Marriage of Metzler CA4/1

Filed 5/4/22 Marriage of Metzler CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of MICHAEL and
ANDREA METZLER.
D078715
MICHAEL METZLER,

Appellant, (Super. Ct. No. DN188024)

v.

ANDREA METZLER,

Respondent.

APPEAL from judgments of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed.
Michael Metzler, in pro. per., for Appellant.
No appearance by Respondent.
Michael and Andrea Metzler married in 1997, had five children
together, and separated in 2016. After a hearing in February 2020, the trial
court entered a judgment dissolving the marriage and finding that Michael
owed over $200,000 in child and spousal support arrears, largely due to his
failure to pay support based on substantial commissions he earned between
2016 and 2019. After a second hearing in September, the court entered a
second judgment that divided the parties’ assets and debts, ordered Michael
to pay $650 per month in post-judgment spousal support, and awarded
Andrea’s counsel $7,500 in fees and $2,000 in sanctions pursuant to Family

Code sections 3557 and 271.1
Michael appeals the judgments entered after these two hearings,
stating that his “foremost challenges” are to the orders regarding child
support, spousal support, and attorney fees. He contends the trial court
improperly “excluded classes of evidence” when it refused to allow him to
directly question Andrea or to provide his own testimony. We reject this
contention because the record indicates that the trial court properly exercised
its discretion to limit the scope of evidence to the financial issues relevant at

trial—not the custody issues that Michael was focused on.2 Michael also
argues that the trial court “was not interested” in his position that “all his
commission [income]” had been “assigned . . . to court-ordered payments to
professionals” and contends that, by ordering child and spousal support based
on his commissions and then subsequently awarding attorney fees, the trial
court impermissibly “double-” and “triple-dipped” into his commission income.
The record shows, however, that the trial court considered Michael’s
arguments regarding how he spent his commission income but found that,
aside from certain documented payments for which he was credited, Michael

1 Unless otherwise indicated, all statutory citations are to the Family
Code.

2 Even though custody issues are beyond the scope of this appeal,
Michael’s appellate brief contains an extensive discussion of the parties’
custody dispute.
2
failed to provide any evidence of additional expenditures. We find no error on
this record and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Andrea was a stay-at-home mother and homeschooled the children.
Michael was the sole income earner and, since 2012, was employed in sales.
The couple separated in May 2016. Shortly thereafter, Andrea petitioned for
a domestic violence restraining order. Michael agreed to the entry of a “non-

CLETS” restraining order and petitioned to dissolve the marriage.3
A. Background to the Litigation
Since separating, Michael and Andrea have contentiously litigated
issues of child custody and visitation, child support, and spousal support. An
initial child and spousal support order was entered in November 2016. In
addition to providing for base child and spousal support, this order specified
that percentages of Michael’s gross commissions were owed as an “Ostler-

Smith” component of support.4 According to Andrea, Michael failed to make
any support payments from commissions he earned from 2016 through 2019.
Michael states that as early as December 2016, “the four older children
had already rejected [him].” He began participating in conjoint therapy and
other professional services with the youngest child around that time.

3 “CLETS” refers to the California Law Enforcement
Telecommunications System through which restraining orders are reported
to law enforcement. (In re Marriage of Reichental (2021) 73 Cal.App.5th 396,
399, fn. 1.) The practice of entering “non-CLETS” domestic violence
restraining orders has been recognized as being inconsistent with
section 6380. (See Marriage of Reichental, at p. 405; § 6380, subd. (j).)

4 See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 54
(Marriage of Ostler & Smith).

3
 In June 2017, an expert conducted a vocational evaluation of Andrea.
The evaluator observed that Andrea married Michael in 1997 when she was
20 years old, had their first child the following year, never worked outside the
home, and continued to homeschool their children, the youngest of whom was

then in first grade.5 She opined that Andrea could secure entry-level
employment at an approximate earning capacity of $11.50 to $12.00 per hour
and, if she strengthened her computer skills and obtained office experience
through volunteering, could increase her earning capacity slightly to $13.00
to $14.00 per hour. Andrea subsequently reported that she obtained part-
time work in administrative positions beginning in August 2017 and enrolled
in school to receive a certificate in computer science and information
technology. She said it would take her two years to earn the referenced
certificate and three years to earn an associate degree.
In August or September 2017, the family court directed Michael to turn
over any commission payments he received to his counsel for placement in an
attorney’s client trust account. The order contemplated that the deposits
would pay for a child custody evaluation (Evid. Code, § 730) and other
professional services. “The remainder of said commissions” were directed to
be held in trust until further order of the court. Statements reflecting
Michael’s deposits to the client trust account, the balance of the account, or
evidence of payments made from that account are not included in the record.
In November 2019, the parties appeared before another family court
judge who issued orders on child custody and visitation. Michael previously
had one brief weekly visit and one weekly conjoint therapy session with the
youngest child only. At the hearing, he was granted additional alternate

5 In 2018, the court ordered the two youngest children to begin attending
public school.
4
weekend visits with that child. The court indicated that equal timeshare for
the youngest child was the “goal” or “endgame” “if all goes well.” In addition,
the court ordered conjoint therapy with the second-youngest child.
Trial on financial issues was set for February 13, 2020. Two weeks
before the scheduled trial date, Michael filed an ex parte request that the
reserved date be used not to decide financial issues, but instead “to address
very urgent custody issues.” He stated he was unable to prepare for trial
because he was preoccupied with “ongoing custody problems” and “now must
find a new job after [his] company went bankrupt . . . terminating all
employees.” The court denied Michael’s request for a continuance, finding he

failed to establish good cause.6
B. February 13 Hearing on Support Issues
At the trial on child and spousal support issues, the court recalculated
guideline child support amounts for six separate periods of time beginning in
November 2016 based on Michael’s base salary of approximately $65,000 per
year. The court also determined a base child and spousal support arrears
balance of $14,968 with interest through December 31, 2019. In addition, the
court found an Ostler-Smith arrears balance for the period of time between

6 Michael included his ex parte papers in the appellate record but did not
include any responsive papers, minute orders, or other documentation
reflecting Andrea’s or the court’s response to this ex parte request. However,
the court subsequently remarked on the record that there was a recent
judgment on custody and visitation issues, which Michael had already
requested to modify, and a long cause hearing had been calendared to
address that issue.

5
November 1, 2016 and December 31, 2019 of $191,750, with interest.7 The
court reserved jurisdiction over various issues including spousal support,
debt and asset division, and attorney fees and sanctions.
C. September 4 Hearing on Reserved Issues
After a hearing on September 4 addressing the reserved issues, the
trial court issued orders dividing the parties’ assets and debts, including
characterizing Michael’s student loans as a community liability and dividing
them between the parties. The court awarded Andrea post-judgment spousal
support of $650 per month effective September 1, 2020. In addition, it
ordered Michael to pay Andrea’s attorney fees of $7,500 (§ 3557) and

sanctions of $2,000 (§ 271).8
DISCUSSION
A. Scope of the Appeal and Adequacy of the Record
The judgments from which Michael appeals concern child and spousal
support orders, asset and debt distribution, attorney fees, and sanctions.
Issues regarding child custody and visitation are therefore not cognizable on
this appeal. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571, 580
[scope of appellate review is limited to the judgment appealed and appellate
court lacks jurisdiction to consider matters beyond the scope of the appeal].)

7 Judgment on the issues determined at the February 13, 2020 hearing
was entered on December 3. In addition to the orders already mentioned, the
judgment ordered dissolution of the parties’ marriage, perfected a prior
judgment of $6,732.50 with $470.35 interest for a total judgment of
$7,202.85, and declined to reallocate attorney fees, finding that such fees
would be charged to Michael.

8 Judgment on the issues determined at the September 4, 2020 hearing
was entered on March 3, 2021.
6
 Michael represents himself on appeal, as he did during the challenged
proceedings in the trial court below. We are sensitive to the challenges faced
by self-represented litigants on appeal. We nonetheless summarize some
basic rules of the appellate process. (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1247 [“pro. per. litigants must follow correct rules of procedure”].)
We start with a presumption that the judgment being appealed is
correct. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424,
443.) It is the appellant’s burden to show the contrary. (In re Marriage of
Gray (2002) 103 Cal.App.4th 974, 978.) To demonstrate error, the appellant’s
brief must present a complete and coherent statement of the relevant facts, in
the light most favorable to the judgment, supported by appropriate citations

to the record.9 (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; Boeken v.
Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658; Cal. Rules of Court,
rule 8.204(a)(1)(C).)
Appellants must also provide a record adequate to assess error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) “Failure to provide
an adequate record on an issue requires that the issue be resolved against
[the appellant].” (Ibid.) Michael submitted an appellant’s appendix in
connection with this appeal. (Cal. Rules of Court, rules 8.122(b)(1) & (3), and
8.124(b)(1).) The California Rules of Court obligate an appellant who elects
to proceed by appendix to include, among other things, any document filed in
the trial court which “is necessary for proper consideration of the issues,
including . . . any item that the appellant should reasonably assume the
respondent will rely on.” (Cal. Rules of Court, rule 8.124(b)(1)(B).)

9 Michael’s brief lacks proper citations to the record. The citations that
are included frequently do not provide evidence to support his factual
assertions, but simply reference another instance in which he previously
made the same allegation.
7
 Michael’s appendix includes Andrea’s trial briefs but fails to include
most of the evidence she submitted to the court in support of her positions at
trial. Andrea’s trial exhibit list reflects that she filed Michael’s tax returns,
W-2s, and paystubs, as well as documents reflecting his commission
payments and commission structures, bank records spanning periods from
2015 through 2020, and expert reports analyzing this data. Andrea also filed
her own financial information, declarations, documentation reflecting job
contacts, and e-mail correspondence between her and Michael for similar
time periods—evidence that the trial court relied upon in deciding issues
related to spousal support, attorney fees, and sanctions. Much of this
information is missing from the record. On the other hand, Michael included
in the record the evidence he filed below, including a significant amount of
evidence relating to child custody issues which are largely irrelevant to the
issues on appeal. This one-sided presentation of the relevant evidence fails to
comply with the rules. (Cal. Rules of Court, rule 8.124(b)(1)(B).) Because it
does not include the documents and exhibits filed by Andrea and relied on by
the trial court below, Michael’s appendix is not adequate for meaningful
appellate review. As such, “ ‘ “the appellant defaults and the decision of the
trial court should be affirmed.” ’ ” (Jameson, supra, 5 Cal.5th at p. 609; see
Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.) [“Because they
failed to furnish an adequate record of the . . . proceedings, defendants’ claim
must be resolved against them.”].) On this basis alone, the appealed
judgments should be affirmed.
Even considering the merits of Michael’s contentions, however, we
conclude he is not entitled to the relief he seeks.

8
B. Child Support
1. Additional Background Information
On October 31, 2016, Michael deposited $25,000 into the couple’s joint
account, apparently for Andrea to use for purposes of support. An initial
child support order was issued on November 1, 2016. In addition to setting
base support amounts, this initial order included an Ostler-Smith provision
directing that Michael pay a percentage of his gross commissions toward

child and spousal support.10
At the February 13 hearing, Andrea asked that the court recalculate
child support from the initial November 2016 order due to inaccuracies in the
original calculations. She also requested an order for Ostler-Smith arrears
consistent with the initial November 2016 support order, as well as a
calculation of base child and spousal support arrears for the periods
beginning November 1, 2016. Andrea presented evidence that, during the
relevant time periods, Michael received base salary of approximately $65,000
per year and was also paid approximately $330,000 in commissions in 2016,

$40,000 in 2017, $59,000 in 2018, and $97,000 in 2019.11 His custodial
timeshare was calculated at four percent for the period of November through
December 2016, eight percent for the periods of January through June 2017
and July 2017 through July 2018, three percent for the period of August 2018
through June 2019, five percent for the period of July 2019 through October
2019, and eight and a third percent for the period beginning November 2019.

10 Michael acknowledges that, through counsel, he stipulated to the
Ostler-Smith percentages to be applied to his commission income.

11 Michael asserted that his employer’s company had gone bankrupt in
June 2019 but acknowledged he had not filed an updated income and expense
declaration.
9
 Andrea called an expert to testify to the calculations of the Ostler-
Smith component of support and arrears balances. The expert calculated
that Michael owed $164,468 in Ostler-Smith commission and bonus arrears,
plus interest of $27,282, for a total of $191,750 owed for Ostler-Smith arrears
for the period between November 1, 2016 and December 31, 2019. In
calculating this amount, she acknowledged that Michael made a $25,000
payment in October 2016 and considered this payment as an offset of the
amount owed. The expert calculated base or guideline child support arrears
of $632 and spousal support arrears of $11,090 for a total balance of $11,722,
plus interest of $3,246, for a total guideline support arrears balance of

$14,968.12
With respect to the Ostler-Smith component of child support, Michael
contended he was entitled to significant offsets for payments he claimed were
made for purposes of support or toward court-ordered expenses, including
conjoint therapy for the children. The court acknowledged that Michael had
been credited for a $25,000 payment he made to Andrea in 2016, which was
considered in calculating the Ostler-Smith arrears balance. Michael
contended he was entitled to additional credits but was unable to provide
evidence to support his contentions. For example, he stated that he had
previously been directed to place his commission payments into his attorney’s
client trust account and claimed that money had been used to pay for conjoint
therapy and other court-ordered expenses. He asserted that he had paid
100 percent of his commissions over the course of 12 or 13 months into the

12 The expert testified that she was missing paystubs for certain months
in 2017 and 2018, and for those instances she used W-2s to calculate the
gross amount of bonuses or commissions paid. She also explained that she
applied the Ostler-Smith bonus table to the gross commission amount in
accordance with the November 2016 order.
10
trust account and argued that he was entitled to a credit for that amount.
Andrea disputed that Michael had paid all his commissions to the trust
account. When the court asked Michael how much money he deposited into
the trust account, Michael stated he “couldn’t find that specific information.”
In addition, Michael was unable to provide evidence of any payments
made from his commissions. He explained that he had bills of $5,200 and
$7,000 from one doctor and $7,482 from a second doctor and claimed he had
used his commissions to pay these bills in full. But he admitted he did not
have evidence showing payment of those bills. Andrea’s counsel indicated
she had received evidence indicating that payments of $4,000 and $250 had
been made from the trust account to one doctor.
In another attempt to obtain additional credit, Michael presented the
court with a spreadsheet he prepared. He claimed it reflected the parties’
assets and debts at separation as well as payments Michael made to Andrea
or on her behalf. Michael alleged that, during the period between the date of
separation and October 31, 2016, he made payments to Andrea totaling
$81,860—far more than the $25,000 for which he was credited. He stated he
made these payments “in view of all of the commission [he] knew that was
coming in,” and contended that this amount should offset any arrears amount
owed. Andrea objected that the spreadsheet lacked foundation and argued
that Michael presented no evidence to support the claimed amounts. The
court sustained her objection. Andrea also disputed specific payments that
the spreadsheet indicated Michael paid on her behalf. She observed, for
example, that one payment of $10,000 reflected in the spreadsheet as having
been made on her behalf was actually a payment Michael made to his own
attorneys.

11
 The court found that the commission payments Michael received
between May 27, 2016 and October 28, 2016 were a community property
asset. It calculated an Ostler-Smith arrears balance for the period of time
between November 1, 2016 and December 31, 2019 of $191,750, comprised of
$164,468 in principal plus $27,282 in interest. The court observed that
jurisdiction had previously been reserved to “revisit whether [Michael was]
entitled to credits for anything during that period of time,” but noted that “I
don’t have anything that really substantially resembles any kind of a prove-
up from your perspective . . . .” The court had already credited Michael for
the $25,000 support payment made in 2016 and one-half of the $4,250 paid to
a doctor, noting that this credit was awarded “in the amount . . . that the
[c]ourt is confident [was] paid . . . .” The court specifically denied Michael
credits “for other household expenses he believes he incurred between the
date of separation and October 31st, 2016.”
2. Applicable Law
In general, child support awards are reviewed for abuse of discretion.
(In re Marriage of Simpson (1992) 4 Cal.4th 225, 234; In re Marriage of
Macilwaine (2018) 26 Cal.App.5th 514, 527.) “We review factual findings
regarding a child support award for substantial evidence. [Citations.] That
review requires us to consider the record in a light most favorable to the
respondent, and to presume the existence of every fact that reasonably could
be deduced from the evidence.” (S.P. v. F.G. (2016) 4 Cal.App.5th 921, 934.)
“Even in the absence of a responding brief . . . , we adhere to the requirement
that the appellant affirmatively demonstrate prejudicial error.” (County of
San Diego v. P.B. (2020) 55 Cal.App.5th 1058, 1068.)
Section 4055 sets forth the “statewide uniform guideline” for
determining child support. Under the guideline, child support obligations are

12
divided “among the parents based on income and amount of time spent with
the child by each parent.” (§ 4052.5.) The amount of child support
established by the uniform guideline formula is presumed to be the correct
amount of child support to be ordered. (§ 4057, subd. (a).) The court may
deviate from the presumptively correct guideline and order a different
amount only in limited circumstances, and only after making certain
required findings. (§ 4057; In re Marriage of McHugh (2014) 231 Cal.App.4th
1238, 1245 (McHugh).) “Determining the amount of child support therefore
is a highly regulated area of the law, and the only discretion the trial court
has is the discretion conferred by statute or rule.” (McHugh, at p. 1245, fn.
omitted.)
“A parent’s first and principal obligation is to support the parent’s
minor children according to the parent’s circumstances and station in life,”
and “[c]hildren should share in the standard of living of both parents.”
(§ 4053, subds. (a) & (f); see also Marriage of Ostler & Smith, supra,
223 Cal.App.3d at p. 54 [awarding supported children percentage of
noncustodial father’s future bonuses ensures they will share in his standard
of living].) “An [Ostler-Smith] percentage is assessed . . . for ‘any
discretionary bonus actually received.’ [Citation.] It was originally justified
on the ground that future bonuses are not guaranteed, and it would be unfair
to require the obligor to file motions for modification every time a bonus is
reduced.” (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 27.) “An
Ostler[-]Smith provision is ‘an additional award, over and above guideline
support, expressed as a fraction or percentage of any discretionary bonus
actually received.’ ” (In re Marriage of Minkin (2017) 11 Cal.App.5th 939,
949.) As such, on top of guideline child support calculated on base income, an

13
Ostler-Smith order can require a parent to pay additional support based on a
percentage of any income earned as bonuses or commissions.
3. Analysis
Here, the trial court calculated guideline support amounts based on
Michael’s base pay and his timeshare for each period, consistent with the
statewide uniform guidelines. (McHugh, supra, 231 Cal.App.4th at p. 1245.)
Even though Michael’s base pay and historical timeshare comprised the
critical factors for determining guideline child support, the appellate record
does not include the evidence Andrea presented—and which the trial court
considered—regarding Michael’s base pay and historical timeshare amounts.
Similarly, Michael failed to submit the evidence relating to earned
commissions. The expert relied on this evidence and the stipulated
commission tables to calculate the Ostler-Smith support amounts, and the
trial court relied on this analysis in issuing an order on arrears. By failing to
include this critical evidence in the record, Michael has forfeited any
challenge to the support calculations. (Jameson, supra, 5 Cal.5th at p. 609;
Maria P., supra, 43 Cal.3d at pp. 1295-1296.)
In any event, Michael does not appear to contest the valuation of his
base pay, earned commissions, or historical timeshare. Instead, he contends
that the order for support payments from the earned commissions amounts to
“double-dipping” into his commission payments because, according to
Michael, some or all the commissions he earned were already paid toward
court-ordered services including conjoint therapy, evaluators, monitors, court
reporters, or other professionals in the litigation, and therefore should not be
subject to reallocation as support. The trial court considered Michael’s claim

14
and largely rejected it, finding that he provided “insufficient evidence to

support [the requested] credits.”13
Michael contends the trial court erred by refusing to recognize three
types of “evidence” that he claims prove he spent his commissions on court-
ordered payments to professionals: invoices reflecting bills for services, a
spreadsheet he prepared purporting to summarize payments he claims he
made, and the prior court orders contemplating that his commission
payments would be deposited into an attorney’s client trust account. The
trial court considered all this purported “evidence” and found it insufficient.
We review a trial court’s evidentiary rulings for abuse of discretion. (People v.
McCurdy (2014) 59 Cal.4th 1063, 1095.) Michael has not established any
abuse here.
At the hearing, Michael asserted that he made payments including
$5,200 in 2017, $7,000 in 2018, and $18,000 in 2019; he claimed that invoices
included in his lodged documents were sufficient to prove he made payments
in those amounts. The trial court acknowledged the invoices reflected the
amounts the parties were billed for services but did not necessarily establish
the amounts Michael paid, which was the critical disputed issue. Andrea’s
counsel represented that she had never been provided with evidence that
Michael had paid those bills and stated, “I don’t see it coming out of any of
his bank records.” Michael admitted that his father made a payment toward
professional services, and further conceded he did not have canceled checks
or other evidence establishing that he paid those bills.
The trial court rejected the invoices as evidence of payments made. We
find no abuse of discretion in the trial court’s decision because the invoices

13 As noted, the court did credit Michael for the $25,000 support payment
made in 2016 and one-half of the $4,250 paid to professionals.
15
did not establish that Michael paid for the professional services from his
commission earnings. Michael’s admission that his father made payments
toward professional services undercut his claim that he should be credited for
making all payments, and Michael provided no evidence to show what, if
anything, he had actually paid: no receipts, credit card statements, or bank
statements. Similarly, the trial court rejected the spreadsheets Michael
offered as proof of payments he claimed he made to support Andrea after

their separation.14 Andrea objected to the spreadsheet presented in court as
lacking foundation and unsupported by evidence, and the trial court properly
sustained her objection. Michael presented no foundational evidence to
substantiate the sweeping statements in the spreadsheets.
Michael references prior court orders directing him to deposit his
commissions into an attorney’s client trust account. He cites the presumption
codified in Civil Code section 3548 that “[t]he law has been obeyed,” arguing
it should be presumed that he indeed paid all his commission payments into
trust accounts. But even if such a presumption applied, Andrea disputed
that Michael had deposited all his commission into the trust account and
argued there was no evidence to show he had done so. In response, Michael
acknowledged his lack of proof in the form of payments made, account
statements, or receipts. In the absence of such evidence, we find no error.

14 Several similar spreadsheets appear in the record. One lists purported
expenses for “[r]ent,” “[u]tilities,” “[g]roceries,” “[v]ehicle,” “[c]onjoint
[t]herapy,” “[m]onitors,” “[c]ourt [r]eporters and [t]ranscripts,” “[m]y
[a]ttorneys,” and more, all listed as round numbers. A second spreadsheet,
which Michael presented in court and which was discussed by the parties,
similarly reflects round numbers purporting to reflect “payments to mother,”
“commissions owed and paid,” and various other financial information. Like
the one dealing with alleged support payments, neither of these spreadsheets
reference any documentation or evidence to support the data reflected in
them.
16
 Michael contends the trial court erred when it ordered guideline child
support amounts, complaining that it “refus[ed] to exercise discretion”
regarding the “[i]nterests of the [c]hildren,” the “[h]igh [d]ebt of [p]ayor,” and
the “[h]ardship to the [p]arents.” He repeats his argument below that,
“ ‘regarding the financial needs of the children . . . [and the] total burden, [he]
would argue [he has] a much greater burden.’ ” He further contends he was
entitled to timeshare for the youngest child’s school hours, even though
Andrea had the overwhelming custodial timeshare. (But see In re Marriage
of Whealon (1997) 53 Cal.App.4th 132, 145 [rejecting father’s claim that he
should receive credit for part of child’s time in day care, stating: “It is the
custodial spouse who, after all, has the burden of finding, arranging and
fronting the money for appropriate day care, who must deliver and pick up
the child, and whose work day will be interrupted if there are any medical or
other emergencies.”]; DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1034
[“Timesharing has been credited to parents having full responsibility for the
physical situation and care of a disabled adult child [citation], and may also
include the time spent during court-ordered ‘grandparent’s visitation (§ 3103,
subd. (g)(1)), as long as that parent is responsible for the child during that
time.’ ”].) Where, as here, the court orders child support consistent with the
uniform guideline, the amount of child support is presumed to be correct.
(§§ 4055, 4057, subd. (a).) Michael has not rebutted that presumption or
otherwise established an abuse of discretion.
C. Division of Assets and Debts, and Spousal Support
1. Additional Factual Background
At the September hearing, the trial court addressed the reserved issues
of dividing the community estate and Andrea’s requests for spousal support,
attorney fees, and sanctions. Michael requested to postpone the hearing “to

17
consolidate all issues, custody and financial” and made an oral request for
sanctions “based on the custody issues.” He also requested 90 minutes to
present testimony from himself and Andrea. After denying Michael’s request
for a continuance, the judge encouraged Michael to present his arguments
but emphasized he should “break them down as to each of the categories of

things that we are going to talk about today.”15
The court first divided the parties’ household goods, vehicles, bank
accounts, and retirement savings accounts. With respect to the parties’
debts, the judge accepted Michael’s claim that he had paid off certain credit
cards and attributed half of the obligation to Andrea. He found that the
student loans Michael had incurred in 1998 and 2006 to obtain his
undergraduate and graduate degrees substantially benefitted the community
and, accordingly, divided them equally between the parties.
Turning to the issue of spousal support, the court indicated it had
reviewed the parties’ income and expense declarations. Andrea’s income was
currently approximately $1,600 per month, and Michael was receiving

income through unemployment benefits.16 Michael stated he did not “see

15 The court noted “something of a tendency on [Michael’s] part to want to
take testimony on the custody and visitation issues in this case,” and
indicated it would not “conduct a mini trial on custody and visitation for
[Michael] to address credibility issues that [he] wanted to present to the
court.”

16 The record includes a single income and expense declaration
purportedly completed on Michael’s behalf in July 2020. It is not signed and
bears no file stamp. It indicates that Michael’s seven-year employment in
“[s]ales” as a “[m]anufacturer’s [r]ep” ended in January 2020. It reports
income of $2,400 derived from unemployment compensation last month and
monthly expenses of $3,524. Andrea’s income and expense declarations do
not appear in the record.

18
any job opportunities” and did not believe that “at any point in time” he
would be able to return to employment like his prior position. He claimed he
was experiencing “trauma . . . with the shutdown” and was not in “the
position” to “put [his] name out and get to work and make some good

money.”17 Michael reiterated his request to question Andrea “to establish
that she never had any plans to start a career or gain financial
independence.” The court encouraged him to focus on the factors set forth in
section 4320 regarding spousal support. Michael averred that before the
separation there was one year he made six figures, and before that the family
was impoverished. He again requested Andrea’s testimony, arguing that she
had forfeited the right to spousal support and needed to be “motivated to go
out there and work [and] get on-the-job training . . . .”
Andrea’s counsel noted that the couple married “very closely out of high
school,” Andrea had only a high school education and was “being passed over”
for jobs at restaurants, grocery stores, and gyms. Spousal support was
necessary because Andrea could “barely afford” rent and basic necessities and
had incurred significant credit card debt. She argued there was no evidence
that Michael had sought employment since losing his prior position. In her
view, Michael’s approach—that Andrea needed to get a job but he was not
going to get one—was internally inconsistent.
In response, Michael referenced issues concerning the parties’ custody
dispute. The trial court reiterated that the issue currently being decided was

17 The court stated that, with Michael’s “history of employability,” the
court expected he would obtain full-time employment. Even at minimum
wage, Michael would exceed the earnings from his unemployment benefits.
The court observed that “there is something about this divorce and this
litigation that is very consuming to [Michael],” and observed that “there is an
exceptionally persistent quality to some of the litigation [Michael had]
brought before the court.”
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Andrea’s request for post-judgment spousal support. Michael indicated he
had “nothing else to add.”
The court found that, based on the parties’ testimony and declarations,
the standard of living during marriage was middle class. As required by
section 4320, it considered the “extent to which the earning capacity of each
party is sufficient to maintain the standard of living established during the
marriage, taking into account . . . [t]he marketable skills of the supported
party, the job market for those skills, the time [required] . . . to
acquire . . . those skills.” (§ 4320, subd. (a)(1).) The court observed that
throughout the parties’ nearly 19-year marriage, Andrea “was a stay-at-home
mother caring for five minor children” and had no college education. She had
“tried to obtain some certificates.” She was, in the court’s view, “of an age
where . . . it is appropriate for her to seek additional training and seek
additional qualifications,” but was currently “at entry-level employment on a
part-time basis, and because of the lifestyle during the marriage, she has
very little work experience.”
The court next addressed whether Andrea’s “present or future earning
capacity is impaired by periods of unemployment . . . incurred during the
marriage to permit [her] to devote time to domestic duties” (§ 4320,
subd. (a)(2)) and found that Andrea was not employed during the marriage
because she stayed home to care for the children. It further determined that
Andrea contributed to Michael’s education, training, or career (§ 4320, subd.
(b)) and that her attention to domestic matters allowed Michael to obtain
multiple degrees and be “the sole income earner” during the marriage.
Evaluating Michael’s ability to pay spousal support, taking into account his
“earning capacity, earned and unearned income, assets, and standard of
living” (§ 4320, subd. (c)), the court found that notwithstanding his current

20
unemployment, Michael’s recent six-figure income was “suggestive of his
ability to pay support.” It considered “[t]he needs of each party based on the
standard of living established during the marriage” (§ 4320, subd. (d)) and
observed that “[t]here was a work history associated with father,” but “wife
lives in a recreational vehicle with the parties’ three minor children. She
represents she is not able to afford . . . [or] qualify for rent anywhere else.”
With respect to the parties’ “obligations and assets” (§ 4320, subd. (e)), the
court explained that “[Andrea] is unable presently to maintain her monthly
expenses. Husband advises he is living in a one-bedroom apartment . . . and
is able to pay the monthly rent for the unit.” It added that Michael “has
significant obligations” and neither party “has significant assets. . . . There
are significant student loan debts in each party’s ledger.” Finally, the court
observed that the parties were married for over 18 years (§ 4320, subd. (f))
and that, because this was a marriage of long duration (§ 4336), nothing in
the code was intended to “limit the court’s discretion to order [spousal]
support.” (§ 4320, subd. (l).) It then ordered Michael to pay $650 per month
in post-judgment spousal support, effective September 1, 2020.
2. Applicable Law
“ ‘ “Permanent spousal support ‘is governed by the statutory scheme set
forth in sections 4300 through 4360. Section 4330 authorizes the trial court
to order a party to pay spousal support in 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 set forth in section 4320.’ [Citations.] The statutory factors
include the supporting spouse’s ability to pay; the needs of each spouse based
on the marital standard of living; the obligations and assets of each spouse,
including separate property; and any other factors pertinent to a just and

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equitable award. (§ 4320, subds. (c)-(e), (n).)” ’ ” (In re Marriage of Maher &
Strawn (2021) 63 Cal.App.5th 356, 363; see In re Marriage of Blazer (2009)
176 Cal.App.4th 1438, 1442.)
“ ‘ “In making its spousal support order, the trial court possesses broad
discretion so as to fairly exercise the weighing process contemplated by
section 4320, with the goal of accomplishing substantial justice for the parties
in the case before it. ‘The issue of spousal support, including its purpose, is
one which is truly personal to the parties.’ [Citation.] In awarding spousal
support, the court must consider the mandatory guidelines of section 4320.
Once the court does so, the ultimate decision as to amount and duration of
spousal support rests within its broad discretion and will not be reversed on
appeal absent an abuse of that discretion. [Citation.] ‘Because trial courts
have such broad discretion, appellate courts must act with cautious judicial
restraint in reviewing these orders.’ ” ’ [Citation.] An abuse of discretion
occurs ‘ “when it can be said that no judge reasonably could have made the
same order.” ’ ” (In re Marriage of Grimes & Mou (2020) 45 Cal.App.5th 406,
424 (Grimes & Mou).)
3. Analysis
Michael contends that some of the trial court’s findings are not
supported by evidence in the record. Specifically, he objects to the findings
that the couple enjoyed a middle class standard of living, that Andrea “tried
to obtain some certificates” through education, and that she is not “able to
qualify for rent anywhere else.” Although Michael has forfeited any
challenge to the sufficiency of the evidence to support the trial court’s
findings by failing to provide an adequate appellate record (Jameson, supra,
5 Cal.5th at p. 609; Maria P., supra, 43 Cal.3d at pp. 1295-1296), we note

22
that substantial evidence supporting these findings is evident even in the
incomplete record that Michael provided.
“The marital standard of living is ‘a general description of the station in
life the parties had achieved by the date of separation,’ rather than a
‘mathematical standard.’ ” (Grimes & Mou, supra, 45 Cal.App.5th at p. 424.)
Here, evidence of Michael’s six-figure salary between 2016 and 2019 supports
the trial court’s finding that the family enjoyed “a middle-class standard of
living.” The court’s observation that Andrea “tried to obtain some
certificates” is supported by Andrea’s report that, after her 2017 vocational
evaluation, she had enrolled in school to receive a certificate in computer
science and information technology even though she had not yet completed all
the requirements. The court’s statement that Andrea is not able to “afford”
or “qualify for rent” elsewhere simply acknowledges the improbability of
Andrea finding less expensive housing than the recreational vehicle she was
currently living in with the children, echoing assertions made in her trial
brief and at trial.
The trial court carefully considered each of the relevant factors set
forth in section 4320, making detailed findings that are supported by the
evidence. We find no abuse of discretion in the trial court’s award of
permanent spousal support. (Grimes & Mou, supra, 45 Cal.App.5th at p. 426
[affirming trial court’s spousal support award where trial court considered
the relevant statutory factors and made findings supported by the evidence].)
Michael further contends the court erred in awarding support without
allowing him to take testimony from Andrea. As he did at trial, he argues
that if he had been able to question Andrea, he could have established “that
this very divorce itself was partially motivated by her desire to never work or

23
get a job.” He believes he could show that Andrea unreasonably delayed or

refused to seek employment and was not a credible witness.18
The record indicates the court considered Michael’s requests for
Andrea’s testimony and observed that Michael wanted “to take testimony on
the custody and visitation issues in this case” rather than focusing on the
financial issues. The judge explained it was not appropriate to “conduct a
mini trial on custody and visitation for [Michael] to address credibility issues
that [he] wanted to present to the court.” Focusing on spousal support, the
trial court directed Michael to address the section 4320 factors. When
Michael again referenced the parties’ custody dispute, the court reiterated
that the issue being addressed was spousal support, and Michael indicated he
had “nothing else to add.”
In the arguments he presents on appeal, Michael still fails to explain
how the testimony he wanted to elicit from Andrea relates to the factors the
trial court considered with respect to the spousal support award or how her
testimony would have affected the trial court’s findings. He merely argues he
wanted to demonstrate “how intimately intertwined the custody and financial
narratives really are.” Because Michael has failed to identify testimony “that
would have had a bearing on the court’s decision” regarding the distribution
of assets and the spousal support award, we find no error in the trial court’s
refusal to allow Michael to further question Andrea. (In re Marriage of

18 Michael additionally claims that, through testimony, he would have
been able to show “Andrea’s domestic violence.” Section 4320 contemplates
that “documented evidence of any history of domestic violence” may be
considered as a factor in determining permanent spousal support. (§ 4320,
subd. (i), italics added.) Although Michael alleged that Andrea’s conduct
after their separation amounted to abuse and argued below that one court
“almost” made a finding she engaged in domestic violence, no documented
evidence of a history of domestic violence by Andrea appears in the record.
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Diamond (2021) 72 Cal.App.5th 595, 605 [no prejudicial error in refusing to
allow testimony where appellant fails to identify testimony “that would have
had a bearing on the court’s decision”].)
D. Attorney Fees and Sanctions
Andrea requested an award of attorney fees under section 3557,
arguing that despite Michael’s ability to pay and access to funds, he failed to
make timely support payments, forcing her to incur litigation fees to obtain a

court order for unpaid support.19 The trial court agreed and awarded
attorney fees of $7,500.
Andrea requested additional fees as sanctions under section 271,
asserting that Michael promoted excessive litigation while he and his counsel
failed to treat Andrea and her counsel with civility and respect. For example,
in one e-mail, Michael’s counsel told Andrea’s counsel that he would “use
small words to make sure everyone can understand them”; later he wrote, “I
guess the words were not small enough.” In another e-mail, Michael told
Andrea’s counsel, “I don’t think you should practice law anymore.” Michael
admitted the e-mails were sent. He apologized for one “inappropriate” e-mail
but stated, “I want to be clear that I sent it because I believe it,” and
reiterated that he thought counsel should “lose her license.” The trial court
found that Michael’s extensive litigation did not warrant sanctions but
concluded that Michael and his counsel “crossed the line” of civil discourse in
stating counsel should not practice law anymore and referencing the need to
use “small words.” The court observed, “It is not appropriate for counsel or
his client to insult or belittle . . . the parties or the participants when those

19 Andrea alternatively requested fees under section 2030. Because the
court awarded fees under section 3557, we confine our discussion to that
provision.
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characteristics are not at issue in the case.” The trial court awarded $2,000
as sanctions in the form of attorney fees to Andrea’s counsel.
Section 3557 provides that a court shall award reasonable attorney fees
to a supported spouse in an action to enforce a support order under certain
circumstances. “Notwithstanding any other provision of law, absent good
cause to the contrary, the court, in order to ensure that each party has access
to legal representation to preserve each party’s rights, upon determining
(1) an award of attorney’s fees and cost under this section is appropriate,
(2) there is a disparity in access to funds to retain counsel, and (3) one party
is able to pay for legal representation for both parties, shall award reasonable
attorney’s fees” to the “custodial parent or other person to whom payments
should be made in any action to enforce . . . [¶] [a]n existing order for child
support” or to “[a] supported spouse in an action to enforce an existing order
for spousal support.” (§ 3557, subd. (a).)
“Section 271 . . . allows for a sanctions award of attorney fees and costs
based on conduct that frustrates the policies of settlement, cost reduction,
and cooperative resolution of litigation.” (In re Marriage of Simmons (2013)
215 Cal.App.4th 584, 592 (Marriage of Simmons).) “It has been said that
section 271 . . . imposes a ‘minimum level of professionalism and cooperation,’
to effect the policy favoring settlement of family law litigation—and a
reduction of the attendant costs.” (In re Marriage of Davenport (2011)
194 Cal.App.4th 1507, 1524 (Davenport).) “Some courts have said the section
authorizes attorney fees and costs as a penalty for obstreperous conduct.”
(Ibid.)
An award of attorney fees or sanctions rests in the sound discretion of
the trial court and “will not be reversed on appeal in the absence of a clear
showing of abuse.” (Hicks v. Hicks (1967) 249 Cal.App.2d 964, 969; see

26
Marriage of Simmons, supra, 215 Cal.App.4th at p. 595 [the amount of
sanctions “is a matter for the trial court to decide in the sound exercise of its
discretion”].)
Here, the trial court observed that a fee award under section 3557 was
warranted because Andrea was forced to incur substantial attorney fees to
enforce the existing support orders when Michael neglected to timely pay the
Ostler-Smith components due for child and spousal support. The court also
found a “significant disparity in access to funds,” consistent with its prior
findings that Michael’s education, work experience, and earning capacity was
significantly more substantial than Andrea’s. The court’s findings justify the
section 3557 fee award.
In addition, the trial court found that Michael and his counsel’s
inappropriate e-mails crossed the line of respectful discourse, which
frustrates cooperation and any potential to resolve disputes without
litigation. (See Davenport, supra, 194 Cal.App.4th at p. 1524.) The trial
court’s findings justify the sanctions awarded under section 271.
Michael contends that, by awarding Andrea attorney fees, the trial

court impermissibly “triple-dipp[ed]” into his commissions.20 We have
already rejected Michael’s contention that the trial court’s support orders
amounted to an impermissible “double-dip[]” into commissions, and for
similar reasons we likewise reject Michael’s contention regarding a “triple-
dip[].”
Michael contends the trial court erred when it failed to recognize his
request for sanctions. At the September hearing, Michael indicated he

20 As previously discussed, Michael contended the “first dip” was his
purported payment of commissions toward professional services ordered by
the court and the “second dip” was the order regarding child and spousal
support arrears.
27
intended to request “very significant sanctions, but that request is based on
the custody issues . . . [and] without further custody litigation, sanctions
cannot be properly assessed.” Before adjourning the hearing, the trial court
confirmed that future dates were reserved for the determination of other
matters in the parties’ litigation. Contrary to Michael’s claim that he was
“barred” from seeking sanctions, nothing in the record indicates that Michael
is precluded from seeking fees or sanctions in future proceedings, if
appropriate under the circumstances.
DISPOSITION
The judgments are affirmed. Because Andrea did not file a brief or
otherwise make an appearance, no costs are awarded on appeal. (See In re
Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 704.)

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DO, J.

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