Opinion
D080859
02-23-2024
In re the Marriage of SUSAN MISSAGHIEH-MOTLAGH and FRANK MOTLAGH. v. SUSAN MISSAGHIEH-MOTLAGH, Respondent. AMY MOTLAGH, as Personal Representative, etc. Appellant,
Higgs Fletcher & Mack, John Morris and Steven M. Brunolli, for Appellant. Neumann Family Law and Melissa J. Schmitt, for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 20FL000661C Olga Alvarez, Judge. Affirmed as modified.
Higgs Fletcher & Mack, John Morris and Steven M. Brunolli, for Appellant.
Neumann Family Law and Melissa J. Schmitt, for Respondent.
IRION, J.
Appellant Amy Motlagh, as personal representative for the estate of Frank Motlagh (Husband), appeals an order granting the requests of respondent Susan Missaghieh-Motlagh (Wife) for awards of temporary spousal support and pendente lite attorney fees and costs in their marital dissolution proceeding. On appeal, Husband contends that the trial court erred by: (1) denying his request for an evidentiary hearing pursuant to Family Code section 217; (2) refusing to consider evidence of the parties' financial condition, needs, and abilities to pay; (3) awarding Wife temporary spousal support retroactive to April 1, 2020; and (4) disregarding section 4320 factors in determining its award to Wife of pendente lite attorney fees and costs.
During the pendency of this appeal, Frank Motlagh passed away and his daughter, Amy Motlagh, as his personal representative, was substituted in his place as appellant.
All statutory references are to the Family Code unless otherwise specified.
As explained below, we conclude that the court did not abuse its discretion by denying Husband's request for a section 217 hearing and in awarding Wife retroactive temporary spousal support and pendente lite attorney fees and costs.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Husband and Wife married. In July 2019, they separated. On January 16, 2020, Wife filed a petition for dissolution of their marriage.
On March 13, 2020, Wife filed a request for order (RFO), seeking, among other things, awards of temporary spousal support and pendente lite attorney fees and costs. In support of her RFO, she submitted an income and expense declaration. Husband filed a responsive declaration, requesting, among other things, that the court deny Wife's request for spousal support and attorney fees and costs, award him attorney fees and costs, and order the sale of their marital residence. He also submitted an income and expense declaration. The hearing on Wife's RFO was repeatedly continued until June 16, 2022, by agreement of the parties and pursuant to the trial court's own motion due to court closures.
At the June 16, 2022 hearing, the court heard arguments of counsel on various matters and set a 20-minute hearing for July 14 on Wife's RFO request for awards of temporary spousal support and pendente lite attorney fees and costs.
At the July 14 hearing, the court first announced its tentative ruling to award Wife temporary spousal support of $5,434 per month for 2020 and $3,659 for 2021 and attorney fees and costs of $100,000. After hearing counsel's arguments, the court denied Husband's request for a section 217 evidentiary hearing, finding good cause to deny his request. It then awarded Wife $85,000 for attorney fees and costs and $4,063 per month in temporary spousal support, effective April 1, 2020. Finally, the court granted the request by Husband's counsel that it admit into evidence all of the exhibits lodged by, and declarations submitted by, both parties.
On July 15 (the following day), the trial court issued an ex parte minute order stating that it had reconsidered its July 14 order granting the request by Husband's counsel to admit in evidence all of the parties' lodged exhibits and submitted declarations and instead denied that request.
On August 22, the court issued its findings and order after hearing (FOAH), which: (1) confirmed its denial of Husband's request for a section 217 evidentiary hearing; (2) awarded Wife temporary spousal support and attorney fees and costs; and (3) noted its initial grant of Husband's request to admit in evidence all of the parties' lodged exhibits and submitted declarations and subsequent reversal of that ruling in its July 15 ex parte minute order. The FOAH also attached the court's DissoMaster report, which set forth each party's monthly income and expenses. On August 30, Husband appealed the August 22 FOAH.
On August 31, 2022, Husband filed a petition for writ of supersedeas or other stay order, requesting an emergency stay of the FOAH. On September 20, we issued an order that granted the petition, stayed the FOAH during the pendency of the instant appeal, and granted calendar preference for the appeal. On March 12, 2023, during the pendency of this appeal, Husband died while in hospice care. On July 26, Amy Motlagh was appointed as the special administrator for Husband's estate and requested that she be permitted to maintain the instant appeal and appear at oral argument by counsel. On August 21, we issued an order substituting Amy Motlagh in place of Husband as appellant. Because the FOAH was a final, appealable order, Husband's subsequent death did not affect the validity or enforceability of the FOAH. (Cf. In re Marriage of Williams (1980) 101 Cal.App.3d 507, 511 ["Upon the death of a party to a marriage dissolution or divorce proceeding, the [trial] court retains the power to enter judgment in conformity with matters already adjudicated before the death. But it can make no further adjudication of issues."]; In re Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1575 [same]; In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1229 [same].) Therefore, although the trial court presumably does not have jurisdiction to decide unresolved issues in the instant marital dissolution proceeding, its FOAH, which was decided before Husband's death, is a final, enforceable order that remains subject to our review on appeal.
DISCUSSION
I
Denial of Section 217 Hearing
Husband contends that the trial court erred by denying his request for a section 217 evidentiary hearing on the issues of Wife's requests for awards of temporary spousal support and pendente lite attorney fees and costs. In particular, he argues that in finding good cause to deny his request, the court did not consider all of the factors set forth in California Rules of Court, rule 5.113(b). We conclude that the court did not err by denying his request.
All references to rules are to the California Rules of Court.
A
Section 217 provides:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
"(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
"(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing." (Italics added.)
Rule 5.113(b) states:
"In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217:
"(1) Whether a substantive matter is at issue-such as child custody, visitation (parenting time), parentage, child support, spousal support, requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties;
"(2) Whether material facts are in controversy;
"(3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses;
"(4) The right of the parties to question anyone submitting reports or other information to the court;
"(5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c); and
"(6) Any other factor that is just and equitable."
Rule 5.113(c) states: "If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing. The court is required to state only those factors on which the finding of good cause is based." (Italics added.)
On appeal, we review a trial court's finding of good cause under section 217 for abuse of discretion. (In re Marriage of Hearn (2023) 94 Cal.App.5th 380, 390 (Hearn).) "Applying the abuse of discretion standard, we consider de novo any questions of law raised on appeal, but will uphold any findings of fact supported by substantial evidence. [Citation.] The trial court's order 'will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' [Citation.]" (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532 (Smith).)
In Hearn, the trial court found that the issue of wife's request for an award of need-based attorney fees had been" 'so exhaustively briefed'" that an evidentiary hearing would not give it information that could have, and should have, been included in the parties' written submissions. (Hearn, supra, 94 Cal.App.5th at p. 391.) Hearn concluded that it was "[i]mplicit in this finding" that the trial court determined that the material facts were not in controversy, that live testimony was not necessary for it to assess the parties' credibility, and that the parties had been given ample opportunity to present their cases and it was in possession of all information it required to rule on the request. (Ibid., citing rule 5.113(b)(2), (3), & (6).) Hearn concluded that the trial court had made a sufficient finding of good cause to deny the husband's request for a section 217 evidentiary hearing. (Hearn, at p. 391.) Importantly, Hearn stated: "The court was not required to set forth its conclusions as to all of the factors listed in rule 5.113(b); it was required only to state the facts upon which the finding of good cause was based. (Rule 5.113(c).) In these circumstances, the trial court made the required findings and did not abuse its discretion in finding good cause." (Hearn, at pp. 391392; see also, In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1132 (Binette) [trial court did not err in denying request for § 217 evidentiary hearing where it sufficiently indicated it had considered pertinent factors and found that material facts were not in controversy and live testimony was unnecessary].)
On appeal, a judgment or order is presumed to be correct, and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) "The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).)
B
At the July 14, 2022 hearing, Husband's counsel argued that a two-day section 217 evidentiary hearing was necessary because Husband had a forensic accountant available to testify (apparently regarding his income), the parties had not agreed regarding their incomes, and there was conflicting evidence. The court denied Husband's request for a section 217 hearing, stating: "The Court has found good cause to deny the request given that the issue before the Court is temporary spousal support and attorney's fees. The request for order[s] on temporary spousal support has been pending for two years. Live testimony to determine credibility of the witnesses was not necessary, and again, it was temporary spousal support." The court then considered and discussed the evidence submitted by the parties, heard arguments of counsel, and awarded Wife temporary spousal support and attorney fees and costs in the amounts stated above.
In its FOAH issued on August 22, 2022, the court stated in part: "2. The Court finds good cause to deny [Husband's] request for live testimony under Family Code § 217. The issue before the court is temporary spousal support and attorney's fees and costs. Live testimony is not necessary to determine the credibility of the witnesses."
C
Assuming arguendo that Husband timely and adequately requested a section 217 evidentiary hearing, we conclude that the trial court did not abuse its discretion by finding good cause to deny his request. Contrary to Husband's assertion that we must review de novo the trial court's finding of good cause to deny his section 217 request, we conclude that the abuse of discretion standard of review applies. (Hearn, supra, 94 Cal.App.5th at p. 390.) The record clearly shows that in denying Husband's request for a section 217 hearing, the court simply applied the clear language of section 217 and rule 5.113 to the particular facts and circumstances in this case and, in so doing, did not interpret any language in that statute and rule, which would require our de novo review. Husband does not cite to anything in the record affirmatively showing otherwise.
In addition to arguing that the trial court did not err by finding good cause to deny Husband's request for a section 217 evidentiary hearing, Wife also argues that he did not timely and adequately request a section 217 hearing. However, because we conclude that the court did not err by finding good cause to deny Husband's request, we need not, and do not, address the question of whether he timely and sufficiently requested a section 217 hearing.
As discussed above, the trial court cited a number of factors in support of its finding of good cause to deny Husband's section 217 request. First, it noted that the issues to be decided involved temporary spousal support and attorney fees and costs. In so doing, the court implicitly found that there was "a substantive matter . . . at issue-such as . . . spousal support" under rule 5.113(b)(1). Second, the court found that live testimony to determine the credibility of witnesses was not necessary. In so finding, the court expressly found that "live testimony [was not] necessary for the court to assess the credibility of the parties or other witnesses" within the meaning of rule 5.113(b)(3). Finally, the court noted that Wife's request for temporary spousal support had been pending for two years. In so finding, the court implicitly found that it would be "just and equitable" within the meaning of rule 5.113(b)(6) to expedite Wife's request for temporary spousal support given the two-year delay in deciding her request without a section 217 evidentiary hearing. By directly or indirectly citing three of the six factors listed in rule 5.113(b), the court presumably considered all of the factors listed in rule 5.113(b) in finding good cause to deny Husband's request for a section 217 hearing. (Arceneaux, supra, 51 Cal.3d at p. 1133.) Furthermore, in so doing, the court complied with the statutory requirement that it "state its reasons for [its good cause] finding on the record." (§ 217, subd. (b); see also, rule 5.113(c) ["If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing."].)
Contrary to Husband's assertion, the court's finding of good cause was not "nominal," but rather a substantive finding under section 217, subdivision (b) in support of its denial of his request for a section 217 hearing.
Contrary to Husband's apparent assertion, the court was not required to cite and/or discuss all six factors listed in rule 5.113(b). Rule 5.113(c) states: "The court is required to state only those factors on which the finding of good cause is based." Therefore, the court complied with rule 5.113(b) and (c) by citing, or referring to, three of the six factors listed in rule 5.113(b). (Cf. Hearns, supra, 94 Cal.App.5th at pp. 391-392 [trial court was not required to set forth its conclusions as to all of the factors listed in rule 5.113(b); it was required only to state the facts upon which the finding of good cause was based, citing rule 5.113(c)]; Binette, supra, 24 Cal.App.5th at p. 1132 [trial court did not err in denying request for section 217 evidentiary hearing where it sufficiently indicated it had considered pertinent factors and found that material facts were not in controversy and live testimony was unnecessary].) Husband has not carried his burden on appeal to show the court did not consider, or in his words "accurately assess," all of the factors listed in rule 5.113(b) in finding good cause to deny his request for a section 217 hearing. Absent affirmative evidence in the record showing otherwise, we make all implied findings in favor of the court's ruling and, in so doing, imply that the court properly considered, and assessed, all factors listed in rule 5.113(b) in finding good cause to deny Husband's request for a section 217 hearing. (Arceneaux, supra, 51 Cal.3d at p. 1133; Fladeboe, supra, 150 Cal.App.4th at p. 58.)
Likewise, contrary to Husband's assertion, the court's omission of any citation of, or reference to, the remaining three factors listed in rule 5.113(b) (i.e., rule 5.113(b)(2), (4), & (5)) does not affirmatively show it did not consider all of the rule 5.113(b) factors in finding good cause to deny his request for a § 217 hearing. (Cf. Hearns, supra, 94 Cal.App.5th at pp. 391-392; Binette, supra, 24 Cal.App.5th at p. 1132.) By construing the record favorably to support his position and, in particular, rule 5.113(b) factors that would have supported a contrary finding by the trial court (i.e., that there was no good cause to deny his request for a § 217 hearing), Husband misconstrues and/or misapplies the applicable standards of review. Instead, we must construe the record favorably to support the court's finding of good cause and, in so doing, conclude that there is substantial evidence to support its findings regarding the rule 5.113(b) factors and further conclude that the court did not abuse its discretion by considering and weighing the rule 5.113(b) factors in finding good cause to deny Husband's request for a section 217 hearing. (Smith, supra, 242 Cal.App.4th at p. 532 ["Applying the abuse of discretion standard, we . . . will uphold any findings of fact supported by substantial evidence. [Citation.] The trial court's order 'will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' [Citation.]"].)
Husband's citation of In re Marriage of Swain (2018) 21 Cal.App.5th 830 (Swain) does not persuade us to reach a contrary conclusion because, unlike the trial court in this case, the trial court in Swain did not make a finding of good cause to deny the request for a section 217 hearing. (Swain, at p. 842 [trial court did not find good cause].)
II
Consideration of Evidence of Parties' Financial Condition
Husband contends that the trial court abused its discretion by awarding Wife temporary spousal support and attorney fees and costs because it did not consider evidence of the parties' financial condition in making those awards.
A
In awarding a party temporary spousal support or attorney fees and costs, a trial court should consider evidence of the party's need and the other party's ability to pay and, in particular, the parties' respective incomes. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove) [award of temporary spousal support]; §§ 2030, subd. (a)(1), 2032, subd. (a) [award of pendente lite attorney fees and costs in amount that is just and reasonable under parties' relative circumstances].) "Pending a marital dissolution . . ., the court . . . may order either spouse to pay 'any amount that is necessary' for the other spouse's support, consistent with the requirements of sections 4320, subdivisions (i) and (m), and 4325. (§ 3600.)" (Wittgrove, at p. 1326, fn. omitted.) "Generally, temporary spousal support may be ordered in 'any amount' based on the party's need and the other party's ability to pay." (Id. at p. 1327.) Temporary spousal support is utilized to maintain the living conditions and standards of the parties as close to the status quo as possible pending trial and the division of the parties' assets and obligations. (In re Winter (1992) 7 Cal.App.4th 1926, 1932 (Winter).)
As we stated in Wittgrove, "[t]he court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount. [Citation.] [¶] 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 '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 ....' [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 pp. 1327-1328.) An order for spousal support must be based on the facts and circumstances existing at the time the order is made. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
"Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in 'any amount' (§ 3600) subject only to the moving party's need and the other party's ability to pay." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 (Murray).) Regarding awards of pendente lite attorney fees and costs," '[f]inancial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.'" (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1055 (Cryer).) Therefore, such awards "require[ ] a broader analysis of the parties' relative circumstances." (Id. at p. 1056.)
B
In March 2020, in support of her RFO, Wife submitted, among other things, her declaration and an income and expense declaration. In response, Husband submitted his declaration and an income and expense declaration. During the following two-year period, the parties submitted supplemental declarations and updated income and expense declarations. In particular, prior to the June 16, 2022 hearing, Husband and Wife each submitted supplemental declarations and current income and expense declarations. Also, Husband and Wife each filed notices of lodgment of exhibits, lodging more than 80 exhibits that consumed over 1,000 pages in total. Those lodged exhibits included documents relating to real property owned by Husband and/or Wife and copies of Husband's bank account statements and income tax returns for 2019, 2020, and 2021. Also, prior to the July 14, 2022 hearing, Husband submitted a current income and expense declaration. Husband also submitted declarations of Christopher J. Sunnen, his court-appointed guardian ad litem, and Peggy Swearingen, his forensic accounting expert. In particular, Swearingen's declaration set forth her summaries of Husband's income during 2020 and 2021 and his rental property profit and loss statements.
At the July 14, 2022 hearing, the court stated that it had made its own chart showing which of the parties' properties were community property and which were separate property. It then announced its tentative ruling to award Wife temporary spousal support and attorney fees and costs, noting that it had used the DissoMaster calculations submitted by Wife's counsel, which calculations were supported by the lodged exhibits. In support of its tentative ruling, the court stated: "The court finds . . . there is cash in savings and the assets of [Husband] that do provide his . . . ability to pay" its award of temporary spousal support, retroactive to April 1, 2020.
After a brief continuance, the court heard arguments of counsel regarding its tentative ruling. Wife's counsel stated that she agreed with the court's tentative ruling and accepted the determination by Husband's expert regarding his income. She referred to Husband's recent income and expense declarations in arguing that he had the ability to pay temporary spousal support and attorney fees. The court interjected, stating: "I do have a question about the spousal support because in running the numbers, I do get slightly different numbers than the numbers that you obtained."
Husband's counsel argued that Husband did not have the ability to pay Wife temporary spousal support or her attorney fees and costs. In particular, his counsel cited Husband's recent income and expense declarations as showing he did not have the ability to pay any amounts to Wife, especially given his substantial medical expenses for his palliative care. The court interjected, noting that Husband owned a number of rental properties and had not been forthright in how funds had been spent for community property and separate property.
After hearing arguments of counsel, the court made its awards to Wife, stating:
"The court orders that [Husband] . . . pay attorney fees pursuant to Family Code section 2030 and 2042. The court finds that award of fees is appropriate, there is a disparity in access to funds to retain counsel, the paying party has an ability to pay for legal representation of both parties given the amount in his checking and savings accounts as well as assets from the information provided. The court further finds that the requested attorney's fees and costs are reasonable and necessary. In consideration of the argument made, the court reduced the amount to $85,000.
"[¶] . . . [¶]
"All right. As to temporary spousal support, the purpose of the order is to maintain the living conditions and standards of the parties as close to the status quo as possible pending trial and division of assets and obligations. The parties' accustomed marital lifestyle is the benchmark for a temporary spousal support order. The court's order is based on the requesting party's needs and the other party's ability to pay. The reasonable needs of [Wife] is to meet her living expenses including the mortgage. The ability to pay is demonstrated by [Husband] in the funds in his checking, savings accounts, the findings of income in the 2019, 2020, and 2021 tax returns.
"The court exercises its discretion to use the DissoMaster program to calculate temporary spousal support. As such, the court will read what was in each column. The court did change its tentative [ruling].
"So as stated for [Husband] on his side of the column, other taxable income is 11,314; other nontaxable income is 4,335....Under social security received, it was 1,329, rental income was 5,655, and miscellaneous ordinary taxable income was 4,330. And I do give you the number for other nontaxable income as 4,335.
"On the side of [Wife] . . ., other taxable income is 3,604, social security received is 1,163, rental income is 1,024, miscellaneous ordinary taxable income is 1,417, and health insurance $170. The court will set guideline support that [Husband] pay $4,063 per month. And that is reflected in the DissoMaster....
"All right. As to arrears, it is effective April the 1st, 2020. So as to the arrears, the court calculated and recognizes- just to make sure the math is right-[Husband] owes spousal support arrears in the amount of . . . $113,764 . . . for the period of April 1st, 2020 to July 1st, 2022...."
After the court made its ruling, Husband's counsel requested that the court admit in evidence all exhibits lodged, and declarations submitted, by both parties "if that is what the court is relying on to make its findings and orders." Wife's counsel did not object to the request of Husband's counsel to admit in evidence all of the parties' declarations and lodged exhibits. The court then granted the request to admit in evidence all of the parties' declarations, including Swearingen's declaration, and all of their lodged exhibits.
On July 15, 2022, the following day, the court issued an ex parte minute order, stating:
"The court has determined that it must reconsider the order made at the hearing on July 14, 2022 after the matter was submitted granting the request made by [Husband's counsel] after issuing its ruling to enter all the lodgments into evidence as well as the declarations related to the [RFO] filed on March 13, 2020 by [Wife]. This order is based upon the court's inherent equitable powers to ensure that its orders are correct, and the court's inherent power to correct its rulings (In re Marriage of Barthold (2008) 158 Cal.App.4th 1303; Le Francois v. Goel (2005) 35 Cal.4th 1094). As such, the request is denied."
On August 22, 2022, the court issued its written FOAH setting forth its findings and orders made at the July 14 hearing. The FOAH stated in part:
"1.... After consideration of the motion, pleadings, and oral argument the Court finds good cause to make the following findings and orders. [¶] . . . [¶]
"3. The Court orders [Husband] to pay attorney's fees and costs to [Wife] pursuant to Family Code §§ 2030 and 2032. The Court finds a disparity in access to funds to retain counsel, [Husband] has the ability to pay for legal representation for himself and [Wife] given the amount in his checking and savings accounts and other assets, and that an award of attorney's fees and costs to [Wife] is appropriate. The Court finds the requested attorney's fees and costs to be reasonable and necessary.
"4. [Husband] shall pay a total of [$85,000] in attorney fee's and costs directly to [Wife's counsel] ....
"5. The Court bases its order for temporary spousal support on [Wife's] need and [Husband's] ability to pay. The Court finds [Wife's] reasonable needs is to meet her living expenses, including the mortgage on her residence. The Court finds [Husband] has the ability to pay demonstrated by the funds in his checking, savings accounts, findings of income in his 2019, 2020, and 2021 tax returns.
"6. The Court exercises its discretion to use the DissoMaster program to calculate temporary spousal support and makes the following findings for each party:
ITEM
[HUSBAND]
[WIFE]
Social Security Income
$1,329
$1,163
Rental Income
$5,655
$1,024
Miscellaneous Taxable Income
$4,330
$1,417
Other Nontaxable Income
$4,335
Zero
Health Insurance
-
$170
"7. The Court orders [Husband] to pay temporary spousal support to [Wife] in the amount of [$4,063] per month effective April 1, 2020. [¶] . . . [¶]
"10. The Court granted the request to enter the lodgments and declarations related to [Wife's] Request for Order filed on March 13, 2020 then reversed that ruling via ex-parte minute order on July 15, 2022." (Italics added.)
The italicized language in paragraph 10 of the FOAH was handwritten and initialed by the trial court.
The court attached to the FOAH a copy of its DissoMaster report, reflecting the numbers stated in paragraph 6 of the FOAH.
On December 21, 2023, after Husband submitted his appellant's opening brief and Wife submitted her respondent's brief, we issued an order requesting that the parties submit supplemental brief on the following issues:
(1) Did the trial court have the inherent authority to reconsider on its own motion its July 14, 2022 order granting Husband's request to admit in evidence all of the parties' declarations submitted to, and exhibits lodged with, the court?
(2) If the court had that inherent authority, did it err by issuing its ex parte order on July 15, 2022, without first providing the parties with notice of its intent to reconsider its July 14, 2022 order and an opportunity to be heard?
(3) If the court so erred, was that error prejudicial, requiring the reversal and/or vacation of its July 15, 2022 ex parte order?
(4) If the July 15, 2022 ex parte order is reversed and/or vacated, what is the effect of that reversal and/or vacation on Husband's contention that the trial court abused its discretion by not considering any evidence in awarding Wife temporary spousal support and pendente lite attorney fees and costs?
(5) Did Wife waive or forfeit any challenge to the July 15, 2022 ex parte order by not raising that purported error below or on appeal and, if so, should the Court nevertheless exercise its authority to independently raise and consider the questions set forth above?
The parties submitted supplemental briefs on the above issues.
C
Husband contends that because the trial court at the July 14, 2022 hearing granted his counsel's request to admit in evidence all of the parties' declarations and lodged exhibits, but then, on reconsideration, denied that request in its July 15, 2022 ex parte minute order, the court ultimately had no evidence of the parties' financial condition to consider in making its awards to Wife of temporary spousal support and pendente lite attorney fees and costs. He further argues that because the court did not consider any evidence of the parties' financial condition or other circumstances regarding their relative needs and abilities to pay, it abused its discretion by making those awards to Wife, requiring their reversal.
Husband specifically argues: "As a result [of the trial court's July 15, 2022 ex parte minute order], there is no evidence in the record to support the needs and abilities of the parties. There is no evidence of the parties' financial conditions, no evidence of their respective incomes and assets, and no evidence of their relative circumstances-only the argument of counsel. As such, the trial court most definitely abused its discretion in awarding support and fees and making factual findings not supported by substantial evidence."
Although Husband reasonably argues that the effect of the trial court's ex parte minute order issued on July 15, 2022 was to, in effect, exclude from evidence all of the parties' declarations and lodged exhibits, Husband's argument is necessarily dependent on the validity of that July 15, 2022 ex parte order. To that effect, if the July 15, 2022 ex parte order was improperly issued and prejudiced Wife, that order may be reversible and could be vacated. Given the importance of the validity of the July 15, 2022 ex parte order as the foundation for, and premise of, Husband's contention, we issued an order on December 21, 2023, requesting that the parties submit supplemental briefs on the five questions set forth above, which questions had not addressed by the parties in their initial briefs. We received, and have considered, supplemental briefs from both parties. We elect to exercise our discretion and authority to independently raise and address those questions, which are pure questions of law based on undisputed facts. (POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681, 750-751 (POET, LLC) ["It is well established that appellate courts have the discretion to decide a question of law raised for the first time on appeal."]; Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341, fn. 6 (Tsemetzin) ["It makes no difference that the issue was first raised on appeal by the court rather than the parties, as long as the parties have been given a reasonable opportunity to address it."]; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 714 (Woodward Park) ["The parties' failure to raise the issue in their original appellate briefs does not bar our consideration of it if the parties have had a fair opportunity to present their positions."]; Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386 (Francies) [appellate court has discretion to consider new argument on appeal that involves pure question of law on undisputed facts].)
1 & 2. Trial court had inherent authority to reconsider its July 14, 2022 evidentiary ruling, but erred by issuing its July 15, 2022 ex parte order without giving the parties notice and an opportunity to be heard.
In response to the first and second questions in our December 21, 2023 order, the parties agree that: (1) the trial court had the inherent authority to reconsider its July 14, 2022 order granting Husband's request to admit in evidence all of the parties' declarations and lodged exhibits; and (2) the court erred by issuing its July 15, 2022 ex parte order without first giving them notice and an opportunity to be heard. We agree with the parties.
In Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), the Supreme Court concluded that statutes regarding parties' motions for summary judgment and reconsideration "do not limit a court's ability to reconsider its previous interim orders on its own motion, as long as it gives the parties notice that it may do so and a reasonable opportunity to litigate the question." (Id. at pp. 1096-1097.) Le Francois further stated: "To be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion-something we think will happen rather rarely-it should inform the parties of this concern, solicit briefing, and hold a hearing." (Id. at p. 1108.)
In Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233 (Brown), the Supreme Court stated: "[I]f a trial court decides on its own motion to revisit its interim ruling in response to a suggestive Palma notice-an action within its inherent authority [citing Le Francois]-that court must inform the parties of its intent to do so, and provide them with an opportunity to be heard. [Citation.] Requiring adherence to this procedure is consistent with our relevant case law, and reasonably balances the interests of conservation of scarce judicial resources with the parties' right to notice and an opportunity to be heard." (Id. at p. 1239; see also, Nikolas F. v. Superior Court (2006) 194 Cal.App.4th 92, 98-99 [juvenile court had both statutory authority and inherent constitutional authority to sua sponte reconsider prior order after first providing parties with notice and opportunity to be heard]; In re Marriage of Spector (2018) 24 Cal.App.5th 201, 215 (Spector) [family law court had inherent authority to reconsider its prior order awarding temporary spousal support; in that case, court notified parties that it would reconsider its order, solicited briefing on its reconsideration of that order, and parties filed briefs on that issue].)
In Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226 (Paramount Petroleum Corp.), the appellate court, citing Le Francois, concluded that the trial court had erred by reconsidering its prior order sua sponte without first giving the parties notice and an opportunity to be heard. (Id. at p. 238.) Paramount Petroleum Corp. noted that because the trial court's order in that case "simply stated the prior order was 'vacated and set aside' . . . [, it] did not inform the parties of the court's concern that the prior ruling might have been erroneous" and its inclusion in its order that the matter" 'stands submitted'" did not constitute a solicitation of further briefing, but rather "compels the opposite conclusion." (Ibid., fn. 16.)
Here, in its July 15, 2022 ex parte minute order, the trial court correctly cited Le Francois in stating that it had the inherent authority to reconsider its July 14, 2022 order granting the request of Husband's counsel to admit in evidence all of the parties' declarations and lodged exhibits. However, as the record clearly shows, and as the parties agree, the trial court erred by not adhering to the requirement set forth in Le Francois and Brown that if a court is concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion, it must first give the parties notice and an opportunity to be heard (i.e., inform the parties of its concern, solicit briefing, and hold a hearing). (Le Francois, supra, 35 Cal.4th at p. 1108; Brown, supra, 47 Cal.4th at p. 1239.) By failing to give Husband and Wife notice and an opportunity to be heard on its concern that its July 14, 2022 evidentiary ruling may have been erroneous and that it may reconsider that ruling, the trial court clearly erred. (Le Francois, at p. 1108; Brown, at p. 1239; Paramount Petroleum Corp., supra, 227 Cal.App.4th at p. 238.)
3. The court's error was prejudicial.
In response to the third question in our December 21, 2023 order, the parties disagree on whether the trial court's error in issuing its July 15, 2022 ex parte minute order was prejudicial and requires that it be reversed and/or vacated. Husband argues that the error in issuing its July 15, 2022 ex parte order was prejudicial because "it was error for the trial court to rule on the issues presented without considering the parties' respective financial condition." Wife argues that the error was harmless because the trial court had awarded her temporary spousal support and attorney fees and costs at the July 14, 2022 hearing before it granted Husband's request to admit in evidence all of the parties' declarations and lodged exhibits. Wife therefore argues that the trial court's July 15, 2022 ex parte order denying Husband's evidentiary request (which arguably, in effect, vacated its July 14, 2022 evidentiary ruling) necessarily had no effect on its awards to her of temporary spousal support and attorney fees and costs.
We do not find either party's argument regarding the prejudicial effect of the trial court's error compelling and therefore address that issue through the usual appellate standard for state law prejudicial error (i.e., whether the error caused a miscarriage of justice or, alternatively stated, whether it is reasonably probable there would have been a different result had the court not so erred). (See, Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).) "Probability" in this context does not mean more likely than not, but rather a reasonable chance (i.e., more than an abstract possibility). (Cassim, at p. 800.) Applying that standard of prejudice to the circumstances in this case, we conclude that the trial court's error in issuing its July 15, 2022 ex parte order without first giving the parties notice and an opportunity to be heard was prejudicial to Wife.
As reasonably argued by Husband on appeal, the effect of that July 15, 2022 order was to reverse and/or vacate its July 14, 2022 grant of his request to admit in evidence all of the parties' declarations and lodged exhibits, thereby arguably excluding all evidence from its consideration in making its awards to Wife of temporary spousal support and attorney fees and costs. Without any evidence of the parties' financial condition or other circumstances regarding their relative needs and abilities to pay, Husband reasonably argues that the court abused its discretion by making those awards to Wife. Under Husband's approach, we conclude that the July 15, 2022 ex parte order was necessarily favorable to him, and necessarily unfavorable to Wife, because that order arguably eliminated and/or undermined the basis for the trial court's awards to Wife at the July 14, 2022 hearing. Without the July 15, 2022 ex parte order, Husband presumably would be left with arguing on appeal that the parties' declarations and lodged exhibits did not support the court's exercise of its discretion in making its awards to Wife (which alternative argument he does not make in his appellant's opening brief). As we discuss below, the trial court received, and presumably reviewed, all of the parties' submitted declarations and lodged exhibits before making its July 14, 2022 awards to Wife and, in the absence of its July 15, 2022 ex parte order, we would therefore conclude that the court considered that (presumably admissible) evidence in properly exercising its discretion by awarding Wife temporary spousal support and pendente lite attorney fees and costs.
Accordingly, to the extent the July 15, 2022 ex parte order excluded all evidence from the court's consideration as Husband argues, that order was prejudicial to Wife. Absent the court's error in issuing its July 15, 2022 ex parte order, Husband would have no reasonable and/or persuasive argument on appeal to challenge the court's awards to Wife and those awards would not be subject to reversal for lack of evidence to support them. In sum, we conclude that Wife would have a reasonable chance, if not a high probability, of success in defending the trial court's awards on appeal absent its error in issuing the July 15, 2022 ex parte order. (Watson, supra, 46 Cal.2d at p. 836; Cassim, supra, 33 Cal.4th at p. 800.) Accordingly, we conclude the court's error in issuing its July 15, 2022 order was prejudicial and therefore must be reversed and vacated.
4. Effect of reversal and vacatur of the July 15, 2022 ex parte order.
In response to the fourth question in our December 21, 2023 order, the parties again disagree. Husband argues that the effect of our reversal and vacatur of the July 15, 2022 ex parte order on his contention that the trial court abused its discretion by not considering any evidence in awarding Wife temporary spousal support and pendente lite attorney fees and costs would be to require remand to the trial court to permit the parties to further brief the issue of whether the trial court should admit in evidence all of the parties' declarations and lodged exhibits and then allow the court to decide that evidentiary issue anew and, in so doing, potentially reach a new decision on the merits. However, in so arguing, Husband's counsel has not addressed the issue of whether the trial court would, given Husband's death, have jurisdiction on remand to decide that issue anew. (See, e.g., In re Marriage of Williams, supra, 101 Cal.App.3d at p. 511 [after death of party to marriage dissolution proceeding, trial court cannot make any further adjudications of issues].) Wife, in turn, argues that the effect of our reversal and vacatur of the July 15, 2022 ex parte order would be to simply omit that order from the record and leave unaltered the trial court's grant of Husband's request to admit in evidence all of the parties' declarations and lodged exhibits, which evidence the court presumably considered in properly exercising its discretion to make its awards to her. As a result, Wife argues Husband's instant contention on appeal would fail.
We agree with Wife's position. Our reversal and vacatur of the July 15, 2022 ex parte order treats that order as having never been issued for purposes of Husband's appeal of the August 22, 2022 FOAH and, as a result, has the effect of reinstating the trial court's July 14, 2022 order granting Husband's request to admit in evidence all of the parties' declarations and lodged exhibits. In Bulmash v. Davis (1979) 24 Cal.3d 691, the Supreme Court stated: "[T]he effect of a vacating order is to eliminate the judgment. [Citation.] Once vacated, the status of the parties that existed prior to the judgment is restored and the situation then prevailing is the same as though the order or judgment has never been made." (Id. at p. 697.)
Given our reversal and vacatur of the July 15, 2022 ex parte order, we now proceed to determine whether the record shows the trial court considered all of the declarations submitted, and exhibits lodged, by the parties. Those declarations and exhibits were admitted in evidence by the court at the July 14, 2022 hearing, in exercising its discretion to award Wife temporary spousal support and pendente lite attorney fees and costs. In particular, we consider whether that evidence gave the court information regarding the parties' financial condition and other circumstances regarding their relative needs and abilities to pay so that it could properly exercise its discretion.
As stated above, Husband and Wife each submitted, among other things, periodic income and expense declarations, which included their updated income and expense declarations prior to the June 16, 2022 hearing and Husband's updated income and expense declaration prior to the July 14, 2022 hearing. In addition, Husband and Wife each filed notices of lodgment of exhibits, lodging more than 80 exhibits, which included documents relating to real property owned by Husband and/or Wife and copies of Husband's bank account statements and income tax returns for 2019, 2020, and 2021. Husband also submitted Sunnen's declaration, in which he made representations regarding Husband's medical care and expenses, and Swearingen's declaration, in which she set forth her summaries of Husband's income during 2020 and 2021 and his rental property profit and loss statements. Our review of those declarations and lodged exhibits shows there was ample evidence in the record regarding the parties' financial condition and other circumstances regarding their relative needs and abilities to pay. (Cf. In re Marriage of Deamon (2019) 35 Cal.App.5th 476, 483 [when motion is decided without § 217 evidentiary hearing, Code of Civil Procedure § 2009 controls and motion is decided based on declarations and other evidence submitted by parties]; Binette, supra, 24 Cal.App.5th at p. 1129 [§ 217 does not preclude parties from submitting evidence through declarations, pleadings, and other means].)
Furthermore, we conclude the record shows the trial court did, in fact, review and consider the evidence submitted by the parties regarding their financial condition and other circumstances regarding their relative needs and abilities to pay. As discussed above, at the July 14, 2022 hearing, the court initially stated that it had made its own chart showing the parties' community and separate properties. In support of its tentative ruling awarding Wife temporary spousal support and attorney fees and costs, the court noted that it had used the DissoMaster calculations submitted by Wife's counsel, which calculations were supported by the lodged exhibits. It further stated that it found Husband had cash in savings and other assets that gave him the ability to pay its awards to Wife. Also, the court made other statements that support an inference it had reviewed and considered the parties' declarations and lodged exhibits. In particular, the court interrupted arguments of Wife's counsel and stated: "I do have a question about the spousal support because in running the numbers, I do get slightly different numbers than the numbers that you obtained." The court also interrupted arguments of Husband's counsel and noted that Husband owned a number of rental properties and had not been forthright in how funds had been spent for community property and separate property. Therefore, the record clearly shows that the trial court had reviewed and considered the parties' declarations and lodged exhibits in exercising its discretion at the July 14, 2022 hearing to award Wife temporary spousal support and pendente lite attorney fees and costs.
In any event, because "all intendments and presumptions are indulged in favor of [an order's] correctness" (Arceneaux, supra, 51 Cal.3d at p. 1133), absent an affirmative showing in the record, we presume the trial court reviewed and considered that evidence in exercising its discretion in making its awards to Wife. Here, there is no affirmative showing that the court did not review and consider the parties' evidence. Instead, as we concluded above, the record affirmatively shows the court did, in fact, review and consider that evidence in exercising its discretion. Accordingly, we reject Husband's contention that the trial court did not consider any evidence of the parties' financial condition and other circumstances regarding their relative needs and abilities to pay, and, in so doing, conclude that the court reviewed and considered that evidence and did not abuse its discretion in making its awards to Wife at the July 14, 2022 hearing.
5. Wife's waiver or forfeiture; exercise of court's independent authority
Husband argues that Wife waived or forfeited any challenge to the July 15, 2022 ex parte order, but further argues we should nevertheless address his contention that the trial court abused its discretion by making its awards to Wife because it did not consider any evidence in exercising its discretion. In turn, Wife argues that she did not waive or forfeit any challenge to the July 15, 2022 ex parte order, but nevertheless suggests that we may exercise our discretion and authority to address the validity of that order.
We assume, without deciding, that Wife waived or forfeited any challenge to the July 15, 2022 ex parte order by not challenging it below or on appeal. Nevertheless, as we stated above, we elect to exercise our discretion and authority to independently raise and address the questions set forth in our December 21, 2023 order, which are pure questions of law based on undisputed facts and, based thereon, decide the validity of the July 15, 2022 order. (POET, LLC, supra, 218 Cal.App.4th at pp. 750-751; Tsemetzin, supra, 57 Cal.App.4th at p. 1341, fn. 6; Woodward Park, supra, 150 Cal.App.4th at p. 714; Francies, supra, 127 Cal.App.4th at p. 1386.) Accordingly, as discussed above, we conclude that the trial court prejudicially erred by issuing its July 15, 2022 ex parte order without giving the parties notice and an opportunity to be heard, which error requires its reversal and vacatur and, in turn, modification of the August 22, 2022 FOAH to omit all language referring to that vacated order.
III
Award to Wife of Retroactive Temporary Spousal Support
Husband contends that the trial court erred by awarding Wife temporary spousal support, retroactive to April 1, 2020. In particular, he argues that Wife did not request an award, and the court had no authority to award, retroactive temporary spousal support. We disagree.
A
On March 13, 2020, as discussed above, Wife filed her RFO, which sought awards of temporary spousal support and pendente lite attorney fees and costs. On June 2, 2022, Wife filed her declaration in which she, among other things, requested that the court award her spousal support in the amount of $17,000 per month for 2021 and $4,000 per month thereafter. On that date, her counsel filed a memorandum of points and authorities that, among other things, argued that Wife should be awarded temporary spousal support retroactive to January 16, 2020, the date Wife filed her petition for dissolution of marriage. At the July 14, 2022 hearing, the court awarded Wife $4,063 per month in temporary spousal support, retroactive to April 1, 2020.
B
Section 3600 provides: "During 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 ...." In In re Marriage of MacManus (2010) 182 Cal.App.4th 330 (MacManus), the court stated: "[A] temporary spousal support award can be made retroactively, at least to the date of the order to show cause requesting spousal support." (Id. at p. 337, citing In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166 (Dick); see also, In re Marriage of Mendoza & Cuellar (2017) 14 Cal.App.5th 939, 943 (Mendoza & Cuellar) ["[A]n order for temporary spousal support may, at the court's discretion, be made retroactive to the date on which the petition for dissolution was filed."]; In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 512 (Brewster & Clevenger) ["In making initial temporary spousal support orders, the trial court has discretion to issue its orders retroactive to the date of the petition for dissolution."].)
Temporary spousal support is intended to allow the supported party to maintain his or her living conditions and standards as close to the status quo as possible pending trial and the division of the parties' assets and obligations. (Winter, supra, 7 Cal.App.4th at p. 1932.) Subject only to the supported party's need and the supporting party's ability to pay, the amount of a temporary spousal support award lies within the trial court's sound discretion. (Wittgrove, supra, 120 Cal.App.4th at pp. 1327-1328.)
C
Husband first argues that the trial court lacked authority to award temporary spousal support retroactive to April 1, 2020. In so arguing, he cites section 4333, which expressly authorizes courts to award permanent spousal support retroactively, and suggests that the omission of such express authorization language from section 3600 precludes courts from awarding temporary spousal support retroactively. We disagree. As discussed above, case law clearly holds that a trial court has the authority to award temporary spousal support retroactive to the date of the motion for such an award or even to the date of the filing of a petition for dissolution of marriage. (See, e.g., MacManus, supra, 182 Cal.App.4th at p. 337; Dick, supra, 15 Cal.App.4th at p. 166; Mendoza & Cuellar, supra, 14 Cal.App.5th at p. 943; Brewster & Clevenger, supra, 45 Cal.App.5th at p. 512.) Husband does not cite any case or other authority concluding otherwise. Accordingly, we follow long-established case law and conclude the trial court in this case had the authority to award Wife temporary spousal support retroactively to April 1, 2020, which date was after the date of the filing of her RFO requesting an award of temporary spousal support (i.e., March 13, 2020).
Section 4333 provides: "An order for spousal support in a proceeding for dissolution of marriage . . . may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date."
Husband also argues that the trial court could not award Wife temporary spousal support retroactive to April 1, 2020, because her March 13, 2020 RFO did not expressly request an award of retroactive temporary spousal support, but merely requested an award of temporary spousal support. He argues that Wife's RFO failed to comply with rule 3.1110(a), which states: "A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order." However, Wife's RFO clearly stated that she requested an award of spousal support, which, under the case law discussed above, implicitly included a request for retroactive temporary spousal support. Furthermore, her March 13, 2020 notice of hearing and RFO requested $15,000 in spousal support, stating in paragraph 4(e) that "our expenses during our marriage were well over $20.000.00 per month. [Husband] paid all of our living expenses.... He is not currently paying any of my bills and our mortgage alone is $9,800 per month. I need at least $15,000 per month just to maintain our La Jolla residence." In her attachment to her RFO, Wife also stated: "Since [Husband] moved out of our residence my financial situation has become dire. He has stopped paying on the mortgage and all of our household bills. My income is insufficient to make a dent in our bills and I am being forced to liquidate my savings accounts just to keep afloat." Based on the above statements in her RFO, Wife clearly was requesting temporary spousal support as of the time of its filing (i.e., March 13, 2020) because she stated she was currently in a dire financial situation and had been so since Husband had moved out of their residence and stopped paying the community's and her living expenses. Therefore, Wife implicitly, if not expressly, requested an award of temporary spousal support, to be effective no later than March 13, 2020. Accordingly, it can be reasonably inferred that Wife complied with rule 3.1110(a)'s notice requirement.
Nevertheless, assuming arguendo Wife's RFO did not comply with rule 3.1110(a), we conclude that the court nevertheless had the authority to award, and Husband had notice of Wife's request for, retroactive temporary spousal support. Because, as discussed above, her RFO implicitly, if not expressly, requested an award of temporary spousal support as of March 13, 2020, she effectively requested that any future award of temporary spousal support be retroactive to that date (i.e., March 13, 2020). (Cf. Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808 [although notice of motion failed to state a particular ground for motion, that defect was disregarded because notice stated it was based on motion, memorandum of points and authorities, and declarations, which had stated that particular ground].) Here, because Wife's RFO clearly sought as award of temporary spousal support as of March 13, 2020, Husband had notice that she was seeking an award of temporary spousal support, retroactive to that date. Accordingly, we conclude that Husband was not denied his due process rights of notice and an opportunity to be heard on the issue of retroactivity of Wife's request for temporary spousal support.
Finally, relying on his contention discussed in section II above, Husband argues that because there was no evidence considered by the trial court in making its award to Wife of temporary spousal support, its award of retroactive temporary spousal support must be reversed. In particular, he argues the court had no evidence on Wife's need during the period of retroactivity (i.e., April 1, 2020 through July 14, 2022). We disagree. As discussed above, because we reverse and vacate the July 15, 2022 ex parte order, the evidence reviewed and considered by the trial court included all of the parties' declarations and lodged exhibits, which evidence supports its findings regarding Wife's need and Husband's ability to pay and its exercise of discretion in awarding Wife retroactive temporary spousal support. (Cf. (Wittgrove, supra, 120 Cal.App.4th at pp. 1327-1328; Murray, supra, 101 Cal.App.4th at p. 594.) Furthermore, to the extent Husband cites evidence and/or inferences therefrom that would have supported contrary findings and orders by the trial court, he misconstrues and/or misapplies the applicable abuse of discretion standard of review. (See, e.g., Smith, supra, 242 Cal.App.4th at p. 532 ["Applying the abuse of discretion standard, we . . . will uphold any findings of fact supported by substantial evidence. [Citation.] The trial court's order 'will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' [Citation.]"].) Construing the evidence in the record favorably to support the court's award to Wife of retroactive temporary spousal support, we conclude there is substantial evidence to support its underlying findings regarding Wife's need and Husband's ability to pay and further conclude that the court did not abuse its discretion in making its award to Wife. (Ibid.) Husband has not carried his burden on appeal to show otherwise.
IV
Award to Wife of Pendente Lite Attorney Fees and Costs
Husband contends that the trial court erred by awarding Wife $85,000 in pendente lite attorney fees and costs because it did not consider all of the circumstances listed in section 4320. We disagree.
A
Section 2030, subdivision (a) provides:
"(1) 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.
"(2) 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...."
Section 2032, subdivision (b) provides: "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320 .... 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." (Italics added.) Section 4320 lists 14 categories of circumstances to be considered by a court in awarding spousal support.
In Alan S. v. Superior Court (2009) 172 Cal.App.4th 238 (Alan S.), the court stated: "To be sure, not all section 4320 factors will be relevant all the time (hence the 'to the extent relevant' language in § 2032). But obviously a number of section 4320 factors will usually bear on a pendente lite fee order. These surely include earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k))." (Id. at p. 253, fn. omitted.) Alan S. stated that a trial court's determination regarding an award of pendente lite attorney fees and costs "should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case," but is "definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test." (Id. at p. 254.) On appeal, we review a trial court's award of pendente lite attorney fees and costs for abuse of discretion. (Ibid.; Cryer, supra, 198 Cal.App.4th at p. 1054.) To uphold a court's award, "the record must reflect that the court did in fact consider the factors set forth in section 2030 and 2032." (Alan S., at p. 242; In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219 (Hatch) [trial court's decision in awarding or denying pendente lite fee award "must reflect an exercise of discretion and a consideration of the appropriate factors"].)
B
At the July 14, 2022 hearing, the trial court ordered Husband to pay Wife $85,000 for pendente lite attorney fees and costs, stating:
"The court finds that award of fees is appropriate, there is a disparity in access to funds to retain counsel, the paying party has an ability to pay for legal representation of both parties given the amount in his checking and savings accounts as well as assets from the information provided. The court further finds that the requested attorney's fees and costs are reasonable and necessary."
The court's August 22, 2022 FOAH reflected its findings and award at the July 14, 2022 hearing.
C
Based on his contention above that the July 15, 2022 ex parte order excluded all evidence from the trial court's consideration, Husband argues that the court did not consider, or make specific findings on, the section 4320 factors in making its award to Wife of pendente lite attorney fees and costs. However, as we concluded above, because we reverse and vacate the July 15, 2022 ex parte order, all of the parties' declarations and lodged exhibits were admitted in evidence by the court at the July 14, 2022 hearing and presumably were reviewed and considered by the court in making its awards to Wife. Therefore, Husband incorrectly argues that the court could not have considered any evidence in making its award of attorney fees and costs.
To the extent that Husband alternatively argues the trial court considered all of the parties' declarations and lodged exhibits which were admitted in evidence but failed to consider all of the section 4320 factors, he misconstrues and/or misapplies the applicable abuse of discretion standard of review. (See, e.g., Smith, supra, 242 Cal.App.4th at p. 532.) As we concluded above, the record clearly shows that the trial court reviewed and considered the parties' declarations and lodged exhibits in exercising its discretion at the July 14, 2022 hearing to award Wife pendente lite attorney fees and costs. Furthermore, the record affirmatively shows the court implicitly, if not expressly, considered certain factors set forth in section 4320 (i.e., Husband's ability to pay, taking into account his earning capacity, income, assets, and standard of living (subd. (c)); the needs of Wife and Husband (subd. (d)); the obligations and assets of Wife and Husband (subd. (e)); and the age and health of Wife and Husband (subd. (h)).)
In any event, because "all intendments and presumptions are indulged in favor of [an order's] correctness" (Arceneaux, supra, 51 Cal.3d at p. 1133), absent an affirmative showing in the record, we presume the trial court reviewed and considered that evidence in exercising its discretion in making its award to Wife and, more importantly, considered all of the section 4320 factors in making its award. Here, there is no affirmative showing that the court did not review and consider the parties' evidence or the section 4320 factors. Also, contrary to Husband's apparent assertion, there is no statutory or other authority that requires a trial court to make specific findings on each section 4320 factor in making an award of pendente lite attorney fees and costs. Husband does not show otherwise. Therefore, we conclude the trial court's findings at the July 14, 2022 hearing reflect that it did, in fact, consider the appropriate factors set forth in sections 2030, 2032, and 4320 in making its award of pendente lite attorney fees and costs. (Alan S., supra, 172 Cal.App.4th at p. 242; Hatch, supra, 169 Cal.App.3d at p. 1219.) Accordingly, construing the evidence in the record favorably to support the court's award to Wife of pendente lite attorney fees and costs, we conclude that the court did not abuse its discretion in making that award to Wife. (Smith, supra, 242 Cal.App.4th at p. 532; Alan S., at p. 254; Cryer, supra, 198 Cal.App.4th at p. 1054.)
DISPOSITION
The July 15, 2022 ex parte minute order is reversed and vacated. The August 22, 2022 order is modified to delete the following language from paragraph 10 on page 2: "then reversed that ruling via ex-parte minute order on July 15, 2022." As so modified, the August 22, 2022 order is affirmed. Wife shall recover her costs on appeal.
WE CONCUR: O'ROURKE, Acting P. J., DO, J.