Marriage of Ruiz CA5

Filed 4/27/23 Marriage of Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re the Marriage of BIANCA KAYLENE
RUIZ and JACOB RYAN RUIZ.

BIANCA KAYLENE RUIZ, F083648, F083942

Appellant, (Super. Ct. No. 19FL-0112)

v.
OPINION
JACOB RYAN RUIZ,

Respondent.

APPEAL from orders of the Superior Court of Kings County. Brian N. Chase,
Commissioner.
Bianca Kaylene Ruiz, in pro. per., for Appellant.
Maroot, Hardcastle & Jolly and Wayne Hardcastle for Respondent.
-ooOoo-
Bianca Kaylene Ruiz and Jacob Ruiz are embroiled in an ongoing marriage
dissolution. This appeal concerns two orders. First, the court denied Bianca’s request for
attorney fees. Second, Jacob requested the court to credit certain car payments against
his previously-ordered child and spousal support obligations. The court granted the
request because the car, which is in Bianca’s possession, benefitted Bianca and the
children, who are in Bianca’s sole physical custody.1
Prior to entry of these two orders, Bianca filed for bankruptcy. As she did in the
trial court, she now argues the court lacked jurisdiction to award car payment credits to
Jacob. She also claims the credits are not allowed by law, insofar as they apply against
Jacob’s child support obligation.
Last, Bianca contends the court abused its discretion in denying the requested
attorney fees. We disagree with each contention and affirm both orders.
BACKGROUND
This appeal concerns orders from hearings on two dates: December 7, 2021, and
February 10, 2022. The orders concern child support and attorney fees. Prior to these
hearings, the court originally had ordered Jacob to pay $1,690 in monthly child support,
$200 in monthly spousal support, $3,780 in arrearages, and $2,000 in attorney fees.2
History Relevant to December 7, 2021 Hearing
Jacob filed a request “that [Bianca] make the payments on the vehicle that she
drives,” totaling $506.85 monthly. At the time, Jacob was regularly paying for the
vehicle. Bianca filed a “responsive declaration” to Jacob’s request and instead herself
requested, among other things, needs-based attorney fees. Specifically, Bianca stated she
did “not have the funds required to pay [her attorney] to continue representing” her and
needed “approximately $4,000” or her attorney would withdraw from the case.
In a reply declaration,3 Jacob “ask[ed] that [he] be allowed to make [the car]
payment directly and to deduct the amount of the payment … from child and spousal

1
Bianca and Jacob have two children together. The children were born in 2009
and 2011.
2 This attorney fee award is not at issue.
3 The record is somewhat unclear as to what exactly the declaration was in reply.

2.
support otherwise payable in this matter.” Meanwhile, Bianca elsewhere filed for
bankruptcy and filed in this case a “notice of stay of proceedings ….”
December 7, 2021 Hearing
On December 7, 2021, at the outset of the hearing, Bianca’s attorney moved to
withdraw from the case. The court granted the request and then turned its attention to
Bianca’s request for attorney fees.
In ruling on Bianca’s request, the following colloquy occurred:

“[THE COURT]: So what that calculation is telling me is that
after the payment of support, that [Jacob’s] available
spendable income after support is $3,149.00 per month and
that [Bianca’s] is $4,684.00 a month meaning that of the pie
of available funds after support is paid, he has 40.2 percent
and [she has] 59.8 percent.

[¶] … [¶]

“[THE COURT]: So given that distribution of funds, it’s --
it’s -- there is not a significant inequity here of income. It
was equalized in large part by the orders that have been made.
Now part of that, in fairness, a significant amount of it is
child support and I don’t want to take that into account
entirely.

“[BIANCA]: Yeah. I read that in -- you are not supposed to
take into account as income the child support that is received
in the case that we are in.

“THE COURT: I understand and I’m not taking it into
account as income for purposes of calculating spousal support
for example. [¶] But when you are asking me to determine
attorney’s fees, I'm looking at the availability of funds all
together. I can take into account, you know, any funds and
any availability of resources because I need to find a resource.
If you are asking me to order him to pay you fees, I have to
make two findings. 1) -- really three findings. 1) that you
have a need for fees and I think you have a need for fees.
2) that you don't have the ability to pay your own fees. And
then 3) is that he has the ability to pay your fees. And I don't
know that in this case that I can make all of those findings

3.
 because in looking at the numbers as I see them, he is only
left with $3,149.00 at the end of the month and you are left
with $4,684.00 a month and you are cohabitating with
somebody who is paying a portion of your fees. And I
know --

“[BIANCA]: No.

“THE COURT: -- your expenses and I know you submitted a
declaration when you tried to itemize to me what expenses he
is paying and what he is not.”4
After more discussion, the court began “trying to find assets to liquidate” but found none.
Ultimately, the court concluded,

“I’m just not able to make a finding here that, in all
practicality, that [Jacob] has a source of funds to pay
attorney’s fees or that there is such an inequitable state here
of your respective financial circumstances that it would
warrant him. His income and expense declaration reveals that
he has $5,400.00 in monthly expenses. I know you dispute
some of those, but that is what he claims to include, but that
does include his child and spousal support as well. So
actually -- and then his -- as well as the payment towards your
attorney’s fees, Ms. Ruiz. And then his -- his -- his total
income before taxes is about $6,300.00 a month. And if I
look at that dissomaster calculation again, his availability
after support is $3,149.00. If I back out the support from his
calculations here. 5453 minus 1920. He’s got $3,500.00 in
monthly expenses and -- and only $3,150.00 to pay it. So I
just can’t … find that there is a source here.”5
Finally, it stated,

“[W]e are going to have to set this for a long-cause hearing.
I’m not going to order attorney’s fees at this time based on
the evidence that’s before me. We can set it for a hearing

4 The cohabitation presumption (Fam. Code, § 4323) is still pending resolution in
the trial court.
5“DissoMaster is a computer software program widely used by courts to set child
support and temporary spousal support.” (Namikas v. Miller (2014) 225 Cal.App.4th
1574, 1578, fn. 4.)

4.
 where we can go through these documents a little bit more
closely. We can spend an awful lot of time and effort on
these things. If you want to find a way to get an attorney, you
can have one. If you can’t, we are not going to -- you are not
going to. As best I can tell from his income and expense
declaration, [Jacob] borrowed money in order to pay for his
attorney, so you can chose [sic] to do that if you want to.
You don’t have to. And -- but -- but I can’t order attorney’s
fees to be paid based on the circumstances that exist as I
know them to be at least as of today with the evidence that I
have.”
The court then shifted focus to the car payment issue.
Because Bianca was in “exclusive possession” of the vehicle but could not afford
to make payments on it, the court ordered Jacob “to pay the debt” and “to receive a dollar
for dollar credit towards the support obligation for making those payments.” The literal
order reads, effective December 1, 2021, Jacob shall “pay the debt in his name that is
associated with the [vehicle] that is in [Bianca’s] possession. [Jacob] shall receive a
dollar for dollar credit towards his child and spousal support obligation.”
Pertinent Filings Between December 7, 2021, and February 10, 2022
A few days after the December 7, 2021, hearing, Bianca filed a “motion for
reconsideration of prior order[.]” Her motion was based on the fact the court declined to
consider Jacob’s retirement account and a “second vehicle” when it denied attorney fees.
Bianca then filed a second “motion for reconsideration” relative to the “child support
offset[.]” This motion, in essence, claimed the court was not authorized to order the child
support offset. She subsequently filed another request for attorney fees to retain new
counsel.
Bianca also filed a “notice of violation of bankruptcy stay[.]” The notice claimed
the court lacked jurisdiction to order “a setoff of debt against support obligations.”
February 10, 2022 Hearing
At the February 10, 2022, hearing, the court again considered the car payment
credit and attorney fees. But at the outset, it lamented the fact Bianca was “turning this

5.
[case] into a very substantial matter which … demonstrate[s] … that [she] really
[doesn’t] have the proper focus … on economies of litigation and really [is] not focused
on the best interest of the children ….”
The court then began by addressing Bianca’s argument the court lacked
jurisdiction to issue the car payment order because she had filed for bankruptcy. During
a lengthy discussion, the court stated, “I made a determination that the vehicle [Bianca is]
driving which everybody has agreed [she] can have temporary possession of, for [her]
benefit and for the child’s [sic] benefits, benefits [her] lifestyle, benefits the child’s [sic]
lifestyle.” The court concluded, “[T]his is the venue where child support is decided. Not
bankruptcy court. My child support order is going to be that if [Jacob] is going to pay the
support to you in the form of satisfying the debt that allows you to drive your vehicle
then he’s going to get a credit towards his child support obligation for that purpose.”
The hearing moved on to attorney fees with Bianca first withdrawing her request
to reconsider the December 7, 2021, ruling. The parties instead focused on her new
request for attorney fees. The court began by noting,

“In order for me to make an order for attorney’s fees under
[Family Code section] 2030 I have to find there’s a need for
attorney’s fees. And I do find that there’s a need. I have to
find that there’s an inequity in income and there is an income
inequity between the parties. [Jacob] earns substantially more
than [Bianca] earns. Maybe not substantially more than her
earning capacity. But we haven’t established that until we
have a trial. I thirdly have to determine that [Jacob] has the
capacity to pay attorney’s fees. That there’s some source of
funds from which I can say, ‘Okay, here pay her attorney’s
fees.’ That’s where we got caught up last time.”6 (Emphasis
added.)

6 Undesignated statutory references are to the Family Code.

6.
It then inquired into “a community vehicle” in Jacob’s possession. But Bianca claimed
the court could not order its liquidation due to the pending bankruptcy. Bianca insisted
Jacob’s retirement account was the only source for attorney fees.
The court observed the retirement account was not “exempt” from bankruptcy
until the “[t]he bankruptcy court … make[s] that determination at some point in time.”
Ultimately, it opined,

“[I]t feels like … this account is still part of the bankruptcy
estate regardless of whether or not [Bianca] claimed it
exempt. Until I have an order from the bankruptcy Court
stating that it’s exempt I really can’t make an order to allow
me to access those funds[.]”
It subsequently denied the attorney fees “request without prejudice” and expressed a
willingness to “revisit the issue” if Bianca obtained an order from the bankruptcy court
stating the retirement account was exempt.
Finally, the court noted, “I think there should be some soul searching here as to
whether or not [Jacob’s] willing to find a way to get [Bianca] some attorney’s fees,
$3,000 or so so she can get an attorney to finish up this case” because “[t]he issues are
not that complicated and the value of the issues aren’t that substantial.”7
DISCUSSION
I. The Court Did Not Lack Jurisdiction to Modify Support Orders
First, Bianca argues “the trial court’s offset order is void because it lacked
jurisdiction over core proceedings of bankruptcy.” She is mistaken.

7 On this point, the court agreed with Jacob’s counsel’s characterization: “[W]e
thought this was a relatively easy case. It’s a nine year marriage. Custody was resolved
in Utah. Visitation was resolved in Utah. We have a military retirement [Bianca’s]
going to be entitled to receive one half of the portion earned during the marriage. We
have a [Thrift Savings Plan] account that existed. We have the two vehicles that are
subject to debt and now subject to the bankruptcy ….”

7.
 “Under the Bankruptcy Code, the filing of a bankruptcy petition has certain
immediate consequences. For one thing, a petition ‘creates an estate’ that, with some
exceptions, comprises ‘all legal or equitable interests of the debtor in property as of the
commencement of the case.’ ” (City of Chicago, Illinois v. Fulton (2021) 141 S.Ct. 585,
589.) “A second automatic consequence of the filing of a bankruptcy petition is that,
with certain exceptions, the petition ‘operates as a stay, applicable to all entities,’ of
efforts to collect from the debtor outside of the bankruptcy forum. [Citation.] The
automatic stay serves the debtor’s interests by protecting the estate from dismemberment,
and it also benefits creditors as a group by preventing individual creditors from pursuing
their own interests to the detriment of the others.” (Ibid.) “Judicial proceedings in
violation of the automatic stay are void.” (Sindler v. Brennan (2003) 105 Cal.App.4th
1350, 1353.)
One notable and pertinent exception to the automatic stay is for orders relating to
“domestic support obligations ….” (11 U.S.C. § 362, subd. (b)(2)(A)(ii).) As relevant,
domestic support obligation “means a debt that accrues … that is” “owed to or
recoverable by” “a spouse, former spouse, or child of the debtor or such child’s parent,”
“in the nature of alimony, maintenance, or support … of such spouse, former spouse, or
child of the debtor or such child’s parent,” “established or subject to establishment … by
reason of applicable provisions of” “an order of a court of record,” and “not assigned to a
nongovernmental entity ….” (11 U.S.C. § 101(14A).)
We have no doubt the court’s order crediting Jacob for car payments is a domestic
support obligation. In arguing otherwise, Bianca principally relies on In re Taylor
(10th Cir. 2013) 737 F.3d 670 (Taylor). Her reliance is misplaced.
Bianca reads Taylor, supra, and 11 U.S.C. section 101(14A) to mean a “a debt
must be in the nature of support to the ‘spouse of the debtor’ ” to qualify as a domestic
support obligation. Her reading entirely ignores the fact a domestic support obligation is
also defined to include debts “owed to or recoverable by” “a … child of the debtor or

8.
such child’s parent” and “in the nature of alimony, maintenance, or support of such …
child of the debtor or such child’s parent ….” (11 U.S.C. § 101(14A).)
Jacob’s court ordered support payments are a “debt” owed to children of the
debtor and such children’s parent, i.e., Bianca and her children. Those support payments
are literally support payments, i.e., in the nature of alimony, maintenance, and support.
Accordingly, the court did not lack jurisdiction to modify the support orders.
II. The Court Properly Modified Support
The next question is whether the court erred in modifying the support order by
crediting Jacob’s car payments against both the child and spousal support orders. Bianca
claims “California law prohibits the offset of debt against support obligations.”
Jacob responds “California courts have long held that spousal and child support
payments can include Court ordered mortgage payments and/or vehicle payments where
the supported spouse has the use of the asset in question.” We find the court did not err
by ordering Jacob to pay for the vehicle at issue and crediting him for future payments.8
“Child support awards are generally reviewed for abuse of discretion.” (S.C. v.
G.S. (2019) 38 Cal.App.5th 591, 598 (S.C.).) The trial court may not, however,
“ ‘ “ignore or contravene the purposes of the law regarding … child support.” ’ ” (Ibid.)
“Under section 290, the trial court has ‘broad’ discretion to fashion orders
enforcing family law judgments.” (S.C., supra, 38 Cal.App.5th at p. 600.) For example,
“a trial court may ‘determine a parent has satisfied his or her support obligation in a
manner other than direct financial payments’ [citation] or credit the surplus to arrears
‘where a parent has made payments beyond those ordered,’ ” but it “ ‘has no discretion
to absolve an obligor of support arrearages, or interest thereon.’ ” (Ibid.; Keith G. v.
Suzanne H. (1998) 62 Cal.App.4th 853, 858-859.) Under section 2023, subdivision (a),

8The court did not retroactively credit prior payments made by Jacob. Retroactive
modification is limited by statute. (See, e.g., §§ 3603, 3651, 3653.)

9.
where the “payment of an obligation of a party would benefit either party or a child for
whom support may be ordered, the court may order one of the parties to pay the
obligation, or a portion thereof, directly to the creditor.”
We discern no abuse of discretion in this case. The trial court expressly
determined the vehicle benefitted both Bianca and the children. It then ordered Jacob to
continue paying for the vehicle and credited those payments towards his child and
spousal support obligations. Contrary to Bianca’s contention, this is well within the
court’s power. (S.C., supra, 38 Cal.App.5th at p. 600; § 290; § 2023.)
In arguing otherwise, Bianca cites Keck v. Keck (1933) 219 Cal. 316 (Keck), In re
Marriage of Comer (1996) 14 Cal.4th 504 (Comer), and Williams v. Williams (1970)
8 Cal.App.3d 636 (Williams). We address each in turn.
In Keck, our Supreme Court stated, “A subsequent order which relieves the
husband from paying accrued alimony in cash as ordered, and discharges said alimony by
offsetting it against an indebtedness of the wife to the husband existing at the time of
entry of the divorce decree, is a modification as to past due installments, just as is an
order requiring the wife to accept in full settlement of accrued alimony less than the full
amount due.” (Keck, supra, 219 Cal. at p. 321.) Because the order “attempted to modify
the alimony orders as to accrued installments, [it was] contrary to law.” (Ibid.)
But the court’s order in this case applied prospectively only. Indeed, Keck also
noted “that where a liberal support allowance suitable to the circumstances and financial
condition of the parties is made, the court should have the right in a proper case to
provide as a part of the decree that the husband may withhold a portion of the allowance
each month in payment of his wife’s indebtedness to him.” (Keck, supra, 219 Cal. at
p. 320.)
In Comer, our Supreme Court recognized “[i]t is well settled that a child support
obligation ‘… runs to the child and not the parent.’ ” (Comer, supra, 14 Cal.4th at
p. 517.) We see no reason this recognition limits a trial court’s ability to determine

10.
whether a car payment suffices as child support. It is also well settled “a trial court may
‘determine a parent has satisfied his or her support obligation in a manner other than
direct financial payments ….’ ” (S.C., supra, 38 Cal.App.5th at p. 600.)
Finally, in Williams, the husband paid off debt associated with “a community
property apartment house ….” (Williams, supra, 8 Cal.App.3d at p. 638.) The debt had
also encumbered the wife. (Ibid.) Because the husband paid the debt, he “made none of
the support payments provided for in the divorce decree.” (Ibid.)
The husband then sought to “set off” the debt payment “against … support
arrearages.” (Williams, supra, 8 Cal.App.3d at pp. 638-639.) The Court of Appeal
“observe[d] that it is well settled in this state that there can be no such offset” because it
would amount to “retroactive alteration of marital payments or debts accrued and
due ….” (Id. at p. 639.) The court extended the rationale to child support arrearages.
(Ibid.)
This case does not involve a retroactive order let alone arrearages. The authorities
cited by Bianca are unpersuasive. In sum, we find a court has ample discretion to
prospectively order a credit for indirect payments benefiting a spouse and child. The trial
court did not violate that discretion in this case.9
III. The Court Properly Denied Attorney Fees10
Last, we address attorney fees. Bianca argues “the trial court failed to exercise its
discretion when it denied … needs-based attorney’s fees[.]” Specifically, she asserts the

9
Alternatively, Bianca suggests the court departed from guideline support. We
disagree. As the trial court stated, Bianca still received “the benefit of every penny of the
support that was ordered.” Importantly, the car payment credit does not reduce the total
child support obligation to a nullity.
10
Bianca filed a supplemental brief after this court recently published In re
Marriage of Knox (2022) 83 Cal.App.5th 15. In Knox, this court cautioned “courts,
commentators, and practitioners” to avoid “relying on statements about discretion set
forth in pre-2011 case law, such as cases that identify abuse of discretion as the sole
standard of review.” (Id. at p. 25.) It also reiterated “[i]ssues of statutory interpretation

11.
court ruled “before reviewing the relevant evidence,” “failed to consider relevant section
4320 factors,” refused to consider Jacob’s retirement account as a source “available for
an attorney’s fee award,” “erred by considering [her] support award as income for
attorney’s fees,” and “erred by assuming [her] boyfriend has paid any of her attorney fees
or that his income is available for such,” We find no reversible error.
“California’s public policy in favor of expeditious and final resolution of marital
dissolution actions is best accomplished by providing at the outset of litigation, consistent
with the financial circumstances of the parties, parity between spouses in their ability to
obtain effective legal representation. ‘A motion for attorney fees and costs in a
dissolution action is addressed to the sound discretion of the family court.’ [Citation.]
‘ “[A] ruling otherwise within the trial court’s power will nonetheless be set aside where
it appears from the record that in issuing the ruling the court failed to exercise the
discretion vested in it by law.” ’ ” (In re Marriage of Tharp (2010) 188 Cal.App.4th
1295, 1312 (Tharp).)
Section 2030 “ ‘permits the trial court to order payment of attorney fees and costs
as between the parties based upon their “ability to pay” and their “respective incomes and
needs” in order to “ensure that each party has access to legal representation to preserve
all of the party’s rights.” ’ [Citation.] ‘[T]he purpose of section 2030 is not the
redistribution of money from the greater income party to the lesser income party. Its
purpose is parity: a fair hearing with two sides equally represented. The idea is that both
sides should have the opportunity to retain counsel, not just … the party with greater
financial strength.’ ” (In re Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457,
468-469 (Nakamoto).)

are questions of law subject to de novo review on appeal.” (Ibid.) We are both mindful
of these points and Bianca’s supplemental arguments.

12.
 “A court may award fees under section 2030 ‘ “where the making of the [fee]
award, and the amount of the award, are just and reasonable under relative circumstances
of the respective parties.” ’ [Citation.] ‘In determining what is just and reasonable, “the
court shall take into consideration the need for the award to enable each party, to the
extent practical, to have sufficient financial resources to present the party’s case
adequately ….” [Citation.] In addition to the parties’ financial resources, the court may
consider the parties’ trial tactics.’ [Citation.] ‘The court should limit an award to fees
that were reasonably necessary, including by taking into account overlitigation.’
[Citation.] ‘[S]ervices which have no apparent effect other than to prolong and to
complicate domestic litigation cannot be deemed “reasonably necessary” [citation] “to
properly litigate the controversy” [citation] and may properly be disregarded by a trial
court determining whether and in what amount to order one party to contribute to the cost
of the other's representation.’ ” (Nakamoto, supra, 79 Cal.App.5th at p. 469.) A ruling
on an award for attorney fees “should be the product of a nuanced process in which the
trial court should try to get the ‘big picture’ of the case ….” (Alan S. v. Superior
Court (2009) 172 Cal.App.4th 238, 254.)
“In determining what is just and reasonable under the relative circumstances, the
court shall take into consideration the need for the award to enable each party, to the
extent practical, to have sufficient financial resources to present the party’s case
adequately, taking into consideration, to the extent relevant, the circumstances of the
respective parties described in Section 4320.” (§ 2032, subd. (b).) “When considering an
application for attorney fees, the trial court must comply with the mandatory provisions
of [sections 2030 and 2032] because discretionary authority ‘must be exercised within the
confines of the applicable legal principles.’ ” (In re Marriage of Morton (2018)
27 Cal.App.5th 1025, 1050.)
“ ‘[T]he record must reflect that the trial court actually … considered the statutory
factors in exercising that discretion.’ ” (In re Marriage of Cheriton (2001)

13.
92 Cal.App.4th 269, 315.) Bianca “bears the burden of showing the court abused its
discretion by failing to award her any attorney fees.” (Kevin Q. v. Lauren W. (2011)
195 Cal.App.4th 633, 644 (Kevin Q.).)
A. Reviewing Relevant Evidence
As noted, Bianca claims the court failed to review relevant evidence. A court’s
failure to review evidence often is “sufficient grounds, by itself, to reverse [its] decision.”
(Tharp, supra, 188 Cal.App.4th at p. 1314.) But our review of the record here does not
disclose a failure to review evidence.11
B. Section 4320
Bianca suggests the “[t]he record does not reveal the court’s reason for failing to
consider [the section 4320] mandatory factors.” We find no error.
i. Additional Background
During the February 10, 2022, hearing, Bianca asked the court about section 4320:

“[BIANCA]: I was also asking about the 4320 factors that
have to be stated for the record for attorney’s fees. We didn't
go through all of those.

“THE COURT: We’ll go through that at the time of trial.

“[BIANCA]: No but that’s for attorney’s fees. Hold on a
second. Sorry about that. Yes. So uhm --

11Notably, the court did say, “I’m not going to sit here today and have you guys
go through financial records on the record.” But this does not mean the court itself did
not review those records. (See Kevin Q., supra, 195 Cal.App.4th at p. 644 [appellant
bears burden of proving trial court erred].)
The court also said, “I want to make some points known based on my reading and,
again, it was a lot of reading. I obviously didn’t review every job listing and every
response to each job listing and all of that, but I have a gist of what this is about and what
both sides are trying to communicate to me.” (Emphasis added.) We do not discern
reversible error in this statement. (See Gutierrez v. G & M Oil Co., Inc. (2010)
184 Cal.App.4th 551, 566.)

14.
 “THE COURT: There's not a requirement that I go -- there’s
not a requirement that I recite for you each of the Family
Code Section 4320 factors right now. I have already told you
what I considered in making the order. I have made -- I
considered what your income is, what your earning capacity
may be, something we'll address at trial. I considered
[Jacob’s] income, what he has available to him to pay for
fees. This issue is not about whether or not you’re healthy,
whether or not there’s tax consequences, the issue is whether
there are any funds I can have [Jacob] draw from in order to
pay you attorney’s fees.”
ii. Analysis
Section 4320 does not “require the court to address each factor expressly.” (In re
Marriage of Diamond (2021) 72 Cal.App.5th 595, 602 (Diamond).) Instead, the court
must “ ‘ “fairly exercise the weighing process contemplated by section 4320, with the
goal of accomplishing substantial justice for the parties in the case before it.” ’ ” (Ibid.)
We find the standard satisfied in this case. The court’s comments demonstrate it
was acutely aware of section 4320 and considered the relevant factors. For example, two
factors recited—health and taxes—appear directly in section 4320. (§ 4320, subds. (h) &
(j).) Accordingly, there is no error. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570,
575 [absent contrary evidence, judicial duties are presumed performed]; Evid. Code,
§ 664.)
We reiterate that “[t]rial courts may consider it better practice to make findings as
to each section 4320 factor in writing or on the record. Express findings likely will
provide a more complete record on appeal and advise the parties that the statute has been
followed. The failure to make express findings may also become relevant when a
judgment ‘provides no insight into how the court weighed the statutory factors,’ raising
the question ‘whether the court in fact weighed or even gave due consideration to the
statutory factors.’ ” (Diamond, supra, 72 Cal.App.5th at pp. 603-604, fn. omitted.) But
“[t]hat did not happen here.” (Id. at p. 604.)
C. Thrift Savings Plan

15.
 Next, Bianca claims the court erred by refusing to consider the Thrift Savings Plan
“as available for an attorney’s fee award.” We find no error.
It is true the Bankruptcy Code “entitles” debtors to exclude from the bankruptcy
estate certain property including inalienable retirement plans. (Patterson v. Shumate
(1992) 504 U.S. 753, 757-758.) Indeed, a bankruptcy court has no discretion to deny a
validly claimed exemption. (Law v. Siegel (2014) 571 U.S. 415, 423-424 [“it is the
debtor in whom the [law] vests discretion,” “not the court”].)
The problem here is the only evidence in the record regarding bankruptcy was a
single page document indicating a bankruptcy case was filed on November 10, 2021. No
further information is provided.
The trial court correctly desired “an order from the bankruptcy Court stating [the
Thrift Savings Plan was] exempt” before ordering a disbursement for attorney fees. Such
a ruling is not only prudent but necessary to clarify jurisdiction. Finally, the court justly
indicated a willingness to “revisit the issue” if Bianca provided the necessary evidence.12
We decline to find an abuse of discretion on this record.
D. Support Income
Bianca understandably took objection to the fact the court stated a “significant
amount” of her income was “child support ….” But her objection was slightly misplaced.
We agree, of course, a party “should not have to utilize support payments designed
to pay living expenses to fund litigation in the dissolution proceeding.” (Tharp, supra,
188 Cal.App.4th at pp. 1315-1316; In re Marriage of Hatch (1985) 169 Cal.App.3d 1213,
1220.) But we do not interpret the court’s comments to mean child or spousal support
was a source for Bianca to retain a lawyer.

12 Bianca places much attention on the Code of Federal Regulations governing
Thrift Savings Plans. (See 5 C.F.R. §§ 1650-1690.15.) But these regulations deal solely
with administrating plans on a day-to-day basis, not bankruptcy. In other words, they are
irrelevant to whether an actual exemption exists in a specific bankruptcy case.

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 The court instead considered the support payments as they related to a monetary
inequity between the parties. The record clearly indicates the court believed Bianca
needed money to afford an attorney.
The court denied her request, however, solely because it could not find “some
source of funds from which” it could order Jacob to pay. The court made clear this was
the reason it denied Bianca’s requests for attorney fees at both hearings.13 It also looked
for other property to liquidate but was unable to accommodate Bianca’s need. We again
find no abuse of discretion.
E. Reference to Reliance On Boyfriend
Finally, Bianca contends the court erred by assuming Bianca’s boyfriend provided
her income or could help her afford a lawyer. She insists “there is not one piece of
evidence to support this finding.”
To the extent the court meant what it said—that Bianca’s boyfriend could help her
retain counsel—we agree it is speculation unsupported by the record.14 But this
speculation is not prejudicial.
The court did not deny Bianca attorney fees because she could afford a lawyer. It
denied her attorney fees because Jacob could not afford to pay. (See III., D., ante.)
Whether Bianca’s boyfriend could or could not assist in retaining a lawyer is irrelevant to

13On December 7, 2021, the court found there was no source of funds from which
Jacob could afford to pay attorney fees. On February 10, 2022, the court stated, “I …
have to determine that [Jacob] has the capacity to pay attorney’s fees. That there’s some
source of funds from which I can say, ‘Okay, here pay her attorney’s fees.’ That’s where
we got caught up last time.” (Emphasis added.) It later formally denied the request.
14 The court, speaking directly to Bianca, opined, “[Y]ou have a boyfriend you
cohabitate with, sometimes there is -- there is, you know, they want things to work out
for you as well and sometimes that’s a place that funds can come from.” Elsewhere, it
stated Bianca was “cohabitating with somebody who is paying a portion of [her] fees.” It
is reasonably possible the court meant Bianca’s boyfriend was helping with living
expenses, not literal attorney fees. Considered in context, however, the most reasonable
interpretation is the one Bianca advances.

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the court’s actual holding. Accordingly, we will not disturb the order denying attorney
fees.15 (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 526 [error
reversible only if it results in a “ ‘miscarriage of justice.’ ”].)
DISPOSITION16
The December 7, 2021, and February 10, 2022, orders are affirmed.
Bianca’s motion to strike is denied. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

SNAUFFER, J.
WE CONCUR:

POOCHIGIAN, Acting P. J.

FRANSON, J.

15 Bianca separately claims “the court failed to award [her] reasonable attorney
fees before moving forward with proceedings.” We do not view this as a distinct claim—
it simply encapsulates her entire argument which we have found meritless.
16 Bianca filed a motion to strike portions of Jacob’s brief. We immediately
address the motion in the disposition.

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