Marriage of Sanchez CA2/1 ( 2023 )

Filed 5/24/23 Marriage of Sanchez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of B316456
CARMEN PYRAH SANCHEZ
and MICHAEL REY SANCHEZ. (Los Angeles County
Super. Ct. No. 18STFL03404)
CARMEN PYRAH SANCHEZ,
Appellant,
v.
MICHAEL REY SANCHEZ,
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark A. Juhas, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
Appellant.
Law Office of Herb Fox and Herb Fox for Respondent.
Carmen Pyrah Sanchez appeals from a judgment dissolving
her marriage to respondent Michael Rey Sanchez. Carmen1
argues the family law court erred by denying her request for a
statement of decision, that the court’s findings were unsupported
by the evidence, and that a ruling on a debt owed to the person
who staged the family home for sale was a separate property
issue beyond the scope of the court’s jurisdiction.
We agree the family law court erred by not issuing a
statement of decision regarding its denial of Carmen’s request for
the return of certain intimate photographs and videos, for which
the court offered no explanation in either its tentative decision or
its final judgment. Carmen otherwise fails to show prejudice
from the absence of a statement of decision as to any other issue,
or that the court’s findings were not supported by the evidence.
We reject Carmen’s jurisdictional argument for lack of citation to
evidence in the record or legal authority.
Accordingly, we affirm in part, reverse in part, and remand.
BACKGROUND
Carmen and Michael married in 2004. They have two
children, born in 2007 and 2013. They separated in 2017.
Carmen petitioned for divorce on March 19, 2018.
Following trial, the family law court issued an
approximately 15-page written ruling on June 10, 2021
addressing matters taken under submission, including child
custody, child and spousal support, division of property, and
1 We will refer to the parties by first name for clarity, not
out of familiarity or disrespect. (See In re Marriage of
Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
2
other matters.2 We summarize only the rulings challenged in
this appeal, and provide more detail on those rulings in the
relevant sections of our Discussion, post.
The court awarded Carmen spousal support beginning at
$5,000 per month, gradually reduced to zero by June 1, 2027.
The court granted Michael’s request under Family Code3 section
2640 for reimbursement for his separate property contributions
to the purchase of the family home, and further characterized as
his separate property his contributions to a 401(k) account made
before marriage and after separation. The court attributed to
Carmen any debt due to the person that staged the family home
for sale, because the court found Carmen had the missing staging
items.
The family law court did not rule expressly on a pocket
brief Carmen filed on the day of closing arguments, May 27,
2021, in which she requested that Michael return all photographs
and videos in his possession of Carmen “in any state of undress.”
Rather, the court’s ruling stated, “All other requests, unless
specifically addressed in this or the April 2, 2021 ruling are
specifically denied.”
On June 18, 2021, Carmen filed a request for a statement
of decision under Code of Civil Procedure section 632. The
request, an eight-page document, consisted of underlined
headings listing the general topics Carmen wished addressed,
with most headings followed by a detailed list of requests for
2 In addition to deciding the submitted matters, the trial
court’s ruling incorporated previous rulings reflected in an earlier
April 2, 2021 minute order. The rulings from the April 2 minute
order are not at issue in this appeal.
3 Undesignated statutory citations are to the Family Code.
3
findings and legal authorities pertaining to each topic. Among
the topics on which Carmen sought a statement of decision were
the spousal support award, Michael’s section 2640
reimbursement claims on the proceeds of the sale of the family
residence, his separate property claims on the 401(k) account,
and Carmen’s request for the return of the photographs and
videos of her.
Four days later, on June 22, 2021, before the family law
court had taken any action on Carmen’s request for a statement
of decision, Carmen filed objections to, and a request for
clarification of the court’s June 10, 2021 written decision. Four
pages of the filing consisted of Carmen’s objections to the court’s
section 2640 reimbursement to Michael for his separate property
contributions to the family home. She argued Michael’s
reimbursement request was untimely, the court improperly
placed the burden on the community to perform an accounting or
record tracing, and the court ignored applicable community
property presumptions. Carmen similarly argued Michael had
failed adequately to trace the separate property he purportedly
contributed to the retirement accounts. Carmen also contended,
inter alia, the family law court exceeded its jurisdiction in
attributing the debt from the staging company to her, and that
the court’s order gradually reducing her spousal support over
time was based on speculation rather than evidence.
On June 25, 2021, the family law court issued a minute
order denying Carmen’s request for a statement of decision. The
court first found the request was “untimely,” because the
June 10, 2021 decision “was a final ruling, not a tentative
decision.” Additionally, the court found the request was
“essentially seven and ½ pages of interrogatories,” and the court
4
was “not obligated to answer open ended questions concerning ‘all
factual and evidentiary findings and legal authorities’ concerning
each and every issue in the case.” The court stated its June 10,
2021 decision “sets forth in detail its reasoning; the Court has
little to add.” The court stated it had read and noted Carmen’s
objections filed June 22, 2021, but did not comment further on
them.
The family law court entered judgment on
September 7, 2021. The judgment is lengthy and detailed, and on
the matters at issue in this appeal largely mirrors the language
from the court’s June 10, 2021 ruling. The judgment, like the
June 10, 2021 ruling, does not expressly address Carmen’s
request for the return of the photographs and videos of her.
Carmen timely appealed from the judgment.
DISCUSSION
On appeal, Carmen contends the family law court erred by
failing to grant her request for a statement of decision on “four
material issues”: (1) Michael’s section 2460 claim regarding the
family home; (2) Michael’s separate property claim on the 401(k)
account; (3) the spousal support award; and (4) Carmen’s request
for the return of intimate photographs and videos. She also
challenges the sufficiency of the evidence as to the first three of
these “material issues.” Finally, she argues the family law court
lacked jurisdiction to impose on Carmen the debt owed to the
stager. We agree Carmen is entitled to a statement of decision
regarding the photographs and videos, but otherwise reject her
challenges.
5
A. The Denial of a Statement of Decision Regarding the
Photographs and Videos Was Prejudicial Error
We begin with Carmen’s challenge regarding the
photographs and videos.
Code of Civil Procedure section 632 provides, “[U]pon
the request of any party appearing at the trial,” the trial court
“shall issue a statement of decision explaining the factual and
legal basis for its decision as to each of the principal controverted
issues at trial.” Generally, a request for a statement
of decision “must be made within 10 days after the court
announces a tentative decision.” (See ibid.)
As discussed, Carmen filed a timely request for a statement
of decision on June 18, 2021, eight days after the family law court
announced its ruling on June 10, 2021. One of the underlined
headings in that request was entitled “Sensitive
Photographs/Videos,” and cited Carmen’s May 27, 2021 pocket
brief seeking the return of those photographs and videos.
Carmen asked for a statement of decision addressing “[a]ll
factual and evidentiary findings and legal authorities relied upon
by the Court in denying Carmen’s request that all photographs
and videos that depict her in any state of undress taken of her by
Michael, with or without her knowledge, during marriage should
be awarded to her, with Michael keeping no copies, and further
enjoining Michael from disseminating copies of any such
photographs and videos.” Under Code of Civil Procedure
section 632, Carmen was entitled to a statement of decision on
this issue.
Failure to issue a requested statement of decision does not
require reversal unless the appellant can show prejudice. (See
F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 [“a trial court’s error
6
in failing to issue a requested statement of decision is not
reversible per se, but is subject to harmless error review”].) Here,
there was prejudice. A statement of decision “provides us with
the trial court’s reasoning on disputed issues and ‘is our
touchstone to determine whether or not the trial court’s decision
is supported by the facts and the law.’ [Citation.]” (In re
Marriage of Starr (2010) 189 Cal.App.4th 277, 287.) The family
law court deprived Carmen of that “ ‘touchstone’ ” on the issue of
the photographs and video. The court did not otherwise provide
that touchstone in its June 10 decision or final judgment, neither
of which expressly addressed the issue of the photographs and
video.4
We recognize that the family law court found Carmen’s
request for a statement of decision untimely, reasoning that the
court’s June 10 decision was “final,” not “tentative.” (See Code
Civ. Proc., § 632 [request for statement of decision must be made
within 10 days of “tentative” ruling].) This was error. Because
4 The family law court briefly addressed the photographs
and videos orally when Carmen’s counsel raised the issue during
closing argument. Carmen’s counsel requested, as had Carmen’s
pocket brief filed that same day, that Michael return the
photographs and videos to Carmen, and that the court enjoin
Michael from disseminating any copies to anyone else. The court
stated, “I don’t have an ability to enjoin him from doing anything,
because there’s no evidence he has done anything. And this is
the first I’ve heard of this request to return these things.” The
court suggested Carmen’s counsel speak with Michael’s counsel
and “work something out.” Carmen’s counsel stated, “We saw
one,” and referred to a particular photograph of Carmen that
Michael purportedly showed his girlfriend. The court responded,
“I didn’t see it.”
7
the court had yet to enter judgment, its June 10 decision was still
subject to modification, and properly could have been
characterized as tentative for purposes of Code of Civil Procedure
section 632. (See Horning v. Shilberg (2005) 130 Cal.App.4th
197, 203 [“Until entry of judgment, the court may vacate or
change a previously rendered verdict as it sees fit.”].)
The Rules of Court also preclude the family law court from
issuing a final decision without first providing a tentative
decision and allowing the parties an opportunity to request a
statement of decision. (See California Rules of Court,5
rule 3.1590(a) [“On the trial of a question of fact by the court,
the court must announce its tentative decision”]; id.,rule 3.1590(d) [party may request statement of decision within
10 days of tentative decision].) The record does not indicate that
the family law court provided an oral or written tentative
decision on the matters at issue in this appeal prior to the June
10 ruling. Thus, under the Rules of Court, the June 10 ruling
was a tentative decision, and Carmen’s request for a statement of
decision was timely.
Michael concedes Carmen’s request was timely, but argues
the family law court properly denied the request “because of its
burdensome and improper interrogation style and [Carmen’s]
failure to propose suitable dispositions of the issues.” Michael
cites, inter alia, In re Marriage of Falcone & Fyke (2012)
203 Cal.App.4th 964, which held improper a request for a
statement of decision that was “a laundry list of 52 demands”
“rather than a request for the legal/factual basis for the trial
5 Further undesignated rule citations are to the California
Rules of Court.
8
court’s decision on the principal controverted issues.” (Id. at
p. 981.)
We need not address the merits of Michael’s argument as to
Carmen’s request for a statement of decision as a whole, which
the family law court similarly characterized as “a set of
interrogatories to the Court.” Unlike some of the other portions
of Carmen’s request for a statement of decision, which were
lengthy and included numerous subparts, the portion regarding
the photographs and videos was brief and straightforward,
asking the family law court for the factual and legal basis of its
denial of the relief sought in Carmen’s May 27, 2021 pocket brief.
We see nothing inappropriate about this request, nor would have
responding to it have been unduly burdensome.
We therefore reverse the judgment insofar as it denies the
relief requested in the May 27, 2021 pocket brief, and remand to
the family law court to prepare a statement of decision on that
issue. The family law court shall follow the procedures in rule
3.1590, including providing the parties an opportunity to object to
the statement of decision. (Rule 3.1590(g).) In directing the
family law court to prepare a statement of decision, we do not
suggest that the family law court must provide, as Carmen
requested, “All factual and evidentiary findings and legal
authorities” pertinent to the court’s decision as to photographs
and videos. (Italics added.) “A court’s statement of decision need
not respond to every point raised by a party or make an express
finding of fact on each contested factual matter; it need only
dispose of all basic issues and fairly disclose the court’s
determination as to ultimate facts and material issues in the
case.” (Duarte Nursery, Inc. v. California Grape Rootstock
Improvement Com. (2015) 239 Cal.App.4th 1000, 1012.)
9
B. Carmen Fails To Show Prejudice From the Absence
of a Statement of Decision Regarding Michael’s
Section 2640 Claim on the Family Home, and Her
Arguments Concerning Sufficiency of the Evidence
Are Irrelevant
In contrast to the issue of the photographs and video, we
conclude Carmen has not demonstrated prejudice from the family
law court’s failure to issue a statement of decision regarding
Michael’s section 2640 claim on the proceeds of the sale of the
family home. We also reject her challenges to the sufficiency of
the evidence.
1. Relevant background
Prior to his marriage to Carmen, Michael owned a
residence on Loadstone Drive.6 After they married, Michael and
Carmen lived for approximately 18 months in the Loadstone
home until they purchased a new home on Sunstone Place.
Michael testified he never changed the Loadstone deed to include
Carmen, and therefore it remained in his name even after
marriage. Michael further testified that he obtained a refinance
loan on Loadstone, and used approximately $350,000 of that loan
to pay the down payment for the Sunstone property. His trial
brief recited he contributed $370,748 to that down payment.
Michael sought reimbursement of that amount from the sales
proceeds of the Sunstone property pursuant to section 2640.
The family law court granted Michael’s reimbursement
request. In the June 10, 2021 ruling, the court stated, “The
6 In the reporter’s transcript and elsewhere in the record,
the street is erroneously spelled as “Lodestone.”
10
evidence demonstrates that [Michael] purchased Lo[ad]stone pre-
marriage. The evidence supports that the down payment of
$370,345 for Sunstone came from the Lo[ad]stone refinance.
[Michael] will receive his Family Code 2640 claim against the
Sunstone sale.”
In her request for a statement of decision Carmen asked for
the factual and evidentiary findings and legal authorities relied
upon by the family law court in resolving Michael’s section 2640
claim, and asked the court specifically to address the burden of
proof, tracing, apportionment, and application of community
property presumptions. In her objections to the June 10, 2021
ruling, Carmen argued, inter alia, that Michael had failed to
perform the necessary record tracing to establish his separate
property interest in the Loadstone home and the refinance loan
proceeds, and the court wrongly concluded it was her burden, not
Michael’s, to do so. Carmen further argued the court ignored the
statutory presumption that the Loadstone loan proceeds were
community property.
As discussed, the trial court denied Carmen’s request for a
statement of decision. The final judgment read similarly to the
June 10 ruling, stating, “The evidence demonstrates that
[Michael] purchased Loadstone before marriage and supports a
finding that the down payment of $370,345 for Sunstone came
from the Loadstone refinance, which was [Michael’s] separate
property. [Michael] will receive a Family Code 2640 claim
against the Sunstone sale proceeds.” (Italics omitted.)
It is not clear why the reimbursement ordered by the court
differs from the amount requested by Michael by $403, but
Carmen concedes the specific amount awarded is not material to
this appeal.
11
2. Analysis
Section 2640 provides, in relevant part, “In the division of
the community estate . . . , [a] party shall be reimbursed for the
party’s contributions to the acquisition of property of the
community property estate to the extent the party traces the
contributions to a separate property source.” (§ 2640, subd. (b).)
“ ‘Contributions to the acquisition of property’ . . . include
downpayments . . . .” (Id., subd. (a).) Under this provision, the
family law court awarded Michael reimbursement for the amount
the court found Michael had contributed to the Sunstone down
payment from his separate property, that is, the refinance
proceeds from Loadstone.
On appeal, Carmen does not reassert her argument below
that the family law court’s ruling failed to recognize that Michael
had not established through record tracing that Loadstone and
the proceeds from the Loadstone refinance were his separate
property. Rather, she argues that the family law court’s ruling
did not discuss adequately whether Michael had established any
separate property interest in the Sunstone home by virtue of
using his separate property to pay the mortgage or fund home
improvements on Sunstone.
Carmen states in her opening brief, for example, that the
family law court’s ruling “does not address the monthly mortgage
payments made from community funds over a decade nor the
apportionment of value at the marriage end of the community
versus separate interest in the [Sunstone] property.” Later in her
brief, she states, “No evidence was offered at trial to suggest that
during the marriage, Michael exclusively used a separate
property income source to pay the Sunstone mortgage or improve
the Sunstone property,” and “it was Michael’s burden . . . to rebut
12
the presumption that Sunstone property mortgage payments for
over a decade were made from a separate property source.”
Carmen objects that the family law court did not require Michael
to conduct a Moore/Marsden analysis7 “to allocate the relative
community and separate interests in the value of the [Sunstone]
home at the end of the marriage.” Carmen argues, “The practical
effect of the June 10, 2021 order was to place the burden of proof
on Carmen or the community, rather than Michael, to rebut the
presumption that Sunstone was a community asset.” Carmen
makes similar arguments in her reply brief, stating, “Neither the
trial court’s intended ruling nor the ultimate judgment disclosed
the character of the monthly payments to pay the Sunstone
mortgage or to improve the property.”
Carmen’s argument on appeal misapprehends the basis
both of Michael’s section 2640 claim and the family law court’s
ruling on that claim. Michael did not claim to have used separate
property funds to pay the Sunstone mortgage or improve the
property such as to have a separate property interest in
Sunstone. Nor did the family law court rule that Sunstone
was not a community asset.
7 When the marital community pays the mortgage on a
spouse’s separate real property, the Moore/Marsden rule
“provides a formula through which to apportion the property’s
value upon the marriage’s end,” recognizing that the marital
community has “a growing interest in the otherwise separate
property as community funds are used to increase the property’s
equity.” (In re Marriage of Mohler (2020) 47 Cal.App.5th 788,
790.) The rule is attributed to In re Marriage of Moore (1980)
28 Cal.3d 366 and In re Marriage of Marsden (1982)
130 Cal.App.3d 426.) (Marriage of Mohler, at pp. 791–793.)
13
Michael’s section 2640 claim was simply for reimbursement
of separate property funds contributed towards the Sunstone
down payment. Neither that claim, nor the family law court’s
ruling, had anything to do with separate property funds
expended after Sunstone was purchased. Michael’s purported
failure to prove he contributed to the Sunstone mortgage or home
improvements with separate property is thus irrelevant, as is the
family law court’s purported failure to address that issue in a
statement of decision. Put another way, Carmen cannot show
prejudice from a failure to address in a statement of decision a
claim Michael did not assert.
To the extent Carmen challenges the inadequacy of
Michael’s record tracing concerning the Loadstone refinance,8
and the absence of a statement of decision on that subject, she
attributes no prejudice to those failures other than, as noted
above, misapprehending that the family law court found that
Michael had contributed separate property funds towards
Sunstone mortgage payments and improvements. Because
Michael never requested such a finding and the family law court
in fact made no such finding, Carmen shows no prejudice, and
her challenge on that basis fails.
Carmen’s challenge to the sufficiency of the evidence in
support of the section 2640 claim fails for similar reasons.
8 In a footnote in her opening brief’s statement of facts,
Carmen states Michael’s testimony was “murky” regarding
whether the Loadstone refinance proceeds were his separate
property, and “[n]o tracing of the [loan proceeds] was offered by
expert or lay testimony.” Carmen also notes her accountant
expert’s testimony that Michael’s separate property claim to
Loadstone was “ ‘unsupported.’ ”
14
Carmen argues, “[T]here was no meaningful evidence offered
below as to [the] source of the monthly mortgage payments made
over a decade,” that “decade” referring to the approximately
10 years Michael and Carmen lived in the Sunstone home. She
further claims Michael failed to calculate “the relative
community and separate property shares of the Sunstone
property at the end of the marriage.” Again, Carmen challenges
the evidence in support of a claim Michael never made, and on
which the family law court never ruled. Her misapprehension of
the basis of Michael’s claim and the family law court’s ruling is
fatal to that challenge.
C. Carmen Fails To Show Prejudice From the Absence
of a Statement of Decision Regarding Michael’s
Separate Property Claim on the 401(k) Account, or
That the Ruling on the Claim Was Not Supported By
Substantial Evidence
Carmen similarly fails to show prejudice to the extent the
family law court did not provide a statement of decision
regarding Michael’s separate property interests in the 401(k)
account. Nor does she establish that the court’s ruling on that
issue was not supported by substantial evidence.
1. Relevant background
At trial, Michael testified that before he was married, he
contributed approximately $147,000 to a 401(k) retirement
account that he later rolled into a Merrill Lynch account. He
further testified that after he separated from Carmen, he
contributed an additional $42,500 to the Merrill Lynch account.
In its June 10, 2021 ruling, the family law court stated,
“[Michael] carried his burden of proof as to the separate property
15
component in the 401(K); [Michael] will receive a credit for
$147,336.66 in pre-marriage contributions and $42,500 in post-
separation contributions without appreciation.”
In her request for a statement of decision, Carmen asked
the court to address the separate property findings as to the
401(k) account, including the burden of proof, tracing,
apportionment, and any applicable community property
presumptions. In her objections to the June 10, 2021 ruling,
Carmen stated Michael had failed, inter alia, to produce records
tracing the amount in the 401(k) attributable to pre-marriage
contributions, and failed to apportion the market increases and
decreases in the intervening years.
In its final judgment, the family law court stated, similar to
the language in the June 10, 2021 ruling, that “[Michael] carried
his burden of proof as to the separate property component in the
[401(k) account] and will receive a credit for $147,336.66 in pre-
marriage contributions and $42,500 in post-separation
contributions, without appreciation, for a total of $189,837.”
2. Analysis
Carmen argues the family law court’s statement that
Michael “carried his burden” regarding the 401(k) account was
conclusory and inadequate to “assist this reviewing Court as to
how the trial court reached those numbers and the allocation and
tracing required to be done for payments made during the
marriage.”
We are unclear, and Carmen does not explain, what sort of
tracing and allocation was necessary. Michael was not making a
claim for “payments made during the marriage,” in Carmen’s
words, or even for the appreciation of his premarriage
contributions during marriage, which appreciation the family law
16
court did not award him. He only sought the money he put into
the account before marriage and after separation, the amounts of
which he provided through his testimony. Although Carmen
invokes the terms “tracing” and “allocation,” she cites no
authority and offers no argument that the family law court
could not rely on Michael’s testimony.
Given the straightforward nature of this issue—at least in
the absence of authority or argument from Carmen indicating it
is more complex than it seems—we fail to see what prejudice
Carmen suffered from the family law court not providing more
detail regarding the 401(k) account in a statement of decision.
As to her challenge to the sufficiency of the evidence in
support of the ruling on the 401(k) account, Carmen argues, “[N]o
testimony was offered suggesting that [the] contributions [to the
401(k) account] during marriage came from a non-community
income or property source.” Again, Michael did not claim any
separate property right to contributions made during marriage,
but instead, only to contributions made premarriage and
postseparation. Therefore there was no need for him to offer
evidence concerning the source of the contributions during
marriage.
D. Carmen Fails To Show Prejudice From the Absence
of a Statement of Decision Regarding the Spousal
Support Award, or That the Ruling on the Claim Was
Based on Unsupported Speculation
We reject Carmen’s arguments that she was prejudiced by
an absence of a statement of decision regarding the spousal
support award, or that the family law court based that award on
unsupported speculation.
17
1. Relevant background
Michael is an anesthesiologist. Carmen is a nurse.
Carmen stopped working in 2013 when their second child was
born. In 2020, two and a half years after the couple separated,
she resumed working as a nurse.
The family law court devoted approximately three and a
half pages of its June 10, 2021 ruling to the subject of spousal
support.9 We summarize the portions of that ruling relevant to
Carmen’s arguments on appeal.
The family law court first found the marriage was “a
statutorily long-term marriage of 13 years.” Carmen was in her
mid-40’s, “in good health and able to be gainfully employed.” The
court acknowledged Carmen had not worked during the last four
years of marriage to care for the children, and COVID-19 “may
have created a situation where she needed to be closer to home
for the children.” The children were set to resume a normal
school schedule in the fall, and thus Carmen’s “on-going
employment will not interfere with the interests of the children.”
In determining the marital standard of living, the family
law court noted the parties’ standard—calculated by Carmen as
income of $51,000 per month—was “inappropriately elevated”
because they had paid insufficient taxes for several years.
Although “the family made a significant amount of money, their
expenses were great,” including $60,000 a year for their
children’s tuition, and a monthly house payment of $7,000. The
family “did not take numerous luxurious family vacations, nor
did they drive expensive foreign cars.” “[A]ccounting for taxes,
9The parties stipulated Michael would pay $6,000 per
month in child support.
18
the Court finds that they would have enjoyed a slightly lesser,
but nevertheless upper middle-class lifestyle.” Adjusting
Carmen’s numbers to account for the unpaid taxes, the court
concluded the monthly family income was $34,000.
Turning to Carmen’s ability to support herself and the
children, the family law court noted evidence that beginning in
April 2020, Carmen was working on average 20 hours a week at
$40 per hour, although her actual pay rate ranged from $20 to
$70 per hour, and her actual hours varied from less than
10 hours to 30 hours a week, with most weeks being 10 hours or
less.
The family law court found that the children were now in
school full time, and therefore Carmen could work more hours,
“either with her current employer or with another employer.”
The court declined to “immediately impute an income to
[Carmen],” but would do so as of June 1, 2022, thus “giv[ing] her
an additional 12 months to seek, find and maintain work.” The
court found Carmen could achieve an annual salary of $60,000
assuming 30 hours a week at her current stated rate of pay of
$40 an hour.
The family law court calculated that out of the tax-
corrected family income of $34,000, the children absorbed all but
$11,600 of that, including tuition. This left “roughly $6,000 for
[Carmen].” The court awarded Carmen monthly spousal support
of $5,000 from June 1, 2021 to May 31, 2023, reduced to $3,000
from June 1, 2023 to May 31, 2027. Carmen would receive no
further spousal support from June 1, 2027 onward. The court
stated, “These amounts are designed to allow [Carmen] to get on
her feet with her employment and reach her income potential.
19
Further, even at her current income level, these amounts will
virtually meet the marital standard.”
As noted earlier, Carmen requested a statement of decision
regarding the spousal support award, among other topics. As to
that award, Carmen requested a statement of decision addressing
“All factual and evidentiary findings and legal authorities relied
upon by the Court in its determination of Carmen’s request for
permanent spousal support,” including, inter alia, “the
contributions, plight and impact of divorce and COVID-19 on
Carmen as a displaced homemaker and primary care provider for
the minor children,” “Carmen’s earning capacity, including but
not limited to the Court’s imputation of income to Carmen on
June 1, 2022,” “the marital standard of living,” “Michael’s ability
to pay spousal support,” “the obligations and assets of the parties,
including Michael’s separate property,” and “the balance of the
hardships to each party, as impacted by Michael’s exclusive
management, inaccurate reporting and underpayment of
community income tax liabilities.”
Also, as noted earlier, in her written objections to the
June 10, 2021 ruling, Carmen challenged the family law court’s
spousal support calculations, which she argued were based on
speculation.
The final judgment was consistent with the June 10, 2021
ruling as to spousal support; indeed the family law court largely
copied and pasted the June 10 ruling’s discussion of spousal
support into the final judgment.
2. Analysis
Apart from a section heading in her opening brief stating,
“The Absence of a Statement of Decision is Prejudicial Because it
Effectively Precludes Appellate Review as to Spousal Support,”
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Carmen offers no argument as to how she was prejudiced by the
family law court not issuing a statement of decision on that issue.
Rather, she notes the family law court granted her less support
than she requested in her trial brief, that she requested a
statement of decision regarding the trial court’s imputation of her
future income, and that she objected below that the court’s
calculation of her future income would not allow her to meet her
reasonable needs. The mere recounting of the proceedings below,
without any argument, is insufficient to show error on appeal.
(See In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 808
(Tobacco Cases) [“ ‘[A] party’s failure to perform its duty to
provide argument, citations to the record, and legal
authority in support of a contention may be treated as a waiver of
the issue.’ ”].)
We further note that on the issue of spousal support, the
family law court provided a detailed explanation of its reasoning,
both in its June 10, 2021 ruling and in the final judgment, and
thus provided extensive fodder for appellate review.
In addition to challenging the absence of a statement of
decision, Carmen challenges the spousal support award, arguing
the income the family law court imputed to her of $60,000 per
year would be insufficient “to meet her reasonable needs based on
the couple’s accustomed marital standard of living” on an annual
income of $600,000. She claims the court’s assumption that she
could find more work in the future than she had in the past was
“speculative,” given “her childcare obligations and her years out
of the work force.” Carmen further argues the court “did not give
sufficient weight to the couple’s accustomed marital standard of
living.” We review spousal support orders for abuse of discretion.
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(See In re Marriage of Maher & Strawn (2021) 63 Cal.App.5th
356, 363.)
Other than the above objections, Carmen does not explain
how the family law court’s calculations were in error, nor does
she propose an alternative calculation. Her claim that the
marital standard of living should be based on an annual income
of $600,000 disregards the court’s finding that this number was
inflated by nonpayment of taxes, and the actual number was
significantly lower. Of that lower income amount, the court
further found most of the funds went to support the children,
leaving approximately $6,000 per month for Carmen. The court
found $5,000 per month to be a reasonable amount, an amount
already achievable at Carmen’s current stated rate of pay and an
increase of work hours now possible with the children back in
school following the end of COVID-19 disruptions. The court did
not assume Carmen could achieve that income immediately, but
ordered Michael to provide support for six years. Carmen fails to
show the court’s support order was not carefully considered and
reasonable.
Carmen cites cases for the proposition that support orders
may not be based on speculation, but her cases, which we discuss
below, do not suggest the order in the instant case was
speculative.
In In re Marriage of Gavron (1988) 203 Cal.App.3d 705(Gavron), the trial court in 1987 terminated a spousal support
order issued in 1979, citing the wife’s “ ‘failure to become
employable or to seek training after so many years.’ ” (Id. at
pp. 707–708, 710.) The termination order provided that the
support would continue for another four and a half months and
then cease. (Id. at p. 708.)
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The Court of Appeal reversed the termination order,
holding that because the original 1979 spousal support order
placed no expectations on the wife to find employment, her lack of
employment in 1987 did not constitute a change of circumstance
justifying termination of the order. (Gavron, supra,
203 Cal.App.3d at p. 711.) Further, the termination order cutting
off support in four and a half months “was not ‘based upon
reasonable inferences to be drawn from the evidence, [but upon]
mere hopes or speculative expectations.’ [Citation.]” (Id. at
pp. 712–713.) The appellate court held that orders decreasing
support payments over time “ ‘ “cannot be based on mere
supposition as to what the supported party’s future
circumstances might be. Evidence in the record must support a
reasonable inference that needs will be less with each step-down
and that the spouse can realistically be self-supporting at the
time nominal payments are set to begin.” [Citation.]’ [Citation.]”
(Id. at p. 713.) Because the wife had had only sporadic
employment, and none since 1984, the record was “barren of any
such evidence.” (Id. at pp. 708–709, 713.)
In In re Marriage of Prietsch & Calhoun (1987)
190 Cal.App.3d 645, in a majority opinion, the Court of Appeal
reversed an order gradually reducing spousal support, holding
the order was unsupported by evidence that the wife’s financial
situation would significantly improve over the nine-year period
covered by the order. (Id. at pp. 653, 659.) Specifically, the
husband had offered no evidence to support his arguments that
the wife could make more money in a different city, that her
earning capacity would grow by virtue of advancement in her
career, that the favorable currency exchange rate between
Sweden, where the wife lived, and the United States would
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continue, or that the wife would inherit money upon her parents’
deaths. (Id. at pp. 657–659.)
In In re Marriage of Rosan (1972) 24 Cal.App.3d 885, the
Court of Appeal held that a spousal support order that phased
out after just three years was based on speculation, not evidence.
(See id. at p. 896.) “Here, the evidence is that Wife was not
employed during the marriage except for a very brief period;
there was no evidence that she had experience, training or
education to qualify her for suitable employment; she was not
employed at the time of trial and, indeed, was just about to
undertake a course of instruction in real estate and some college
courses to prepare herself for employment. Under these
circumstances her future earnings and earning capacity were
completely unknown, and such unknown future developments are
better left to modification proceedings which have been provided
for that very purpose, than to automatic reduction provisions
operative one and two years, respectively, in the future.” (Ibid.)
The facts of Carmen’s cited cases are too dissimilar to be
instructive here. In Gavron and Rosan, there was no evidence
the supported parties had the skills or experience to support
themselves within the timeframe set by the trial court. In
Prietsch & Calhoun, the trial court assumed, without evidence,
that the wife could work more hours and earn a higher salary. In
the instant case, in contrast, the family law court imputed income
to Carmen based on her own current stated rate of pay and an
assumption of 30 hours of work a week, which Carmen’s own
paystubs indicated she had achieved at times, and presumably
could do more readily in the future because her children were
back in school following the end of the COVID-19 shutdown. The
court also awarded Carmen support for six years, giving her
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significant time to obtain a job that would provide her additional
hours. The support award was not speculative, but supported by
reasonable assumptions based on the evidence.
E. Carmen Fails To Show Error From the Family Law
Court Attributing to Her the Debt Owed to the
Stager
In the final judgment, the family law court stated, “To the
extent that there is any money due to the stager of the Sunstone
house for the stager’s property missing from the Sunstone house
after the house sold, that debt is attributed in full to [Carmen].
Based on the trial testimony, [Michael] carried his burden of
proof that [Carmen] has the missing property.”
Carmen argues the stager’s claim “was Michael’s separate
property issue that arose post-separation,” and “such claims are
beyond the jurisdiction of a family law court.” She cites In re
Marriage of Braud (1996) 45 Cal.App.4th 797, which held that
the court in a dissolution action “ ‘may characterize disputed
assets and liabilities as being separate or community,
may confirm separate property to the owner spouse and, to the
extent permitted by statute, [and] may order reimbursement from
the community to a party’s separate estate or to the community
from a party’s separate estate. . . . But unless the parties
otherwise agree, the court’s jurisdiction over separate
property extends no further . . . .’ [Citations.]” (Id. at p. 810.)
Apart from the above cursory argument and the citation to
Braud, Carmen offers no support for her jurisdictional challenge,
that is, neither evidence nor legal authority establishing the
stager’s claim or whether that claim would be Michael’s separate
property. She provides insufficient record citations for us to
determine the specifics of the stager’s claim or the trial testimony
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addressing that claim. The one page in the reporter’s transcript
Carmen cites does not, in fact, address the stager’s claim, and the
portion of Michael’s trial brief she cites merely notes “[t]he
parties” owed $10,000 to the stager because “many items were
missing,” and “[b]oth parties deny taking them.” Again, it is
Carmen’s duty “ ‘to provide argument, citations to the record, and
legal authority in support of a contention,’ ” and her failure to do
so constitutes waiver of the issue. (Tobacco Cases, supra,
240 Cal.App.4th at p. 808.)
DISPOSITION
The judgment is reversed to the extent it denies the relief
sought in Carmen Pyrah Sanchez’s pocket brief dated May 27,
2021, concerning the return of certain photographs and videos.
The matter is remanded and the family law court is instructed to
prepare a statement of decision under Code of Civil Procedure
section 632 and California Rules of Court, rule 3.1590 regarding
its ruling on the relief requested in the pocket brief. The
judgment in all other respects is affirmed. The parties shall bear
their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
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