Filed 6/17/14 Marriage of Irons and Napodano CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re the Marriage of LEE RENEE IRONS
AND JOHN JOSEPH NAPODANO.

LEE RENEE IRONS,
                                                                         E055950
         Respondent,
                                                                         (Super.Ct.No. SWD023394)
v.
                                                                         OPINION
JOHN JOSEPH NAPODANO,

         Appellant.



         APPEAL from the Superior Court of Riverside County. Robert W. Nagby,

Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

         Law Offices of Catherine A. Vincent, Catherine A. Vincent and Matthew M.

Vincent, for Appellant.

         Serenity Legal Services and Arnold H. Wuhrman for Respondent.




                                                             1
       John Joseph Napodano (John) appeals from a judgment following the dissolution

of his marriage to respondent Lee Renee Irons (Lee). John challenges the portions of the

judgment ordering spousal support and awarding attorney fees to Lee. He contends the

trial court erred in a variety of respects, including: 1) improperly considering the income

of John’s current significant other in determining spousal support; 2) making a finding

regarding Lee’s gross income that is unsupported by substantial evidence; 3) making

findings pursuant to Family Code1 section 4320, subdivisions (a)(1), (a)(2), and (h) that

are unsupported by substantial evidence2; 4) ordering spousal support in an amount that

constituted an abuse of discretion in light of the court’s own findings under section 4320,

subdivisions (b), (c), (d), (e), (g), and (i); and 5) awarding Lee attorney fees pursuant to

sections 2030 and 2031, even though John would not have sufficient income to satisfy the

order after paying his other obligations, including child support and spousal support.

       We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       The parties were married on September 25, 1992, and at the time of trial had one

minor child, born June 9, 1994. They separated on October 8, 2008. Lee filed her

petition for dissolution of marriage on November 15, 2010.



       1   Further undesignated statutory references are to the Family Code.

       2   As discussed more fully below, in his reply brief, John abandons his assertion
that the trial court’s findings pursuant to section 4320, subdivision (a)(2), are unsupported
by substantial evidence, but maintains that the trial court nevertheless abused its
discretion, in light of those findings.

                                              2
       After trial, the petition for dissolution of marriage was granted, with marital status

terminating effective November 18, 2011. In addition to ruling on other matters not

relevant to the present appeal, the court awarded Lee $1,641 per month in child support,

which was to cease when the child either turned 19, or had turned 18 and was no longer a

full-time high school student—the second of these alternative triggers for cessation of

child support at the time of the court’s ruling was expected to occur by June 2012. The

court also awarded Lee $3,200 per month in spousal support, and $3,500 in attorney fees.

The court’s order with respect to attorney fees permits John to make payment of the

$3,500 in installments of $100 per month beginning January 1, 2012, with $50 due on the

first and fifteenth of each month, until the amount is paid in full.

       We discuss the facts underlying the court’s orders regarding spousal support and

attorney fees below, as necessary to address John’s specific claims of error.

                                     II. DISCUSSION

       A. Standard of Review

       We review the court’s orders on spousal support and attorney fees for abuse of

discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 [amount and duration

of spousal support rests within trial court’s broad discretion]; In re Marriage of Keech

(1999) 75 Cal.App.4th 860, 866 [motion for attorney fees and costs in dissolution action

is addressed to trial court’s discretion].) “‘An abuse of discretion occurs “where,

considering all the relevant circumstances, the court has exceeded the bounds of reason or

it can fairly be said that no judge would reasonably make the same order under the same

circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96

                                              3
Cal.App.4th 893, 898-899 (Bower).) The appealing party bears the burden to

affirmatively show error. (Id. at p. 898.)

       Additionally, “‘[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.]’ [Citation.]” (In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 829

[Fourth Dist., Div. Two].) “As an aspect of the presumption that judicial duty is properly

performed, we presume . . . that the court knows and applies the correct statutory and

case law [citation] and is able to distinguish admissible from inadmissible evidence,

relevant from irrelevant facts, and to recognize those facts which properly may be

considered in the judicial decisionmaking process. [Citations.]” (People v. Coddington

(2000) 23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court

(2001) 25 Cal.4th 1046, 1069, fn. 13.)

       B. Analysis

              1. John’s Income

       John objects to the trial court’s findings with respect to his income in several,

partially-overlapping respects. First, he contends that the trial court improperly took

account of his nonmarital partner’s income in determining his income. Second, he

contends the trial court erred with respect to its findings pursuant to section 4320,

subdivision (c), regarding his ability to pay spousal support. Although John’s income is

one of several factors to be considered with respect to his ability to pay, his arguments

with respect to his nonmarital partner’s income are sufficiently distinct that we address

that issue first, and separately, from others raised regarding his ability to pay.

                                               4
                     (a) John’s nonmarital partner’s income

       John contends that the trial court’s statements on the record while making its

findings and orders after trial demonstrate that it improperly took his nonmarital partner’s

income into account in determining the award of spousal support to Lee. He further

argues that the court’s award of spousal support itself demonstrates that the court must

have taken the nonmarital partner’s income into account. Our review of the record

reveals no such error.

       Subdivision (b) of section 4323 provides as follows: “The income of a supporting

spouse’s subsequent spouse or nonmarital partner shall not be considered when

determining or modifying spousal support.” In In re Marriage of Romero (2002) 99

Cal.App.4th 1436 (Romero) [Fourth Dist., Div. Two], this court interpreted section 4323,

subdivision (b) to require the trial court, in determining a supporting spouse’s ability to

pay spousal support, to eliminate from consideration not only “new mate income,” but

also “all additional expenses resulting from the remarriage [or nonmarital partnership].”

(Romero, supra, at p. 1445.) “In other words, the court must consider only husband’s

part of the shared expenses.” (Ibid.)

       To prevail here, therefore, John would have to overcome the presumptions of

correctness noted above by demonstrating that the trial court’s reasoning in determining

the award of spousal support cannot be reconciled with the mandate of section 4323,

subdivision (b), as that statute is interpreted in Romero. He has not done so.

       In John’s income and expense declaration, he reported $5,268.45 in average

monthly household expenses. That household includes not only himself, but also his

                                              5
current nonmarital partner, her adult daughter, and her infant grandson. At trial, John

testified that his nonmarital partner “gives [him] a thousand dollars a month” as a

contribution towards household expenses, an amount that is reflected in his income and

expense declaration. The income and expense declaration also discloses that John’s

nonmarital partner has a gross monthly income of $5,000.

       In announcing its findings after trial, the court noted that “Respondent co-habits

with a significant other who has a monthly income of approximately $5,000.” The court

described the import of this fact with respect to the spousal support award as follows:

“Although the income of the respondent’s significant other is not considered in these

calculations for the purpose of ordering permanent spousal support, this income is

considered only for the purpose that the amounts would be available to contribute to the

respondent’s, rather, household expenses and for no other purpose. [¶] The testimony of

the respondent during the trial, and included in his income and expense declaration, was

that the respondent’s significant other does contribute $1,000 per month as to the average

monthly household expenses.” Later, when discussing John’s ability to pay under section

4320, subdivision (c), the court stated: “First, with regard to the incomes, [the] Court did

state the income. The Court did consider the incomes of both parties and then also

considered—just again for the purposes of the expenses, the moneys contributed by the

significant other.”

       The quoted statements by the trial court are not a model of clarity. Nevertheless,

viewed in the favorable light required here, the statements do not manifest a violation of

section 4323, subdivision (b). The trial court did not say that in determining spousal

                                             6
support, it had generally considered, either directly or indirectly, the $5,000 monthly

income of John’s nonmarital partner, as expressly forbidden by section 4323, subdivision

(b). Indeed, the court specifically disavows any such consideration of her income.

Rather, the court indicates that it considered the $1,000 she pays to John monthly in

determining John’s part of the shared expenses of their household—a determination that

it was required to make under Romero. (Romero, supra, 99 Cal.App.4th at p. 1445.) In

other words, the court assumed that all of the household expenses declared by John were

attributable to his part of the shared expenses except for $1,000 per month, based on the

apparent agreement between John and his nonmarital partner that such an amount is a

reasonable estimate of her part of those shared expenses. Such reasoning does not violate

the mandate of section 4323, subdivision (b), as that statute is interpreted in Romero.

        In addition to his arguments based on the statements by the court, John contends

the spousal support award itself demonstrates that the court must have taken the $5,000

monthly income of his nonmarital partner into consideration, in violation of section 4343,

subdivision (b). The gravamen of this argument is that after payment of child support

and spousal support, John’s net income is less than Lee’s, so the court must have

“substantially considered and utilized” John’s nonmarital partner’s income in

determining the spousal support award. John further asserts that “without his significant

other’s contribution to his monthly expenses he would be unable to pay the support

orders . . . .”




                                             7
       John’s reasoning is flawed in several respects. First, John assumes that the court

was trying to award spousal support in an amount that would leave him a net income

roughly equal to Lee’s, after taking into account his payment of child support and spousal

support; working from that assumption, he reasons that the court could only have made

the spousal support order it made if it factored in the nonmarital partner’s income. But

there is no basis for that foundational assumption: “equality of postseparation income is

not an element of section 4320 in setting spousal support.” (In re Marriage of Ackerman

(2006) 146 Cal.App.4th 191, 209.)

       Second, the entirety of the difference in net income after payment of support is

attributable to a factor other than consideration of John’s nonmarital partner’s income,

namely, child support. The court found that Lee bears the vast majority of the burden of

caring for the parties’ minor daughter, setting John’s timeshare with the child at only two

percent. The court’s award of child support to Lee appropriately reflects this allocation

of the burden of caring for the child.3 Once the award of child support expired—as




       3  The argument, raised in John’s reply brief, that the court should have reduced
spousal support by the amount of child support for the duration of the child support
award, is unsupported by authority, and for good reason: there is no authority requiring a
court to offset an award of spousal support by any amount of child support awarded. The
obligations of each party are factors to be considered by the trial court in making an
award of spousal support. (§ 4320, subd. (e).) But nothing requires the court to give
John’s other obligations, including the obligation to pay child support, the dispositive
weight that he would prefer.


                                             8
noted, an event which was expected to occur in June 2012—John’s net income after

payment of spousal support would actually slightly exceed Lee’s.4

       Third, the record demonstrates that John in fact has sufficient income to pay the

awarded child support and spousal support, his protestations to the contrary

notwithstanding. His after-tax monthly income is $8,266, more than enough to pay the

ordered $3,200 in spousal support and $1,641 in child support with a substantial

remainder available for his own expenses. The remainder may be somewhat less than

John’s portion of his current shared household expenses. But a supporting party’s

standard of living is only one of many factors to be considered under section 4320. There

is no legal requirement that an award of spousal support and child support must leave a

supporting party sufficient net income, after payment of support, to continue that party’s

current level of other expenses without any additional economization. To the contrary,

courts have acknowledged that “child support almost inevitably reduces the payor’s

standard of living . . . .” (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353,

1361.) Here, after the cessation of child support, but while John still paid spousal support

in the amount ordered, his net income would substantially exceed his portion of his

current shared monthly household expenses, and indeed would roughly equal the total

household expenses he declared, even setting aside the $1,000 per month that he testified

he receives from his nonmarital partner towards those expenses.




       4   This is true under both parties’ calculations of net income, which differ slightly.

                                               9
       In short, John has failed to demonstrate any violation of the prohibition codified in

section 4323, subdivision (b), regarding consideration of the income of a supporting

spouse’s subsequent partner in determining spousal support.

                     (b) John’s ability to pay

       John contends that the trial court erred with respect to its findings pursuant to

section 4320, subdivision (c), regarding John’s ability to pay. Specifically, he disputes

the trial court’s calculation of his base monthly salary and other taxable income. 5 We

find no abuse of discretion.

       Section 4320, subdivision (c) requires the court, in ordering spousal support, to

consider “[t]he ability of the supporting party to pay spousal support, taking into account

the supporting party’s earning capacity, earned and unearned income, assets, and standard

of living.”

       The court found that John had total monthly income of $11,576, including a base

salary of $6,475, and other taxable income in the amount of $5,101. As reported on his

income and expense declaration, John’s only “other taxable income” is money earned

from working overtime. The amount found by the court is substantially less than the

average income for the previous year reported by John ($12,832.72, including $6,371 in

       5  John also apparently contends that the trial court erred in its consideration of his
assets and the marital standard of living. But he fails to articulate how exactly the court
might have erred in this regard: he recites the court’s findings, but raises no specific
objection, other than the conclusion that “on balance, $3,200 per month in spousal
support payable to Lee was excessive and was an abuse of discretion.” In the absence of
any authority or logical reason why the court was required to weigh evidence differently
than it did, John fails to demonstrate any error. (See Bower, supra, 96 Cal.App.4th at p.
898.)

                                              10
base salary and 6,461.72 in overtime), but a few dollars more than the amount John

reported as his previous month’s income ($11,491.10, including $5,412 in base salary and

6,079.10 in overtime). The court’s decision to use the amount that it did took into

account John’s testimony that his income had been declining.

       On appeal, John argues, in essence, that the court abused its discretion by failing

to calculate John’s base income and other taxable income solely on the basis of his most

recent bi-weekly paystub. Such an analysis would yield a base income of $5,861 per

month, and other taxable income of $4,934 per month, for a total of $10,795. John

argues that this total is more appropriate to use, given John’s testimony that his income,

and particularly his income from overtime, was declining. He articulates no reason,

however, other than his own ipse dixit, why the court was bound to accept his testimony

regarding declining income, or account for it in precisely this manner. Moreover, as

noted above, a court may abuse its discretion by using a small, non-representative sample

as a baseline for estimating average income. (See In re Marriage of Riddle (2005) 125

Cal.App.4th 1075, 1083 (Riddle).) Here, John’s proposed baseline is not even

representative of a full month. The court was acting well within its discretion to reject

John’s proposed method of calculation, and to conclude as it did.

       In his reply brief, John expands on and cites several cases in support of an

argument he only suggests in passing in his opening brief: that the trial court’s findings

regarding his income effectively subject him “to a life of servitude that extends beyond

the ‘norms’ in order to meet his obligations to his ex-spouse and then to himself,”

because it includes his overtime “as a substantial basis for support.” The case law he

                                             11
cites, however, confirms that income from overtime work should not be disregarded in

determining spousal support, and “how it is to be considered in a particular case is within

the discretion of the trial court.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469,

493, fn.15.) John presents no compelling reason why the manner in which the trial court

considered his overtime income here—by acknowledging and taking into account John’s

argument that his total income, and overtime income in particular, was declining, albeit

not giving those facts quite as much weight as John would have preferred—represents an

abuse of the trial court’s discretion.

       In re Marriage of Simpson (1992) 4 Cal.4th 225, cited by John, does not compel a

different result. In that case, the trial court relied on a husband’s earning capacity to

determine spousal support, rather than actual income, because the court found the

supporting spouse had reduced his income—moving from higher compensated work to

lower compensated work, and reducing his hours—in an attempt to shirk his family

obligations. (Id. at pp. 233-234.) The Supreme Court found that the trial court erred by

basing its calculations of earning capacity on a work regimen that involved “substantial,

continuous overtime” (italics omitted) rather than the amount the husband could earn

based on a “reasonable work regimen”—which may or may not include some overtime—

in the higher compensated line of work. (Id. at pp. 235-236.) Here, in contrast, the trial

court made no findings about John’s earning capacity separate from its findings of his

actual income, and explicitly took into account the recent reduction in his income.

       Neither does In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, also cited

by John, require a different result. That case involved a father seeking to modify a child

                                             12
support order. The mother had retired early, and the father sought to impute to her

income she would have made, had she not retired, in determining support. (Id. at p.

1295.) The appellate court upheld the trial court’s decision not to impute such

hypothetical income to her. (Ibid.) Bardzik thus is another case involving calculation of

earning capacity, not actual income, and is inapposite here.

       In short, we find no abuse of discretion with respect to the trial court’s calculation

of John’s ability to pay.

              2. Lee’s Income and Marketable Skills

       John contends that the trial court erred regarding various findings relating to Lee’s

income and ability to work. Among other things, he argues that there is no substantial

evidence to support its findings regarding her income from her current employment or

her marketable skills. We disagree, for the reasons stated below.

                     (a) Lee’s current income

       John contends that no substantial evidence supports the trial court’s finding that

Lee’s average monthly income is $1,776 per month. We are not persuaded that the

finding was an abuse of discretion.

       The trial court found that Lee had a base salary from her primary employment of

$1,535 per month. This figure is supported by the year-to-date information from her

paycheck stub, indicating that she had made $15,340.88 for the first 10 months of 2011.

The court further found that Lee earned an additional $241 per month on average from

other taxable income. This amount reflects income Lee earned working as a substitute

teacher: $241 is the monthly average she reported in her income and expense

                                             13
declaration. No evidence introduced at trial establishes that her declared monthly

average income from substitute teaching is inaccurate. The total of $1,535 and $241 is

the average monthly income of $1,776 utilized by the court.

       John would have preferred that the court calculate Lee’s monthly income

differently, arguing that her income was actually higher than was found by the trial court,

so the spousal support award should have been lower. In particular, he focuses on Lee’s

testimony that in the time period immediately before trial, she had earned somewhat more

per month than the average of $241 from her position as a substitute teacher. Indeed, the

amount of income Lee declared for the previous month from substitute teaching was

$490. Her testimony at trial, however, was that this higher level of income was the result

of specific efforts over the previous 30 days. There is no evidence in the record

establishing that this higher level of work could continue—Lee works as a substitute

teacher on a “when needed” basis. A trial court is not bound to use higher, extraordinary

months—even if recent—as a baseline in calculating a spouse’s average monthly income,

rather than the average over a longer period of time. To the contrary: using a smaller

sample size of nonrepresentative recent months may itself constitute an abuse of

discretion in some circumstances. (See Riddle, supra, 125 Cal.App.4th at p. 1083 [abuse

of discretion to base determination of husband’s income on prior two months, where

information regarding longer, more realistic time samples was available].)

       John’s arguments regarding Lee’s base salary are no more persuasive: his

estimate of her base salary is actually lower than the amount calculated by the trial court

from her pay stubs. We find no abuse of discretion.

                                             14
                     (b) Lee’s marketable skills

       John contends that no substantial evidence supports the trial court’s findings

pursuant to section 4320, subdivision (a)(1) regarding Lee’s marketable skills. John

objects in particular to the trial court’s finding that Lee is employable at “‘nominal

remuneration,’” and the trial court’s failure to give more weight to the circumstance that

Lee is only working part time, but theoretically could be working full time. We are not

persuaded that the trial court’s findings constitute an abuse of discretion.

       Subdivision (a) of section 4320 requires that the trial court, in ordering spousal

support, consider various factors relating to the “extent to which the earning capacity of

each party is sufficient to maintain the standard of living established during the

marriage . . . .” Subdivision (a)(1) describes some of these factors: “The marketable

skills of the supported party; the job market for those skills; the time and expenses

required for the supported party to acquire the appropriate education or training to

develop those skills, and the possible need for retraining or education to acquire other,

more marketable skills or employment.” (§ 4320, subd. (a)(1).)

       In making its findings after trial, the court specifically discussed each of the

factors listed in section 4320, subdivision (a)(1). With respect to the issues now raised on

appeal by John, the court stated that Lee “continues to be employable in a clerical

position and really at nominal remuneration,” noting that “she’s never been a high wage

earner . . . .” In context, the phrasing to which John objects, “nominal remuneration,” is

no more than a general reference to the relatively modest level of pay that Lee receives

from her current work. There is no evidence supporting a contrary conclusion—that she

                                             15
has been, is, or reasonably could become a high wage earner—in the record, and John

does not argue otherwise. John’s bald assertion that “there was no substantial evidence to

show that Lee could only be employable at a ‘nominal remuneration,’” therefore, is

without merit.

       John further argues that “there was evidence that Lee could earn more and that she

could work full time,” and recites various bits of evidence he contends support that

conclusion. Even assuming there is evidence supporting that conclusion, however,

reversal would not be justified here. The issue is not whether there is evidence that could

have supported different findings; rather, it is whether the findings the trial court did

make exceed the bounds of reason. They do not. The court specifically considered the

evidence presented regarding the availability of other jobs, including a jobs list that John

provided to Lee and introduced at trial. The court found that other, better positions were

likely not to be available to Lee, because of her age and the state of the current job

climate. Moreover, although Lee’s current work is part time and “on the lower side” with

respect to remuneration, the court found that it came with “some very positive benefits

including CALPERS retirement and other retirement as well,” that may not be available

with other positions. John presents no compelling reason why the court was required to

make a different finding.

       In short, the trial court’s findings pursuant to section 4320, subdivision (a)(1)

reflect reasoned deliberation, so we are not permitted to substitute our judgment, even if

we were inclined to do so. (See Bower, supra, 96 Cal.App.4th at p. 898.)



                                              16
              3. Age and Health of the Parties

       John objects to the trial court’s findings regarding his health, pursuant to section

4320, subdivision (h). He contends that the trial court erred because no substantial

evidence supported the trial court’s conclusions, and asserts that this, together with the

trial court’s other purported errors, renders the award of spousal support an abuse of

discretion. We find no abuse of discretion.

       Section 4320, subdivision (h), requires the court to consider, in awarding spousal

support, “[t]he age and health of the parties.” Here, the court considered the evidence

presented, and determined that both parties were both generally in good health. The court

acknowledged John’s testimony regarding certain medical issues, but concluded that they

do not amount to more than “an age appropriate, physical deterioration.” In the end, the

court found there were no “apparent physical infirmities of either person” that needed to

be factored into its spousal support order.

       John contends there was no substantial evidence to support the court’s findings

regarding the parties’ age and health, and that the court abused its discretion in

concluding this factor should not weigh in his favor. We disagree. There was evidence

that John and Lee are approximately the same age, with John being 49 at the time of trial,

and Lee 48. Lee testified that she and John are both in “good” health. Though John

testified that he suffers from various maladies as a result of being “in the construction

industry for 31 years,” he also conceded that his health currently interferes with his

ability to work only “[t]o a small extent.” John presented no evidence establishing that

he is currently seriously ill in any respect that is material to his ability to pay spousal

                                               17
support. There was substantial evidence, therefore, in support of the trial court’s

conclusions regarding the health and age of the parties.

       John points to his own testimony supporting the notion that his “body’s just about

had it”: he has undergone three knee surgeries, one shoulder surgery, and has been

putting off another surgery for “total knee replacement”; also, his “left shoulder is going

bad,” and his “right hip is going bad.” But he presents no compelling reason why the

court should be required to give this evidence dispositive weight. (Cf. In re Marriage of

Teegarden (1986) 181 Cal.App.3d 401, 409-410 [trial court’s findings not supported by

evidence because, inter alia, such a finding required “wholesale disregard of all the

testimony before the court” regarding husband’s serious and disabling illness, including

testimony of husband, wife, and caregiver].) As such, John has demonstrated no abuse of

discretion. (See Bower, supra, 96 Cal.App.4th at p. 898.)

              4. Domestic Violence

       John agrees with the trial court’s factual finding, pursuant to section 4320,

subdivision (i), that there is no documented evidence of any history of domestic violence

between the parties or against the parties’ child. (See § 4320, subd. (i).) He contends,

however, that in light of this finding, the trial court abused its discretion by awarding “the

maximum amount of support (i.e. $3,200 per month).” Nevertheless, he neither cites any

authority, nor articulates any logical connection, between the premises of this argument

and its conclusion. As such, John has demonstrated no abuse of discretion.

       Moreover, John appears to be fundamentally misguided about the purpose of

section 4320, subdivision (i). He in essence suggests, by asserting that this factor weighs

                                             18
in his favor, that a supporting party should get a discount on the amount of support owed

for having refrained from committing domestic violence during the marriage. That is not

the law. Section 4320, subdivision (i), embodies (together with section 4325) the

principle that an award of spousal support to a party who has engaged in domestic

violence is disfavored. (See In re Marriage of MacManus (2010) 182 Cal.App.4th 330,

335-336 [discussing history of section 4320, subdivision (i), and section 4325].) Here, as

the trial court found, that principle has no application: neither party had committed

domestic violence against the other. Thus, the factor properly weighs in favor of neither

party, and it appears from the record this is exactly how the trial court treated it.

              5. Other Section 4320 Factors

       John also asserts, with respect to a number of other factors to be considered in

awarding spousal support under section 4320, that the trial court made the correct

findings, but abused its discretion in light of those findings (and together with the trial

court’s other purported errors) by making the award of spousal support that it did. He

makes this form of argument with respect to the earning impairment of the supported

party (section 4320, subd. (a)(2))6; the supported party’s ability to work (section 4320,

subd. (g)); the supported party’s contribution to the supporting party’s education,

training, career position, or a license (section 4320, subd. (b)); the needs of each party



       6  This is the argument John makes in his reply brief; in his opening brief, he
argued that the trial court’s findings with respect to earning impairment of the supported
party are unsupported by substantial evidence. We take the opening brief’s argument to
be conceded; in any case, our review of the record reveals it to be without merit.

                                              19
based on the standard of living established during marriage (section 4320, subd. (d)); and

the obligations and assets of the parties (section 4320, subd. (e)).

       In each case, however, John fails to make any reasoned argument connecting the

finding and the purported abuse of discretion, for example, by citing authority or

presenting some logical reason showing that the court was required to weigh the factor

differently than it did. John has failed, therefore, to demonstrate any error with respect to

these factors. (See Bower, supra, 96 Cal.App.4th at p. 898.) Nor has our independent

review of the record revealed any abuse of discretion.

               6. Award of Attorney Fees to Lee

       John contends that the trial court abused its discretion by awarding $3,500 in

attorney fees to Lee, pursuant to sections 2030 and 2031. He argues that, after payment

of child support and spousal support, he had “no money left to pay such an award,” so the

award was “unjustly punitive and no reasonable Judge could have made such an order.”

We disagree.

       In a dissolution action, a court may order that one party pay some or all of the

other party’s legal fees and costs. (§ 2030 et seq.) “In making an award, the trial court

must determine what is just and reasonable under the circumstances, taking into

consideration the parties’ needs and ability to pay and the conduct of each party.

[Citation.]” (In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1319; § 2032,

subds. (a) & (b).)

       We find no abuse of discretion with respect to the trial court’s determination of

what award of attorney fees, if any, would be just and reasonable in the circumstances of

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this case. John has not demonstrated that he in fact had “no ability to pay,” as he asserts

in his briefing. As noted, he has net income after taxes of $8,266 per month before

payment of spousal support and child support. There is evidence, therefore, that even

after paying $1,641 per month in child support and $3,200 per month in spousal support,

he has funds available to pay installments of $100 per month towards the fee award, as

permitted under the court’s order. (Cf. In re Marriage of Schulze (1997) 60 Cal.App.4th

519, 531-532 [finding it “unreasonable” for the court not to have allowed husband to pay

attorney fee order “in manageable installments, consistent with the income he had left

after he paid the family support order”].) Once his child support payments ceased, when

the child turned 18 and had graduated high school—an event that was expected to occur

in June 2012—those funds, too, would become available for payment of the attorney fee

award. In other words, John fails to show that the court could not reasonably have

concluded he had the ability to pay the attorney fees awarded, despite his other

obligations.

       Moreover, “[f]inancial resources are only one factor for the court to consider in

determining how to apportion the overall cost of the litigation equitably between the

parties under their relative circumstances.” (§ 2032, subd. (b).) John’s arguments—

addressing solely the issue of financial resources, and his purported inability to pay in

particular—fail to demonstrate that, taking all the relative circumstances of the parties

into account, no judge could reasonably make the order made.




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                                   III. DISPOSITION

     The judgment is affirmed. Lee shall recover her costs on appeal.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                           HOLLENHORST
                                                                    Acting P. J.
We concur:

     KING
                              J.

     MILLER
                              J.




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