first question of statutory interpretation we consider involves the language
stating “the court shall make findings” on three specific questions and whether the
findings must be explicit (i.e., written or oral) or, alternatively, may be implicit. We
conclude the findings must be explicit.
Our Supreme Court interpreted language in former Civil Code section 4600, a
provision in the Family Law Act relating to an award of custody of a child to a nonparent.
The provision stated the court “‘must make a finding that an award of custody to a parent
would be detrimental to the child.’” (In re B.G. (1974) 11 Cal.3d 679, 695.) Our
Supreme Court determined this statutory text required an express finding. (Id. at p. 683.)
The phrase “shall make findings” is similar to the phrase “must make a finding” because
“shall” and “must” are routinely construed as mandatory. (Jones v. Catholic Healthcare
West (2007) 147 Cal.App.4th 300, 307.) Therefore, we conclude the phrase “the court
shall make findings” requires the court to make express findings—that is, findings stated
in words, either in writing or orally on the record. (§ 2030, subd. (a)(2).)
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The next legal question presented is whether the failure to make explicit findings
on the three questions set forth in the statute warrants automatic reversal or, alternatively,
whether the appellant must establish the error was prejudicial. We conclude California’s
constitutional doctrine of reversible error applies and requires the appellant to establish
prejudice. (Cal. Const., art. VI, § 13.) An appellant in a civil case establishes an error
was prejudicial by showing there is “a reasonable probability that in the absence of the
error, a result more favorable to the appealing party would have been reached.” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 574.)
B. The Trial Court’s Denial of Additional Fees
The trial court’s October 2013 order granted Launa a pendente lite award of
attorney fees in the amount of $15,000. The order stated the award was without prejudice
to future requests by Launa for additional attorney fees.
After the October 2015 trial, Launa’s lawyer submitted a declaration requesting
additional attorney fees of approximately $115,000. In addressing this request, the trial
court’s April 2014 proposed statement of decision identified sections 2030 and 2032 as
the statutory basis for an award of attorney fees and quoted In re Marriage of Sharples
(2014) 223 Cal.App.4th 160 and Alan S. v. Superior Court (2009) 172 Cal.App.4th 238—
judicial decisions that discussed those sections and other principles. The court stated:
“While the court has discretion in fashioning an attorney fee award, its decision must
reflect an exercise of discretion and a consideration of the appropriate factors as set forth
in sections 2030 and 2032.” The trial court supported this statement by citing Alan S., a
case decided before the 2010 amendment added the following sentence to section 2030,
subdivision (a)(2): “If the findings demonstrate disparity in access and ability to pay, the
court shall make an order awarding attorney’s fees and costs.” (Italics added.) The trial
court’s description of applicable legal principles did not quote or summarize this
mandatory sentence or the following language from subdivision (b) of section 2032:
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“The fact that the party requesting an award of attorney’s fees and costs has resources
from which the party could pay the party’s own attorney’s fees and costs is not itself a
bar to an order that the other party pay part or all of the fees and costs requested.”
The court’s written decision then noted the total amount of Launa’s request for
attorney fees, the fact $15,000 had previously been awarded to her, and stated her net
request sought an additional $115,134.65 in attorney fees. The court analyzed her request
by stating:
“In evaluating the relative financial circumstances of the parties, the Court
notes that both parties obtained a significant amount of money from the sale
of the family residence, each receiving approximately $300,000. Both
parties also received a significant distribution of funds from the parties’
401k plan. Under the circumstances, there is no demonstrated need for an
order that [David] pay for her attorney’s fees. Both parties have sufficient
resources to pay for their own attorney’s fees and costs.”17
Details about the assets Launa received from the division of community property
are contained in the March 2016 judgment of reserved issues. It stated Launa would
receive (1) one-half of the remaining net proceeds generated by the sale of the family
residence, which proceeds totaled approximately $295,084; (2) one-half of the 401(k)
plan, which had a balance of approximately $285,150 as of July 31, 2012; and (3) one-
half of a brokerage account that had a balance of approximately $245,688 as of June 30,
2015. One-half of these figures is approximately $413,000. When added to the $150,000
of proceeds from the sale of the residence previously distributed, Launa’s share of those
assets totaled approximately $563,000.
C. Claims of Error
Launa contends the trial court erred in awarding her no attorney fees beyond the
$15,000 pendente lite award. First, Launa contends the court failed to consider her needs
17 The attachment to the June 2016 judgment contained essentially the same
discussion of the attorney fees request as the proposed statement of decision.
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when it denied her request. Second, she contends “the Court failed to exercise its
discretion to make both a need and ability to pay analysis” because it did not properly
include an evaluation of David’s ability to pay. We need not discuss her first contention
in detail because of our resolution of the second.
1. Improper Analysis—Disparity and Ability to Pay
Launa argues the trial court did not exercise its discretion properly, which requires
an analysis of both the needs of the parties and their ability to pay. In her view, “[t]he
Court should have analyzed the great disparity in the parties’ incomes.” Launa’s reply
asserts “[t]here is an obvious disparity between the parties’ incomes.”
Launa’s references to the disparity in incomes and in other financial circumstances
invokes the text of section 2030, subdivision (a)(2) that uses the term “disparity.” That
provision specifically states a trial court must make a finding on “whether there is a
disparity in access to funds to retain counsel.” The common and ordinary meaning of the
word “disparity” is “[i]nequality; a difference in quantity or quality between two or more
things.” (Black’s Law Dict., supra, at p. 504.) Here, the trial court’s proposed statement
of decision and its June 2016 judgment failed to include the statutorily mandated finding.
Consequently, the court’s decision failed to comply with a mandatory provision of the
statute.
Launa also argues the trial court failed to make an ability-to-pay analysis, which is
related to another question for which an explicit finding is required. Under section 2030,
subdivision (a)(2), the trial court was required to make a finding on “whether [David] is
able to pay for legal representation of both parties.” The trial court’s decision did not
include this mandatory finding. Consequently, the court committed legal error by failing
to comply with two mandatory provisions of section 2030, subdivision (a)(2).
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2. Appellate Relief
Next, we consider the consequences of the failure to make the mandatory findings
and how that affects the appellate relief granted by this court. (See Code Civ. Proc., §§
43, 906.) One possibility is to remand with directions for the trial court to make those
findings. Another possibility is to conclude the evidence in the record establishes the
facts that render an award of attorney fees mandatory and, as a result, limit the further
proceedings on remand to a determination of the amount of those additional attorney fees.
Based on our review of the record, we conclude an award of attorney fees was mandatory
and the amount of the award should be among the issues decided on remand.
Pursuant to section 2030, subdivision (a)(2), if the mandatory “findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.” Here, the record demonstrates “a disparity in access to funds
to retain counsel.” Both parties have access to the funds resulting from the division of
the community assets. However, David has access to the funds generated by (1) his
employment and (2) his ownership of one-half of Huddleston Crane Services, Inc. and
H.C.S. Mechanical, Inc. Specifically, he receives a weekly paycheck, net rental income
of $7,650 per month, and other funds from the corporations, including funds to make
quarterly estimated income tax payments that sometimes result in significant refunds. In
particular, the most recent income tax refunds shown in the record establish that in 2015
David received federal and state refunds totaling $94,258 ($74,804 plus $19,454). In
contrast, Launa’s access to funds is limited to the funds obtained from the division of the
community assets. Her income from employment was minimal before she stopped
working as a courier and his does not own a revenue generating business. Accordingly,
the record compels a finding of a disparity in access to funds for retaining and paying
counsel.
In addition, the record demonstrates David “is able to pay for legal representation
of both parties” and there is a disparity in the ability to pay for legal representation.
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(§ 2030, subd. (a)(2).) The disparity in the ability to pay for legal representation is
established by the disparity in the parties’ wages and salaries and Launa’s lack of rental
income or other business income. The fact that Launa holds assets from the division of
community property that are sufficient to cover her attorney fees does not negate the
existence of the significant disparity in the ability to pay for legal representation. (See
§ 2032, subd. (b).) The long-term financial consequences of requiring Launa to liquidate
those assets to pay for attorney fees—assets which, in contrast to David, she does not
have the means to replenish—must be evaluated in determining the ability to pay.
Accordingly, if the trial court has explicitly found an insignificant “disparity in
access and ability to pay” (§ 2030, subd. (a)(2)), that finding would have to be overturned
for lack of sufficient evidentiary support. Consequently, no purpose would be served by
remanding to the trial court with instructions to make explicit findings on the three issues
listed in subdivision (a)(2) of section 2030. The record compels findings that make the
award of attorney fees mandatory. Accordingly, we remand for the trial court to
determine the amount of those fees in the first instance.
D. Attorney Fees on and after Appeal
Subdivision (c) of section 2030 states the trial court “shall augment or modify the
original award for attorney’s fees and costs as may be reasonably necessary for the
prosecution … of the proceeding, or any proceeding related thereto, including after any
appeal has been concluded.” Launa’s appeal was reasonably necessary for the
prosecution of the proceeding, but the amount reasonably necessary for her pursuit of this
appeal and the further proceedings on remand is a matter to be resolved by the trial court
in the first instance. (See In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140–
141.)
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DISPOSITION
The judgment is affirmed as to the characterization of David’s ownership interest
in the family business as his separate property and is reversed and vacated as to (1) child
support, (2) spousal support, and (3) attorney fees. The matter is remanded to the trial
court for further proceedings not inconsistent with this opinion.
Launa Morton shall recover her costs on appeal.
_____________________
FRANSON, J.
WE CONCUR:
_____________________
DETJEN, Acting P.J.
_____________________
SMITH, J.
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