California Courts of Appeal Reports
IN RE MARRIAGE OF BORIS M., G034582 (Cal.App. 12-27-2006)
In re Marriage of BORIS M. and ANN E. ACKERMAN. BORIS M.
ACKERMAN, Respondent, v. ANN E. ACKERMAN, Appellant.
G034582 & G034259 Court of Appeal of California, Fourth
District, Division Three. Filed: December 27, 2006
Appeal from judgments of the Superior Court of Orange
County, Michael J. Naughton, Judge, (Super.Ct. No.
01D010971). Affirmed.
Law Offices of Brian G. Saylin, Brian G. Saylin; Law
Offices of Ellen G. Winterbottom, Ellen G. Winterbottom;
Law Offices of Jeffrey W. Doeringer and Jeffrey W.
Doeringer for Appellant.
Keith E. Dolnick for Respondent.
OPINION
RYLAARSDAM, J.
This is a consolidated appeal arising out of the
dissolution of the marriageof Ann E. Ackerman (wife) and
Boris M. Ackerman (husband). In the two appeals, wife
respectively challenges the trial court`s valuation of
husband`s medical practice and the award of child and
spousal support. We reject those challenges and affirm the
judgment.
FACTS
The parties married in August 1991 and legally separated in
September 2001. During the marriage, they had two children.
At the time of separation, Ethan was three and Audrey was
one. Ethan was diagnosed with autism at age two and a half.
Husband is a licensed physician engaged in the practice of
plastic surgery. He obtained his physician`s license in
1981 and received his board certification in plastic and
reconstructive surgery in 1987, at which time he
established his medical practice as a sole proprietorship
known as Boris M. Ackerman, M.D. Wife signed a premarital
agreement, reflecting the practice was husband`s separate
property with a value of $162,000 as of the date of
marriage. Any increase in the medical practice`s value
would be deemed community property and subject to division
upon dissolution. Upon dissolution, the practice would be
appraised by a forensic accountant utilizing any generally
accepted methodology for valuation.
Wife was not employed outside the home during marriage. She
graduated from law school in 1995 and took the California
state bar examination in 1998, but was unsuccessful.
The valuation of the medical practice was litigated, with
each party presenting his or her own forensic accountant.
The court received briefs and then made its final ruling.
Wife filed objections to the proposed statement of
decision. The trial court responded to each objection in a
detailed minute order. Judgment on the bifurcated issue of
the medical practice was entered some months later. Wife
filed a notice of appeal from that judgment.
In the meantime, the parties litigated support. They
stipulated their monthly controllable cash flow at the date
of separation was $61,000. The parties` 2001 jointly-filed
tax return showed a net income of approximately $36,000.
The court took half that amount, rounded it up to $20,000
as a reasonable estimate of half of the community net
income, and determined that to be the marital standard of
living for each party.
For spousal support, husband was ordered to pay wife $7,500
per month commencing January 15, 2004, $6,500 per month
commencing September 1, 2004, and $3,000 per month
commencing September 1, 2005. In August 2006, spousal
support terminated and in August 2009, jurisdiction
terminates. The order was based on three assumptions: (1)
wife would review for the bar exam and take it in July
2004; (2) if she passed, she would obtain employment as an
attorney before September 1, 2005, when the step-down order
took effect; (3) regardless of whether she passed, she would
be able to secure employment by September 1, 2004 and earn
at least $3,000 a month as a paralegal or legal assistant,
based on her own testimony and the vocational examiner`s
report. If the assumptions do not materialize, the order
allows wife to move to modify its terms.
Child support was ordered as follows: $10,070 per month for
seven and one-half months commencing January 15, 2004, then
$9,080 per month commencing September 1, 2004. The
reduction took into account wife`s potential earning
capability.
Wife filed a notice of appeal from this judgment as well.
We consolidated the two appeals for all purposes.
DISCUSSION
1. Introduction
Wife challenges the trial court`s valuation of husband`s
medical practice and award of child and spousal support. In
assessing these contentions, we begin with the
well-established rule that “[a] judgment or order of a
lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its
correctness. [Citations.]” (In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133.) The deferential abuse of
discretion standard governs our review. (In re Marriage of
Cheriton (2001) 92 Cal.App.4th 269, 282-283, 304 [child and
spousal support orders] (Cheriton); In re Marriage of
Nichols (1994) 27 Cal.App.4th 661, 670 [determination of
goodwill value].) Generally, “the appropriate test of abuse
of discretion is whether or not the trial court exceeded
the bounds of reason, all of the circumstances before it
being considered. [Citations.]” (In re Marriage of Connolly
(1979) 23 Cal.3d 590, 598.) To the extent that a trial
court`s exercise of discretion is based on the facts of the
case, it will be upheld “as long as its determination is
within the range of the evidence presented. [Citation.]”
(In re Marriage of Nichols, supra, 27 Cal.App.4th at p.
670.) Conversely, a court abuses its discretion if its
findings are wholly unsupported, since a consideration of
the evidence “is essential to a proper exercise of judicial
discretion. [Citation.]” (Johns v. City of Los Angeles
(1978) 78 Cal.App.3d 983, 998.)
Findings will be normally implied to support judgments or
orders if supported by substantial evidence. (In re
Marriage of Aninger (1990) 220 Cal.App.3d 230, 238,
overruled by statute on another ground as stated in In re
Marriage of O`Connor (1997) 59 Cal.App.4th 877, 882.) But
where a party states objections, and the statement of
decision does not resolve a particular issue, “it shall not
be inferred on appeal . . . that the trial court decided in
favor of the prevailing party . . . on that issue.” (Code
Civ. Proc., § 634.)
2. Medical Practice Valuation
Wife contends the trial court`s valuation of husband`s
medical practice should be reversed because the value of
the tangible assets — specifically cash, medical
equipment, and an excluded asset — and the goodwill
value ascribed to the practice were not supported by
substantial evidence. Additionally, she argues, “The court
failed to make a finding as to [her] community interest in
the rents received . . .” from the surgical center that was
built during marriage as part of husband`s medical
practice. We address these in turn.
a. Tangible Assets
i. Cash
The court found the total cash in husband`s medical
practice was $35,388, but deducted “accrued liability” to
arrive a net figure of $13,388. Wife argues this was error
because there were only two accounts at issue and one of
those “had only one outstanding check in the amount of
$2,406[,]” while the other had “no outstanding checks.”
Since her accountant, Glenn Mehner, “reconciled those
accounts as of the date of separation[] at $30,442,” she
asserts “[i]t is unknown how the court could have selected
any other number” and that, because she objected, we may
not infer the trial court decided in husband`s favor on this
issue.
No inference is necessary. At the hearing on wife`s
objections, the court explained it arrived at $13,388 by
taking “either outstanding liabilities or outstanding
checks, and . . . took it off the $35,000.” This finding is
supported by Mehner`s valuation report. At page 6 of that
report, Mehner explains that $35,388 “[r]epresents cash
balance at 8/31/01 in [husband`s two accounts]” but that
$22,000 is “[e]stimated as approximately one-half months
[sic] expenses based on average monthly expenses for the
eight months end[ing] August 31, 2001.” Deducting the
expenses from the cash balance yields $13,388, the number
reached by the court.
ii. Medical Equipment
Wife contends the court`s determination the medical
equipment had a current value of $10,000 lacked substantial
evidence. We disagree.
The record is somewhat confusing on this issue because the
court`s oral and written rulings do not contain any
references to “medical equipment.” Rather, the only time
during its oral ruling that it mentioned $10,000 is when it
said it “didn`t believe that the office furniture exceed[s]
$10,000[,] so [it] used that.” Similarly, both the proposed
and signed statement of decision, as well as the signed
judgment, “add[] back $10,000 for the office furniture” to
the amount awarded for goodwill. Neither party addresses
this ambiguity but instead assumes the court`s references
to “office furniture” includes medical equipment. We will
do the same.
In his report, husband`s expert, James Christensen,
identifies the categories of office furniture, leasehold
improvements, and medical equipment, along with their
corresponding dates of purchase, original cost,
depreciation, book value as of December 2001, and estimated
current value. The original cost of the office furniture and
medical equipment together totaled $111,370. After
depreciation, their book value was $7,326. Christensen
estimated their current value to be approximately $11,000.
Rather than relying on the estimated current value, the
court used an accelerated or straight-line depreciation
method and placed a $10,000 value on the furniture and
medical equipment. According to Christensen`s chart, the
original cost of the office furniture and medical equipment
in 1995-1996 was $46,278 and $65,092, respectively. By
December 2001, their book value had depreciated to $3,455
and $3,871. Wife has not shown the court abused its
discretion by rounding the total up to $10,000.
Wife claims Christensen`s only basis for his estimate of
the current value of the furniture and medical equipment
was a conversation with another plastic surgeon. Whether it
was or not is irrelevant because the trial court did not
rely on Christensen`s current value estimate.
iii. Excluded Asset
Wife`s next contention relates to husband`s medical
practice`s purchase of new computers for $7,900 in February
2001, six months before they separated. Wife objected to
the proposed statement of decision on the ground that the
computers were a “missed asset” because neither expert
included computers in his analysis. The court overruled
wife`s objection because “[t]here was no evidence as to a
`missed asset.`”
On appeal, wife acknowledges that Christensen considered
the computers, but asserts “he added this expense back as
personal in nature without any basis therefor.” To the
contrary, Christensen testified he added back certain
nonrecurring office expenses and legal expenses, and that
the computers were a nonrecurring or personal expense. The
trial court was correct there was no evidence of a missed
asset.
b. Goodwill
Wife argues substantial evidence does not support the
court`s calculation of goodwill. We disagree.
No rigid rule applies for determining the value of
goodwill. (In re Marriage of Foster (1974) 42 Cal.App.3d
577, 583.) Rather, it “may be measured by `any legitimate
method of evaluation that measures present value by taking
into account some past result,` so long as the evidence
`legitimately establishes value.` [Citation.]” (In re
Marriage of Rosen (2002) 105 Cal.App.4th 808, 819 (Rosen).)
“[E]ach case must be determined on its own facts and
circumstances and the evidence must be such as legitimately
establishes value. [Citations.]” (In re Marriage of Foster,
supra, 42 Cal.App.3d at p. 583.) Because goodwill value of
a business is a question of fact for the trial court, its
determination will be upheld if supported by substantial
evidence. (In re Marriage of Nichols, supra, 27 Cal.App.4th
661, 670.)
The “capitalization of excess earnings” method is one
recognized valuation technique. (Rosen, supra, 105
Cal.App.4th at pp. 818-819.) This “method focuses on the
`”earning power”` of the business to determine what `”rate
of return”` the predicted earnings will yield in light of
the risks involved to attain them. [Citation.]” (Id. at p.
818.) “Broadly put, the excess earnings approach is
predicated on a comparison of the earnings of the
professional in question with that of a peer whose
performance is `average.`” (In re Marriage of McTiernan and
Dubrow (2005) 133 Cal.App.4th 1090, 1095, fn. omitted.)
To make this comparison, courts may, among other things,
“determine the annual salary of a typical salaried employee
who has had experience commensurate with the spouse who is
the sole practitioner or sole owner/employee.” (In re
Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675,
688, fn. 14.) Alternatively, courts may apply the
“similarly situated professional” standard, under which
reasonable compensation is based on “`”`the cost of hiring
a nonowner outsider to perform the same average amount that
other people are normally compensated for performing
similar services . . . .`”`” (In re Marriage of Iredale &
Cates (2004) 121 Cal.App.4th 321, 330, fn. omitted, quoting
Rosen, supra, 105 Cal.App.4th at p. 823.)
Although not binding, professional compensation surveys may
be used by experts and trial courts as guidelines for
determining reasonable compensation of a practitioner`s
peers. (In re Marriage of Iredale & Cates, supra, 121
Cal.App.4th at pp. 325-326 [affirming expert`s use of own
surveys to determine reasonable compensation of
practitioner`s peers for purposes of valuing her personal
goodwill]; Rosen, supra, 105 Cal.App.4th at p. 822.) To be
relevant, however, the surveys must account for
similarly-situated professional practices and
practitioners. (Rosen, supra, 105 Cal.App.4th at p. 822.)
The court in this case applied the excess earnings
valuation method. Wife challenges only its determination of
reasonable compensation for husband`s peers. Each side`s
expert relied on different surveys to arrive at different
figures.
Mehner utilized the Medical Group Management Association
Physicians Compensation and Production Survey (MGMA survey)
because it broke down statistics by region, specialty, and
years in practice and was the most comprehensive survey in
his opinion. He relied on the Pacific region, which
encompasses the Western states. Based on the MGMA survey,
he calculated reasonable compensation to be $291,000 under
the median compensation and $355,000 under the 75th
percentile.
Christensen, on the other hand, based his opinion on
statistical data from the American Medical Association`s
Physician`s Socioeconomic Statistics surveys (AMA survey)
for the United States. The survey relied on information
from 1996, 1997, 1998, and 2000; there was no study relying
on 1999. He calculated the total revenue for selfemployed
surgeons, the professional expenses for self-employed
physicians under the category of surgeons, and the net
income of self-employed surgeons, and then calculated the
net income as a percentage of the total revenue. As “a
sanity check,” he took husband`s “net income as a percentage
of the total revenue” and applied it to husband`s “gross
revenue in order to calculate what reasonable compensation
would be as a percentage of his gross revenue.” At the
court`s request, he also provided a rebuttal to Mehner`s
report and included the results of his own personal survey
of plastic surgeons in the Newport Beach area. Although the
local survey was admittedly “limited,” Christensen used it
to show husband “generates almost the `average` amount of
revenue.” He determined reasonable compensation to be
approximately $515,000, which was lower than the $551,000
average compensation paid to the local survey group.
The court found problems with the surveys submitted by both
experts. As to the MGMA survey, the court was “troubled by
[what a national survey of the western states has] to do
with a plastic surgeon who is doing essentially cosmetic
surgery in Newport Beach.” The court considered it common
knowledge that, unlike other types of surgery, cosmetic
surgery used discretionary income and the amount of
discretionary income in Southern California “is remarkably
different . . . than in such places as Pocaltella, Idaho;
or Gallow [sic], New Mexico; or Little Rock, Arkansas.”
As to Christensen`s report, the court was not sure it had
“any stronger basis other than the fact he went out and
talked to a couple of people as a kind of quality control
check . . . .” It noted the difficulty of relying on
reasonable compensation statistics for employees, stating,
“it just boggles the mind to think” anyone making as much
money as husband would work for an employer and receive “a
third of what he`s actually making.”
Accordingly, the court applied its “own quality control,”
observing that husband “is a guy with peculiar talent,
training and expertise that is making a rather substantial
amount of money because, among other things, . . . he has a
special reputation in the community and he`s doing this[,]
in large part, as a self-employed person . . . .” The court
used “[its] own kind of common sense view” of husband`s
track record and ultimately determined the amount of
reasonable annual compensation to be $544,000.
In response to wife`s request for an explanation on how
that number was reached, the court responded that it had
been troubled that the surveys submitted by the parties
were not “sufficiently fine-tuned and honed to our area
here to be particularly valuable,” and neither party
presented “a vocational rehabilitation specialist who`s more
familiar with the local market,” “a medical head hunter
[sic], or an economist, or something like that to
supplement” the surveys. Nevertheless, it stated it had not
“pick[ed] a number out of the air” but had used as a
“curbstone” the methodology set forth by Christensen, “which
was the percentage of gross method on his national scale .
. . or a western states average . . . .”
Despite wife`s contention to the contrary, substantial
evidence supports the determination of $544,000 as
reasonable compensation for a similarly situated
professional. In establishing goodwill value, “opinion
evidence is admissible but is not conclusive. [Citation.]
The trier of fact may also take into consideration the
situation of the business premises, the amount of
patronage, the personality of the parties engaged in the
business, the length of time the business has been
established, and the habit of its customers in continuing
to patronize the business. [Citation.]” (In re Marriage of
Foster, supra, 42 Cal.App.3d at p. 583.) The record shows
the court did just that. It used Christensen`s methodology
as a “curbstone,” but then also applied its own “quality
control” and “commonsense view” by considering evidence of
husband`s actual business situation, talent, training,
expertise, and reputation. The trial court reasonably
determined that a plastic surgeon in Newport Beach,
California would generate a greater income than the
national average. Because the court relied upon evidence
set out in the testimony and expert reports, its
determination of reasonable compensation for a similarly
situated professional is supported by substantial evidence.
Wife`s challenge that the court referred to Christensen`s
survey as covering the western states when in fact it was a
national survey is without merit. We review the result, not
the trial court`s reasoning, and do not consider comments
by the trial judge. (Whyte v. Schlage Lock Co. (2002) 101
Cal.App.4th 1443, 1451.)
Next, wife attacks the two surveys underlying Christensen`s
opinion. According to wife, reliance on a national average
is “unhelpful” because under Rosen, supra, 105 Cal.App.4th
at p. 822, the numbers presented in a survey “must be shown
to actually relate to the subject practice.” Rosen reversed
the trial court`s determination of reasonable compensation
on the ground that “the testimony of [the wife`s] expert
regarding `reasonable compensation` [was] conjecture and
could not be used in forming an expert`s opinion of
goodwill value.” (Id. at pp. 821-822.) The expert had
relied on two surveys to determine reasonable compensation
for the husband, a sole practitioner lawyer handling
state-funded criminal appeals. The first was a national
survey, which the court faulted because there was no
showing the national figures were commensurate with those
in Southern California and because it did not distinguish
between different types of law practices, particularly one
consisting “almost exclusively of . . . state-funded
criminal appeals.” The second survey was also problematic
because it purported to show average compensation for
officers and directors of various kinds of businesses,
whereas the husband was a sole practitioner with no
officers or directors. The expert did not have any
particular knowledge of lawyer compensation, was not
familiar with the husband`s type of law practice, and did
not attempt to relate the information in the two surveys to
an analysis of the husband`s law practice. (Ibid.) Thus,
Rosen concluded the surveys used by the wife`s expert were
not useful in establishing compensation under either the
“annual salary of the average salaried person” standard or
the “similarly situated professional” standard. (Id. at p.
823.)
Here, in contrast, the AMA survey shows the nationwide
total revenue, the professional expenses, and the net
income of self-employed surgeons. Christensen explained he
had based his valuation on the five years preceding
separation by analyzing husband`s tax returns and financial
records. He detailed the study dates he utilized and his
methodology of calculating total revenue for self-employed
physicians and expenses for self-employed surgeons to
ascertain a net income as a percentage of the total
revenue. Although wife is correct “there [was] no evidence
that . . . Christensen has any particular expertise of
plastic surgeon compensation (as he had never valued a
plastic surgery practice before),” unlike in Rosen,
Christensen related the information in the AMA surveys to
an analysis of husband`s practice to ensure his figure was
accurate. First, he inserted husband`s gross revenue and net
income to see what result he reached. Second, he performed
a local survey of Newport Beach plastic surgeons to assess
whether his number was correct. Unlike the surveys in
Rosen, the AMA survey thus proved useful as a baseline to
establish compensation under the “similarly situated
professional” standard.
Wife`s contentions that the MGMA survey was better than the
AMA survey amount to nothing more than a request that we
resolve the conflict between the experts, reweigh the
evidence, and substitute our judgment for that of the trial
court. We will not do so because “resolution of conflicts
in the evidence, assessment of the credibility of the
witnesses and the weight to be given the opinions of the
experts were all matters within the exclusive province of
the trier of fact.” (Ellena v. State of California (1977)
69 Cal.App.3d 245, 256.)
The court considered both experts` testimonies and the
surveys upon which they were based. Having done that, and
the parties having failed to present any other evidence to
supplement the surveys, the court ultimately relied on
Christensen`s methodology, because it thought that “made
some sense.” In doing so, it “exercised its discretion
weighing the facts and the evidence such as it was.”
Although the court considered the MGMA survey, it found it
to be “of little value . . . .” Wife`s claim that the court
failed to exercise its discretion in rejecting the MGMA
survey lacks merit.
Regarding Christensen`s local survey, wife complains it was
conducted after expert reports were exchanged and the
information presented “could not be corroborated or
verified, . . . and there was no way to ascertain the
accuracy of the numbers or their relevance to [husband`s]
practice.” But the court “gave very little weight to this
`survey`” and did not consider it.
Lastly, wife objects to the court placing the burden of
securing a vocational rehabilitation specialist or a
medical headhunter on her alone. The court did no such
thing. It faulted both parties for failing to supplement
the surveys and expert testimony with additional evidence.
Absent such evidence, the court had no choice but to pick
the methodology it believed would best establish reasonable
compensation under the facts of the case. It did not abuse
its discretion in doing so.
c. Surgical Center
Husband`s medical practice included a surgery center that
was built out during the marriage in 1996. Wife contends it
was a separate business from husband`s medical practice and
that the court erred in determining otherwise. Substantial
evidence supports the court`s conclusion.
From 1996 to 2000, husband did not rent out the surgical
center. In January 2001, a Dr. Grover began renting it on a
monthly basis. But there was no separate accounting for the
surgical center and no separation of expenses attributable
to it. For these reasons, and because Dr. Grover had rented
the room for only eight months prior to the date of
separation, Christensen testified the surgical center was
not a separate business from the medical practice. The court
was well within its discretion in adopting Christensen`s
opinion.
Wife argues the court failed to give an explanation of its
findings, as required under Code of Civil Procedure section
634, and instead merely “responded it did not believe that
goodwill could be derived from a `month-to-month tenancy.`”
This misrepresents the record and takes the court`s
comments out of context. Although the court did “wonder . .
. how do you get good will [sic] out of a leasehold which
is a month-to-month tenancy,” it also identified the
factors upon which it relied. These include its belief the
situation was “somewhat akin to renting out empty [office]
space,” and the facts that there was no separate accounting
and “nobody in the community really considered this to be a
totally separate entity over . . . and above the plastic
surgery practice.” It also includes the fact that Mehner
could not categorize the expenses that were attributable
solely to the surgical center, as opposed to husband`s main
practice.
Wife maintains the court misunderstood the evidence in
stating there was no separate bookkeeping or accounting for
the surgical center. She asserts husband kept a separate
ledger identifying Dr. Grover`s gross receipts and rental
income and reported the rental income on his 2001-2003
income tax returns, and that Mehner “used reasonably
accepted accounting principles to arrive at the expenses
associated with the [surgery c]enter, in order to deduce
net cash flow.” The trial court considered this evidence
and rejected it. We will not reweigh the evidence.
Additionally, the record does not support wife`s claim the
court “simply rejected [Mehner`s opinion], without
comment.” The court explained that Mehner`s testimony
regarding “the expense portion . . . was, at best,
conjectural in terms of what the expense component of the
[surgical] center was. They were a series of extrapolations
which were not explained satisfactor[il]y . . . .” Mehner
himself acknowledged that his analysis was simply an
estimate of what expenses “might be” “based upon what would
make sense . . . in terms of potential expenses that might
be associated with that surgery portion of the facility.”
(Italics added.) Given the speculative nature of Mehner`s
testimony, the court was well within its discretion in
concluding as it did.
We reject wife`s contention the surgical center was a
community asset that should be separately valued as of the
trial date. The parties stipulated that the medical
practice should be valued as of the date of separation.
They left for trial, however, the issue of whether the
surgical center was a free-standing center, in which case
wife argued its goodwill value should be determined as of
the time of trial. Once the trial court determined the
surgical center was an indivisible part of the medical
practice, the parties` stipulation required it to be valued
as of the date of separation.
As a fallback, wife argues that even if the surgical center
was part of the medical practice, the court “deprived the
community of its fair share” by using the rental income
received from Dr. Grover in the first eight months of 2001,
then weighting it using “the prior five years for which
[husband] reported no rental income,” rather than
considering the increasing postseparation rental income. We
discern no error.
In Rosen, the court observed that the excess earnings
method of determining a professional practice`s goodwill
requires an initial determination of “`a practitioner`s
average annual net earnings . . . by reference to any
period that seems reasonably illustrative of the current
rate of earnings.` [Citation.]” (Rosen, supra, 105
Cal.App.4th at p. 820.) Because the husband`s net income was
volatile, the court held that using his net income for one
year “alone is neither an average nor `reasonably
illustrative` of his earnings,” and thus the husband`s
expert “`should have averaged it.`” (Ibid.) Following Rosen,
the court in this case appropriately weighted the income
over the five years before the separation because “the
rental income [was] part of the general overall income
stream of the practice and that is part and parcel of the
weighted income average.”
Wife is correct that “Rosen did not provide that a single
year is always wrongly used.” But her assertion that “the
last year was, and is, the best illustrator of . . . the
current income of the center” is flawed because it
incorrectly assumes the surgical center was a separate
business.
3. Spousal and Child Support
Wife contends: (1) the court`s support orders left her and
the children at a standard of living significantly below
that enjoyed by husband; (2) income from earnings and
property should not have been imputed to her and the wrong
methodology was used in any event; (3) a step-down in
support was improperly based on her future earning
capacity; (4) all of husband`s income should have been
considered in setting support; and (5) the court otherwise
erred in computing support. We find no error.
a. Spousal Support
“Spousal support is governed by statute. [Citation.] In
ordering spousal support, the court must consider and weigh
all of the circumstances enumerated in [Family Code section
4320; all further statutory references are to this code
unless otherwise indicated], to the extent they are
relevant to the case before it. [Citations.] The first of
the enumerated circumstances, the marital standard of
living, is relevant as a reference against which the other
statutory factors are to be weighed. [Citations.] The other
statutory factors include: contributions to the supporting
spouse`s education, training, or career; the supporting
spouse`s ability to pay; the needs of each party, based on
the marital standard of living; the obligations and assets
of each party; the duration of the marriage; the
opportunity for employment without undue interference with
the children`s interests; the age and health of the
parties; tax consequences; the balance of hardships to the
parties; the goal that the supported party be
self-supporting within a reasonable period of time; and any
other factors deemed just and equitable by the court.
[Citation.]” (Cheriton, supra, 92 Cal.App.4th at pp.
302-304, fns. omitted.) The trial court has broad discretion
in balancing the applicable statutory factors and
determining the appropriate weight to accord to each, but
it may not be arbitrary and must both recognize and apply
each applicable factor. (Id. at p. 304.) Once it does, “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.]” (In re Marriage of Kerr (1999) 77 Cal.App.4th
87, 93.) “`Because trial courts have such broad discretion,
appellate courts must act with cautious judicial restraint
in reviewing these orders.` [Citation.]” (Ibid.)
Here, wife contends the trial court did not properly
consider various factors in determining the amount of
spousal support. We turn to these now.
i. Marital Standard of Living
One of the factors the court must consider in awarding
spousal support is “[t]he needs of each party based on the
standard of living established during the marriage.”
(§ 4320, subd. (d).) The marital standard of living
has been described as “reasonable needs commensurate with
the parties` general station in life. [Citation.]” (In re
Marriage of Smith (1990) 225 Cal.App.3d 469, 491 (Smith).)
The actual marital standard of living is not “an absolute
measure of reasonable need, but merely a `basis` or
reference point for determining need and support.” (Id. at
p. 484.) “It is a general description, not intended to
specifically spell out or narrowly define a mathematical
standard.” (Id. at p. 491.) As such, “it is not in and of
itself sufficient to sustain an award of permanent support.
[Citation.] Likewise, a disparity in income, standing
alone, does not justify an award of spousal support.
[Citation.]” (In re Marriage of Zywiciel (2000) 83
Cal.App.4th 1078, 1081.) In assessing the parties` marital
standard of living, the trial court may consider their
income, expenses, and lifestyle during their marriage.
(Cheriton, supra, 92 Cal.App.4th at p. 307.) The court did
so in this case and concluded the marital standard of
living was $20,000.
Wife argues this was error because the court did not
consider her expenses. She contends that because Cheriton
determined the marital standard of living by taking the
total family income, adjusting it for the husband`s
absence, and deducting specific expenses, the trial court
had a duty to do the same. It did not.
Although a court may properly consider both income and
expenses in determining the martial standard of living
(Cheriton, supra, 92 Cal.App.4th at p. 307, fn. 23), it may
also base it on the family`s average income, rather than
expenses. (In re Marriage of Weinstein (1991) 4 Cal.App.4th
555, 566 (Weinstein).) Average income is particularly
appropriate where, as here, there was evidence the parties
lived beyond their means. (Ibid.) Moreover, the court
considered her claimed expenses of $50,000 a month but
found them unreasonable when compared to the $61,000 gross
average a month husband made prior to separation and the
$87,500 a month the parties stipulated that husband was
making or was capable of making. The trial court was not
required to accept wife`s assertion of claimed expenses and
acted within its broad discretion in determining what it
deemed her actual needs and expenses. (Smith, supra, 225
Cal.App.3d at p. 487.)
Likewise, the record does not support wife`s claim the
court ignored evidence of the parties` pattern of savings
and investment, as required by In re Marriage of Drapeau
(2001) 93 Cal.App.4th 1086. That case held only that “the
trial court should have considered the parties` practice of
savings as an element in their [marital standard of
living].” (Id. at p. 1098.) Here, the trial court
acknowledged there was evidence of “a couple of savings
plans” and that the parties had “put some bucks aside.” But
it also found that during the marriage, they had “spent
everything [husband made] every month.” Even after
separation, wife continued to spend “everything every month
and then some.” Whether the parties were living beyond
their means is an appropriate factor for the trial court to
balance against other considerations in order “to reach a
`just and reasonable` result.” (Smith, supra, 225 Cal.App.3d
at p. 490; see also Weinstein, supra, 4 Cal.App.4th at p.
566.)
The record also belies wife`s assertion the court did not
consider her efforts in raising the children and tending to
one child`s special needs. The court assessed evidence of
wife`s childrearing obligations, including with respect to
the autistic child, but disagreed with wife`s belief she
needed “two nannies, a cook, and a couple of babysitters,”
as well as a personal assistant.
Nor is there any merit to wife`s contention the court
refused to acknowledge that husband was continuing to
increase his earnings. The court considered both the
$61,000 average a month husband made prior to separation
and the stipulated $87,500 a month that he was making or
was capable of making. Although it believed the “marital
standard of living . . . is set at the date of separation”
while “[t]he ability to pay is whatever it is now,” the
court expressly stated it took “the ability to pay into
account.” In particular, the court viewed the $87,500 per
month that husband was making or was capable of earning
insofar as “it impact[ed] on his ability to carry out the
financial concordance of the court`s order.”
Moreover, a trial court is not required to consider a
supporting spouse`s postseparation income in awarding
spousal support. (Weinstein, supra, 4 Cal.App.4th at p.
566.) Although “an increase in post-separation income may
be considered for purposes of bringing the supported
spouse`s level of support up to that necessary to maintain
the parties` marital standard of living[, w]here, as here,
an award based on marital income level is sufficient to
sustain the marital standard of living, there is no
occasion to draw upon post-separation income. `It is [the
supported spouse`s] needs which must be examined, not [the
supporting spouse`s] standard of living due to
postseparation separate property earnings.` [Citation.]”
(Ibid.) In re Marriage of Ostler & Smith (1990) 223
Cal.App.3d 33, which wife cites, does not persuade us
otherwise. That case merely held the trial court did not
abuse its discretion in awarding additional support based
on a percentage of the supporting spouse`s future bonuses.
(Id. at p. 50.)
Wife maintains that the court abused its discretion because
the support order “leaves the parties at significantly
different standards of living . . . .” But equality of
postseparation income is not an element of section 4320 in
setting spousal support. (See § 4320.) At best, the
marital standard of living entitled wife to financial
support commensurate with her lifestyle before she and
husband separated. Although the law protected her from a
precipitous drop in her standard of living after her
divorce, it did not guarantee her dollar-for-dollar
equality between her postseparation income and husband`s.
(In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351,
363 [support award “must bear some relationship to the
standard of living of the parties during their marriage and
not the [postseparation] standard of living of the
supporting spouse”].)
Wife`s authorities do not demonstrate her income must equal
husband`s. In the decisions she cites, In re Marriage of
Andreen (1978) 76 Cal.App.3d 667, 671-672 and In re
Marriage of Ramer (1986) 87 Cal.App.3d 263, 273, superseded
by statute on other grounds, as set forth in In re Marriage
of Romero (2002) 99 Cal.App.4th 1436, 1441-1442, the
differences in postseparation income meant the difference
between poverty for one spouse and relative comfort for the
other. Wife`s situation bears no similarity to the
penurious state of the ill-supported spouses in Andreen and
Ramer.
Wife asserts that because husband can afford it, she
“should be allowed to live at the marital standard.” But
she has not demonstrated that the court`s orders left her
and the children “below the marital standard.” The trial
court set the marital standard of living to be $20,000 per
month and determined that wife would be able to meet that
standard “with a combination of child support, spousal
support, and reasonable interest” from the assets awarded,
along with the $3,000 monthly income imputed to her.
Taking these statements out of context, wife claims it was
improper for the court to find some of her individual
“needs would be satisfied by the payment of child support.”
The court never said that and wife has not cited any
authority providing that child support may not be
considered in determining whether the marital standard was
met. Both section 4053 and In re Marriage of Hubner (1988)
205 Cal.App.3d 660 involve guidelines for setting child
support, not the marital standard of living. Wife claims
the court placed an “unfair burden, not contemplated by the
law,” on her to return to court if the amount of support
awarded proves insufficient. The argument is apparently
based on In re Marriage of McNaughton (1983) 145 Cal.App.3d
845, 852-853, where the court noted the supporting spouse
could seek a modification of spousal support after a
reasonable period. But nowhere does it say the supporting
spouse always has the burden to seek a modification of a
spousal support order. Case law provides otherwise (see In
re Marriage of Winick (1979) 89 Cal.App.3d 525, 531 [trial
court did not abuse its discretion in placing burden on
supported spouse to seek modification of support if
desired]), and wife has not explained why requiring her to
seek a modification would deprive her of her day in court.
In fact, it would give her yet another day in court.
ii. Imputation of Income
Wife objects to the imputation of income to her from her
share of the community property without considering
outstanding debts and the purchasing of a residence in
Newport Beach. The court considered such factors. Her claim
that there was no substantial evidence showing “she would
receive income from her share of the community property”
because the court did not consider her need to buy a home
lacks merit.
Citing In re Marriage of Kennedy (1987) 193 Cal.App.3d
1633, wife argues “the court must look to the actual, not
theoretical, return on the property [she] receives.”
Kennedy did not did not say that. It believed the trial
court had “overstepped its bounds by using a 10 percent
return” but that it “would have been within the court`s
discretion to consider the rate of return earned on the
balance of the property division after purchase of [a]
home.” (Id. at p. 1641.) Here, after considering wife`s
need to purchase a residence, the court imputed a 4.3 or
4.5 percent interest return on her assets because that was
the government bond rate at the time. It did not require
her to invest the assets or invade their principal. We find
no abuse of discretion.
Wife also challenges the imputation of income to her for
the purpose of setting spousal support. The law is
established “that a trial court may consider earning
capacity in determining spousal support . . . .” (Cheriton,
supra, 92 Cal.App.4th at p. 308.) A spousal support order
requires the trial court to balance a number of different
factors. (§ 4320.) One of these is “the goal that
the supported party shall be[come] selfsupporting within a
reasonable period of time.” (§ 4320, subd. (l).)
“[T]he weight to be given [this] factor [lies] within the
trial court`s broad discretion. [Citation.]” (Cheriton,
supra, 92 Cal.App.4th at p. 308.) Another factor within the
court`s broad discretion is “[t]he ability of the supported
party to engage in gainful employment without unduly
interfering with the interests of dependent children in the
custody of the party.” (§ 4320, subd. (g).) The
court considered this factor and found wife`s earning
capacity was not impaired by her domestic duties.
Wife argues the court erred by imputing income to her
without “considering whether such was in the best interests
of [the] children” under Cheriton. Wife acknowledges
Cheriton was referring to child support (Cheriton, supra,
92 Cal.App.4th at p. 301), but she asserts the same
considerations should be applicable to spousal support. They
are not. “Unlike a child support order . . . a spousal
support award does not require the court to consider the
children`s best interests. [Citation.]” (Id. at p. 308.)
Moreover, unlike in Cheriton, the court here made express
findings that the imputation of income was in the
children`s best interests.
County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771 does
not support wife`s argument the court abused its discretion
in imposing an earning capacity on her. That case held that
an award of restitution to the county for Aid for Families
with Dependent Children benefits paid to a mother could not
be based on the mother`s earning capacity during the period
she was unemployed because she was the primary caretaker for
her younger child and was thus exempt from seeking work
under the AFDC statutes. (Id. at p. 1280.) No statutory
exemption exists here.
Also baseless is wife`s claim that she should be given a
reasonable time to “fulfill her parental duties” before
imputing income to her. The court gave her a reasonable
time. No income was imputed to wife for seven and a half
months and even then the spousal support was only reduced
by $1,000. Wife has not demonstrated this was unreasonable.
iii. Step Down in Support
In a related contention, wife asserts “there was no factual
basis” for the orders stepping down support. The record
shows otherwise.
The court premised its step-down order on evidence of
wife`s earning capacity, consisting of her testimony and
the vocational examination report of Michael Bonneau. Wife
testified she had completed law school and was taking
refresher courses along with bar exam study courses. She
hoped to “pass the bar, and then start looking for
employment.” If she did not pass, she intended to “look for
work as a legal assistant.” In his expert report, Bonneau
opines that wife is “employable” and could earn between
$2,080 and $3,560 per month as a paralegal. Alternatively,
wife may pass the bar and seek employment as an attorney
with a potential annual salary between $57,000 and $86,000
as a first year associate.
Wife complains she “was just about to turn 43, had
completed her legal education ten years ago, . . . had not
worked in the field[,] and had not passed the bar.” She
also claims “[t]here is no basis for finding [she] can
obtain full-time employment” and “[b]oth . . . Bonneau`s
report and [her] own testimony support that her domestic
duties would prevent that and would be a substantial
obstacle to any employment.” These same arguments were
presented to, considered, and rejected by the trial court.
We will not reweigh the evidence.
Wife maintains the trial court should not have presumed her
law degree would “result in a substantially enhanced
earning capacity as a matter of law.” The court made no
such presumption.
Wife questions how the court could consider a further step
down in child support speculative and not consider it
speculative for spousal support. The comparison is inapt.
Child support and spousal support have different purposes
and are governed by separate statutes and guidelines.
(Compare §§ 4050-4076 with §§ 4300-4360.)
As noted above, one of the statutory factors
the court must consider in awarding spousal support is
“[t]he goal that the supported party shall be
self-supporting within a reasonable period of time.”
(§ 4320, subd. (l).) No similar factor exists for
determining child support. (See §§ 4050-4076.)
Contrary to wife`s assertion, In re Marriage of Andreen,
supra, 76 Cal.App.3d 667 did not reverse the step-down
order dropping spousal support to $1 per month at the end
of five years. (Id. at p. 672.) Nor does In re Marriage of
Regnery (1989) 214 Cal.App.3d 1367 require, as wife claims,
a finding that the supported spouse should be employed full
time before an earning capacity could be imputed. Rather, it
stated an earning capacity may be imputed when there is an
ability to work, a willingness to work, and “an opportunity
to work which means an employer who is willing to hire.
[Citations.]” (Id. at p. 1372.) These factors were met
here.
Finally, section 4062, subdivision (a)(1) concerns child
support. It has no application to spousal support.
iv. Termination of Support
Wife also criticizes the court for setting a spousal
support termination date. She argues termination after a
long marriage is disfavored and cannot be based on
speculation. But the cases she cites merely provide that
before the court may order a date-certain termination of a
spousal support order, there must be evidence in the record
the supported spouse “would be able to provide for herself
at that time.” (In re Marriage of Vomacka (1984) 36 Cal.3d
459, 468; In re Marriage of Morrison (1978) 20 Cal.3d 437,
454; see also In re Marriage of Beust (1994) 23 Cal.App.4th
24, 29.) Such evidence existed here.
Wife asserts that the party seeking termination has the
burden of justifying the spousal support termination order.
That may be (see In re Marriage of Prietsch & Calhoun
(1987) 190 Cal.App.3d 645, 660), but wife as the appealing
party bears the burden of demonstrating the trial court
abused its discretion. (Denham v. Superior Court (1970) 2
Cal.3d 557, 566.) She has not done so.
v. Remaining Spousal Support Issues
Wife is correct that tax consequences must be considered in
awarding spousal support, but the record shows the court
considered them. Also without merit is her contention the
court failed to consider “income from [an] apartment
building which [husband] had apparently gifted to his
parents and the $2,100 he received from another rental
property . . . .” The only supporting evidence consists of
husband`s testimony that he “did a[n Internal Revenue Code
section] 1031 exchange and purchased a . . . rental
property . . .[,]” which gave him “[j]ust over $2,000 a
month . . . .” At the hearing on wife`s objections to the
statement of decision, the trial court ordered the parties
to meet and confer about revising the stipulated amount of
income. Once that was done, the court agreed to modify the
child support figure. Whether that was done is not part of
the record. Regardless, the court did not fail to consider
the income, as wife claims.
In her reply brief, wife asserts the trial court failed to
consider additional factors. These issues require no
discussion, however, because we need not consider new
issues raised for the first time in a reply brief in the
absence of good cause, and wife has not shown any.
(Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
b. Child Support
Although wife purports to challenge the child support
orders along with the spousal support orders, she has not
claimed the child support award was insufficient. Even if
such a claim was buried in her brief, no error has been
shown.
Section 4057, subdivision (a) states, “The amount of child
support established by the formula provided in subdivision
(a) of Section 4055 is presumed to be the correct amount of
child support to be ordered.” The trial court calculated
child support pursuant to section 4055. Wife failed to
carry her burden of showing the court misapplied the
formula or that the application of the formula was unjust
or inappropriate. (§ 4057, subd. (b).)
4. Miscellaneous
Throughout the brief, wife raises several conclusory or
cursory claims that are not properly briefed because they
are not supported by authority or reasoned legal argument
or both. As a result, those issues are waived. (Evans v.
CenterStone Development Co (2005) 134 Cal.App.4th 151,
165.)
DISPOSITION
The judgments are affirmed. Respondent shall recover his
costs on appeal.
WE CONCUR:
SILLS, P. J.,
ARONSON, J.