Filed 7/6/15 Marriage of Straw CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)


In re the Marriage of JASON ADAM and                                                         C072933
DARCI ALICE STRAW.

JASON ADAM STRAW,                                                                        (Super. Ct. No.
                                                                                         PFL 20100840)
                   Appellant,

         v.

DARCI ALICE STRAW,

                   Respondent.




         Jason Adam Straw (husband) appeals from an order requiring him to pay $40,000
in pendente lite attorney fees and costs “forthwith” to Darci Alice Straw (wife). (Fam.
Code, § 2030.)1 Husband’s primary contention on appeal is that the trial court abused its
discretion in ordering him to pay the fees because “[a]fter deducting [his] court ordered
support obligations [($23,500)] from his monthly income, it was undisputed that there
were zero dollars remaining to pay anything to [wife].” In the alternative, he asserts that



1   Further undesignated statutory references are to the Family Code.

                                                             1
“[t]he stated basis for the trial court’s ruling does not reflect proper consideration of the
requisite factors, and does not justify the trial court’s order.”2 While husband does not
challenge the amount of the fees he was ordered to pay, he asserts that the trial court
abused its discretion by directing that they be paid “in one lump sum.”
        A request for attorney fees in a dissolution of marriage proceeding is governed by
section 2030. Effective January 1, 2011, section 2030 was amended to provide in
relevant part: “When a request for attorney’s fees and costs is made, the court shall make
findings on whether an award of attorney’s fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel, and whether
one party is able to pay for legal representation of both parties. If the findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.” (§ 2030, subd. (a)(2), italics added.) We shall conclude that
the trial court made the requisite findings here, and that those findings are supported by
substantial evidence. As for the fees themselves, we shall conclude that the trial court
abused its discretion in requiring that they be paid forthwith in light of the dearth of
liquid assets. Accordingly, we shall reverse the judgment to the extent that it requires
husband to pay $40,000 in attorney fees and costs in one lump sum and remand the
matter to the trial court with directions to modify the judgment to provide that the fees
may be paid in manageable installments consistent with husband’s actual income and
ability. We shall affirm the judgment in all other respects.
                    FACTUAL AND PROCEDURAL BACKGROUND
        The parties married in July 1997 and separated in October 2010. They have four
minor children together (ages 3, 8, 9, and 12 in June 2012). At all relevant times herein,
husband worked as an oral surgeon, and wife worked in the home caring for the parties’




2   Wife did not file a respondent’s brief.

                                               2
four children. Husband was self-employed and had recently opened a second office in El
Dorado Hills.
       On February 4, 2011, the trial court ordered husband to pay wife $23,500 per
month in pendente lite child and spousal support “subject to review at Trial and
retroactive correction.” The court based its calculation on husband’s income over the
most recent nine-month period, which averaged in excess of $60,000 per month.
Husband argued the $60,000 figure was an anomaly and was inconsistent with his
historical and projected monthly earnings, which his forensic accountant calculated at
$20,574. According to husband, his income was in decline largely due to costs
associated with the opening of his second office. The court issued its findings and order
after hearing on August 10, 2011.
       In October 2011 husband filed a motion to modify child and spousal support
retroactive to February 4, 2011, on the ground his actual income was far below the
amount utilized by the court in fixing support. The matter was set for a long cause trial
on January 25, 2012.
       On January 10, 2012, wife filed a motion to continue the trial date, claiming that
because husband had failed to pay full support in the amount of $23,500 as ordered, she
would be forced to proceed to trial without legal representation.
       On May 23, 2012, husband moved to “bifurcate [the issues of pendente lite] child
and spousal support from other issues and set immediate trial on these issues,” noting that
his “motion to modify support filed October 4, 2011 [is] still awaiting hearing.” In
support of his motion, he submitted the declaration of his forensic accountant who opined
that husband’s monthly income averaged $22,300 in the 12-month period ending
February 2012. The accountant further explained that both of husband’s offices were
substantially undercapitalized, and as a result, recommended that $5,900 of husband’s
earnings be used “to restore a reasonable level of working capital,” thereby reducing his
“available” income to $16,400 per month.

                                             3
       On the day husband’s motion to bifurcate was set to be heard, wife filed the
subject request for attorney and expert fees in the amount of $65,000 ($50,000 for
attorney fees and $15,000 for expert fees). At the hearing on the motion to bifurcate,
wife, through her counsel, argued that she “needs either support or she needs fees” and
asked the court to defer setting the support issues for trial until after the hearing on her
request for fees. The trial court set a hearing on husband’s motion to bifurcate and wife’s
request for fees for August 30, 2012.
       Wife submitted a declaration in support of her request for attorney and expert fees.
In her declaration, she asserted that she could not afford to oppose husband’s motion to
modify the support order because he was not paying full support in the amount of
$23,500 as ordered. She explained that she had no income apart from the support paid by
husband and accused husband of decreasing his work schedule “to reduce his support.”
She also represented that husband was “pay[ing] tens of thousands toward credit card
debts (overpaying $17,000 to AMEX in February[)]” and “pay[ing] his chosen business
expenses -- often in excess of the minimum payment” to avoid paying her full support.
According to wife, husband was “well over $130,000 in support arrears,” and wife had
been forced to obtain a loan from her parents. According to wife’s income and expense
declaration, dated June 28, 2012, her sole source of income was the support paid by
husband, which in May 2012 was $7,500. She had less than $700 in cash. Her monthly
expenses were $16,645, which included roughly $5,500 per month for legal fees. She
had paid her counsel approximately $107,600 and owed her an additional $28,000.
       Wife also submitted the declaration of her financial expert, who attributed the
decrease in husband’s income to a decreased work schedule. He opined that “fewer days
worked (averaging a 3-day work week), resulting in fewer charges produced . . . are the
primary drivers of decreased income available for support.” According to wife’s expert,
“[f]or the nine months in which the number of days worked can be estimated for 2010
and compared to 2011, [husband] has worked a total of 20 fewer days in 2011.” The

                                               4
expert acknowledged that “the combined net income of both practices . . . may be
impacted by one-time non-recurring startup expenses associated with the new El Dorado
Hills practice,” but maintained that “fewer days worked . . . is the primary driver of
decreased income for support.”
       Husband opposed wife’s request for attorney and expert fees, arguing that he
lacked the ability to pay them “after payment of his own obligations,” including the
“court-ordered spousal and child support.” He also claimed that there was no disparity
between the parties access to counsel, noting that wife had paid her counsel $107,000,
which was $20,000 more than he had paid his counsel, and that wife was unable to
establish a need for the fees sought when it was undisputed she had spent in excess of
$430,000 over the past 18 months.3 Husband’s income and expense declaration, dated
June 21, 2012, showed monthly income totaling $16,400 and monthly expenses of
$11,806, not including attorney fees (other than monthly payments to former counsel
totaling $300). As of that time, he had paid nearly $90,000 to his three family law
attorneys, including $20,000 to his current counsel, and owed them over $40,000
combined. Husband’s schedule of assets and debts, also dated June 21, 2012, showed
nearly $2 million in debts compared to assets of $275,000, including roughly $3,500 in a
personal checking account. Husband’s final (but not yet filed) tax return for 2011
reported $163,433 in total federal taxable income for 2011, which amounts to just under
$14,000 per month.
       Husband submitted the declaration of his office manager who had worked for
husband for three and one-half years and for the prior owner of the El Dorado Hills office
for over 10 years. She stated that husband offered “a comprehensive array of oral



3 According to husband, wife took $128,145 from the parties’ accounts when they
separated, received $194,314 in spousal and child support, borrowed $72,000 from her
father, and borrowed $37,000 from her mother.

                                             5
surgery,” a scheduler was available for all telephone calls during office hours, and
husband continued to market his practice. She opined that “[t]here is no reason, but for
the poor economy in the communities we serve, for the practice not to be robust and
successful.” “Based upon the reduction in patient calls and referrals . . . and the more
frequent cost inquiries we receive,” she was “certain that the practice is down because
fewer patients have coverage and cash, and fewer dentists are inclined to refer out work.”
       Husband’s motion to bifurcate and wife’s fee request were heard on August 30,
2012.4 At the hearing, wife’s counsel handed the court a handwritten document, which
apparently summarized payments made and amounts due on certain of husband’s credit
cards. Among other things, wife’s counsel stated that husband paid American Express
$47,000 one month, when the minimum payment was $286 and the balance owed was
$12,675, and argued that “if we add this back to his income later, if we’re looking for
available income for fees and support, this is one of the ways that we can do that. [¶]
The other way that we can do that . . . [is] he’s got available credit . . . .” Husband’s
counsel objected, arguing, “We’re talking about documents which are not before the
Court” and about information “which was not raised in the reply . . . .” The trial court
overruled the objection, and wife’s counsel continued: “Let me sum it up: Nine credit
cards. He has approximately maybe [$]90,000 available credit on credit cards.” Wife’s
counsel also advised the court that husband had recently vacationed in Hawaii and Utah
and argued that such vacations were inconsistent with his claim that he lacked funds to
pay wife’s attorney fees.




4 Two days before the hearing, wife filed a supplemental declaration, and the next day
husband filed a motion to strike it as untimely. At the hearing, the trial court indicated it
had not reviewed either document. Wife forfeited any challenge to the trial court’s
failure to consider her supplemental declaration in ruling on her motion by failing to raise
the issue on appeal. Accordingly, we shall not consider the supplemental declaration in
reviewing the trial court’s ruling.

                                              6
       Husband’s counsel argued that husband did not have the ability to pay wife’s
attorney fees in addition to his own. Counsel observed that husband’s monthly income,
based on his unfiled 2011 income tax return, was just under $14,000, and he paid wife on
average $14,100 per month in support over the past 18 months. Thus, “he has actually
paid her more in support than he had.” Counsel also pointed out that husband’s debts far
exceeded his assets, and claimed that husband had no liquid assets. As far as a line of
credit, counsel noted that “the credit cards referenced [by wife’s counsel] are not
[husband’s] personal credit cards. . . . These are business credit cards.” As for the credit
card payments referred to by wife’s counsel, husband’s counsel explained that husband’s
office assistant contacted the credit card companies before paying the bills and paid what
was actually owed -- she did not wait for a bill to come. She did this to avoid exceeding
the credit limits on the cards and having the accounts frozen. Counsel further advised the
court that husband owed counsel’s law firm approximately $40,000, and that there was a
“stop-work order issued on this case.” Finally, counsel asserted that wife’s inability to
pay her attorney and expert was due to her excessive spending, noting that her monthly
expenses averaged $24,000, and her spending records reflect that she spends $300 to
$500 on hair, tanning, and waxing each month, and has travelled to Hawaii, Mexico, and
Utah on multiple occasions. When asked by the court if husband had travelled anywhere
within the past year, husband’s counsel responded, “He went to Hawaii one time” and
“traveled to Utah by car with the children.” Counsel further stated, “We’re not disputing
he makes money. He makes gross receipts are [sic] significantly higher than income, but
$20,000 a month before we back out some needs to capitalize the business. . . . [B]ut his
real income is between 14 and 15 a month.” When asked by the court what the support
payments have been lately, husband’s counsel indicated that husband had paid $7,500 per
month in support over the past three months.
       A representative from the Department of Child Support Services (DCSS) also
appeared at the hearing. She asked the court to set husband’s motion to modify support

                                             7
for trial “so that they can get the guideline support that’s necessary for our office to
enforce.” She explained that DCSS had been staying enforcement of the existing support
order to avoid husband losing his license.
       The trial court agreed that “[w]e need to get this to trial.” Accordingly, it granted
husband’s motion to bifurcate and set his motion to modify support for a two-day trial in
January 2013. It also granted wife’s request for attorney fees in the amount of $40,000 to
be paid forthwith. The court stated, in pertinent part: “[B]ased upon information
provided today, . . . I’m going to find that [husband] does have the ability to pay
additional attorney’s fees, and I would order they be paid in the sum of $40,000.” The
court confirmed that it had taken into account husband’s ability to pay his own attorney
fees and understood that “there’s already an order that he’s supposed to be paying”
monthly support in the amount of $23,500. The court continued, “If it’s being paid, then
we don’t have an issue, but it doesn’t appear to be getting paid.” In response to
husband’s counsel’s assertion that “the Court knows what [husband’s] income is,” the
court responded, “I don’t know. I know what he claims it is. It’s an unfiled tax return.
[¶] . . . [¶] And just for the record I’ll indicate that I don’t have anything contrary to the
$14,000 unfiled tax return, and basically I do have information, apart from that which
causes me to believe that [husband] can absorb the Court’ s order. And I’ll leave it at
that.” When asked to clarify “what that information is,” the court stated: “Information
[wife’s counsel] supplied today, the fact that he’s taken a recent vacation to Hawaii, the
fact that he’s recently taken a vacation to Utah, the fact that I’ve been given nothing to
indicate -- I shouldn’t say nothing, but I haven’t been given any tax returns to indicate
how little he’s made. I’ve been told, but that’s it. I haven’t received any evidence at all.”
       The trial court issued its findings and order after hearing on November 1, 2012,
using Judicial Council Forms, form FL-346 (Jan. 1, 2012). The court found in pertinent
part: “1. An award of attorney’s fees and costs is appropriate because there is a
demonstrated disparity between the parties in access to funds to retain or maintain

                                               8
counsel and in the ability to pay for legal representation. [¶] a. The party requested to
pay attorney’s fees and costs has or is reasonably likely to have the ability to pay for legal
representation for both parties. [¶] b. The requested attorney’s fees and costs are
reasonable and necessary.”5
                                        DISCUSSION
       “In a proceeding for dissolution of marriage, . . . the court shall ensure that each
party has access to legal representation, including access early in the proceedings, to
preserve each party’s rights by ordering, if necessary based on the income and needs
assessments, one party . . . to pay to the other party, or to the other party’s attorney,
whatever amount is reasonably necessary for attorney’s fees and for the cost of
maintaining or defending the proceeding during the pendency of the proceeding.”
(§ 2030, subd. (a)(1).)
       “When a request for attorney’s fees and costs is made, the court shall make
findings on whether an award of attorney’s fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel, and whether
one party is able to pay for legal representation of both parties. If the findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.” (§ 2030, subd. (a)(2), italics added.)




5 Husband filed a motion for reconsideration based on new facts, including the “fact” he
had subsequently filed his 2011 tax return. (Code Civ. Proc., § 1008.) The trial court
denied the motion. To the extent husband purports to appeal from the order denying the
motion for reconsideration, it is not appealable. (See, e.g., Reese v. Wal-Mart Stores, Inc.
(1999) 73 Cal.App.4th 1225, 1242; Branner v. Regents of University of California (2009)
175 Cal.App.4th 1043, 1050.) To the extent husband relies on documents presented in
conjunction with that motion in support of his appeal, we cannot consider them as they
were not before the court when it issued its order directing husband to pay the subject
fees. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)

                                               9
                                              I
                                     Standard of Review
       Husband submits that a motion for attorney fees and costs in a dissolution action is
reviewed for abuse of discretion, citing In re Marriage of Keech (1999) 75 Cal.App.4th
860, 866 (Keech). Keech provides in pertinent part, “ ‘A motion for attorney fees and
costs in a dissolution action is addressed to the sound discretion of the trial court, and in
the absence of a clear showing of abuse, its determination will not be disturbed on appeal.
[Citations.]’ ” (Ibid.) At the time the attorney fees at issue in Keech were ordered,
section 2030, subdivision (a) stated in pertinent part: “ ‘During the pendency of a
proceeding for dissolution of marriage . . . , the court may upon (1) determining an ability
to pay and (2) consideration of the respective incomes and needs of the parties in order to
ensure that each party has access to legal representation to preserve all of the party’s
rights, order any party . . . to pay the amount reasonably necessary for attorney’s fees and
for the cost of maintaining or defending the proceeding.’ ” (Keech, at pp. 866-867,
quoting former § 2030, subd. (a).)6 Section 2030 was amended effective January 1,
2011, to “require[] the court to make an order awarding attorney’s fees and costs if the
findings demonstrate disparity in access and ability to pay.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 939 (2009-2010 Reg. Sess.)
as amended Aug. 16, 2010, p. 2; see also § 2030, subd. (a)(2) [“If the findings
demonstrate disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.”].) As one treatise observes, “The legislative amendments to
. . . [section] 2030 that took effect 1/1/11 clearly narrowed court discretion to withhold a
pendente lite fees/costs award when needed to equalize litigating strengths from inception
of the litigation. Pre-2011 case law on the subject of the court’s discretion in this area



6 In his opening brief, husband erroneously quotes from the pre-2011 version of section
2030, quoted in Keech as the operative law.

                                              10
should be relied on cautiously, keeping in mind this most-recent legislative
development.” (1 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter
Group 2014) par. 5:183.2, p. 5-85 (rev. # 1, 2014), italics omitted.)
       Under the current and operative version of section 2030, the court has no
discretion to deny a request for attorney fees and costs if it finds that there is a disparity
in access to funds to retain counsel, and one party is able to pay for legal representation
of both parties. (§ 2030, subd. (a)(2).) We review those findings for substantial
evidence. (See Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 642.) Our review is
also governed by the well established rule that we review “the trial court’s ruling, not its
reasoning. [Citation.] If the trial court’s ruling or decision is correct upon any theory of
law applicable to the case, it will be upheld without regard to the considerations
underlying the court’s determination. [Citation.]” (Woods v. Union Pacific Railroad Co.
(2008) 162 Cal.App.4th 571, 576.) The determination of the amount which is
“reasonably necessary” to ensure each party has access to legal representation is reviewed
under an abuse of discretion standard. (Kevin Q. v. Lauren W., supra, 195 Cal.App.4th at
p. 642.)
                                          II
  The Trial Court’s Findings That There Was a Disparity in Access to Funds to Retain
 Counsel and That Husband Had the Ability to Pay for the Legal Representation of Both
                    Parties Were Supported by Substantial Evidence
       As previously mentioned, the trial court made the requisite findings. It found that
(1) “[a]n award of attorney’s fees and costs is appropriate because there is a demonstrated
disparity between the parties in access to funds to retain or maintain counsel and in the
ability to pay for legal representation,” and (2) husband “has or is reasonably likely to
have the ability to pay for legal representation for both parties.” Before we consider
whether those findings were supported by substantial evidence, we pause to clarify what
is and is not evidence. Statements of counsel in argument are not evidence. (In re Zeth
S. (2003) 31 Cal.4th 396, 413, fn. 11 [“It is axiomatic that the unsworn statements of


                                              11
counsel are not evidence.”].) Accordingly, we shall not consider either counsels’
statements at the August 30, 2012, hearing concerning husband’s credit card payments,
available credit, or travel in determining whether the trial court’s findings were supported
by substantial evidence. We likewise shall not consider the handwritten note wife’s
counsel apparently provided to the trial court at the hearing as it is tantamount to an
unsworn statement by counsel and was not admitted into evidence. That the trial court
may have relied on those statements or the note in making its findings is of no
consequence where, as here, we independently review the record to determine whether
substantial evidence supported those findings. As detailed above, we are concerned with
the court’s ruling, not its reasoning. (Woods v. Union Pacific Railroad Co., supra, 162
Cal.App.4th at p. 576.)
       Viewing the evidence in the light most favorable to the trial court’s findings, as we
must (Fergus v. Songer (2007) 150 Cal.App.4th 552, 567), the evidence showed that wife
was a stay-at-home mother of four minor children. Her income was limited to the
support paid by husband, which amounted to $7,500 per month during the three months
prior to the hearing. Husband was a self-employed oral surgeon whose income had
purportedly decreased over 66 percent since being ordered to pay child and spousal
support in the amount of $23,500 per month. Husband’s monthly income in the nine
months leading up the support order exceeded $60,000, while his financial records for the
following 12 months showed a monthly income of approximately $22,300 per month.
While husband’s forensic accountant attributed the decrease in income to the opening of
the El Dorado Hills office and his office manager attributed it to a poor economy, wife
presented evidence that husband was attempting to depress his income available for
support by overpaying his credit cards and business expenses and working less. In
particular, wife presented evidence in the form of a declaration that husband was
“pay[ing] tens of thousands toward credit card debts (overpaying $17,000 to AMEX in
February[)]” and “pay[ing] his chosen business expenses -- often in excess of the

                                             12
minimum payment” to avoid paying her full support. She also presented evidence that
husband worked approximately 20 fewer days in 2011 than 2010, resulting in less
income. From this evidence the trial court reasonably could have inferred that husband’s
actual income exceeded the amounts reflected in his income and expense declaration and
unfiled 2011 tax return, and/or that he was capable of earning more money. A trial court
may rely on imputed income in adjudicating an attorney fee request. (3 Hogoboom &
King, Cal. Practice Guide: Family Law, supra, par. 14:173, p. 14:60; see, e.g., In re
Marriage of Berger (2009) 170 Cal.App.4th 1070, 1085.)
       Husband makes much of the fact that he had been ordered to pay $23,500 in
monthly support; an amount he contends exceeded his monthly income. Putting aside the
income component of his argument (which is addressed above), it is undisputed that
husband disregarded the court’s order. Indeed, in the three months prior to the hearing on
wife’s fee request, husband paid just $7,500 per month in support. The trial court was
permitted to take this fact into account in determining husband’s ability to pay wife’s
attorney fees.
       Husband also disputes wife’s inability to pay her own fees, noting that she
expended or had access to approximately $430,000 (or $24,000 per month) in the 18
months prior to filing her motion for fees. As husband acknowledges, $141,000 of that
amount was spent on legal and expert fees; thus, wife spent $289,000 (or just over
$16,000 per month) on nonlitigation related expenses.7 Assuming for argument’s sake




7  The $24,000 per month husband contends wife expended is roughly equal to the
amount of support he had been ordered to pay in pendente lite child and spousal support.
It is worth noting that “[t]he purpose of temporary spousal support is to maintain the
status quo as much as possible pending trial. [Citations.] By contrast, permanent spousal
support is supposed to reflect a complex variety of factors established by statute and
legislatively committed to the trial judge’s discretion, including several factors which
tend to favor reduced support, such as the ‘goal’ that the supported spouse should become

                                            13
that wife’s expenditures were excessive and that such monies could have been used to
cover the additional attorney and expert fees wife seeks, as husband contends, “[t]he fact
that the party requesting an award of attorney’s fees and costs has resources from which
the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order
that the other party pay part or all of the fees and costs requested. Financial 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).) “In assessing the applicant’s relative ‘need’ and the other party’s
ability to pay, the court may take into account ‘all evidence concerning the parties’
current incomes, assets, and abilities, including investment and income-producing
properties.’ ” (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 933.) As previously
discussed, wife was a stay-at-home mother of four minor children from the marriage and
was totally dependent upon husband, an oral surgeon, for her income. While husband
had been ordered to pay wife $23,500 per month in spousal and child support, he actually
paid her far less. Given the parties’ relative incomes and abilities, the court did not err in
ordering husband to pay wife $40,000 in fees and costs.
       While husband does not challenge the amount of the fees he was ordered to pay,
he appears to assert that the trial court abused its discretion by directing that they be paid
“in one lump sum.” In In re Marriage of Schulze, supra, 60 Cal.App.4th at pages 531
and 532, the court reversed a judgment to the extent that it required the husband to pay
$7,500 in attorney fees in a lump sum where it was undisputed that neither party had any
savings or liquid assets and the husband’s parents had lent him $8,000 to pay his own
fees. “In light of the absence of any liquid assets, it was unreasonable not to have
allowed [the husband] to pay the $7,500 attorney fee order in manageable installments,



self-supporting within a reasonable period of time.” (In re Marriage of Schulze (1997)
60 Cal.App.4th 519, 525.)

                                              14
consistent with the income he had left after he paid the family support order.” (Id. at p.
532.) Here, it is undisputed that the parties have less than $5,000 in liquid assets. While
the record contains evidence from which the trial court reasonably could conclude
husband may have access to additional funds in the future by reducing his credit card
payments and/or working more, there is no evidence to support a finding that he had the
ability to pay $40,000 forthwith.
                                       DISPOSITION
       The judgment is reversed to the extent that it requires husband to pay $40,000 in
attorney fees and costs in a lump sum. The matter is remanded to the trial court with
directions to modify the judgment to provide that husband’s obligation to pay $40,000 in
attorney fees and costs may be paid in manageable installments consistent with his actual
income and abilities. The judgment is affirmed in all other respects. In the interests of
justice, each party will bear his or her own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)



                                             BLEASE                    , Acting P. J.


We concur:


         NICHOLSON                  , J.


         MAURO                      , J.




                                             15
