Marriage of McNeil CA2/2

Filed 11/18/21 Marriage of McNeil CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re Marriage of MICHELLE B306063
VITTONE-MCNEIL and KEVIN
MCNEIL. (Los Angeles County
Super. Ct. No. 17VEFL00566)

MICHELLE VITTONE-
MCNEIL,

Respondent,

v.

KEVIN MCNEIL,

Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael R. Amerian, Judge. Affirmed.
Pamela Rae Tripp for Appellant.
Alpert Law Group, Jeffrey Alpert and Dean Asher for
Respondent.
 In this marital dissolution action, appellant Kevin McNeil
(Kevin)1 appeals from the trial court’s order denying his request
to modify spousal support and denying his request for
reimbursement for postseparation mortgage payments he made
on a community property residence. We affirm the trial court’s
order.

BACKGROUND
Petition for dissolution and domestic violence restraining
order
Respondent Michelle Vittone-McNeil (Michelle) filed a
petition for dissolution of marriage on August 17, 2017. An
incident of domestic violence between the parties on September 6,
2017 resulted in the issuance of a temporary restraining order
against Kevin the following day. On January 30, 2018, the trial
court (the Honorable Shirley K. Watkins) granted Michelle’s
request for a domestic violence restraining order (DVRO) against
Kevin for a period of one year and accorded Michelle exclusive
use of the couple’s home.2 The court ordered both parties to pay
one-half of the mortgage, noting that it was taking into
consideration Michelle’s ability to pay: “[R]ight now she does not
have demonstrated income to pay the entire mortgage payment
and to provide for her own support.” Michelle was not working at
the time, although she had historically earned more than Kevin
during the marriage. The trial court further noted that the

1 Because the parties share the same surname, we refer to
them by their first names to avoid confusion.
2 The DVRO was subsequently extended for an additional
five years.

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payment order was “subject to reallocation, Watts[3] credits, all
these things.”
Marital settlement agreement and judgment
In May 2018, the parties entered into a stipulation and
marital settlement agreement (MSA) that required Kevin to pay
spousal support to Michelle in the initial amount of $2,000 per
month for 24 months following the sale of the community
residence and in decreasing amounts thereafter for a period of up
to five years. The MSA also incorporated Kevin’s obligation to
pay one-half of the mortgage: “Pending the commencement of
spousal support as set forth herein [Kevin] shall continue to pay
1/2 of the Wooden mortgage in the approximate sum of $1828
[per] month.” The MSA was entered as a judgment on
October 26, 2018, by the Honorable Michael Amerian, to whom
the matter had been reassigned.
On June 8, 2019, Kevin filed a request for an order seeking
credits, pursuant to In re Marriage of Epstein (1979) 24 Cal.3d 76
(Epstein), superseded by statute on other grounds as stated in In
re Marriage of Walrath (1998) 17 Cal.4th 907, 914, for mortgage
payments made from his separate property since October 1, 2017,
and pursuant to Watts, supra, 171 Cal.App.3d 366 that Michelle

3 The community may assert a claim for reimbursement for
the value of one spouse’s exclusive use of community property
between the date of separation and the date on which the
community no longer has an interest in the property. Such
claims are commonly referred to as Watts charges or credits, after
In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts), in
which the court held that reimbursement to the community may
be ordered for a spouse’s postseparation exclusive use of a
community asset.

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be charged with the fair rental value of the residence since
October 1, 2017. The trial court issued an order on
September 19, 2019, denying without prejudice Kevin’s request
for Watts charges and requiring the parties to meet and confer on
the issue of Epstein credits. The order stated that “[i]f the parties
cannot agree on the issue of credits amount either party may file
a motion to determine credits.”
The parties were unable to agree on Epstein credits, and
Kevin filed a request for an order determining credits. At the
December 17, 2019 hearing on Kevin’s request, the parties
informed the trial court that the couple’s residence had been sold
and that the sale proceeds were being held in escrow. The trial
court denied Kevin’s request for Watts charges and for Epstein
credits after October 26, 2018—the date judgment had been
entered—finding that the MSA contemplated that Kevin’s
mortgage payments would be in lieu of spousal support. In its
December 17, 2019 minute order, the trial court reasoned as
follows:
“The fact that [Kevin’s] half of the mortgage payments until
the property sold was $1,818.63/month and the MSA provides
that [Kevin] will pay $2,000 in spousal support upon the close of
escrow reasonably supports this conclusion. Moreover, the only
reason [Michelle] was left with sole possession of the residence is
because of [Kevin’s] conduct which led to the issuance of the
Domestic Violence Restraining Order. That fact reinforces the
Court’s belief that the overall equities of this case are best served
by denying [Kevin’s] request for Watt’s charges to [Michelle].”
On December 19, 2019, Kevin filed a request for an order
terminating spousal support based on Michelle’s earnings,
earnings ability, and income and expense declaration. Kevin’s

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declaration in support of the request stated that on October 24,
2019, Michelle had received more than $400,000 in proceeds from
the sale of the community residence, that throughout the
marriage she had earned more than he, and that her income and
expense declaration for the first nine months of 2019 showed that
she had out-earned Kevin during that period.
On January 29, 2020, the trial court denied the request to
modify spousal support, finding that Kevin failed to meet his
burden of proving a change of circumstances. The court denied
the request without prejudice, noting that the MSA required the
parties to exchange updated income and expense declarations
every six months. The court interpreted the agreement to allow
the parties to request reconsideration of spousal support every
six months.
The trial court denied Kevin’s request for Watts charges or
Esptein credits from the date of the DVRO to the date of
judgment, reiterating the reasons articulated in its December 17,
2019 order denying Kevin credits for mortgage payments made
after entry of the judgment:
“The Court looks to the procedural history and the
terms of the parties’ MSA as evidence that [Kevin’s]
payment of half of the mortgage was in lieu of
spousal support between the time he was ordered to
vacate the community residence on September 7,
2017, pursuant to the Temporary Domestic Violence
Restraining Order (‘DRVO’) and the entry of
judgment in October 2018. First, the procedural
history shows that [Michelle] never sought temporary
spousal support. Second, the fact that [Kevin’s] half
of the mortgage payments until the property sold was
$1,818.63/month and the MSA provides that [Kevin]
will pay $2,000 in spousal support upon the close of
escrow reasonably supports the conclusion that the

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 court should consider the payments in lieu of spousal
support. Moreover, the only reason [Michelle] was
left with sole possession of the residence is because of
[Kevin’s] conduct which led to issuance of the
Domestic Violence Restraining Order. That fact
reinforces the Court’s belief that the overall equities
of this case are best served by denying [Kevin’s]
request for charges for this time period just as it
arrived at the same conclusion for the same reasons
for the period after Judgment was entered.”
Kevin filed this appeal challenging the trial court’s
January 29, 2020 order denying his request for Epstein credits
and his request to modify spousal support.4

DISCUSSION
I. Epstein credits
A. Applicable law and standard of review
Family Code section 2626 gives a court “jurisdiction to
order reimbursement in cases it deems appropriate for debts paid
after separation but before trial.” A court has broad discretion to
order reimbursement to a spouse who uses separate property
funds to make postseparation payments on a preexisting
community obligation. (Epstein, supra, 24 Cal.3d at pp. 83-84.)
Such reimbursements are commonly referred to as Epstein
credits.
The court in Epstein set forth equitable guidelines for
determining when reimbursement is and is not appropriate. The
court stated, for example: “‘[R]eimbursement should not be
ordered where the payment on account of a preexisting

4 Kevin does not challenge the denial of his request for Watts
charges.

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community obligation constituted in reality a discharge of the
paying spouse’s duty to support the other spouse . . . . Following
separation, the preferred source for payment of support is the
separate property of the supporting spouse that would have been
community property if the spouses were not separated. . . .
Payment of a debt, of course, may constitute payment of spousal
or child support. . . . When in fact it does, reimbursement is
inappropriate.’” (Epstein, supra, 24 Cal.3d at p. 85, citations
omitted, quoting In re Marriage of Smith (1978) 79 Cal.App.3d
725, 747-748.)
We review the trial court’s rulings on Epstein credits for
abuse of discretion. (In re Marriage of Oliverez (2019) 33
Cal.App.5th 298, 318-319.) In doing so, we do not replace the
trial court’s exercise of discretion with our own. We must uphold
the trial court’s decision if any substantial evidence supports it,
without considering whether there also exists substantial
evidence to support a contrary decision. (Id. at p. 319.)
B. Forfeiture re: postjudgment credits
As a preliminary matter, Kevin has forfeited any challenge
to the trial court’s December 17, 2019 order denying him Epstein
credits for the period following entry of judgment on the MSA
because he did not appeal from that order. Kevin does not
dispute that fact; however, he contends the trial court “clearly
revisited the issue” of postjudgment credits in its January 29,
2020 order. (Boldface and capitalization omitted.) The record
does not support that contention. The January 29, 2020 order
simply states that the trial court’s reasons for denying Kevin
credits for the period between issuance of the DVRO and entry of
judgment were the same reasons for denying him postjudgment
credits: “[T]he overall equities of this case are best served by

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denying [Kevin’s] request for charges for this time period just as
it arrived at the same conclusion for the same reasons for the
period after Judgment was entered.”
C. No abuse of discretion re: prejudgment credits
The trial court found that Kevin’s postseparation mortgage
payments made before entry of judgment were in lieu of spousal
support. Substantial evidence supports that finding. At the
January 30, 2018 hearing at which Judge Watkins ordered both
parties to pay one-half of the monthly mortgage payments,
Michelle presented an income and expense declaration stating
that she earned no more than $3,500 a month. When Kevin
argued that requiring him to pay one-half of the mortgage in
addition to his own rent was inequitable, Judge Watkins
responded: “But I’m also taking into consideration ability to pay
and right now she does not have demonstrated income to pay the
entire mortgage payment and to provide for her own support.”
“Courts have recognized that the existence of a need for
support is a prime consideration in determining whether a given
payment is, in reality, in discharge of an obligation of support.
[Citations.] A second key consideration is whether the payment
was in addition to reasonable support already being provided by
the paying spouse, either pursuant to or in the absence of a court
order.” (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 893
(Garcia).) The evidence here shows that Michelle needed support
but did not seek temporary spousal support pending sale of the
community residence. Because Kevin was not providing such
support, “the inference is compelling that the mortgage payments
were intended as a form of support.” (Ibid.)
The record does not support Kevin’s contention that Judge
Watkins ordered him to pay one-half of the mortgage solely to

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preserve the community asset, and not in lieu of spousal support.
At the January 30, 2018 hearing, in response to a question by
Kevin’s counsel, Judge Watkins reiterated her reasons for
ordering Kevin to pay one-half of the monthly mortgage
payments:
“THE COURT: There were three reasons actually; to
preserve the asset, current disparity in income, and
because she has a right to possession of the property
as a protected person.
“[KEVIN’S COUNSEL]: I understand that.
“THE COURT: So she has to have the ability to live
there and that, and if I think she doesn’t have the
ability to pay, then that defeats the purpose of her
living there.
“[KEVIN’S COUNSEL]: Right. I understand that.”
Substantial evidence also supports the trial court’s finding
that the MSA contemplated that Kevin’s postseparation
mortgage payments were in lieu of temporary spousal support.
Kevin’s monthly mortgage payments of $1,818.63 per month from
the date of separation until the sale of the residence roughly
equal his initial $2,000 monthly spousal support obligation.
Cessation of Kevin’s obligation to pay one-half of the mortgage
and commencement of his obligation to pay spousal support are
both tied to the same event—sale of the community residence.
The record does not support Kevin’s contention that the
trial court “did a complete reversal” of its prior findings and
orders purportedly according him Epstein credits for
postseparation mortgage payments. Neither Judge Watkins nor
Judge Amerian stated that Kevin would be issued credits for the
mortgage payments. Rather, the record shows that when Judge
Watkins ordered Kevin to pay one-half of the mortgage, she

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stated that the payments would be “subject to reallocation” and
credits. Judge Amerian understood that statement to mean
“flagging the issue” of credits, “rather than making a formal
finding.”
Judge Amerian indicated at the August 21, 2019 hearing
that he thought Epstein credits generally were appropriate under
the terms of the parties’ MSA but stated that he lacked the
information necessary to order such credits:
“Unfortunately, I don’t have enough information to
make specific orders because neither side has given
me a full and complete accounting of what each of
them has contributed to the house in the meantime,
while this has been pending. [¶] So what I would
like to do is set it over for 30 days and give everyone
a chance to provide me with declarations that set
forth a complete accounting of what they have
contributed. That way the court at the next
appearance can make specific orders than can be
incorporated into escrow instructions, and each side
can be made whole for what they’ve been contributing
up until now and up through the close of escrow.”
The written order issued after the August 21, 2019 hearing
required the parties to meet and confer on the issue of Epstein
credits: “As to [Kevin’s] request for credits, credits will be
retroactive to the date of separation. . . . The parties are to meet
and confer on the issue of credits. If the parties cannot agree on
the issue of credits amount either party may file a motion to
determine credits.” Judge Amerian subsequently made clear that
any determination of Epstein credits would not include mortgage
payments. He rejected an argument by Kevin’s counsel to the
contrary: “Well, when I made that ruling, I didn’t contemplate
that the mortgage payments would be included in that. I

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contemplated things like whatever miscellaneous expenses were
incurred over the course of the last two years or so while the
property and the parties’ relationship, at least as it related to the
property, was still in flux.”
The record does not support Kevin’s assertion that he was
accorded Epstein credits for his postseparation mortgage
payments. The trial court did not abuse its discretion by denying
Kevin’s request for such credits.
II. Modification of spousal support
A. Applicable law and standard of review
To modify an order for spousal support, a trial court must
first find “‘“a material change of circumstances since the last
order.”’” (In re Marriage of Minkin (2017) 11 Cal.App.5th 939,
956 (Minkin).) A court may not find a change of circumstances in
reconsideration of a circumstance that has not changed since the
previous order. (In re Marriage of Farrell (1985) 171 Cal.App.3d
695, 703 (Farrell).)
When support is governed by an MSA, the trial court’s
changed-circumstances determination must “‘“give effect to the
intent and reasonable expectations of the parties as expressed in
the agreement.”’” (Minkin, supra, 11 Cal.App.5th at p. 957.) A
trial court’s discretion to modify a spousal support order is also
constrained by the terms of the parties’ MSA. (In re Marriage of
Dietz (2009) 176 Cal.App.4th 387, 398.) MSA’s are interpreted
under the same rules governing contract interpretation generally.
(In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012.)
“‘“The fundamental goal of contractual interpretation is to give
effect to the mutual intention of the parties. [Citation.] If
contractual language is clear and explicit, it governs.”’” (Id. at
p. 1013.)

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 We review the order denying Kevin’s request to modify
spousal support for abuse of discretion. (In re Marriage of
Schmir (2005) 134 Cal.App.4th 43, 47.)
B. No abuse of discretion
The record discloses no abuse of discretion. Sale of the
community residence yielded proceeds equal to Michelle’s one-
half interest in a community asset and was not a material change
in circumstance warranting reduction of spousal support. (In re
Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1081.)
The trial court did not err by rejecting Kevin’s claim that
Michelle’s return to work in 2019 was a material change in
circumstance. Kevin knew when he signed the MSA that
Michelle had out-earned him throughout the marriage. Kevin
also knew that Michelle was not working at the time the parties
entered into the MSA, yet the MSA contains no provision for
reduction in support payments upon her return to work.
Substantial evidence supports the trial court’s finding that
Michelle’s greater earning capacity was known and contemplated
by both parties at the time of the MSA. (Farrell, supra, 171
Cal.App.3d at p. 703.)
The trial court similarly did not err by finding Kevin’s
request to modify spousal support to be premature. Under the
terms of the parties’ MSA, Kevin’s obligation to pay spousal
support commenced upon the sale of the community residence.
Kevin’s request to modify support was filed shortly thereafter,
only two or three months after his support obligation commenced.
In denying Kevin’s request, the trial court also weighed and
considered the relatively short duration of Kevin’s support
obligation in relation to the couple’s 21-year marriage.

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 The trial court did not abuse its discretion by denying the
request to modify spousal support.

DISPOSITION
The trial court’s January 29, 2020 order denying Kevin’s
request to modify spousal support and denying his request for
Epstein credits for postseparation mortgage payments is
affirmed. Michelle shall recover her costs on appeal.

______________________________
CHAVEZ, J.

We concur:

______________________________
ASHMANN-GERST, Acting P. J.

______________________________
HOFFSTADT, J.

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