Filed 9/26/16 Marriage of Minnis CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

In re the Marriage of BLAIR PAUL and
ELIA QUIJADA MINNIS.
                                                                 D070460
BLAIR PAUL MINNIS,

         Appellant,                                              (Super. Ct. No. 13D009113)

         v.

ELIA QUIJADA MINNIS,

         Respondent.


         APPEAL from an order of the Superior Court of Orange County, Mark S. Millard,

Judge. Affirmed.



         The Law Offices of Saylin & Swisher, Brian G. Saylin, Lindsay L. Swisher, and

Daniela A. Laakso for Appellant.

         Law Office of Loida Tellez and Loida Tellez for Respondent.
       In this marital dissolution action between Blair Paul Minnis and Elia Quijada

Minnis, Blair appeals an order awarding Elia temporary child and spousal support.1

Blair contends the order should be reversed because the trial court incorrectly determined

his immediate prospective earnings and abused its discretion by refusing to consider

Elia's cohabitation in determining her need for spousal support. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The parties were married in September 1997 and separated in December 2012.

There was one child of the marriage—a daughter born in 1998. Blair filed a petition for

dissolution in October 2013 and Elia filed a response to the petition. In October 2014,

Elia filed a request for an order (RFO) awarding her child support, spousal support, and

attorney fees. She requested spousal support of $10,000 per month and attorney fees of

$20,000. Elia filed an income and expense declaration in October 2014 claiming zero

income and total monthly expenses of $9,110.

       Blair filed an income and expense declaration in December 2014 stating that he

had been employed by City National Bank (City National) since May 1, 2014. Before his

employment with City National, he was employed by Wells Fargo Bank (Wells Fargo).

In 2014 he worked for Wells Fargo from the beginning of the year through April 19. In

his declaration, Blair stated his income from wages or salary for the prior month

(November 2014) was approximately $15,000; his average monthly wage or salary




1     As is customary in family law cases, we will refer to the parties by their first
names for convenience and clarity, intending no disrespect.
                                             2
income was approximately $14,000;2 and his average monthly income from commissions

and bonuses was approximately $10,000. Blair claimed total monthly expenses of

$13,640.45.

       The court held the hearing on temporary support on December 22, 2014, and

January 6, 2015. Blair testified that his monthly base salary was $14,000 ($168,000

annually) when he worked for Wells Fargo and increased to $15,000 when he began

working for City National. Wells Fargo was his only employer in 2012 and 2013. Blair

reported total income of $380,164 on his federal tax return for 2013, and $320,611 on his

return for 2012.

       In 2014, Wells Fargo paid Blair gross income of $167,933.41 between January 1,

2014, through April 19, 2014. His November 2014 paystub from City National showed

that his "year to date" earnings from City National were $130,001.16, including a

$25,000 signing bonus he received when he started his employment. Including his

December base salary payment of $15,000, Blair's total income for 2014 was

approximately $310,000. He did not expect to receive any bonuses from City National in

2015, but did expect to receive bonuses in 2016.

       Blair testified that he ended his employment with Wells Fargo to work for City

National because of stress. He explained that around the end of 2011 and the beginning

of 2012, Wells Fargo was setting production goals "that were exorbitant, they were

doubling constantly. The stress for production was overwhelming . . . ." Blair began to


2     On the first page of his declaration, Blair stated his monthly gross income from
City National was $15,000.
                                            3
experience anxiety attacks, and in May 2012, a coworker drove him to an emergency

room, where he underwent testing for a stroke or heart problem. A few days later he told

Elia that Wells Fargo was extremely stressful for him and he would be seeking

employment elsewhere. It took him two years to find a new job because the job market

in 2012 was flat. Additionally, it took time to find an institution that would recognize

Blair and his business partner as a sole production unit.

       Elia testified that her last employment was "a small project" between March and

September of 2013, and her last employment before that job was in 2007. She quit work

in 2007 to become a "stay-at-home mom" at Blair's request, and did not continue working

after her project in September 2013 because she wanted to spend more time with her

daughter who was suffering from anxiety and depression. Elia was trying to find

employment as a gym trainer but she needed multiple certifications. The classes she

needed to become a certified trainer would cost between $10,000 and $15,000, but she

was getting some free training at her gym.

       Elia testified that her boyfriend, Joaquin Martinez, owned the gym she went to

three times a week. She denied she was also an owner of the gym but admitted business

cards that identified her as an owner "were produced at one point as a gag gift". She did

not participate in opening the gym but participated in closing the gym sometimes when

she left with Joaquin. She did not receive any payment for work she did at the gym and

Joaquin did not "do anything financially for [her.]"

       Blair sought to prove that Elia and Joaquin lived together in the condominium that

Blair and Elia owned. He called as witnesses three private investigators he had hired to

                                             4
surveil Elia. Investigator David Gomez3 entered Joaquin's gym on March 20, 2014, and

saw Elia working behind the desk at the front counter. Joaquin was sitting by her. David

asked Elia for a business card and she gave him a card that stated her name, number,

location, and position. She told David she was the owner and would be happy to have

him as a client. Joaquin said he was also an owner and Elia's client.

       After the gym closed shortly after 9:00 p.m., David followed Elia and Joaquin

back to Elia's residence. Elia drove her vehicle to the condominium and Joaquin was a

passenger. After Elia parked the vehicle inside the garage and closed the garage door,

David leaned a ketchup packet against the garage door so that he could determine the

next morning whether the garage door had been opened during the night after it closed

behind the vehicle. The next morning at 6:00 a.m., David observed that the ketchup

packet was undisturbed. He later saw Elia and Joaquin leave the condominium together.

He followed them to the gym and videotaped them as they opened the gym and

"continued their day as workers there."

       Later that day (March 21, 2014) Nestor Gomez relieved David at the gym. He

observed Elia and Joaquin close the gym around 9:00 p.m. and later drive back to Elia's

residence, enter the garage, and close the garage door behind Elia's vehicle. Nestor

marked the garage door with a ketchup packet as David had done and observed the next

morning that the packet was undisturbed. He later observed Elia and Joaquin drive



3     Because David Gomez has the same last name as private investigator Nestor
Gomez, who also testified at the hearing, we will refer to David and Nestor by their first
names, intending no disrespect.
                                             5
together from the residence to the gym and open the gym. A third investigator, Miguel

Valenzuela, observed Elia and Joaquin leave the gym together on the night of March 24,

2014, and arrive at Elia's residence in Elia's vehicle. He, too, placed a ketchup packet on

the garage door and observed that it was undisturbed the next morning.

       On March 25, 2014, David again observed Elia and Joaquin close the gym and

drive together to Elia's residence and park in the garage. David again leaned a ketchup

packet against the garage door. Nestor went to the residence at 7:00 a.m. the next

morning and observed that the ketchup packet was undisturbed. Elia and Joaquin left the

residence in Elia's vehicle and Nestor followed them to the gym. He observed them close

the gym and return to Elia's residence around 9:00 p.m. After they went inside, he leaned

a ketchup packet against the garage door.4

       Similar surveillances in November 2014 involving ketchup packs placed on Elia's

garage door indicated that Elia and Joaquin spent the nights of November 10 through 13

together in Elia's residence. Elia testified that Joaquin did not live with her; he lived with

his father above the gym but occasionally spent the night at her place.

       After hearing argument from counsel, the court ordered Blair to pay Elia child

support of $388 per month and spousal support of $5,789 per month. The court based its

award on Blair's testimony that his income in 2014 was $261,314, consisting of $120,000

in base salary from City National; the $25,000 signing bonus from City National;

$48,000 in base salary from Wells Fargo for the first four months of 2014, and the



4      Nestor was not asked about the fate of that ketchup pack.
                                              6
$68,314 in bonuses from Wells Fargo that he received in April 2014. The court

explained, "So when you add it all together, you get [$]261,314 for the year, and that's

what I choose to use as his income." The court noted that Blair's "gross income . . . was

greater in years past . . . ."

       The court acknowledged the possibility that Blair might not earn any bonus

income in the next few months, stating: "I will grant you that if we average [Blair's]

situation to . . . this April . . . , then in May he may be entitled to a reduction if he doesn't

earn any bonus between now and May. And at that point I certainly would put him on a

Smith/Ostler,[5] and I will tell you what it is. But in any event, I think using that figure is

appropriate. It's the last full year of employment, with the understanding that in the

future his income may be less on a monthly basis but with the realization that he's entitled

to bonuses. His contract says he is. Whether he earns them or he doesn't earn them,

we're speculating at this point, so I'll use a percentage in the future, after April, okay, to

the extent that this is above what I found his income to be."



5       The court was referring to the type of order approved in In re Marriage of Ostler
& Smith (1990) 223 Cal.App.3d 33 (Ostler & Smith), in which the husband, who paid
child and spousal support, earned bonus income in addition to a base salary. Noting that
" '[n]o future bonus is guaranteed[,]' " (id., at p. 41) and that " '[i]t would therefore not be
appropriate to base a support order on Husband's bonus income and then require him to
file motions to modify at such times as the bonus is reduced[,]' " (ibid.), the trial court in
Smith & Ostler decided " '[i]t would be more fair to all parties to base the support order
on Husband's income from salary and dividends, and to allocate a portion of the future
bonus income to the children and to Wife by way of a percentage interest so that future
litigation will not be necessary as the bonus income changes.' " (Id. at pp. 41-42.)
Accordingly, the Smith & Ostler trial court ordered the husband to pay $3,000 per month
in permanent spousal support, plus 15 percent of his annual gross cash bonus when the
bonus was received. (Id. at p. 42.)
                                                7
       Regarding Elia's income, the court stated that "[w]hile she says she doesn't work,

she spends some significant time at this gym. . . . [S]he's there, and she looks and acts

like she's working from anything I heard. [¶] Now, I don't know what a non-trainer

makes per hour, but it's obvious to me she can certainly earn $10 an hour for her time.

And she's going to be a trainer, and she's going to make a lot more than that in the near

future if she gets her license or her certification as a trainer, but I'm reasonably going to

charge her something for the five hours I think she could spend at that gym on a daily

basis. The child is in school. You can spend five hours at this gym. That averages, at

10 bucks an hour, $1,083 a month, and that's what I'm going to charge her, because she's

there enough."

       Near the end of the hearing, the court clerk asked the court to clarify whether it

was "going to do a Smith/Ostler" order. The court responded, "Well, I didn't look at the

numbers on the Smith/Ostler really." The court then added: "The court is reserving on

the Smith/Ostler. It will grant a Smith/Ostler [order]; however, I have to grant it on the

basis of a base, and the base that I am looking for is $15,000 [per month] . . . . And I

believe, when I looked, when I glanced at it, it was somewhere in the area on the spousal

support side as 32 percent, but I'll have to look." The court set a hearing for March 26,

2015, "only for the purpose of giving you the exact amount of the Ostler/Smith.

[¶] . . . [¶] The percentage."

       On January 15, 2016, Blair filed a motion for new trial and a motion for

reconsideration challenging the court's temporary support order. On both motions, Blair

argued he presented substantial evidence that Elia was cohabiting with Joaquin and the

                                               8
court erred by not applying Family Code6 section 4323, which provides "there is a

rebuttable presumption, affecting the burden of proof, of decreased need for spousal

support if the supported party is cohabiting with a nonmarital partner."

       Blair further argued "overwhelming evidence" supported a finding that Elia was

living at a "far greater living standard" than Blair and their daughter. He cited the

evidence that Elia was a certified trainer and general manager of the gym and claimed he

had recently discovered evidence that certain government records showing Elia was a

member of the LLC (limited liability company) that owned the gym had been "changed

so as to delete her participation." Finally, Blair contended the court erred in using his

income for the previous 12-month period as the basis for the support award because the

evidence established that his immediate prospective earnings were limited to his $15,000

per month base salary from City National.

       At a hearing on March 6, 2015, the court denied Blair's motion for new trial and

continued his motion for reconsideration to May 22, 2015. Blair filed his notice of

appeal on March 11, 2015.

                                       DISCUSSION

                                      I. Appealability

       An order granting or denying temporary spousal or child support is appealable.

(In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506 [temporary spousal

support]); County of Yolo v. Worrell (1989) 208 Cal.App.3d 471, 474, fn. 6 [temporary


6      All subsequent statutory references are to the Family Code unless otherwise
specified.
                                              9
child support]). However, Elia suggests the temporary support order in this case is not a

final, appealable order because the court continued Blair's motion for reconsideration of

the order and the record does not show the motion's resolution.

       Blair's pending motion to reconsider the appealed support order did not affect the

order's finality for purposes of appeal. Code of Civil Procedure section 916, subdivision

(a), provides that "[e]xcept as [otherwise] provided . . . , the perfecting of an appeal stays

proceedings in the trial court upon the judgment or order appealed from or upon the

matters embraced therein or affected thereby, including enforcement of the judgment or

order, but the trial court may proceed upon any other matter embraced in the action and

not affected by the judgment or order." (Italics added.)

       In Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35 (Young), the trial

court granted the plaintiff's motion to reconsider an order granting the defendant's special

motion to strike a cause of action in the plaintiff's complaint, and the defendant then filed

its own motion to reconsider the order granting the plaintiff's prior motion for

reconsideration. (Id. at p. 40.) While the defendant's motion for reconsideration was

pending, the defendant filed a notice of appeal from the same order it was requesting the

court to reconsider (i.e., the order granting the plaintiff's motion for reconsideration).

(Ibid.) The trial court granted the defendant's motion for reconsideration, after which the

defendant abandoned its appeal and the plaintiff appealed the order granting defendant's

motion for reconsideration. (Id. at p. 46.)

       This court in Young held that the order granting the defendant's motion for

reconsideration was ineffective and void because the defendant's filing a notice of appeal

                                              10
from the same order it challenged in its motion for reconsideration deprived the trial court

of jurisdiction to rule on the motion for reconsideration. (Young, supra, 210 Cal.App.4th

at pp. 51-53.) The trial court in Young lacked jurisdiction to reconsider the appealed

order "because ' "[t]he trial court's power to enforce, vacate or modify an appealed

judgment or order is suspended while the appeal is pending." ' " (Young, at p. 51, italics

added.)

       Likewise, when Blair filed his notice of appeal from the temporary support order

in this case, the trial court's power to vacate or modify the order was suspended under

Code of Civil Procedure section 916, subdivision (a). In the words of the Young court,

"the trial court lost subject matter jurisdiction over [Blair's] reconsideration

motion . . . because the filing and perfecting of [Blair's] . . . own appeal caused the trial

court to lose its authority to resolve [Blair's] . . . reconsideration motion, which was still

pending when [the] appeal was filed." (Young, supra, 210 Cal.App.4th at pp. 41-42.)

Blair's motion to reconsider the appealed support order did not affect the order's

appealability.

                              II. Amount of the Support Award

       A. Determination of prospective earnings

       Blair contends the support order should be reversed because the time period the

court used to calculate his income for purposes of support did not reflect his immediate

prospective earnings.

       Different rules govern awards of temporary and permanent support. Temporary

spousal and child support is authorized by section 3600, which provides in relevant part

                                              11
that "[d]uring the pendency of any proceeding for dissolution of marriage . . . the court

may order (a) either spouse to pay any amount that is necessary for the support of the

other spouse . . . or (b) either or both parents to pay any amount necessary for the support

of the child, as the case may be."

       We review spousal and child support awards under an abuse of discretion

standard. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327. (Wittgrove).)

" 'We cannot substitute our judgment for that of the trial court, but only determine if any

judge reasonably could have made such an order. [Citation.] Our review of factual

findings is limited to a determination of whether there is any substantial evidence to

support the trial court's conclusions.' " (Ibid.) "Generally, 'the appropriate test of abuse

of discretion is whether or not the trial court exceeded the bounds of reason, all of the

circumstances before it being considered.' " (In re Marriage of Ackerman (2006)

146 Cal.App.4th 191, 197.)

       "Generally, temporary spousal support may be ordered in 'any amount' based on

the party's need and the other party's ability to pay. [Citations.] 'Whereas permanent

spousal support "provide[s] financial assistance, if appropriate, as determined by the

financial circumstances of the parties after their dissolution and the division of their

community property," temporary spousal support "is utilized to maintain the living

conditions and standards of the parties in as close to the status quo position as possible

pending trial and the division of their assets and obligations." [Citations.]' [Citation.]

The court is not restricted by any set of statutory guidelines in fixing a temporary spousal

support amount. [Citation.]

                                              12
       "Rather, in exercising its broad discretion, the court may properly consider the 'big

picture' concerning the parties' assets and income available for support in light of the

marriage standard of living. [Citation.] Subject only to the general 'need' and 'the ability

to pay,' the amount of a temporary spousal support award lies within the court's sound

discretion, which will only be reversed on appeal on a showing of clear abuse of

discretion. [Citation.] 'Ability to pay encompasses far more than the income of the

spouse from whom temporary support is sought; investments and other assets may be

used for . . . temporary spousal support . . . . [Citations.]' [Citation.] Trial courts may

properly look to the parties' accustomed marital lifestyle as the main basis for a

temporary support order." (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)

       We find no abuse of discretion in the court's calculation of Blair's income for

purposes of support. Based on Blair's own testimony, the court reasonably could have

found Blair's income for 2014 to be approximately $313,000, but instead found his

income for that year was of $261,314, and used that substantially lower amount as the

basis of its temporary support award.7 The evidence showed that Blair's total income in



7      During Blair's initial testimony at the temporary support hearing, he stated that he
was paid a "gross total" of $167,933 in base salary and bonuses from Wells Fargo in
2014, and he testified that his monthly base salary from Wells Fargo was "$14,000 on
average." Adding the $25,000 signing bonus plus the $120,000 he received in base salary
from City National to the $167,933 he received from Wells Fargo results in total income
of $312,933 for 2014.
       Subtracting four months of Blair's $14,000 base salary paid by Wells Fargo or
$56,000 from his total Wells Fargo earnings of $167,933 in 2014 would mean that Wells
Fargo paid him $111,933 in bonuses in 2014. However, Blair later testified that Wells
Fargo paid him a total of $68,314 in bonuses in 2014, and the court used that figure in
calculating Blair's total income for 2014. The court also found that Wells Fargo paid
                                              13
2013 was $380,164 and in 2012 was $320,611. The court explained that using $261,314

as Blair's annual income was appropriate "with the understanding that in the future his

income may be less on a monthly basis but with the realization that he's entitled to

bonuses. His contract says he is." The court then indicated it would issue a

"Smith/Ostler" order in April—about three months after the January 6, 2015 hearing.

       Thus, the court's support order took into account both Blair's potential to earn

bonus income in his current employment with City National and the likelihood that his

bonus income from City National would be less than it was from Wells Fargo during the

coming year. The order was reasonable in light of Blair's testimony that the work he did

at City National was similar to the work he did at Wells Fargo with similar potential to

earn bonus income, and his base salary from City National was approximately $1,000 per

month more than it was from Wells Fargo. Blair testified that he expected to earn bonus

income from City National after 2015.

       Blair relies on In re Marriage of Riddle (2005) 125 Cal.App.4th 1075 (Riddle) in

arguing the trial court erred by using a time period to calculate his income that did not

reflect his immediate prospective earnings. Riddle does not compel a different result

regarding Blair's ability to pay temporary spousal support. The trial court in Riddle based

an award of permanent spousal support and child support on a calculation of the

husband's monthly income based solely on the preceding two-month period, during


Blair base salary in the total amount of $48,000 "for the first four months [of 2014],"
instead of $56,000, presumably because during his resumed testimony at the January 6,
2015 hearing, Blair indicated his base salary from Wells Fargo for the first four months
of 2014 "would have been more around the $12,000 figure, I believe."
                                             14
which time the husband's earnings were substantially higher than his monthly average

over the preceding year. (Id. at pp. 1078-1079.) The Riddle court decided the trial court

had abused its discretion by calculating the husband's monthly income based on only a

two-month period, stating, "It is a manifest abuse of discretion to take so small a sliver of

time to figure income that the determination essentially becomes arbitrary. . . . A mere

two months is an embarrassingly short period on which to predict the annual income of a

commissioned salesperson who works in the financial markets." (Id. at p. 1083.)

       In the present case, the trial court did not base its determination of Blair's monthly

income and his ability to pay support on an "embarrassingly short period;" the court

considered Blair's income over the entire year of 2014 and calculated support based on an

annual income amount ($261,314) that was substantially lower than the amount he

testified that he earned in 2014 (about $310,000) and his annual income in 2012 and

2013. The trial court reasonably could assume Blair would continue to earn some bonus

and commission income in his position with City National, as he had earned performing

similar work with Wells Fargo. The court did not assume, as Blair suggests, that Blair

would continue to earn the same income he had earned with Wells Fargo. Rather, the

court conservatively calculated Blair's preset income for purposes of the temporary

support award to be substantially less than it had been over the preceding three years.

Unlike Riddle, in which the "Husband obtained a whopping large commission in

February 2003, and the trial court predicated its order on the unrealistic theory that such

commissions, clearly out of line with what he was making in just the previous 12 to 14

months, would continue indefinitely[,]" (Riddle, supra, 125 Cal.App.4th at p. 1084), the

                                             15
trial court here predicated its temporary support order on projected monthly income that

was lower than the monthly income Blair historically had earned.

       Our conclusion that the court acted within its discretion in determining temporary

support also rests on the fact that the temporary support order at issue covered only the

first three months of 2015 because the court set a hearing in March 2015 for the express

purpose of modifying the order by issuing an Ostler & Smith order—i.e., a support order

that would be based on Blair's base salary of $15,000 per month plus a percentage of

bonuses to be determined at the hearing. Considering the court's expressed intent to

modify the temporary support order within a few months to more accurately reflect

Blair's base salary plus a percentage of his bonus income, along with the court's decision

to base the initial temporary support order on a substantially lower income figure than

Blair's actual income had been for the preceding 12-month period, we cannot say the

court exceeded the bounds of reason in awarding temporary support.

       Finally, as we noted, "[t]rial courts may properly look to the parties' accustomed

marital lifestyle as the main basis for a temporary support order." (Wittgrove, supra,

120 Cal.App.4th at p. 1327, italics added.) In the present case, the record reflects that the

trial court based its support order on the parties' accustomed marital lifestyle as well as

Blair's income. Responding to Blair's position that Elia had not shown need for spousal

support, the court stated: "When you say that there's no basis for showing need,

obviously if his [monthly] income is . . . [$]21,776, the fact that he lives in a nicer house

than she does, . . . and [has] nicer accoutrements, [a] nicer car, whatever, is enough to



                                              16
prove that their standard of living is such that she's entitled to at least benefit somewhat

for that. This is, after all, a long-term marriage."

       Although the court determined Blair's prospective income to be lower than it had

been over the preceding few years, the court explained at the March 6, 2105 hearing : "I

think I made it clear that these people lived a rather substantial lifestyle, that the purpose

of temporary support is to maintain to the extent that you can the status quo pending the

trial in the case. That's what I attempted to do, giving some liberal treatment to, frankly,

[Blair's] income, and I didn't count every nickel for the reasons that I've already stated."

       In sum, the temporary support order reflects a reasonable balance between the

parties' accustomed marital lifestyle, which the court could properly consider as the main

basis for temporary support, with the reality that Blair would likely earn less income in

the coming months than he historically had earned. The court essentially accommodated

what it could reasonably view as a temporary dip in Blair's income in two ways: (1) by

substantially reducing his monthly income for purposes of support from what it had been

over the preceding 12 months and (2) by setting a hearing in the near future to issue an

Ostler & Smith order to account for fluctuations in Blair's bonus income. Considering the

totality of the circumstances, we conclude that the court's determination of Blair's income

for purposes of temporary support was reasonable and not an abuse of discretion.

       B. Stress of prior employment

       Blair contends that because he left his employment with Wells Fargo for health

reasons, the trial court erred by including his income from Wells Fargo in determining

temporary support. He cites In re Marriage of Simpson (1992) 4 Cal.4th 225 (Simpson)

                                              17
for the proposition that the court may not base an income calculation on an unreasonable

work regimen.

       The California Supreme Court in Simpson held "an award of support following

dissolution of a marriage generally should not penalize for his or her efforts a supporting

spouse who voluntarily has undertaken an extraordinarily rigorous work regimen during

the marriage, by locking that spouse into an excessively onerous work schedule."

(Simpson, supra, 4 Cal.4th at p. 228.) A supporting spouse's "earning capacity generally

should not be based upon an extraordinary work regimen, but instead upon an objectively

reasonable work regimen as it would exist at the time the determination of support is

made." (Id. at pp. 234-235.)

       "A reasonable work regimen, as opposed to an extraordinary regimen, however, is

not readily or precisely determined and is dependent upon all relevant circumstances,

including the choice of jobs available within a particular occupation, working hours, and

working conditions. Established employment norms, such as the standard 40-hour work

week, are not controlling but are pertinent to this determination. In certain occupations a

normal work week necessarily will require in excess of 40 hours or occasional overtime

and thus perhaps an amount of time and effort which may be considered reasonable under

the circumstances. A regimen requiring excessive hours or continuous, substantial

overtime, however, generally should be considered extraordinary." (Simpson, supra,

4 Cal.4th at pp. 235-236, fn. omitted.)

       The record does not show that the court based its calculation of Blair's future

income with City National on an extraordinary or unreasonable work regimen. Blair

                                            18
suggests that the temporary support order would require him to work at the same level of

stress he experienced working for Wells Fargo. Even if that were true, it does not

establish that the work Blair did at Wells Fargo involved an extraordinary regimen for

that industry and particular occupation. Blair's testimony that he experienced anxiety

attacks in 2012 because Wells Fargo set exorbitant production goals in late 2011 and the

beginning of 2012, and that the stress of meeting those goals resulted in a visit to the

emergency room in May of 2012, did not compel the court to find that his work regimen

at Wells Fargo was extraordinary within the meaning of Simpson. Even if Blair's work

regimen at Wells Fargo was extraordinary in 2012 when he went to the emergency room,

his testimony about that emergency room visit did not compel a finding that he continued

to engage in an extraordinary work regimen in 2013 or 2014 at Wells Fargo, or that he

left Wells Fargo to work for City National in 2014 for health reasons, and there is no

basis in the record to conclude that the court's temporary support award would require

Blair to engage in an extraordinary work regimen at City National following the award.

       The evidence that Blair's prior job with Wells Fargo and replacement job with City

National involved similar work and income potential, along with the evidence that Blair

succeeded in earning substantial bonus income at Wells Fargo and continued working

there for two years after his visit to the emergency room, tends to show that his work

regimen at Wells Fargo was not extraordinary within the meaning of Simpson. The

Simpson court characterized an extraordinary work regimen as one "requiring excessive

hours or continuous, substantial overtime . . . ." (Simpson, supra, 4 Cal.4th at p. 236.)

There was no evidence that the stress Blair experienced working for Wells Fargo was

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caused by having to continuously work unreasonably excessive hours. The evidence that

over two and a half years before the hearing, Blair went to an emergency room for stress-

related symptoms caused by his employment with Wells Fargo did not compel the court

to ignore his past income from Wells Fargo in calculating his income for purposes of

support. The court did not abuse its discretion in using some of Blair's bonus income

from Wells Fargo in calculating his income for purposes of temporary support.

       C. Elia's alleged cohabitation

       Blair contends the court erred by not applying section 4323 to reduce Elia's

spousal support based on her cohabitation with Joaquin. As noted, section 4323 (a)(1)

provides that "there is a rebuttable presumption, affecting the burden of proof, of

decreased need for spousal support if the supported party is cohabiting with a nonmarital

partner." Blair argues the court erroneously decided section 4323 does not apply to

temporary spousal support.

       Although the trial court stated that it did not "think [section 4323] applies at this

particular point, but certainly is something to consider along with all the other [section]

4320 factors when we get there[,]" we need not consider whether section 4323 applies to

temporary support awards because the court impliedly found that Elia and Joaquin were

not cohabiting within the meaning of section 4323. When the court issued its oral ruling

at the support hearing, it stated, "The fact that she has a boyfriend, which she does, and

[the fact that] you have a couple of proofs that the boyfriend has stayed overnight doesn't

prove that he's really supporting her to any great degree, so I can't go that far . . . ." In

stating that the evidence showed only that Joaquin had stayed overnight at Elia's

                                               20
residence and did not prove he was supporting her, the court impliedly found that Elia

and Joaquin were not cohabitating.

       At the March 6, 2015 hearing when the court denied Blair's motion for new trial,

the court confirmed its finding that Elia and Joaquin were not cohabiting. The court

stated, "There were minimum number of days when [Joaquin] was living in the same

apartment, or the condo, where [Elia] was living. She testified, and I believed her, yeah,

he stayed overnight sometimes but, you know, they weren't cohabiting. He wasn't

receiving his mail there. He wasn't paying anything of consequence to her. They went

out to dinner on occasions, . . . she testified to that. And she denied that she was

cohabiting with him, so I believe her. [¶] In any event, I didn't hear from [Joaquin], the

man that she allegedly was cohabiting with, so I accepted her testimony. And so that's

where I was on that issue."

       The evidence sufficiently supported the court's finding that although Joaquin and

Elia sometimes spent the night together at Elia's residence, they were not cohabiting. The

court was entitled to find credible Elia's testimony that Joaquin did not live with her but

rather lived with his father above the gym and occasionally spent the night at her

residence. Accordingly, the court did not err in not applying the rebuttable presumption

of decreased need for support based on cohabitation under section 4323.




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                                     DISPOSITION

      The order is affirmed.



                                                                                IRION, J.

WE CONCUR:




BENKE, Acting P. J.




PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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