Filed 9/27/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION EIGHT


In re Marriage of KEVIN J. and      B272324
CATHY BERMAN.
                                    (Los Angeles County
                                    Super. Ct. No. BD426693)

KEVIN J. BERMAN,

       Appellant,

       v.

CATHY BERMAN,

       Respondent.




     APPEAL from orders of the Superior Court of Los Angeles
County, Laura L. Seigle, Judge. Affirmed.
     Buter, Buzard, Fishbein & Royce and Gary Fishbein for
Appellant.
     Law Offices of Robert L. Schibel and Robert L. Schibel for
Respondent.

                           ******
      Kevin Berman appeals from an order modifying the amount
of spousal support he is obligated to pay his ex-wife, respondent
Cathy Berman, and a subsequent order denying his motion for a
new trial, his motion to vacate, and his motion for
reconsideration. Kevin1 requested termination of spousal support
after he retired at age 65 and transferred his business to his
current wife for no consideration. The trial court found that
Kevin had transferred the business in bad faith in order to avoid
his support obligations and ruled that income from the business
could continue to be imputed to Kevin for purposes of spousal
support. We hold that the trial court did not abuse its discretion
and affirm the orders.
                         BACKGROUND2
1. Prior Proceedings
      Kevin and Cathy married in February 1974. The marriage
was dissolved in December 2006. On March 6, 2009, the court
ordered that Kevin pay $9,500 per month in spousal support.
      On May 30, 2013, Kevin and Cathy stipulated to an order
lowering the monthly support amount to $4,000.
2. Request to Modify Spousal Support
      On September 25, 2015, Kevin filed a request for an order
terminating further spousal support. He submitted a series of
declarations in support of his request. In these declarations, he

1     “As is common in family law proceedings, we use the
parties’ first names for purposes of clarity.” (In re Marriage of
Kochan (2011) 193 Cal.App.4th 420, 422, fn. 1 (Kochan).)
2     For brevity’s sake, the facts, including the summaries of
the parties’ papers below, are limited to those relevant to the
issues on appeal. We focus on the evidence submitted by Kevin,
as that was the primary basis for the trial court’s rulings.




                                 2
explained that he had turned 65 in July 2015 and decided to
retire, handing his business, Berman & Ely, a private
investigation and security firm, over to his current wife. He
stated that his wife now ran the business “full time,” and he was
“not involved in the operation and do[es] not work there.” Kevin
stated, “[M]y wife . . . has learned the trade and is running the
business.”
       A “Transmutation Agreement” executed June 29, 2015,
indicated that Berman & Ely had been transferred from Kevin to
his current wife and transmuted to her separate property. Kevin
received no consideration for the transfer.
       Kevin submitted income and expense declarations showing
an average monthly salary before retirement of $3,675. He also
listed an average monthly disability payment of $2,659 from his
earlier career as a police officer. In an attachment to one of the
income and expense declarations, he stated that before his
retirement he had “received gross income from Berman & Ely
totaling approximately $280,000 from January, 2014 through
June 30, 2015.” Kevin’s 2014 income tax return, submitted by
Cathy, listed $50,113 in salary and $220,442 in business income
from Berman & Ely.
       The trial court held a hearing in which it expressed doubt
that the law permitted Kevin to divest himself of an income-
producing asset and thereby terminate spousal support
obligations. The court continued the hearing so the parties could
provide additional legal briefing on the issue.
       Kevin filed a memorandum of points and authorities
arguing that under In re Marriage of Reynolds (1998) 63
Cal.App.4th 1373 (Reynolds) he was entitled to retire at age 65
and the court could not impute any income to him from the




                                3
business he had transferred to his wife. Kevin asserted there
was no evidence of bad faith—he did not transfer Berman & Ely
“in order to shirk his spousal support obligations,” but to leave
the business “in capable hands” upon his retirement.
3. The Spousal Support Order
       The court heard further argument on February 17, 2016.
The court found that Kevin’s retirement constituted a significant
change of circumstances since the last spousal support order,
given that he would no longer be receiving the $50,000 in salary
reported on his 2014 tax return. But the court stated that it
would nonetheless impute business income to Kevin from
Berman & Ely, “not as salary and wages, but as income produced
from an asset to [Kevin], that he would have continued to have if
he had not transferred it for no consideration to his current wife.”
The court found no evidence to explain why Kevin had not
received consideration for the transfer, and the court inferred
that the transfer was done at least in part to allow Kevin to claim
a reduced income. The court stated that the transfer “d[id] not
look like a transfer in good faith.”
       Kevin’s counsel argued there was no evidence “that the
business would continue to generate income as it did if [Kevin]
were still working in the business.” The court responded that it
was Kevin’s burden to prove otherwise, and given that Kevin had
said in his papers “that his wife is running the business capably,”
“there is every reason to believe that [the business] will continue
to generate income as an asset.”
       After considering the statutory factors for setting spousal
support under Family Code section 4320,3 the court reduced


3     All further statutory references are to the Family Code.




                                 4
spousal support “slightly” by $500 per month, to reflect Kevin’s
loss of $50,000 in salary upon retirement.
4. Postorder Motions
       Kevin filed a motion for a new trial, a motion to vacate, and
a motion to reconsider, all based on materially similar
arguments. He argued that Berman & Ely’s business revenue in
2014 was the result of his efforts and that the business could not
be expected to earn the same level of income if he was not
working there. Thus, he asserted, the court was essentially
forcing him to return to work to comply with its order. Kevin
disputed claims by Cathy regarding “the nature and success of
Berman & Ely” and stated that “[d]uring the last few years I was
operating the business, there was at best one retired police
office[r] working security and there was no investigation unit.”
He also argued that the court’s ruling made it impossible to
further modify the spousal support order because he would be
unable to show a change of circumstances based on a business he
no longer owned.
       The court denied the three motions following a hearing on
April 13, 2016. The court found no evidence that Kevin could not
have both retired and remained an owner of the business,
thereby continuing to receive income. The court reiterated its
finding that the evidence suggested that the business was
continuing without Kevin’s “personal business or labor” with his
current wife “own[ing] the profits.” The court stated, “The most
reasonable inference from the evidence that was presented is that
[Kevin] gave up his ownership interest, with the attendant right
to receive the profits of the business[,] in order to avoid paying
spousal support; and that he continues to receive the benefits of
the business income, the business profits, via his wife’s




                                 5
ownership of the business.” The court, quoting In re Marriage of
Dick (1993) 15 Cal.App.4th 144, 164-165 (Dick), stated that
Kevin’s wife could “be expected to act at his behest,” and
therefore Kevin was “capable of complying with the [spousal
support] order.” Similarly, if Kevin wished to seek to modify the
order in the future, he could access the necessary records to show
a decrease in business income.
       Kevin timely appealed.
                           DISCUSSION
       Kevin argues that the trial court abused its discretion by
imputing income to him from the business he had transferred to
his wife upon retirement. We disagree.
1. Standard of Review
       “The modification of a spousal support order is reviewed on
appeal for abuse of discretion. In exercising its discretion, the
trial court must follow established legal principles and base its
findings on substantial evidence. If the trial court conforms to
these requirements its order will be upheld whether or not the
appellate court agrees with it or would make the same order if it
were a trial court.” (In re Marriage of Schmir (2005) 134
Cal.App.4th 43, 47, fn. omitted.)
       When reviewing for substantial evidence, “all conflicts must
be resolved in favor of the prevailing party, and all legitimate and
reasonable inferences must be indulged in order to uphold the
trial court’s finding. [Citation.] In that regard, it is well
established that the trial court weighs the evidence and
determines issues of credibility and these determinations and
assessments are binding and conclusive on the appellate court.”
(In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046,
1051-1052 (Hill & Ditmer).)




                                 6
2. Applicable Law
      A court may modify a spousal support order upon a
showing of a material change of circumstances since the last
order. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 9.) The
party seeking the modification bears the burden of establishing a
material change. (In re Marriage of Stephenson (1995) 39
Cal.App.4th 71, 78 (Stephenson).) “In determining whether a
change of circumstances has occurred, the trial court is required
to reconsider the same standards and criteria set forth in . . .
Family Code section 4320 it considered in making the initial
long-term order at the time of judgment and any subsequent
modification order.” (Id. at pp. 77-78, fn. omitted.) These criteria
include, among other things, the earning capacity of each party,
the ability of the supporting party to pay spousal support, the
needs of each party, the age and health of the parties, the balance
of hardships to the parties, and any other factors the court
determines are just and equitable. (§ 4320.) In evaluating the
supporting party’s ability to pay support, the court may take into
account not only income actually earned, but also unearned
income and assets. (§ 4320, subd. (c); In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 305.)
      Even upon proof of a change of circumstances,
“modification is not necessarily mandated given the court’s
obligation to reconsider the statutory standard . . . .”
(Stephenson, supra, 39 Cal.App.4th at p. 78.) The trial court has
broad discretion in setting or modifying spousal support, and
among other things may take into account evidence of bad faith
on the part of the supporting party in meeting his or her support
obligations. Such evidence may justify holding a supporting
party to those obligations even if the acts taken in bad faith have




                                 7
ostensibly reduced the supporting party’s income. (See Kochan,
supra, 193 Cal.App.4th at p. 428 [if supporting party has made “a
deliberate attempt to depress income” in order “to avoid a support
obligation,” the court may base the support amount on the
supporting party’s earning capacity rather than actual income].)4
For example, the Court of Appeal in In re Marriage of Sinks
(1988) 204 Cal.App.3d 586 (Sinks) held that the trial court
properly denied a request to modify when it found that the
supporting party had retired early at age 62 specifically to avoid
paying spousal support: “Because the law does not sanction the
shirking of familial responsibilities, [the supporting party],
having chosen to retire at age 62 for improper motives, has the
option of finding work elsewhere or using his separate property to
meet his support responsibility.” (Id. at p. 594.)
      Similarly, if a court finds that a supporting party has
structured ownership of his or her assets to avoid his or her
financial obligations, the court may “look past the apparent form
of ownership . . . to determine the extent of [the supporting
party’s] true interest in them and the availability of those assets
in assessing [the supporting party’s] ability to pay.” (Dick, supra,
15 Cal.App.4th at p. 162;5 see Kohn v. Kohn (1950) 95 Cal.App.2d


4      There is no requirement, however, that a court find bad
faith before basing a support order on earning capacity. (Kochan,
supra, 193 Cal.App.4th at p. 428.)
5      Dick concerned an order granting temporary spousal
support rather than an order modifying a grant of permanent
spousal support, as is the case here. (Dick, supra, 15 Cal.App.4th
at p. 158.) Although there are differences between temporary
and permanent spousal support orders (see id. at p. 166), both
require the court to evaluate the supporting party’s ability to pay.




                                 8
708, 717-720 [corporate assets deemed to belong to husband when
corporation was formed in part to avoid spousal support
obligations].) In Dick, the Court of Appeal found “ample evidence
to support the trial court’s finding of husband’s ability to pay
based on assets and nonsalary income, not in husband’s name but
under his control.” (Dick, supra, at p. 161.) The “crucial finding”
by the trial court was that the husband had created “ ‘a labyrinth
of trusts and corporations designed by him . . . to shield and
protect [him] from creditors.’ ” (Ibid.) Among other things, the
husband “rid himself of all his United States assets by ‘selling’
them to his former secretary . . . and two business associates . . . .
No cash changed hands.” (Id. at p. 164.) The court noted that all
of the husband’s transfers “involve[d] people to whom he is
related or who are or have been his employees or business
associates, and who could, therefore, be expected to act at his
behest. It can be inferred from this evidence that husband is
capable of complying with the order for payment of support and
attorney fees.” (Id. at pp. 164-165.)
3. Analysis
       Based on the applicable law, we find no abuse of discretion
in the trial court’s ruling. Central to that ruling was the court’s
finding that Kevin had transferred Berman & Ely to his current
wife in bad faith with the goal of avoiding his support obligations.
This finding is supported by substantial evidence. It is
undisputed that Kevin transferred to his wife an asset that had
generated $220,000 in business income the previous year. It is
undisputed that there was no consideration for the transfer of
this apparently valuable asset. As the court noted, Kevin

(Id. at p. 159; § 4320, subd. (c).) Dick’s analysis of that factor is
therefore relevant and instructive in both contexts.




                                   9
presented no evidence to explain the lack of consideration for the
transfer. The court could reasonably infer that Kevin had
arranged this transaction to eliminate his business income on
paper while still enjoying its benefits through his wife’s
ownership. Similarly, the court could infer that Kevin’s wife
“could . . . be expected to act at his behest” (Dick, supra, 15
Cal.App.4th at pp. 164-165), and therefore Kevin had the ability
to pay spousal support despite the transfer of his business.6
      The only evidence that the transfer was in good faith came
from Kevin’s declarations and papers below, in which he insisted
that he did not transfer the business to avoid his support
obligations. The court did not believe him, and that credibility
determination is binding on this court. (Hill & Dittmer, supra,
202 Cal.App.4th at pp. 1051-1052; see In re Marriage of Meegan
(1992) 11 Cal.App.4th 156, 162 [determination of good faith is a
credibility determination within the trial court’s discretion].)
Although Kevin argues that, unlike in Dick, there was no
evidence that he continued to have access to the business, the
burden was on him, as the party seeking modification, to prove a
material change of circumstances. (Stephenson, supra, 39
Cal.App.4th at p. 78.) Here, the court found that the “material
change” of the business transfer was a sham and therefore could
not justify further modification of the spousal support order.7


6     We do not decide whether the court could hold Kevin to his
support obligations had it found that as a result of a bad faith
transaction he did not have the ability to pay further spousal
support.
7     Kevin further argues that Dick is inapplicable because
there the husband transferred assets to individuals not qualified
to manage them without his involvement, whereas Kevin’s wife




                                10
      Kevin raises a number of arguments that we address in
turn.
a. Reynolds
       Kevin argues that the trial court’s order violates Reynolds,
supra, 63 Cal.App.4th 1373, which held that “no one may be
compelled to work after the usual retirement age of 65 in order to
pay the same level of spousal support as when he was employed.”
(Id. at p. 1378.) Although the trial court lowered the spousal
support amount to reflect Kevin’s loss of $50,000 in salary upon
retirement, Kevin asserts the court should have recognized the
loss in business income as well. Kevin argues that unlike income
from an asset like a stock portfolio, which requires little or no
involvement from the owner, Berman & Ely’s business income
“was a function of Kevin’s efforts,” and “Kevin was the business,
and its income was derived from Kevin’s services.” Kevin’s
position appears to be that absent his labor, there is no business
income, or at least that the income is greatly reduced; therefore,
his retirement effectively terminated that business income just as
it terminated his salary, leaving nothing for spousal support. He
argues that to continue to base spousal support on that business
income going forward will force Kevin to continue to work past
age 65, which Reynolds prohibits.

was qualified to run Berman & Ely without him. This is
unpersuasive. Dick says nothing about the qualifications of the
people to whom the husband transferred the assets and the court
did not rely on those qualifications in its reasoning. The concern
in Dick was that the people to whom the assets were transferred
were relatives or business associates of the husband who could be
relied upon to act for his benefit. (Dick, supra, 15 Cal.App.4th at
pp. 164-165.) The court in this case could reasonably infer that
Kevin’s wife, similarly, could be relied upon to act for his benefit.




                                 11
       Again, the only evidence in support of Kevin’s position
came from his own declarations, which the court in its discretion
rejected.8 No business records or other evidence were offered to
establish how much of Berman & Ely’s income was attributable
to Kevin’s labor as opposed to other sources, and what potential
(or lack thereof) the business had to earn revenue without
Kevin’s involvement. Kevin’s counsel in fact acknowledged there
were employees besides Kevin, which raises questions as to
whether the income was derived solely from Kevin’s services,
especially in the absence of any further information about those
employees. Given the lack of evidence, the court reasonably
concluded that Kevin had failed to establish the relationship
between the business income and his labor and therefore failed to
establish that he would only be able to maintain that income by
returning to work. The court’s ruling did not violate the rule
from Reynolds.
       Kevin argues that the court should have treated the
transfer to his wife no differently than if Kevin had closed the
business, which, Kevin claims, Reynolds permitted him to do. Of
course, had Kevin closed the business, there would be no concern

8      We are not persuaded, as Kevin argues, that Cathy’s
statement that Kevin’s “celebrity clients . . . always wanted
[Kevin] personally to handle them” proves that his labor was the
sole source of revenue for Berman & Ely. First, Kevin himself
stated in a declaration that he had not discussed Berman & Ely
with Cathy since their divorce, and thus any information Cathy
had about the business “is either outdated or completely
incorrect.” But even accepting Cathy’s statement as accurate, it
only establishes that certain clients requested Kevin’s personal
services; it does not establish that such work was the sole or even
primary basis of Berman & Ely’s income.




                                12
that he still had access to its benefits through his wife, and thus
that particular evidence supporting a finding of bad faith would
not be present. Kevin counters that the court’s position, if
upheld, would prevent someone from passing a business on to a
son or daughter upon retirement. But the court did not hold, nor
do we here, that a supporting party may not transfer a business
to a relative (even a spouse), just that the supporting party may
still be held to his or her obligations if there is a finding,
supported by substantial evidence, that the transfer was in bad
faith and the supporting party still has access to the business
income.
b. Family Code section 4323, subdivision (b)
       Kevin argues that the court’s order improperly considers
his current wife’s income, in violation of section 4323, subdivision
(b). As relevant here, this subdivision states that “[t]he income of
a supporting spouse’s subsequent spouse . . . shall not be
considered when determining or modifying spousal support.”
(§ 4323, subd. (b).) Section 4323, subdivision (b) prohibits both
direct and indirect consideration; thus, a court cannot, for
example, “account for the indirect effects of this additional
income [from the subsequent spouse] on other considerations,
including the husband’s ability to pay and his standard of living.”
(In re Marriage of Romero (2002) 99 Cal.App.4th 1436, 1440,
1444-1445.) Kevin asserts that because Berman & Ely is now
owned by his wife, any future business profits will be earned by
her, and therefore under section 4323, subdivision (b) cannot be
considered in awarding or modifying spousal support.
       We disagree. The court was not considering Kevin’s wife’s
income in awarding spousal support; it was declining to recognize
a bad faith transfer and instead treating the business income as




                                13
if it were still Kevin’s. This is similar to Dick, in which the court
disregarded the ownership structure of the supporting party’s
assets upon finding that structure was created to avoid financial
obligations. (Dick, supra, 15 Cal.App.4th at p. 162.) It is also in
line with Sinks, supra, 204 Cal.App.3d at page 594, in which the
supporting spouse, having retired early for improper motives,
was obliged to continue meeting his support obligations despite
his retirement, either by “finding work elsewhere or using his
separate property.” In neither Dick nor Sinks did the court undo
the questionable transactions or retirement (see Sinks, at p. 594
[“The trial court’s order does not prevent [the supporting
spouse’s] retirement or his enjoyment of his pension
rights . . . .”]); rather, the court held the supporting parties to
their support obligations as if those events had not occurred.
Similarly, here the court’s order did not prohibit Kevin from
retiring and disposing of his business however he chose, including
giving it to his wife; but, having found that Kevin transferred the
business to avoid his support obligations while continuing to reap
benefits through his wife, the court did not abuse its discretion in
holding him to the consequences of that decision, and imputing
income to him as if the transfer had not taken place.9 To hold
otherwise would be an invitation for supporting parties to use
section 4323, subdivision (b) to shield their assets through bad
faith transfers to their new spouses, an outcome the Legislature



9     Kevin notes that Dick and Sinks did not involve retirement
at age 65 and asserts that Reynolds should control over those
cases. But since the court found (or at least was not convinced
otherwise) that Berman & Ely’s income was independent of
Kevin’s labor, Reynolds has no application.




                                 14
could not have intended: “[T]he law does not sanction the
shirking of familial responsibilities . . . .” (Sinks, at p. 594.)
       We reject Kevin’s argument that the court’s order
effectively forces his wife to work to support Cathy, or deprives
her of income she earns through her own efforts. We again
emphasize that the trial court found no credible evidence from
which it could determine how Berman & Ely’s income was
derived, and how much could be attributed to Kevin’s or his wife’s
personal labor as opposed to other sources. While our conclusion
likely would be different had the court been able to determine
that some or all of Berman & Ely’s income was earned through
Kevin’s wife’s efforts, in the absence of such a finding, or evidence
compelling such a finding, there is no basis to reverse the court’s
order under section 4323, subdivision (b).10
c. Calculation of future business income
       Kevin argues that the court erred in basing the support
order on Berman & Ely’s income in 2014, when Kevin still owned
and operated the business. Kevin claims the court was wrong to
assume the business would continue to generate income at the


10     Kevin also argues that because the court considered his
wife’s contribution to the couple’s monthly expenses (which
presumably were paid out of earnings from Berman & Ely), it
was a “double dip” to further impute those earnings to Kevin for
purposes of spousal support. We do not find this persuasive.
Although the court in analyzing the factors under section 4320
noted that Kevin had reported that his wife contributed $5,000 a
month to their combined expenses, there is no indication that the
court considered that $5,000 as being in addition to the presumed
future business income from Berman & Ely, or indeed that the
$5,000 was a material factor at all in setting the amount of
spousal support.




                                 15
same level it did before Kevin retired. Even if his wife was
running the business capably, Kevin argues, there “is no
indication that immediately out the gate she can make the same
income as someone who founded the business, built up the
business, cultivated clients, and had been operating the business
for 30 years.”
       In the absence of credible evidence as to how Berman & Ely
earned revenue and what part Kevin’s participation played in
those earnings, the court did not abuse its discretion in looking to
the business’s past earnings as a guide to future earnings. (See
In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1077
(Riddle) [prior 12-month period adequate representative sample
of salesperson’s earnings for purposes of calculating future
support obligations].)11 Nor did the court abuse its discretion in
using the 2014 income in particular, as this was the only tax
return presented to the court. To the extent 2014 was an outlier,
Kevin had the option to introduce other tax returns or business
records to show this, but did not. As for future earnings, the
court invited Kevin to return with additional evidence should
Berman & Ely’s income decline after his retirement.



11    Kevin claims that Riddle “rejected the imputation of
income based on historical earnings.” This is incorrect. Riddle
held that the trial court abused its discretion by basing support
amounts on the previous two months of a salesperson’s past
earnings, a time period that did not provide a “properly
representative sample.” (Riddle, supra, 125 Cal.App.4th at
p. 1077.) Far from rejecting the use of historical income data, the
appellate court stated the trial court should have instead relied
on data from a longer time period, namely the previous 12
months. (Ibid.)




                                16
       Kevin argues that once he made a prima facie showing of a
material change in circumstances, it was Cathy’s burden, not his,
to demonstrate Berman & Ely’s likely future income. Setting
aside the question of whether this is a correct statement of the
law, it is of no help to Kevin because he did not make a prima
facie showing as to the business income—as discussed, the court
did not believe there had actually been a material change in
circumstances, just a shift in the legal ownership of an income-
producing asset. Moreover, even if it were Cathy’s burden, she
satisfied it by providing the 2014 tax return, which was
substantial evidence supporting the court’s ruling.
       Kevin also asserts that the court should have based the
support award not on presumed future business earnings, but on
the return Kevin would have received had he sold the business
and invested the proceeds.12 But this would make no sense given
the court’s finding that Kevin still had access to the asset
through his wife, and therefore had access to greater income than
would have been derived from a sale and investment of the
proceeds. Because this finding is supported by substantial
evidence, we are bound by it and will not speculate as to other
possible remedies.
d. Practicality of court’s solution
       Kevin argues that the court’s imputation of business
income to him is an “unreasonable and unworkable” result.
Kevin asserts that “it will immerse the parties in perpetual
litigation possibly for the rest of their lives over annual
fluctuations in the business income . . . which will in turn . . .

12    Kevin and Cathy both submitted appraisals to the trial
court valuing Berman & Ely. Kevin’s appraisal valued the
business at $209,500. Cathy’s valued it at $536,000.




                               17
require the court to second guess every business decision
made . . . .” Kevin implies that under the court’s reasoning
Berman & Ely’s income potentially would be imputed to him in
perpetuity, even if his wife retired, sold the business, divorced
Kevin, or died.
       We are not persuaded by these concerns. The trial court
indicated no interest in dictating how the business was run,
merely in how much income it was earning. To the extent
fluctuations in business income give rise to litigation, that risk
existed prior to the court’s order, since Berman & Ely was
founded before the divorce and had been part of Kevin’s income
equation since then. The court’s ruling simply maintains that
status quo. Moreover, courts are capable of accounting for
fluctuating income in setting spousal support. (Riddle, supra,
125 Cal.App.4th at p. 1081.)
       We also see no indication that the order forever binds
Berman & Ely’s income to Kevin. In the trial court’s view, the
transfer of Berman & Ely accomplished nothing other than a
legal change of ownership, with Kevin still entitled to all the
benefits of the business income by virtue of his marriage. In
other words, the court found that nothing had changed as to
Kevin’s financial circumstances other than the loss of his salary.
Should future events indicate that Kevin is no longer receiving
the benefits of that business income, or that circumstances
otherwise have materially changed, nothing in the court’s order
prevents him from seeking relief at that time.




                                18
                        DISPOSITION
     The orders are affirmed. Cathy is entitled to costs on
appeal.13




                                         FLIER, J.
WE CONCUR:




     BIGELOW, P. J.




     GRIMES, J.




13    Cathy has requested attorney fees on appeal. Kevin
contends that the trial court has already awarded Cathy fees to
defend the appeal. The trial court is in a better position to
determine both entitlement to and amount of attorney fees in this
case. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.)
Cathy may seek appellate attorney fees through an appropriate
motion in the trial court.




                               19
