Opinion
C082835
10-29-2018
In re the Marriage of CHRISTOPHER and KAREN CAMPBELL. CHRISTOPHER CAMPBELL, Appellant, v. KAREN CAMPBELL, Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CVFL090380)
This appeal involves a judgment entered in a marital dissolution proceeding that, as relevant here, set spousal support and reserved jurisdiction to divide the net proceeds from the sale of stock in a medical practice as well as the practice's accounts receivable and accounts payable existing prior to the parties' separation. In fact, the medical practice was sold through a sale of the practice's assets and supplies (rather than its stock) around the time that appellant Christopher Campbell and respondent Karen Campbell signed their marital settlement agreement (MSA) and before the judgment incorporating the agreement was entered. Chris now appeals a subsequent statement of decision entered by the trial court to the extent it: (1) awards Karen $23,218 in attorneys' fees, (2) denies his request for a downward modification of spousal support, (3) determines Chris owes Karen $16,680 for the sale of the medical practice, and (4) directs the parties to meet and confer regarding the accounts receivable. The court's direction regarding the accounts receivable is not appealable. As to the remaining issues, because Chris has established no error in the trial court's ruling, we shall affirm the court's order.
We refer to the parties by Chris and Karen, respectively, to assist the reader. We intend no disrespect. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
I. BACKGROUND
Chris and Karen separated in 2008 after 24 years of marriage. On June 24, 2010, the trial court entered a judgment of dissolution incorporating the MSA that the parties had executed nine days earlier. The court ordered Chris to pay Karen $2,250 for spousal support and a $250 per month payment to equalize the division of their community property. The MSA provided that "[t]he court reserves jurisdiction to divide equally the net sales proceeds from the sale of Feather Down Family Practice Group, Inc., including accounts receivable and accounts payable predating the date of the separation of the Parties; and, any tax on debt forgiveness and any debt liability from the short sale of the real property located [in] Live Oak, California." The MSA assumed the stock in the medical practice would be sold because it provided the parties would each receive "[o]ne-half of the proceeds from the sale of stock in Feather Down" as their separate property. To the extent the property distribution set forth was not equal, the parties waived an equal distribution.
In December 2013, Karen filed a request for an order seeking, in part, attorneys' fees and a determination of the Feather Down accounts receivable as of the date of separation. In response, Chris submitted evidence that, on June 9, 2010, Sutter North Medical Group (Sutter North) paid $102,295 for Feather Down's fixed assets and, on June 18, 2010, Sutter North paid $31,146 for Feather Down's supplies. After the asset sale, Feather Down was wound down and dissolved on December 31, 2010. Karen filed an amended request for order that added a request for a determination of the money owed to her from the sale of Feather Down. Chris filed a request for an order modifying spousal support and for attorneys' fees.
After hearing four days of testimony, the trial court issued a tentative decision. Chris filed objections to the tentative decision and a request for a statement of decision. The trial court thereafter issued a "Statement of Decision and Findings and Orders of the Court."
In analyzing Chris's request for a downward modification of spousal support, the trial court explained that because the Family Code section 4320 factors for determining spousal support were not considered by it when the 2010 judgment was entered, it was necessary to include those factors in its analysis. After reviewing the factors, the court proceeded to address the question of whether Chris's obligation to pay spousal support should be reduced. The court analyzed Chris's allegations of changed circumstances and concluded that he had failed to prove any of them by a preponderance of the evidence.
Undesignated statutory references are to the Family Code.
Regarding the sale of Feather Down, Chris's accountant testified that Chris's one-fourth share from the sale was $33,360. Additionally, the accountant testified that he subtracted 25 percent of the medical malpractice tail insurance paid for by the corporation and applied Chris's 2010 tax rate to reduce Chris's share to $8,048. The trial court did not adopt this calculation. The court stated that it "interprets the language 'net proceeds' in . . . the MSA as not ambiguous. There is no provision defining it as proceeds after payment of tail malpractice insurance and taxes. Therefore, it should be considered in its ordinary sense, the net proceeds from the sale itself, at the time of the sale. . . . There is no indication the term used in [the] MSA . . . was used in a 'technical' or 'special' way. [¶] Even if 'net proceeds' were considered an ambiguous term, applying rules of interpretation would not support Chris's position. 'When different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.' [Citation.] After looking at various rules of interpretation, none of which applies (i.e. technical usage, illegality, etc.), there is a catch-all rule: 'In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.' ([Civ. Code,] § 1654.) [¶] . . . Chris' second attorney who reportedly drafted the MSA in 2010, testified he had no knowledge of the terms of the sale or what assets of [Feather Down] would be sold to [Sutter North] [citations]. He further testified that to his knowledge, Dr. Campbell had no knowledge of what the terms of the sale of any of the assets were going to be to [Sutter North]. In addition he testified as to what Karen's then attorney . . . believed[, that the] sale was to be a sale of the shares of [Feather Down]. [Chris's attorney at trial] stated to the Court that neither she nor Chris had any advanced knowledge of the sale negotiation. However . . . , Chris testified he had known the terms of the sale . . . for six months prior to sale. [Citation.] The sales agreement was consummated on May 1, 2010, six weeks prior to the June 25, 2010 Judgment with MSA [being] entered." The court explained that "[i]f Chris had accurately disclosed the terms of the sale . . . to his then attorney and Karen and her attorney were fully aware of the terms of the sale and if Karen had agreed to the actual terms of the sale . . . [(]which as to the parties it appears only Chris knew[)], the language of [the] MSA . . . should have read, 'The net proceeds of the sale of the [Feather Down] equipment and supplies, less the cost of malpractice tail insurance and applicable state and federal taxes at Chris' rate.' But, instead, [it] reads, 'Reserved Assets. The court reserves jurisdiction to divide equally the net sales proceeds from the sale of Feather Down Family Practice Group, Inc., including accounts receivable and accounts payable predating the date of the separation of the Parties; and, any tax on debt forgiveness and any debt liability from the short sale of the real property located [in] Live Oak, California.' " The court found that Karen's community property share of the sale of Feather Down was one half of Chris's $33,360 share of the proceeds. The court ordered him to pay Karen $16,680.
The parties do not define tail insurance. We note that Black's Law Dictionary defines "tail coverage" as "[a]n extension of a claims-made professional-liability policy to protect against claims and lawsuits filed after the end of the policy period but based on negligent acts that occurred during the policy period." (Black's Law Dict. (10th ed. 2014) p. 1681, col. 2.)
Chris contends there is no evidence he knew the terms of the sale prior to the MSA. Contrary to this position, Chris testified that negotiations took about six months and, when asked when he learned the shareholders would not be bought out but rather that it would be a purchase of the equipment, he responded, "Sutter North made that clear right up front."
The trial court denied Chris's request for attorneys' fees and awarded Karen $23,218 in attorneys' fees and costs.
"The Court decline[d] to speculate on the amount of receivables which may be owed to Karen," and directed counsel to meet and confer on that remaining issue.
Chris filed a motion for new trial that was apparently denied by operation of law. He then filed a timely appeal.
II. DISCUSSION
A. Request for Modification of Spousal Support
1. Standard of Review
" 'Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.] Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. [Citations.] It includes all factors affecting need and the ability to pay.' [Citation.] 'A trial court considering whether to modify a spousal support order considers the same criteria set forth in [section] 4320 as it considered in making the initial order.' " (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) " 'These factors include the ability of the supporting party to pay; the needs of each party based on the standard of living established during the marriage; the obligations and assets of each party; and the balance of hardships to each party.' " (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.)
"The spouse seeking to modify support bears the burden to establish a material change in circumstances." (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 956-957.) "Although the trial court may not modify spousal support without proof of a change in circumstances, the converse is not true." (Id. at p. 956.) In other words, " ' "[a] showing of changed circumstances does not necessarily mandate a modification of spousal support." ' " (Ibid.) "The trial court has broad discretion to decide whether to modify a spousal support order." (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
"In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.) An abuse of the trial court's discretion is shown only when, " ' "after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances." ' " (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 575.) Additionally, "[w]e presume the court's decision is correct and the appealing party must affirmatively show error." (In re Marriage of Minkin, supra, 11 Cal.App.5th at p. 957.)
2. References to Marital Standard of Living
Chris's first argument regarding the trial court's denial of his request for modification of spousal support is an attack on various statements made in the statement of decision rather than the ultimate findings of fact therein. He states that the court "apparently weighed the [section] 4320 factors—including the marital standard of living—in determining whether there was a material change in circumstances, and looked at circumstances as of October 2008 rather than as of the date of the Stipulated Judgment," which was June 2010. (Italics added.) The court did begin by reviewing the section 4320 factors but it did not determine whether there had been a change of circumstances or reach a conclusion as to the proper amount of spousal support at that point. (See In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1476 ["A family law court may not find a change of circumstances . . . in the reconsideration of a circumstance which has not changed since the previous order"].) Chris argues paradoxically that "[i]n determining a change of circumstances, those circumstances existing at the time of the prior order are not relevant." We conclude the prior circumstances are relevant to determining what if anything has changed since the prior order. After reviewing the section 4320 factors, the court turned to the question of whether Chris's obligation to pay spousal support to Karen should be reduced based on changed circumstances. The court ultimately found: (1) Chris "failed to meet his burden of proof by a preponderance of the evidence that [Karen]'s financial circumstances [had] materially improved since 2010 due to her relationship with" an alleged boyfriend; (2) Chris "failed to meet his burden of proof by a preponderance of the evidence that [Karen]'s financial circumstances [had] materially improved since 2010 due to her parents' financial assistance"; and (3) Chris "failed to meet his burden of proof by a preponderance of the evidence that [Karen]'s financial circumstances [had] materially improved since 2010 based [on] her decreased need or significant increase in her own employment income." (Italics added.) Thus, the court correctly addressed and analyzed whether there had been a material change since the prior order. (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 396.) Chris has not persuaded us otherwise.
3. Alleged Changed Circumstances
Chris asserts that, as a matter of law, he demonstrated changed circumstances and the trial court abused its discretion by refusing to modify support without exercising its discretion to do so. We disagree.
a. Karen's Access to Funds
Chris states without citation to the record that "it was undisputed that Karen had access to a significant amount of funds she did not have in 2010." This statement is insufficient to demonstrate error.
To the extent that evidentiary support may have been found somewhere in Chris's 24-page factual background, this is not enough to preserve his claim. An appellant must support any reference to a matter in the record with citations to the record "to enable appellate justices and staff attorneys to locate relevant portions of the record expeditiously without thumbing through and rereading earlier portions of a brief." (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn.16.) Additionally, any arguments raised or only supported by authority on reply have been waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
b. Parental Support
Chris argues Karen's parents provided her with housing and transportation worth approximately $1,400 per month. Her 2010 income and expense declaration listed $4,550 in actual monthly expenses and proposed needs including $985 for rent and $700 for auto expenses and transportation. By 2013, Karen listed proposed needs totaling $4,001, including $900 for rent and $525 for auto expenses and transportation. As to auto expenses, Chris argues Karen has no car payment because her parents bought her one. This assertion is not helpful to his claim because Karen claimed $525 per month for repairs to her old van and for a car used by one of the couple's sons rather than as a payment for her new car. As to rent payments, Chris cites Karen's testimony regarding whether she had stated during her August 2014 deposition that she had been directed by her parents not to pay rent. The trial court's decision explained that "Karen testified she expect[ed] to pay $900.00 per month in rent, but sometimes her parents [told] her not to bother." The trial court apparently credited that testimony and we discern no abuse of discretion in this determination. Karen testified that when she paid rent, she did so by depositing a spousal support check into her parents' account to cover past and future rent payments. The court found that while there was evidence of these deposits, there was "no evidence of beginning balances or ending balances" on the account. "Therefore, the court cannot find Chris has met his burden of proof that Karen is living in the . . . house rent free or that her parents are supplementing her income to a level that would be a material change of circumstances and justify a reduction of spousal support. [¶] Even if Karen's parents are making [monetary] gifts to her, courts are not required to automatically reduce spousal support accordingly. [Citation.] 'In holding that a trial court may exercise its discretion to consider third party gifts to a supported spouse in determining a spousal support award, we emphasize that we do not hold that the trial court must mechanically decrease a supported spouse's award by the amount of any gifts received, or even that the trial court should in every case consider such gifts in determining the appropriate level of support. Rather, we hold that it is within the trial court's broad discretion to consider evidence of monetary gifts as one factor, together with evidence pertaining to all of the other section 4320 factors, in determining the appropriate spousal support award.' [¶] Furthermore, even if Karen is living rent free in her parent's home the Court cannot find Karen's current standard of living would meet or exceed the standard of living she and Chris enjoyed during the marriage." The trial court's determination that Chris had not satisfied his burden of proof was supported by the record. This is essentially fatal to his arguments regarding parental support.
To the extent the evidence suggested Karen's parents had provided her with some assistance, as the trial court observed, it had discretion whether to consider third party gifts to a supported spouse in determining a spousal support award. (In re Shaughnessy (2006) 139 Cal.App.4th 1225, 1243-1244.) The suggestion that the trial court did not properly exercise this discretion is not well taken. The trial court's decision indicated it was aware of its ability to consider parental gifts and would not be using it to find a material changed circumstance. We cannot conclude this was an abuse of the trial court's discretion.
As we discussed previously, Chris also criticizes the trial court's reference to the marital standard of living. He suggests the court "decid[ed] not to modify support based on its finding that Karen's income was insufficient to meet the marital standard of living." This is an oversimplification of the court's analysis. As demonstrated above, the trial court's threshold determination was that Chris had failed to meet his burden of proof to establish a material change. It was not error for the trial court to reference the marital standard of living in making the tertiary observation that even living rent free would not be sufficient to elevate Karen to the marital standard of living. While the marital standard of living is not the only factor in determining spousal support and its importance may decrease over time, it is still "an important factor in determining spousal support." (In re Shaughnessy, supra, 139 Cal.App.4th at p. 1247.) The trial court thus did not abuse its discretion in referencing the marital standard of living in this context. This discussion also nullifies Chris's assertion that the trial court refused to modify support based solely on an erroneous determination that there were no changed circumstances. The trial court indicated that, even if Chris had demonstrated a changed circumstance, it would exercise its discretion not to modify spousal support based on the record before it. We cannot conclude this was an abuse of discretion.
Chris has demonstrated no error with respect to the trial court's ruling on the parental support issue.
c. Karen's Income
Chris contends Karen had increased income. As the trial court explained, Karen's rate of pay did not increase between 2010 and 2014, but she worked more hours, thus increasing her earnings. Unfortunately, Karen was terminated from her job during the trial court's proceedings. The court stated that "[b]ased on the totality of the circumstances and the credibility of the witnesses, this Court cannot reasonably find Karen was in a materially better financial position in July of 2014 than she was on October 2008 or June 24, 2010[,] to justify a downward modification of spousal support." On appeal, Chris argues the court cannot base its decision on Karen's termination because there was no evidence regarding her income after her one-month severance pay ran out other than her testimony that she would be seeking employment. He asserts "[t]he court could have made its support order contingent on a hearing to review actual circumstances once they occurred." He cites an appellate case in which spousal support was reduced and set on a sliding scale for the future. (In re Marriage of Rome (1980) 109 Cal.App.3d 961, 963-964.) There, the appellate court concluded that the order establishing a sliding scale was an abuse of discretion. (Id. at p. 965.) Here, the trial court ordered no change. It was Chris's burden to establish a material change in circumstances (In re Marriage of Minkin, supra, 11 Cal.App.5th at pp. 956-957) and Karen was not presently employed. At the very least, it was not an abuse of discretion for the trial court to conclude that there was no showing that Karen's financial circumstances had materially changed for the better. B. Net Proceeds from the Sale of Feather Down
Chris argues the trial court erred by awarding Karen $16,680 as the net proceeds of the sale of Feather Down. We will address separately each of the amounts he asserts should have been subtracted to arrive at the net proceeds.
1. Tail Insurance
Chris contends the cost of tail insurance should have been deducted in calculating the net proceeds of the sale. We need not reach this issue because Chris has a threshold factual problem that he does not address. The trial court did not believe tail insurance was required or apparently that Chris actually paid it: "Essentially Chris testified he was required by [Sutter North] to pay his tail insurance before the distribution. The Court has difficulty believing that especially because [witnesses] testified the other three [Feather Down] physicians joined [Sutter North] as [a] group and maintained their offices in the original [Feather Down] building, while Chris negotiated his own arrangement with [Sutter North] and relocated to the main [Sutter North] campus on the opposite side of Yuba City. [¶] . . . [¶] The testimony and evidence that Chris in fact paid his tail insurance twice and was reimbursed for the overpayment is not consistent with Chris' contention that the tail insurance was deducted from the [Sutter North] payment to [Feather Down]." Chris has not demonstrated reversible error with respect to the trial court's refusal to deduct tail insurance in calculating net proceeds.
2. Taxes
Chris also argues that the court erred as a matter of law in not subtracting the taxes he paid on the sum he received from the sale of Feather Down.
Marital settlement agreements incorporated into a judgment of dissolution are interpreted under the statutory rules governing the interpretation of contracts. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) "When the language of the judgment incorporating the marital settlement agreement is clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language." (Id. at p. 1440.) Conversely, "[a] term of the agreement is ambiguous if it is susceptible of more than one reasonable interpretation." (Id. at p. 1439.)
Chris relies on out-dated citations to Black's Law Dictionary to establish the meaning of the term "net proceeds." We look to contemporaneous dictionary definitions to ascertain the meaning of a term. (See Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1091.) At the time the parties executed their marital settlement agreement, Black's Law Dictionary defined "net" generally as "1. An amount of money remaining after a sale, minus any deductions for expenses, commissions, and taxes. 2. The gain or loss from a sale of stock." (Black's Law Dict. (9th ed. 2009) p. 1138, col. 2; accord Black's Law Dict. (10th ed. 2014) p. 1202, col. 1.) This lends support to Chris's interpretation, but the phrase "any deductions for expenses, commissions, and taxes" also suggests that which deductions apply depends on the factual context. For instance, Chris argues " '[g]ross' typically refers to payments made before taxes and 'net' is those remaining after paying taxes. For instance, the Income & Expense Declaration refers to 'gross income' as before taxes." (Italics added.) His argument and his example illustrate the point. Even Chris does not assert the terms net and gross always have the same, unambiguous meanings. If they did, it would not be necessary for the form he cites to specify that gross monthly income is "before taxes." More importantly, the construction of a phrase in one factual context may not be the correct construction of the same phrase in another factual context. The question here was what Chris and Karen meant by "net proceeds," not what net is defined to mean in some other situation. (See also § 4059 ["annual net disposable income of each parent" is computed in part by deducting income tax liability from annual gross income].) As to this question, Black's Law Dictionary defines "net proceeds" without reference to any deduction for taxes: "The amount received in a transaction minus the costs of the transaction (such as expenses and commissions)." (Black's Law Dict. (9th ed. 2009) p. 1325, col. 1; accord Black's Law Dict. (10th ed. 2014) p. 1399, col. 1.) Chris fails to establish that "net proceeds" unambiguously bares the meaning he attributes to it. It appears "net proceeds" is at least susceptible to the trial court's interpretation—that it means the amount Chris received as a distribution at the time of the sale without requiring him to estimate future taxes or delay payment until they were certain. (See, e.g., In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1633 ["The home eventually sold on July 30, 1990, for $390,000. Net proceeds due to the sellers were $352,691.05"]; Kirkpatrick v. Smith (1952) 113 Cal.App.2d 409, 410 ["The property was sold for $32,000, a loss of $8,940.68. After repayment of the loan and miscellaneous expenses, the net proceeds from the sale amounted to $14,747.51"]; In re Card (Bankr. N.D.Cal 1990) 114 B.R. 226, 228 [explaining "net proceeds" may be insufficient to satisfy the capital gains tax due upon sale].) Indeed, our research confirms that the term "net proceeds" is ambiguous enough that parties often define what it means in order to clarify the issue. (See, e.g., California First Bank v. Townsend (1981) 124 Cal.App.3d 922, 929, fn. 2 [" 'For purposes of this Paragraph, "net proceeds" shall mean the gross proceeds of the sale, reduced by the amount of all encumbrances, commissions, and expenses of sale that are paid by the Trustee and also reduced by the amount of any income taxes arising from the sale' "]; In re James E. O'Connell Co., Inc. (9th Cir. 1990) 893 F.2d 1072, 1073 ["The term 'net proceeds' was defined by this stipulation as 'the proceeds received by the Trustee after all costs of sale have been deducted from the gross sale proceeds, whether by auction, private sale or otherwise' "].) Chris's briefing does not dispute the trial court's conclusion that if the term "net proceeds" is ambiguous, it must be construed against him. Thus, Chris has not persuaded us that the trial court erred in its treatment of the issue. C. Attorneys' Fees
Chris raises various challenges to the trial court's award of attorneys' fees. Attorneys' fees awards, including those imposed as sanctions, are reviewed under the abuse of discretion standard. (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 276.)
1. Ability to Pay
The court's decision states that it awards Karen $23,218 in attorneys' fees and costs under "§ 270." Section 270 applies to awards made under the Family Code: "If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay." The court addressed Chris's ability to pay under one of two headings in its discussion related to attorneys' fees.
The other heading is "Credibility of the Witnesses."
Chris contends there was insufficient evidence he had the ability to pay Karen's fees. This assumes such an inquiry was necessary. However, the trial court found that section 22 of the MSA provided for attorneys' fees and Chris failed to perform his obligations under this provision. As we discuss next, the basis for the trial court's award is not clear. If the court awarded fees solely pursuant to this contractual provision, it was not required to consider Chris's ability to pay because the fees were ordered under the Civil Code and not the Family Code. (See In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140 [because attorney fee award "emanated from the contractual relationship of the parties and not from their relationship under the Family Law Act," the trial court did not err by precluding husband from introducing evidence regarding his ability to pay the award].) Under these circumstances, Chris can establish no error.
Chris also argues the award is an unreasonable financial burden on him in violation of section 271. This argument assumes what Chris implicitly rejects with his next argument—that section 271 was a basis for the award. (§ 271, subd. (a) ["The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed"].) Nonetheless, his arguments fare no better under this standard. Chris has not met his burden to show the court abused its discretion in finding any sanctions under section 271 would not impose an unreasonable burden on him.
Even if we assume the trial court was required to conduct its inquiry into Chris's ability to pay, we would conclude the court did not abuse its discretion in determining he was reasonably likely to have the ability to pay. The court found "[b]ased on [Chris's] testimony and the confidence he expressed regarding his [practice's] investment potential, . . . Chris will reasonably soon have the resources to [pay] Karen's attorney's fees." Chris's income and expense declaration claimed that he was not yet able to draw a salary from the medical practice he had opened 21 months earlier, but that in three months it would be open five days a week. His income from other employment was $7,829 per month and he paid $5,900 in expenses per month. Additionally, he paid $1,750 per month for a student loan and $2,500 to Karen. He claimed to be in default on a student loan that had a $1,912 per month payment and a balance of $301,000. Thus, by his own estimation, Chris needed a salary of about $12,000 per month to break even. As the trial court explained, starting in May 2010, Chris took a job with Sutter North at a base salary of $16,000 per month. He left this position three years later to open his own practice. Chris relies on trial testimony suggesting he would not draw a salary from his practice for a few years, but he also testified that he thought he would ultimately earn more than he did at Sutter North. Under these circumstances, we cannot find an abuse of discretion. The trial court's finding that Chris was reasonably likely to have the ability to pay the award was supported by the record.
2. Challenge to Basis for Award
Chris argues alternatively that the award of attorneys' fees was improper because he did not breach any fiduciary duties. We may not presume, however, that this was the basis for the award. The trial court's judgments and orders are presumed correct and error must be affirmatively shown. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The court stated that Chris's "conduct does not meet the Court's expectation or the spirit of" sections 721 and 1100. Sections 721 and 1100 pertain to the fiduciary relationship between spouses. The court explained the basis for its award without reference to these sections or the breach of fiduciary duty: "Given the totality of the circumstances, including the conduct of the parties and the credibility of the witnesses, the Court finds attorney's fees and costs in favor of [Karen] and payable by [Chris] in the amount of $23,218.00 are fair and in the interest of justice, and orders the same, pursuant to [section] 270." Section 270 is not in itself a basis for awarding attorneys' fees. Section 271, subdivision (a) however, provides that "the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." On appeal, Karen posits that the attorneys' fees award is proper as a need-based fee award under sections 2030 and 2032. The fact that the court discussed the parties' relative ability to pay indicates this may have been a basis for the award. Again, we observe that the court found that section 22 of the MSA provided for attorneys' fees and Chris failed to perform his obligations under this provision. We thus conclude the court may also have based its award on the MSA.
Embedded in Chris's argument regarding breach of fiduciary duty is his contention that an award of attorneys' fees as a sanction under section 271 is also improper because the court made no findings regarding this factor as it related to him. We need not address this claim. (See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 ["Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading"].) Moreover, such findings are not required. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.)
Karen's closing brief in the trial court stated "[f]ees are need based and also justified pursuant to" sections 2107 and 271.
Chris incorrectly asserts that because it is impossible to determine exactly what the court based its award of fees on, the award itself must be reversed. This is not the law. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 ["These uncertainties do not prevent our review, as under settled appellate principles we may affirm the court's sanctions order on any ground supported by the record"].) Chris cites authorities in which one of the court's bases for awarding attorneys' fees was improper. (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 658; In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 993, disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.) Here, Chris has not demonstrated that the trial court relied on any improper basis in awarding attorneys' fees. Additionally, he cannot use any ambiguity in the statement of decision to his benefit because (so far as we can determine from the record on appeal) he did not file any objection to the final statement of decision on these grounds. "If the party challenging the statement of decision fails to bring omissions or ambiguities in it to the trial court's attention, then, under Code of Civil Procedure section 634, the appellate court will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.) Chris has again failed to demonstrate error. D. Accounts Receivable
We also reject Chris' assertion that any award should have been offset by an award against Karen. Again, Chris has not demonstrated that the trial court abused its discretion.
Lastly, Chris contends Karen's claim for a division of accounts receivable as of 2008 should have been denied without further hearing and we should order no further proceedings on this issue. Chris does not cite any portion of the statement of decision to support his claim of error. We were able to locate the following passage in the trial court's statement of decision: "The Court declines to speculate on the amount of receivables which may be owed to Karen. On March 14, 2016[,] the Court directed the attorneys to meet and confer on that remaining issue." We discern nothing appealable in these statements.
III. DISPOSITION
The order is affirmed. Respondent Karen Campbell shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur:
/S/_________
BUTZ, Acting P. J.
/S/_________
HOCH, J.