Opinion
H049643 H050046
06-26-2023
In re the Marriage of ALEXANDER SOOHOO and RIKA SOOHOO. v. RIKA SOOHOO, Appellant. ALEXANDER SOOHOO, Respondent,
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 2013-6-FL-011597
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
The principal issue in this appeal concerns the trial court's interpretation of a Smith-Ostler provision concerning temporary support contained in a stipulation and order to which the parties agreed. A Smith-Ostler provision specifies" 'an additional award, over and above guideline support, expressed as a fraction or percentage of any discretionary bonus actually received.'" [Citations.] Its purpose is to capture fluctuations in the supporting spouse's income that are not included in a flat rate amount of support. [Citation.]'" (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 949 (Minkin).)
See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33.
On December 10, 2013, Alexander Soohoo filed a petition for dissolution of his marriage with Rika Soohoo. They were married approximately 11 years, and they had two children, ages 9 and 7 as of the date the petition was filed. At the time of the petition's filing, Alexander was earning $16,883 per month; Rika was not employed outside the home. Early in the proceedings, on March 12, 2014, Alexander and Rika entered into a stipulation addressing child custody, visitation, temporary child support, and temporary spousal support, and an order was entered on that stipulation (hereafter, the Stipulation and Order). There was a handwritten attachment that was part of the Stipulation and Order that included a Smith-Ostler provision pertaining to temporary support that read as follows: "Smith-Ostler orders shall issue for any income bonuses either party receives in excess of the wages + salary listed for each payment on the attached DissoMaster." (Original interlineation, italics added.)
We refer to the parties by their first names for convenience and clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2002) 81 Cal.App.4th 1131, 1136, fn. 1.)
More than four years later, in late 2018, the case proceeded to trial on reserved issues. One issue concerned restricted stock units (RSU's) that became vested through Alexander's employment after entry of the Stipulation and Order. Rika argued that the vested RSU's were "bonuses" that Alexander received beyond the base wages and salary used to calculate temporary support, and that he was required under the Stipulation and Order to pay additional support on a percentage of that RSU income. The trial court, after considering the language of the document and hearing testimony, interpreted the Smith-Ostler provision in the Stipulation and Order as not including vested RSU income. A second issue concerned whether income should be imputed to Rika in determining spousal and child support. The court ordered imputation of income to Rika at $42,000 per year, and it, sua sponte, ordered that this imputation operate retroactively to June 1, 2014. This retroactive imputation of income had the effect of modifying the March 2014 temporary support order, notwithstanding the fact that Alexander had never made a request to modify support. Third, the court denied Rika's posttrial motion for an award of attorney fees under Family Code section 2030.
All further statutory references are to the Family Code unless otherwise specified.
Rika filed appeals from the statement of decision and the judgment entered on March 29, 2022, challenging the above three orders. She argues that the trial court erred in interpreting the Smith-Ostler provision as not applying to the vested RSU income Alexander received in addition to his base salary. Rika argues further that the trial court erred in imputing $42,000 annual income to her retroactively to June 2014, contending that the trial court lacked jurisdiction to modify support as specified in the March 2014 Stipulation and Order. Lastly, Rika asserts that the court erred in denying her request for attorney fees.
We conclude that the trial court did not err by interpreting the Smith-Ostler provision to not apply to the vested RSU income Alexander received in addition to his base salary, because it did not fall within the term "bonuses" used in the provision. We also find no err with respect to the denial of Rika's motion for attorney fees. We, however, conclude that the court erred in making the imputation of $42,000 annual income to Rika retroactive to June 1, 2014, because it did not have jurisdiction to modify the March 2014 support order. We will therefore reverse the judgment of March 29, 2022, and we will remand the case for the limited purposes of (1) striking the portion of the statement of decision making the imputation of income to Rika retroactive to June 1, 2014, and (2) correcting any calculation errors that were made as a result of the retroactive application of the imputation of income order.
II. PROCEDURAL HISTORY
On December 10, 2013, Alexander filed a petition for dissolution of marriage. He and Rika were married on July 14, 2002. In his initial income and expense declaration, Alexander stated that his monthly salary (gross) was $16,883. He also disclosed that he had received additional income in the previous 12 months ("one-time money") from RSU's in March and September 2013 that totaled $15,588. Rika filed a response and an income and expense declaration stating that she had no monthly income.
On December 17, 2013, Alexander filed a request for order (hereafter, RFO), requesting that the court address various issues, including child custody and visitation, child support, spousal support, and a request for issuance of a work efforts order. He alleged that since leaving the home (in or about August 2012), he had "been paying for everything," depositing $3,000 per month in the joint checking account available for Rika's use, and making monthly payments totaling $4,900 for mortgage, property tax, and insurance. He requested guideline child and spousal support, retroactive to the date of the filing of the RFO, and that Rika be ordered to make the payments on the family home once the support payments commenced. Rika filed a response to the RFO.
A hearing arising out of Alexander's RFO regarding custody, visitation, and support was set for March 12, 2014. On that day, the parties and their counsel executed (with the parties initialing each page) the Stipulation and the court entered the Order on that date. The 14-page document consisted of a preprinted form stipulation and order (first page); a preprinted form child custody and visitation attachment; a preprinted form child support attachment; a preprinted form spousal support attachment; a one-page "Attachment A" containing seven paragraphs of handwritten additional provisions; a preprinted form stipulation and order (second, signature page); a DissoMaster printout; a mediator-recommended temporary custody and visitation order, agreed to by the parties; and a preprinted form entitled "Notice of Rights and Responsibilities." In addition, at that time, the court entered a signed Seek Work Order directing Rika to obtain employment.
It is unclear, but it appears that the Stipulation and Order, signed March 12, 2014, was filed March 14, 2014. The document is referred to in the record variously as bearing both dates. Since it was signed at the hearing on March 12, 2014, we will refer to it by that date.
"DissoMaster is a computer software program widely used by courts to set child support and temporary spousal support. [Citations.]" (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1578, fn. 4.)
Paragraph 4 of the handwritten "Attachment A" to the Stipulation and Order (hereafter, the Smith-Ostler provision) reads in its entirety (with strikeout noted and addition above strikeout in boldface) as follows: "Smith-Ostler orders shall issue for any income bonuses either party receives in excess of the wages + salary listed for each payment on the attached DissoMaster. Actual calculation percentages shall be submitted by a separate stipulation." "Attachment A" was initialed at the bottom of the page by both parties. The interlineated change at paragraph 4 was not separately initialed.
There was a second strikeout and addition above the strikeout on "Attachment A" at paragraph 3, providing that "child support is retroactively modifiable to the date visitation percentage time exceeds six hours a week." (Boldface added.) The parties likewise did not initial this interlineated change.
Under the Stipulation and Order, Alexander agreed to pay, commencing April 1, 2014, total temporary support of $6,803, consisting of monthly child support of $3,342 and monthly spousal support of $3,461.
The record reflects a number of proceedings and stipulations related to child custody, visitation, and parenting, including proceedings related to Rika's efforts to move herself and the two children to Arizona. This included the appointment by stipulation and order of a child custody mediator, a child custody evaluator, a parenting coordinator, and a child therapist.
A trial on reserved issues was originally set for November 14, 2017. It was thereafter continued, and was ultimately scheduled for, and occurred on, November 27 and December 4, 2018. The chief contested issues involved long-term spousal support, child support, and interpretation of the language of the Stipulation and Order concerning Smith-Ostler additional support. The court ordered closing arguments through briefing; closing briefs were submitted by counsel.
After a further hearing on June 24, 2019, in which the court heard oral argument, it announced, inter alia, the following rulings: (1) the Smith-Ostler provision of the Stipulation and Order did not include RSU income, and, specifically, the reference to "bonuses" and the interlineation of "income" meant that RSU income was excluded from the award of additional Smith-Ostler support; (2) the parties were to share equally the respective costs of the child custody evaluator and the parenting coordinator; (3) annual income of $42,000 would be imputed to Rika (retroactively) from June 2014 forward; (4) permanent spousal support would commence on July 1, 2019, and would terminate June 1, 2022; and (5) Rika's request for attorney fees was deferred, pending further briefing and argument.
After the court ruled on the trial issues, Rika filed a request for statement of decision pursuant to Code of Civil Procedure section 632. Action on that request was apparently deferred until the reserved attorney fee request was heard.
Argument on Rika's attorney fee motion was ultimately heard on January 13, 2020. The court denied the request.
In June 2021, the parties submitted their respective proposals for the statement of decision. The court filed its statement of decision on September 8, 2021. In its statement of decision, the court adopted (and amplified upon) its prior rulings (announced June 24, 2019), including (1) interpreting the Smith-Ostler provision of the Stipulation and Order as excluding RSU income; (2) the retroactive imputation of $42,000 annual income to Rika, effective June 1, 2014 (which was applied in establishing future child and spousal support); (3) finding, based upon calculations performed by the jointly retained accountant in which the annual imputed income of $42,000 was considered, that Alexander had overpaid spousal support by $932 per month for 63 months, but because his base salary increased, he owed additional support based upon Smith-Ostler percentages on the increased salary, with the net result that Rika owed $2,717 through June 30, 2019; (4) finding that Alexander owed Rika $20,115 as Smith-Ostler percentage of his income from July 1, 2019 to December 31, 2019; (5) setting base child support at $3,734, with a mutual Smith-Ostler provision applicable to "all income available for support earned by either parent" and with Alexander's base salary set at $21,232 per month; (6) setting permanent support at $3,461 per month, effective July 1, 2019, and terminating June 1, 2022; and (7) denying Rika's request for attorney fees. Rika filed an appeal challenging the statement of decision.
The court entered judgment on March 29, 2022, incorporating and attaching the statement of decision. Rika filed a second appeal from that judgment.
Rika filed a motion to consolidate the appeal of the statement of decision, case No. H049643, with the appeal of the judgment, case No. H050046. We denied the motion, and, on our own motion, ordered that the two appeals be considered together for briefing, argument, and disposition.
III. DISCUSSION
A. Applicable Law and Standard of Review
A central issue in this appeal is the trial court's interpretation of the Smith-Ostler provision in the Stipulation and Order. Accordingly, we recite the general principles of contract interpretation applicable here. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [" '[a] stipulation is a contract . . ., governed by the usual rules of construction of other contracts' "]; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 ["[m]arital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally"].)
"California recognizes the objective theory of contracts [citation], under which '[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation' [citation]. The parties' undisclosed intent or understanding is irrelevant to contract interpretation. [Citations.]" (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.)"' "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, '[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.' [Citations.]" [Citation.] "The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]" [Citations.]' [Citations.]" (In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1013.)
A contract (here, a stipulated order) is ambiguous if it is "reasonably susceptible to more than one interpretation. [Citation.]" (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 389.) Extrinsic evidence is permitted to interpret a contract when its language is ambiguous. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet).) "The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the [] court unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is 'reasonably susceptible.'" (Ibid.) As the Winet court explained, the court employs a two-step process to consider extrinsic evidence in interpreting a contract: "First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties' intentions to determine 'ambiguity,' i.e., whether the language is 'reasonably susceptible' to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is 'reasonably susceptible' to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step-interpreting the contract. [Citation.]" (Ibid.)
Different standards of review of the contractual interpretation by a trial court may apply. The threshold determination of whether the contract is ambiguous is one of law, and is thus subject to independent review. (Winet, supra, 4 Cal.App.4th at pp. 1165, 1166.) "The second step-the ultimate construction placed upon the ambiguous language-may call for differing standards of review, depending upon the parol evidence used to construe the contract. When the competent parol evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld as long as it is supported by substantial evidence. [Citation.] However, when no parol evidence is introduced (requiring construction of the instrument solely based on its own language) or when the competent parol evidence is not conflicting, construction of the instrument is a question of law, and the appellate court will independently construe the writing." (Id. at pp. 1165-1166.) Thus, where a stipulated order is the subject of the interpretation question, "the reviewing court may examine the record for its scope and effect and may look at the circumstances of its making. [Citations.] Extrinsic evidence is allowed to determine the parties' intent when a stipulated order is ambiguous. [Citation.] Unless there are conflicts in the extrinsic evidence, the interpretation of a stipulated support order is reviewed de novo. [Citation.]" (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 27.)
B. The Stipulation and Order
We address the conclusion by the court below that the Smith-Ostler provision in the Stipulation and Order did not apply to Alexander's RSU income. In doing so, we will (1) identify the evidence received by the trial court in interpreting the provision, (2) recite the court's findings on the issue, (3) address Rika's challenge that, based upon both independent appellate review and review for substantial evidence, the trial court's interpretation of the provision was error, and (4) address Rika's additional appellate challenges (unasserted below) to the court's determination of the matter.
1. Evidence Presented
a. Alexander's Testimony
Alexander and Rika were married in July 2002. They have two children, ages 14 and 12 (at the time of trial). Alexander became employed by NVIDIA in approximately December 2005 at an annual salary of $150,000. At the time of trial in late 2018, his annual salary at NVIDIA was $254,000. At the time they were dating, Rika worked in a business administration role; she was not working outside of the home at the time of the marriage.
There was evidence that Alex reported taxable income in addition to his annual salary. For instance, his W-II for 2017 indicated a figure of $584,294 for wages, tips, and other compensation. The difference between salary and reported taxable income for 2017 was apparently due to the vesting of RSU's: According to a report of the jointly retained accounting expert, Alexander had separate RSU income in 2017 that totaled $345,524.
Alexander testified that he receives RSU's "[as] part of the general compensation everyone receives at [NVIDIA]." He estimated that the RSU program, in lieu of the original stock option program, commenced in 2009 or 2010. Alexander had never been told that the stock he received was a bonus payment. He acknowledged that in 2013, his employer labeled the RSU's that vested at that time as "performance grant[s]." It was his understanding that when the RSU's vested, they were reported by his employer as income on his W-II forms, and he was taxed on the reported income. Alexander testified that in the two months before trial, his vested RSU's had dropped in value by approximately forty to fifty percent.
NVIDIA has a written bonus program that is "based on company [] goals." Alexander testified he had never received a bonus.
After testifying initially that when he was hired by NVIDIA, he was offered a salary and stock options, but no bonus plan, he testified that in March 2006, he advised a mortgage broker that his new job provided him with an estimated potential bonus of $1,250 per month.
In his December 17, 2013 schedule of assets and debts, Alexander listed his RSU's from NVIDIA and their vesting schedule. In his income and expense declaration of that date, he stated that his monthly income was $16,833, and that he had received additional RSU income in March and September 2013 that totaled $15,588. Alexander testified that "these were probably stock sales."
Alexander and Rika filed joint tax returns for the 2012 and 2013 tax years. In both instances, the tax returns showed that Alexander had non-base taxable income for stock (approximately $47,000 in 2012 and $30,000 in 2013). Alexander discussed the tax returns with Rika before they were filed.
The Stipulation and Order was prepared in the hallway of the Sunnyvale courthouse on March 12, 2014. Alexander, Rika, and their respective counsel were present. Alexander signed the Stipulation and Order. Alexander testified that he did not recall the reason for the two crossed out changes in Attachment A-namely, the cross-out of "percentage" and the insertion of "time," and the cross-out of "income" and the insertion of "bonuses." At the time, he did not have an exact understanding as to what financial matters the Smith-Ostler would apply. His understanding of the purpose of Smith-Ostler was to provide an "equitable split-up of bonuses."
Alexander testified that he may have sold some vested RSU's in 2013, prior to hiring an attorney and prior to the signing of the Stipulation and Order. After its execution, he did not sell any RSU's that had vested. Alexander testified that he thought he would need the agreement of "the other party [Rika]" to sell the RSU's; he did not ask Rika if she would so agree. Alexander said it was his understanding that the automatic temporary restraining orders ATROS precluded his sale of the vested RSU's. He also said that he was "waiting to wrap up the divorce."
After the execution of the Stipulation and Order, Alexander was never asked to make Smith-Ostler payments based upon RSU income. Prior to October 2018, it had not been brought to his attention that Rika claimed an entitlement to a Smith-Ostler percentage of his RSU income. Alexander testified that it had been previously brought to Rika's attention that he was receiving RSU's.
b. Rika's Testimony
Rika has a bachelor's degree in business administration. She was last employed as the manager of a technical group, where her annual income was approximately $85,000. Rika left that employment in November 1999 because her company was sold and she was offered a severance arrangement. After she and Alexander were married, they planned to start a family, and Rika did not work outside the home.
Rika testified that she understood that when Alexander was hired by NVIDIA, his compensation would be salary, bonus money that would fluctuate, stock options, and RSU's. Before the parties separated, Alexander had sold RSU's when they vested, and the funds were used to supplement their income.
Rika was present in court the day the Stipulation and Order was negotiated and signed. She signed the document. Rika testified that she did not recall why the change was made in the Smith-Ostler provision from "income" to "bonuses." Her understanding about the Smith-Ostler provision was "that[,] based on [Alexander's] current salary, base salary, . . . the support orders were defined for that particular time and that anything-any bonuses or anything above that salary would be taken care of with the Smith-Ostler and then that would be paid." Rika understood that the Smith-Ostler provision would cover "anything over the base amount that we were calculating that day, anything . . . increases in income, bonuses like the RSU's, anything above that base amount that we had calculated for that particular day."
Rika "later discover[ed]" that there was additional income from RSU's that Alexander received that could have supplemented support payments. She testified that it had been her understanding that the Smith-Ostler calculations would occur, and she would be paid using these calculations, when the divorce was finalized; this was the reason she did not address previously the issue of receiving increased support.
The date or circumstances surrounding this "discover[y]" by Rika were not developed in her testimony, but the date appears to have been sometime after December 2015 when the parties' family home was sold, and Rika and the children moved to Arizona.
c. Megan Thompson's Testimony
Megan Thompson, CPA, was retained as a joint accounting expert regarding several matters, including the calculation of any Smith-Ostler additional support payments that might be due, depending upon the court's interpretation of the Stipulation and Order. She prepared a report and an updated report that identified Alexander's RSU's and employee stock purchase plan (ESPP) obtained through his NVIDIA employment, an identification as to whether they were community property or separate property, and the values of the RSU's upon vesting.
Thompson testified that the IRS "treat[s RSU's] as bonuses" in the sense that RSU's become income when they vest, unless there are restrictions on their sale. But contrasting RSU's with bonuses, she testified that RSU's are "not cash. So . . . you don't have that money in your pocket so when you're paying support on something that is not actually there, . . . it makes it difficult[. I]t's not cash flow, even though the IRS is treating it as cash flow and your employer is treating it as cash flow[]." Later, Thompson was asked the question, "[A]re those equity incentive plan RSUs treated as bonuses . . . ?" Thompson responded: "I think it depends on what your definition of a bonus is. In terms of how they're paid out, they're paid in shares. Generally, a bonus would be paid in cash. [¶] In terms of the fact that [RSU's] vest over time, that's not akin to [a] normal bonus structure. However, the way that they are reported on the tax return, the way that they are included as income, is very similar to a bonus."
In this appeal, Rika relies on purported evidence that on March 13, 2014 (the day after execution of the Stipulation and Order), Alexander's counsel sent an e-mail to Rika's attorney with an attached typed stipulated support order. She urges that this correspondence supports her contention that the parties intended that the Smith-Ostler provision was to apply to any income, including RSU income, over base salary. Alexander has objected to this appellate argument and has requested that it be stricken. He asserts that Rika's argument is founded upon a document that was not admitted into evidence at the trial. Alexander is correct. The document was marked for identification only as an exhibit (ID Exhibit 10) at the morning session of the second day of trial, and Rika's counsel asked Alexander preliminary questions about it. Alexander testified he did not recall having seen ID Exhibit 10. Alexander's counsel objected to the inquiry as lacking foundation, and the court sustained the objection. Rika's attorney later offered ID Exhibit 10 into evidence. Alexander's attorney objected that there was no foundation for the document's admission. The trial court and Rika's attorney indicated that they were "inclined to agree" with Alexander's attorney that ID Exhibit 10 was not admissible. The court reserved the matter and did not admit ID Exhibit10. In the afternoon session that day, the clerk again mentioned that ID Exhibit 10 had not been admitted. No further attempt was made by Rika's counsel to have the document admitted. Therefore, this court cannot, and will not, consider the document (or arguments related to it) that was marked for identification as ID Exhibit 10, which was not admitted into evidence. (See Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 815 [appellate court may not consider exhibits identified, but not admitted, at trial]; see also Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 "[f]actual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs"].)
2. Trial Court's Findings
After receiving written closing briefs and hearing argument, the trial court announced its decision from the bench, interpreting the Smith-Ostler provision of the Stipulation and Order as not including RSU income. It concluded that RSU income was not" 'bonus income,' " and "bonus and RSU are not synonymous." The court noted that "there was very little offered with respect to the parties' actual intent." But both parties were represented by counsel who drafted the language, and the court concluded that "bonuses" was "clearly a bargained[-]for term," because "one word 'income' was crossed out and the word 'bonuses' was" substituted.
The term "bonus income" appears to be a term of art in addressing Smith-Ostler matters that refers to additional income beyond base income. (See, e.g., Brubaker v. Strum (2023) 87 Cal.App.5th 497; In re Marriage of Mosley (2008) 165 Cal.App.4th 1375.) In light of the nature of this dispute-interpreting whether RSU income constitutes a "bonus" under the Smith-Ostler provision-"bonus income" is a potentially confusing term here, and we will avoid its use except insofar as is necessary to quote the trial court or the parties' arguments.
In its statement of decision, the court noted that in construing the Smith-Ostler provision, it was required to ascertain the parties' intent at the time they executed the agreement. It noted that "the word 'income' was originally written into the agreement. That word was stricken in the final agreement [and 'bonuses' was inserted]. Obviously, the parties intended for this provision to relate to something other than 'all income.'" The court held: "Bonus income and RSU income are different. Based on the evidence presented, the Court finds that the parties did not intend for the RSUs to be treated as income for support purposes when they entered into the [March 2014] stipulation and order . . . which was in effect until 6/30/2019. [¶] Effective 7/1/2019, Smith/Ostler bonus percentages will be paid on all income available for support in excess of the base income assumed by the order to include RSUs."
3. Rika's Challenge to Trial Court's Interpretation
Rika argues that the trial court erred in its interpretation of the Smith-Ostler provision of the Stipulation and Order. She makes alternative arguments. First, she contends that this court should apply a de novo standard of review to conclude that a "plain reading" of the sentence at issue compels the conclusion that the inserted term "bonuses" was intended to include all income above base income, including Alexander's RSU's. Second, she contends that even were this court is to review the trial court's determination for substantial evidence, the term "bonuses" in the provision must be interpreted to include RSU income.
Rika argues in her opening brief that "the trial court should have determined that, as used in the [Stipulation and Order], the term 'bonuses' or 'bonus income' meant any income above the base income used to calculate the amount of base support." (Italics added.) The Smith-Ostler provision does not include the language "bonus income." Thus, Rika's argument in the quoted sentence is an attempt at interpretation by adding language to the provision. (See Hinckley v. Bechtel Corp. (1974) 41 Cal.App.3d 206, 211 ["courts are not at liberty to revise an agreement under the guise of construing it"].)
Alexander responds that the de novo review standard does not apply in this instance. Instead, Alexander argues, (1) because interpretation of the Smith-Ostler provision requires a determination of what the parties meant in the use of the term "bonuses" in the context of a variety of evidence presented, the trial court's decision must be reviewed for substantial evidence, and (2) there was substantial evidence to support the trial court's findings here.
We agree with Alexander's position concerning the review of the trial court's decision. The court below in its statement of decision did not explicitly state that it had taken evidence for the purpose of determining whether the Stipulation and Order was ambiguous, and if its language were reasonably susceptible to more than one meaning, construing the document through the admission of that extrinsic evidence. (See Winet, supra, 4 Cal.App.4th at p. 1165.) But we infer from the court's discussion that it in fact followed that two-step process in reaching its conclusion that the parties did not intend to include RSU income in the Smith-Ostler provision.
We begin with the provision's language itself. The phrase "any bonuses either party receives in excess of the wages + salary listed" is, clearly, more restrictive than the phrase originally written, "any income either party receives in excess of the wages + salary listed." (Italics added.) We agree with the trial court that the replacement of "income" with "bonuses" reflected the parties' intent to make the provision applicable to something less than all income in excess of wages and salary. Further, it is not free from doubt that RSU income received by an employee is, in all instances, a form of bonus, as Rika apparently claims. We therefore disagree with Rika's assertion that from a "plain reading" of the sentence at issue, it is clear that the parties' use of the inserted term "bonuses" was intended to include all income above base income, including Alexander's RSU's.
There was no testimony at all concerning what the parties intended with respect to the Smith-Ostler provision. Neither Alexander nor Rika recalled why "income" was interlineated and replaced with "bonuses" in the provision. Alexander testified that he had no exact understanding at the time as to what financial matters Smith-Ostler would apply, but he understood generally that Smith-Ostler was an "equitable split-up of bonuses." Rika testified that she understood that the Smith-Ostler provision would cover any increases in income "over the base amount that we were calculating that day." There is no evidence that either Alexander's or Rika's respective understandings were communicated to the other at the time of execution of the Stipulation and Order. (See Winet, supra, 4 Cal.App.4th at p. 1166 [in interpreting a contract, the court enforces "the outward expression of the agreement, rather than a party's unexpressed intention"]; see also Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 970 (Lenk) [party's subjective understanding is not competent extrinsic evidence to show intent of the contracting parties].) Furthermore, there was no testimony whatsoever from the parties' attorneys who negotiated and drafted the handwritten Attachment A that included the Smith-Ostler provision at issue; neither attorney was a witness at trial.
It may be inferred from Alexander's testimony elsewhere-that he was never told that the stock he received from NVIDIA was a bonus payment and that he had never received a bonus-that he did not consider "bonuses" to include his RSU's.
Alexander's original attorney, Judith Ebenhahn, was not trial counsel. She substituted out of the case in June 2014 and was succeeded by counsel who tried the matter in late 2018. Ebenhahn did not testify at trial. Rika's attorney, Kirby Burnside- who was counsel of record from January 2014 through entry of judgment in March 2022-also did not testify at the trial.
At the time of the signing of the Stipulation and Order on March 12, 2014, both parties were well aware that Alexander was eligible for, and was receiving, RSU's through his employment with NVIDIA. He began participating in the RSU program in 2009 or 2010. In their joint income tax returns filed for the 2012 and 2013 tax years, he and Rika declared taxable income for stock of approximately $47,000 and $30,000, respectively. Alexander disclosed in his December 2013 schedule of assets and debts his RSU's, including their vesting schedule. Further, he disclosed in his December 2013 income and expense declaration that he had received RSU income in March and September 2013 that totaled $15,588. Moreover, Rika admitted at trial that prior to separation, Alexander had sold RSU's when they vested, and they had used the funds to supplement their income. It therefore would have been an easy matter for the parties to have specifically provided for RSU income in the Smith-Ostler provision had it been their intention to include it for purposes of providing additional support.
The parties' subsequent conduct supports the interpretation adopted by the trial court. Alexander testified that, over the course of more than four years, he was unaware that there was any issue that his RSU income was included in the Smith-Ostler provision. He had not been asked at any time to make additional support payments based upon RSU income, and he only learned of Rika's claim for additional support in October 2018. Rika acknowledged that at some point she became aware that Alexander had received postseparation RSU income, but she stated she had not sought additional support money before trial because she had thought the Smith-Ostler calculations would be accomplished when the divorce was finalized. "It is a time-honored principle that the conduct of the parties is given great weight in the interpretation of a contract. 'Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.' [Citation.]" (Travelers Property Casualty Co. of America v. Workers' Comp. Appeals Bd. (2019) 40 Cal.App.5th 728, 739, quoting Rest.2d Contracts, § 202(4).) The trial court could have properly relied on the parties' subsequent conduct-including the failure by Rika or her attorney to assert a claim for additional support for more than four and one-half years-to interpret the language of the Smith-Ostler provision as not applying to Alexander's RSU income. (See Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 754 [subsequent conduct is a "rule of practical construction [] predicated on the common sense concept that 'actions speak louder than words' "].)
Rika contends that the trial court's interpretation of the Stipulation and Order was at odds with the testimony of Megan Thompson, "the parties' joint, neutral accountant." Rika asserts that Thompson testified "that in family law accounting practice, the phrase bonus income 'means income in excess of base' . . . [and] RSU income is generally treated as bonus income in support calculations." But Thompson also testified that she was not qualified to opine whether, as a legal matter, a Smith-Ostler provision using the term "bonuses" is intended to refer to RSU's. And she offered testimony that, if anything, supported the trial court's conclusion. Thompson testified that, contrasting RSU's with bonuses, RSU's are "not cash. So . . . you don't have that money in your pocket so when you're paying support on something that is not actually there . . . [I]t's not cash flow, even though the IRS is treating it as cash flow and your employer is treating it as cash flow[]." And she testified that although vested RSU's are included as income and reported as income on tax returns similar to bonuses, the two differ in that RSU's are "paid in shares . . . [while] a bonus would be paid in cash. [¶] [RSU's] vest over time, that's not akin to [a] normal bonus structure."
Rika argues further that the trial court's interpretation of the Stipulation and Order violated a specific rule of construction, i.e., that "[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.) She contends that the parties both knew in March 2014 that Alexander did not receive traditional bonuses from his employer. Therefore, Rika asserts, the trial court's interpretation of the term "bonuses" in the SmithOstler provision as including only traditional bonuses that Alexander did not receive and excluding "bonus support" for nontraditional equity awards "render[ed] the bonus support agreement, and the attached bonus table, superfluous" in violation of Civil Code section 1641. This argument is without merit. There was no testimony that the provision was drafted to provide for additional support based upon equity awards. Employment circumstances, including employment compensation packages, are always subject to change. Rika's argument ignores the possibility that the provision was drafted simply to provide for the calculation of additional support if, in the future, Alexander received additional income in the form of a traditional bonus that was in excess of his wages and salary. The trial court's interpretation of the Smith-Ostler provision did not violate Civil Code section 1641.
The trial court considered extrinsic evidence, including evidence that was conflicting, the resolution of which required assessment of the credibility of witnesses. (See Winet, supra, 4 Cal.App.4th at p. 1166.) Contrary to Rika's assertion, there was substantial evidence to support the trial court's "reasonable construction" of the SmithOstler provision of the Stipulation and Order as not including Alexander's RSU income. (Ibid.; cf. Minkin, supra, 11 Cal.App.5th at pp. 948-951 [holding that substantial evidence supported trial court's interpretation of Smith-Ostler provision that use of the term "annual bonus" applied only to discretionary payments to payor-spouse based on performance, and did not extend to a long-term incentive plan and other payments above base salary].)) The trial court did not err.
In her closing brief submitted below, Rika presented various arguments in support of her position regarding interpretation of the Smith-Ostler provision that involved attacking the credibility of Alexander, stating, for example, that "his testimony [was] suspect and self-serving" and "he perjured his testimony [sic] on at least two occasions." Rika likewise in her opening brief refers to evidence that she contends negatively reflected on Alexander's credibility. We defer to the trial court with respect to these credibility issues. (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 364-365 [witness credibility is within trial court's discretion, and the reviewing court will defer to such credibility findings].)
4. Other Challenges to Interpretation of Stipulation and Order
Rika asserts two additional arguments on appeal in support of her contention that the trial court erred in interpreting the Smith-Ostler provision to not include additional support based upon RSU income. As we discuss, Rika is procedurally barred from raising these arguments for the first time on appeal; in any event, the arguments lack merit.
a. Absence of Initials to Interlineated Changes
Rika contends on appeal that the parties' failure to initial the interlineated changein the Smith-Ostler provision deleting "income" and adding "bonuses" is a fatal defect to the enforcement of the agreement against her, a party who did not initial the change. Citing Civil Code section 1700 as the basis for her position, Rika argues that this court "should hold that the interlineation changing the word 'income' to 'bonuses' is void and not part of the [Stipulation and Order]."
In this section, we use the term "interlineated change" to refer to the interlineation of "income" and its replacement with "bonuses." In using the word "change," we are not suggesting that the Smith-Ostler provision was changed or altered after the parties and counsel signed the Stipulation, as opposed to having been revised before execution. As we discuss, there was no evidence in the record that such a postexecution change occurred.
Rika did not assert this argument at trial. It does not appear in her trial brief. In Rika's closing brief, there is an extended discussion concerning the Smith-Ostler provision and its interpretation. Rika did not argue in her written closing argument that the provision was invalid because she did not initial the interlineated change. Likewise, Rika's counsel did not make this argument in her closing oral argument made in June 2019, over six months after the trial concluded.
Indeed, Rika's trial brief contained no discussion of the Smith-Ostler provision.
It is the general rule that" 'issues not raised in the trial court cannot be raised for the first time on appeal.' [Citation.]" (Sea &Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 (Sea &Sage).) The rationale barring on appeal issues or theories not raised before the trial court is that permitting consideration of new theories at the appellate level" 'would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' [Citations.]" (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12 (Cable Connection); see also In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418 [wife's arguments raised for the first time on appeal concerning separate property character of certain property were barred, where "[h]usband did not have an opportunity at trial to challenge the factual or legal bases for her calculations or assertions"].) Rika is barred from raising the new theory on appeal that her failure to initial the interlineated change to the provision rendered it invalid.
Although it is unclear, it appears that Alexander asserts that Rika's argument here concerning her failure to initial the interlineated change to the Smith-Ostler provision is procedurally barred. In his respondent's brief, Alexander asserts that an unspecified argument made by Rika in the appeal-which he identifies repeatedly as "this issue"-was not made below and she should not be permitted to raise it in the first instance on appeal.
Even were we to consider the merits, Rika's position fails. Civil Code section 1700 provides that "[t]he intentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act." By way of example, a plaintiff-lessor stated a cause of action under Civil Code section 1700 for cancellation of the lease where it alleged "that the defendant[-lessee] had wrongfully and unlawfully changed the renewal term of the lease from [9] years to [99] years." (J.B. Hill v. Pinque (1922) 56 Cal.App. 245, 247.) The essence of Civil Code section 1700 is that there was an unauthorized "material alteration of a written contract." (Italics added.) Thus, this requires that a contract be in existence before the material alteration occurs. Rika's argument is apparently premised upon the following facts: (1) she signed the Stipulation and Order before the interlineation and replacement of "income" with "bonuses"; (2) the changes were made after her execution; and (3) the changes were made without her consent by Alexander or his counsel. The record does not support these premises.
There was no evidence that the Stipulation and Order was executed before the word "income" in the Smith-Ostler provision was crossed out and replaced with "bonuses." Rika testified that she did not recall why the change was made to the SmithOstler provision. She did not testify that the change was made after she signed the Stipulation and Order. Indeed, the record suggests that Rika-in her answer to a question by her counsel immediately after testifying that she did not recall why the change was made to the Smith-Ostler provision-impliedly stated that she signed the Stipulation and Order after the interlineated change was accomplished. Rika was asked by her attorney: "And what was your understanding when the word bonus[es was written for the SmithOstler? What was your understanding when that word was written in there when you signed the order?" (Italics added.) Rika responded: "I believed it was for anything over the base amount that we were calculating that day, anything that like increases in income, bonuses like the RSUs, anything above that base amount that we had calculated for that particular day."
Rika asserts in her opening brief that it was Alexander's attorney who "struck out the word 'income' and wrote the word 'bonuses'" in the Smith-Ostler provision. The record is unclear on this point. As noted (see fn. 15, ante), neither of the attorneys who drafted the Stipulation and Order testified at trial. And the citation to the record by Rika is to Alexander's testimony, which suggests that he speculated that his attorney was responsible for the interlineation. He was asked by Rika's attorney, "So, was it your attorney who prepared the Attachment A, to your knowledge?" In response to the question, Alexander testified "I would assume that's true." Irrespective of this issue, there was no evidence that the parties signed the Stipulation and Order before the interlineation was made, and therefore Civil Code section 1700 has no application.
The reporter's transcript contains the word "bonus" in the question. Because the singular "bonus" does not appear in the Smith-Ostler provision, this court concludes that the transcript contains a typographical error and should read "bonuses."
During oral argument, Rika's counsel contended that the stipulation Rika signed "expressly said that [Alexander] would pay Smith Ostler bonus support on all income above and beyond his base pay." (Italics added.) If counsel meant that the Smith-Ostler provision contained the intact word "income" when Rika signed the Stipulation, there is no evidence to support this assertion. If counsel intended to convey that the document Rika signed contained the finalized Smith-Ostler language using the term "bonuses," but she understood that additional support would be calculated for any income above base salary, including RSU income, Rika's subjective, contemporaneous, and undisclosed understanding is not competent extrinsic evidence to show the intent of the contracting parties. (See Lenk, supra, 89 Cal.App.4th at p. 970.)
Rika argues that the case of In re Elizabeth M. (2008) 158 Cal.App.4th 1551 (Elizabeth M.) is "directly on point" and supports her position that the Smith-Ostler provision was void because she did not initial the interlineation of "income" and insertion of the word "bonuses." Elizabeth M. is easily distinguishable. In that case, at a 12-month dependency review hearing, the father, Eric, who was incarcerated, requested more frequent visitation of the minor than the monthly visitation previously ordered, while the mother requested that his visitation be decreased. (Id. at p. 1554.) The court rejected the mother's request, indicating that no order to reduce Eric's visitation would be forthcoming without a noticed motion and a showing of good cause; in doing so, the court emphasized that the minor's "monthly visitation with Eric was important, and must be conducted in such way as to ensure Eric had as much time as possible with [the minor] during each visit." (Ibid.) Eric's visitation remained at the same level for the following nine months, and the visits had gone well. (Id. at pp. 1554-1555.) At a termination review hearing that was attended by Eric's counsel, but not by Eric, a stipulation was presented to the court. (Id. at p. 1555.) It was a multipage document signed on the first page by counsel only and contained various proposed orders and findings in the event the court elected to terminate dependency jurisdiction. (Ibid.) Page four contained handwritten language for a proposed order for monthly visitation by Eric consistent with the prior order of monthly visitation, but that language was interlineated and replaced with language in different handwriting in which Eric would receive visitation "only once every two months, 'weather permitting. '" (Ibid.) Neither counsel nor the parties initialed the change, and Eric's lead counsel (who did not attend the hearing) apparently signed the stipulation beforehand. (Ibid.)
The appellate court concluded from the unique circumstances of the case that "it was error for the court to simply adopt, without question, the altered stipulation." (Elizabeth M., supra, 158 Cal.App.4th at p. 1553.) It found that the case presented a "highly irregular situation" involving a "rather suspect 'stipulation,' which was altered without explanation and under circumstances no one seems able to explain." (Id. at p. 1557.) The court emphasized that at the time the stipulation was accepted and the court entered its order terminating jurisdiction, there had been no motion to reduce visitation, and there was no evidence suggesting that such a motion, had it been presented, would have had merit. (Id. at p. 1553.) Further, "Eric had been explicitly assured there would be no reduction in his visitation without a formal motion and supporting evidence. To ignore that fact and rely upon the inherent power of the court is to blink at both reality and fairness." (Id. at p. 1557.) The appellate court reasoned that there were two explanations for the altered stipulation, neither of which justified its acceptance by the trial court. (Id. at p. 1559.) The stipulation may have been altered after being signed by Eric's attorney, without his knowledge. (Ibid.) Alternatively, Eric's attorney may have signed the stipulation as revised, in which case he would have "voluntarily stipulated away his client's visitation rights for no apparent reason-without any pending request for a reduction; no evidence to support it; no indication of any tactical advantage to be gained by entering such a stipulation, or of any benefit obtained by Eric in exchange for it; and without Eric himself present at the hearing to protest." (Ibid.) The court concluded that "[t]he first scenario suggests a fraud, and the second suggests ineffective assistance of counsel. In either case, the stipulation is highly troubling, and it is clear that the trial court would have committed error by simply adopting it, without question, as the basis for the court's own order." (Ibid.)
The circumstances in Elizabeth M. bear no similarity to those presented here. In this case, the document now questioned by Rika, the Stipulation upon which the court entered an Order, was signed not only by counsel; it was signed and initialed on each page by the parties. Both Alexander and Rika were present in court when the document was negotiated and drafted, and they admit that they signed it. Neither party presented evidence to support the position that the Smith-Ostler provision was altered after its execution, as opposed to having been revised (presumably by counsel) before it was signed. And neither party asserted a challenge below to the Smith-Ostler provision based upon the claim that it was altered before its execution. Elizabeth M. offers no support for Rika's contention that the Smith-Ostler provision is void because she did not initial it upon its execution.
Rika's argument that the Smith-Ostler provision in the Stipulation and Order is unenforceable against her under Civil Code section 1700 because she did not initial the interlineated change is procedurally barred. The argument, in any event, has no merit.
b. Improper Nonguideline Support Order
Rika contends on appeal that, as ultimately interpreted by the trial court, the Stipulation and Order renders it "void as against public policy." We commence our recitation of Rika's argument with an explanation of the statutory formula for establishing child support. As explained in In re Marriage of Alter (2009) 171 Cal.App.4th 718, 731 to 732: "The mandatory formula for calculating child support takes into account both parents' 'net monthly disposable income' (§ 4055, subds. (a) [&] (b)), which is determined based upon the parents' 'annual gross income' (§ 4058). Section 4058, subdivision (a), defines 'annual gross income' as 'income from whatever source derived,' and lists more than a dozen possible income sources to be considered as part of annual gross income. That list includes wages, salaries, [bonuses,] dividends, interest, workers compensation benefits, and business income. (Id., at subd. (a)(1), [&] (2).)" Rika argues that employee stock options are income. Specifically, she argues-citing In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 532 to 534 (Macilwaine)-that RSU's, upon becoming vested and having no restrictions on their exercise and sale, are income irrespective of whether the supporting party has exercised the option.
Continuing her argument, Rika notes that the Family Code provides that "[t]he guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula." (§ 4053, subd. (k).) If the trial court concludes "that a downward departure from the guideline is justified because the guideline amount exceeds the child's needs[, it] must comply with the procedural requirements of section 4056, subdivision (a) . . . [which include the making of certain recitals and findings, either written or on the record] . . . Section 4056 is clear: '" '[A] court cannot exercise its discretion [to deviate from the guideline] . . . without saying why, either in writing or on the record. '"' [Citation.] . . . [T]he court's failure to comply with the statute's procedural requirements, standing alone, constitutes ground for reversal of a child support order and remand for compliance. [Citations.]" (Y.R. v. A.F. (2017) 9 Cal.App.5th 974, 984-985, fn. omitted.) In this instance, Rika argues, based upon the trial court's interpretation of the SmithOstler provision as not including RSU income, the Stipulation and Order was a nonguideline support order for which the court (in March 2014) failed to provide the requisite findings under section 4056. That noncompliance, Rika contends, rendered the Stipulation and Order, insofar as the trial court interpreted the Smith-Ostler provision to not include RSU income, void. Rika asserts that the trial court was thus "required to interpret [the provision] as including [Alexander's] RSU income, at least for purposes of child support."
Rika did not raise this argument in her trial brief. Rika, in her closing brief, provided extensive discussion about the relevant evidence and how, in her view, the trial court should interpret the Smith-Ostler provision. She did not argue that a proposed interpretation of the provision to not include RSU income would result in the Stipulation and Order being an unenforceable nonguideline support order. And Rika made no such argument in her closing oral argument. She cannot raise the argument" 'for the first time on appeal.' [Citation.]" (Sea &Sage, supra, 34 Cal.3d at p. 417.) Permitting her to do so here" 'would not only be unfair to the trial court, but manifestly unjust to the [Alexander].' [Citations.]" (Cable Connection, supra, 44 Cal.4th at p. 1350, fn. 12.)
Even were we to consider the merits, Rika's argument is unavailing. It is true, as Rika contends, that as of March 2014, the law was clear that income received from stock options was, under certain circumstances, additional income available to the supporting party for purposes of calculating child support. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 286 (Cheriton).) There, a panel of this court concluded that, in the case of stock options, "any proceeds from the sale of stock [would] constitute 'income available for support,' after accounting for allowable deductions." (Id. at p. 288, fn. omitted.) In so concluding, this court cited In re Marriage of Kerr (1999) 77 Cal.App.4th 87 (Kerr), where the appellate court held that the "a percentage award [of child support] based on the [supporting spouse's] realized income from the exercise of stock options would be permissible, as long as the court sets a maximum amount that would not exceed the children's needs." (Id. at p. 97.) Thus, in both Cheriton and Kerr, the circumstances were significantly different than those here. In both Cheriton and Kerr, there had been an exercise and sale of the stock options. In contrast, here, the claim by Rika is that RSU's that have vested (and thus are reportable income for tax purposes) are available for additional support even though the holder (Alexander) has not "realized income from the exercise of stock options" (Kerr, supra, at p. 97) and the supposed RSU income is essentially phantom income.
It was not until August 2018-more than four years after execution of the Stipulation and Order here-that an appellate court addressed the question of precisely when stock options are income that must be considered to calculate support. The court in Macilwaine, supra, 26 Cal.App.5th at page 530 identified the issue it faced as follows: "It is well established that stock options granted as part of a parent's employment compensation constitute 'income' as defined in section 4058, subdivision (a), and must be used to calculate support. [Citations.] The question in this case-which was not addressed in Cheriton or Kerr-is when? [Wife] posits that stock options become 'income' once they vest and restrictions on [Husband's] ability to sell are removed. [Husband] asserts he has no 'income' until exercise and sale. [¶] The conflicting positions of the parties presents a question of first impression in California." (Italics added, footnote omitted.) The Macilwaine court held that "that section 4058, subdivision (a)(1) includes all compensation conferred upon and available to a supporting parent, and does not exclude amounts that the parent voluntarily defers or refuses to accept. Therefore, once there are no legal restrictions on the employee-parent's ability to exercise stock options and sell his or her shares, the options must be counted as 'income' under subdivision (a)(1)." (Id. at p. 532.)
Thus, while one California appellate court held-more than four years after the parties here agreed to a support order-that a supporting parent's stock option income is available for support when the option vests and may be exercised, this holding does not retroactively render the Stipulation and Order presented here a nonguideline support order as of March 2014. And Rika cites no authority to suggest a conclusion to the contrary. We therefore reject Rika's contention that the trial court's holding resulted in the Stipulation and Order constituting a nonguideline support order wherein the required judicial findings under section 4056 were not made at the time of its entry.
We need not decide whether the holding in Macilwaine, supra, 26 Cal.App.5th 514 that income from vested but unexercised RSU's is available for support is correct, as that determination is unnecessary for our decision in this case.
C. Imputed Income
The trial court found that Rika had made insufficient efforts to become selfsupporting, and it therefore, based in part upon the testimony of a vocational expert, imputed annual income to Rika of $42,000, effective June 1, 2014 (some five years retroactive to the court's ruling). Rika challenges that order in this appeal. She contends, inter alia, that the imputation of income, retroactive to June 1, 2014, constituted an impermissible modification of the support order included in the March 2014 Stipulation and Order. After discussion of the procedural background and applicable legal principles, we will address this claim below.
One of Rika's appellate claims is that there was no substantial evidence to support the trial court's imputation of income to her as of June 2014. Because we conclude that the trial court erred in imputing income retroactive to June 1, 2014, and because Rika does not challenge the imputation of income in the permanent support orders effective July 1, 2019, we need not present the evidence adduced at trial relevant to the court's imputation of income.
1. Procedural Background
In his December 2013 RFO, Alexander requested that the court issue a work efforts order as to Rika under which she would be required to submit 10 employment applications per week. He indicated that Rika had a college degree in business and computer science and had quit work before they had married approximately 11 years earlier. Rika responded that she consented to a work efforts order that required five weekly job applications. The court issued a "Seek Work Order" on or about March 12, 2014.
Thereafter, and up through the time of trial in late 2018, the record reflects that there were two employment-efforts review hearings held by the court, on June 25, 2014, and September 24, 2014. After the latter hearing, there was a stipulation and order filed appointing Tim Harper as a joint vocational evaluation expert under Evidence Code section 730 to evaluate Rika. The record reflects that Harper submitted a vocational assessment of Rika on February 27, 2015.
Prior to trial, there is nothing in the record suggesting that Alexander sought an order that income be imputed to Rika. In his trial brief filed in November 2018, Alexander indicated that Rika had been "been under an employment efforts order for the last 51 months[,]" had the "ability to be self-supporting[,]" and she had failed to make any real efforts to become self-supporting. He asserted that spousal support should therefore be terminated. Alexander did not request in his trial brief that the court impute income to Rika.
In his closing brief after submission of the evidence at trial, Alexander argued that the court should set child support at $3,553 per month based upon a variety of factors, including the imputation of $35,000 annually to Rika. Alexander also argued that the court should impute income in fashioning an award of spousal support, and he requested that $84,000 annually be imputed to Rika. He did not argue that any imputation of income against Rika should be applied retroactively to impact past child or spousal support payments. Rika in her closing brief stated that $35,000 annually "would be a reasonable income to impute "for support purposes."
Alexander during closing oral argument urged that income be imputed to Rika in determining future support. He did not argue that imputed income should be applied retroactively to affect past support payments. Rika, in her closing oral argument, reiterated that $35,000 annually was a reasonable figure for imputed income. She did not address potential retroactive imputation of income.
After hearing argument, the court made several rulings from the bench. One ruling was to "impute income to [Rika] at $42,000 per year during the time of the Seek Work Order .... the imputed income would be roughly back to June of 2014." The court confirmed this ruling in its statement of decision, concluding that it would impute income to Rika of $42,000 per year, effective June 1, 2014. The court found that Rika had "made insufficient efforts to become self-supporting. [She] was warned in March of 2014 as part of the Employment Efforts Order imposed on her that her failure to make reasonable efforts to seek and maintain full time employment could result in the imputation of income to her." It set base guideline child support, effective July 1, 2019, at $3,734 per month, utilizing this imputation of income. The court also apparently imputed income to Rika in setting permanent spousal support at $3,461, effective July 1, 2019. Lastly, the trial court noted that Thompson had been asked to calculate support arrearages based upon the imputation of income and Smith-Ostler additional support based upon "non-RSU bonus income." The court noted that Thompson had calculated that, after netting out the amount of spousal support overpaid by Alexander after the inclusion of income imputed to Rika with the additional support due because of "non-RSU bonus income," Rika owed Alexander $2,717, through June 30, 2019.
Although the court did not expressly state that its support award was based upon imputed income, it noted that the court could decline to order support to a spouse who did not diligently seek employment. The court also recited Harper's testimony that Rika's "efforts to find work were essentially unsatisfactory, her heart wasn't in it and that if she wanted to find work in this economy she could and that it simply defies logic that someone with her skills and experience hadn't found work in today's job market." And it found elsewhere in the statement of decision that Rika's efforts to obtain employment had been insufficient.
2. Applicable Law
The intention of a temporary order of support is "to allow the supported spouse and children to live in their '" 'accustomed manner'"' pending the ultimate disposition of the action. [Citation.]" (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637 (Gruen).) A temporary support order is operative from the time of pronouncement, and it is directly appealable. [Citation.]" (Ibid.)"' "If an order is appealable, . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata." [Citations.]' [Citation.]" (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318 (Williamson).)
Because temporary support orders are operative and directly appealable, it is "a bright-line rule that accrued child support vests and may not be adjusted up or down. [Citations.] If a parent feels the amount ordered is too high-or too low-he or she must seek prospective modification." (In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 625-626, italics added.) Section 3603 provides that a temporary child or spousal support order "may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate." Thus, "[t]he statute [§ 3653] permits the trial court to make its ruling [modifying temporary support] retroactive to the filing date of the motion, but no earlier." (Cheriton, supra, 92 Cal.App.4th at p. 300, italics added.) Stated otherwise, "a trial court lacks jurisdiction to retroactively modify a temporary support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed [citation], unless the trial court expressly reserves jurisdiction to amend the support order such that the parties' clear expectation is the original support award is not final [citation]." (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 210, italics added (Spector).)
Thus, in Gruen, supra, 191 Cal.App.4th 627, after the husband filed an order to show cause regarding child and spousal support, the trial court issued a temporary support order under which the husband was to pay wife $40,000 per month (id. at pp. 632-633), with the parties stipulating 20 days afterward that" 'temporary support orders made at the August 1, 2008 hearing are to remain in effect pending further court order'" (id. at p. 633). The husband sought a modification of the order and retroactive reimbursement of a portion of support paid, and the trial court granted the request. (Id. at pp. 633-636.) The appellate court reversed, holding that the retroactive modification of the original support order exceeded the trial court's jurisdiction because the order (1) was immediately appealable, (2) was not challenged through a timely appeal by the husband, and (3) was not subject to collateral attack. (Id. at p. 639.) The court reasoned that the wife was "entitled to rely on the amount of temporary support ordered without the threat of having to repay or credit [the husband] with any portion of accrued support." (Ibid.)
Likewise, in In re Marriage of Garcia (1990) 224 Cal.App.3d 885, the trial court, in lieu of temporary spousal support, ordered that the wife could use the family home from date of separation to its sale with the husband making the mortgage payments. (Id. at pp. 887, 888.) The court thereafter ordered that the wife reimburse the community for the home's rental value during the time that she occupied it exclusively, and the wife objected to the court's tentative decision on the ground that it constituted an impermissible retroactive modification of the temporary support order. (Id. at pp. 887888, 890.) The appellate court agreed with the wife's position, holding that "[t]he trial court's authority to consider 'all the circumstances' in determining whether to order compensation [for the exclusive use of a community asset by a spouse] does not include the authority to award reimbursement if it concludes that a prior temporary support order was too generous. Civil Code section 4357 [now Fam. Code, § 3603] provides that a temporary support order 'may be modified or revoked at any time except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.' This statute has been construed to prohibit retroactive modifications of temporary support. [Citation.] Had the trial court awarded husband compensation for wife's use of the family residence on the ground that the prior orders had been too generous, its action would be invalid as a retroactive modification of those prior orders." (Id. at pp. 895-896.)
3. Challenged Retroactivity of Order
We first address Alexander's assertion that Rika's challenge to the retroactive imputation of income is procedurally barred because she did not assert it below. As indicated in the procedural history recited above, Alexander did not request an order that income be imputed to Rika retroactively to effectively reduce over five years of support payments made in accordance with the Stipulation and Order. And there is no record that Alexander ever even filed an RFO seeking a modification of the support orders contained in the March 2014 Stipulation and Order. From this court's review of the record, the matter of retroactivity was only raised by the trial court, sua sponte, six months after all evidence was presented at trial. After the court announced from the bench that it would impute income retroactive to June 2014, Rika filed a request for a statement of decision. She requested that the court provide a factual and legal basis for "[i]mputation of income to [Rika] of $42,000 annually, retroactive to June 2014 for calculation of child and spousal support arrears"; and "[r]etroactive adjustment of the March 12, 2014 child and spousal support order by imputation of $42,000 annual income to the Respondent applied retroactively to June 2014."
The matters stated by Rika in her request for statement of decision, liberally construed, may be considered an objection to the court's announcement at the June 24, 2019 hearing that it would impute income to Rika, retroactive to June, 2014. Under the unusual procedural circumstances presented in this case, we are reluctant to find, and will not find, that Rika has forfeited her appellate challenge.
Rika asserts that the court's imputation of income as of June 1, 2014, constituted an improper retroactive modification of the payments for child and spousal support specified in the March 2014 support order. The temporary support order contained in the Stipulation and Order was directly appealable. (Gruen, supra, 191 Cal.App.4th at p. 637.) No appeal was taken from it, and thus" '" . . . the issues determined by the order [were] res judicata." [Citations.]' [Citation.]" (Williamson, supra, 226 Cal.App.4th at p. 1318.) The support order was not subject to collateral attack, and the trial court therefore exceeded its jurisdiction by ordering the support retroactively modified to June 1, 2014. (Gruen, supra, at p. 639.)
There is some ambiguity in the statement of decision. Although there was a stipulation that income would not be imputed to Rika for purposes of modifying the temporary support order as to child support, the statement of decision appears to impute income retroactively for both spousal and child support. The court may not, on remand, impute income retroactively to modify either child or spousal support established in the temporary support order.
In fact, the record does not show it was collaterally attacked by Alexander at any time. Alexander never brought a motion or an order to show cause seeking to modify the temporary support order at all, let alone making a request for a retroactive adjustment of support payments.
Alexander contends that the court reserved jurisdiction to impute income and thereby retroactively modify the support order. He cites no legal authority for this position. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [failure to cite legal authority in appellate brief in support of a legal position "amounts to an abandonment of the issue"].) Alexander argues that language in two paragraphs of the March 2014 Seek Work Order entered at the time of the Stipulation and Order supports his position that the trial court reserved jurisdiction. Paragraph 1 of the Seek Work Order reads: "Respondent shall make all reasonable good faith efforts to seek and obtain gainful employment in accordance with his/her skills and abilities. Failure to do so may result in the Court basing support on ability to earn for the purposes of determining child and spousal support. Failure to make good faith efforts may be considered by the Court as a basis for modifying, setting, or terminating support." (Original boldface.) Paragraph 4 of the Seek Work Order reads: "The parties shall return on 6/18/14 . . . before the Court Settlement Officer to review the efforts toward obtaining employment, to recommend additional or different efforts toward obtaining employment, and, if appropriate, to order recalculation of support based on the lack of good faith efforts toward obtaining employment, including the imputation of income. Such imputation and recalculation may relate back to the filing date of this order." (Original boldface.) Alexander, in closing, notes that "[p]rocedurally, this issue was continued and eventually trailed to the trial in this matter." He fails to include a citation to the record in support of this potentially salient point. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"]; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [appellate court may disregard any factual or procedural matters stated in briefs that are unsupported by citations to the record].)
We disagree with Alexander's position. As discussed, ante, the general rule-as expressly provided by statute (see §§ 3603, 3653)-is that the trial court may not issue an order modifying a temporary support order that purports to modify payment obligations accruing prior to the date of filing of the motion or order to show cause seeking such modification. (Cheriton, supra, 92 Cal.App.4th at p. 300.) An exception to this rule exists where "the trial court expressly reserves jurisdiction to amend the support order such that the parties' clear expectation is the original support award is not final [citation]." (Spector, supra, 24 Cal.App.5th at p. 210, citing In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1062, 1075 (Freitas), italics added.)
In Freitas, in its temporary spousal support order, the trial court expressly reserved jurisdiction to amend the support award, permitting the husband-payor to submit additional evidence pertaining to the wife's income. (Freitas, supra, 209 Cal.App.4th at pp. 1061-1062.) The trial court later concluded it lacked jurisdiction to amend the support order by reassessing the wife's income for two months. (Id. at p. 1065.) The appellate court reversed, distinguishing Gruen, supra, 191 Cal.App.4th 627. The Freitas court held that, unlike the support order in Gruen, the temporary order was neither final nor appealable because the court expressly reserved jurisdiction to amend it as to support for certain months after considering further evidence. (Freitas, supra, at pp. 1073-1074.) The court observed that "the parties' clear expectation was that the original support awards were not final as to these months." (Id. at p. 1074.) Further, the court contrasted Gruen (where the supporting spouse had taken his order to show cause off calendar and there was no pending motion to modify), because in Freitas, the court's reserving jurisdiction meant that the trial court "continued to have jurisdiction to render a final order on" the husband's order to show cause. (Freitas, supra, at p. 1075.)
Here, there was no express reservation of jurisdiction by the trial court in the temporary support award contained in the Stipulation and Order. Unlike in Freitas, the trial court did not reserve the right to amend the support order after permitting Alexander to submit further evidence. And unlike in Freitas, there was no motion or order to show cause filed by Alexander that was still pending after entry of the Stipulation and Order. The language relied upon by Alexander in the separate Seek Work Order-that was not part of, or incorporated by reference into, the Stipulation and Order-cannot be considered an express reservation of jurisdiction for an indefinite period of time (here, more than five years) to modify the temporary support order. In short, the record does not show that this was a case in which "the trial court expressly reserve[d] jurisdiction to amend the support order such that the parties' clear expectation [was] the original support award [was] not final [citation]." (Spector, supra, 24 Cal.App.5th at p. 210, italics added.)
The trial court exceeded its jurisdiction by imputing income to Rika, effective June 1, 2014, thereby retroactively modifying the temporary support order in the March 2014 Stipulation and Order. We will therefore reverse the judgment and remand for the limited purposes of (1) correcting the statement of decision by striking any conclusions making the imputation of income to Rika retroactive to any date prior to July 1, 2019, and (2) correcting any calculation errors that were made as a result of the retroactive application of the imputation of income order as originally stated in the statement of decision.
Rika presents other arguments in support of her claim that the court erred with respect to its order imputing income, including an asserted failure of the court to make required findings that the order was in the children's best interests, and the claim that the order was not supported by substantial evidence. Because we conclude that the trial court was without jurisdiction to impute income retroactive to June 1, 2014, and because we understand that Rika is not challenging the imputation order insofar as it operates prospectively, we need not address her additional claims of error. (See Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 655 [generally, appellate courts "decline to decide questions not necessary to the decision"].)
D. Attorney Fees Motion
Rika contends that the trial court committed error in denying her request at trial for attorney fees under section 2030. Alexander responds that (1) the attorney fee request was procedurally defective and properly denied on that basis, and (2) on the merits, the court did not abuse its discretion in denying the motion.
1. Procedural Background
The initial trial setting order does not mention an attorney fee motion contemplated by Rika. The issue of attorney fees is also absent from subsequent trial setting orders. Nor is it listed as one of the five trial issues identified in Alexander's settlement conference statement filed approximately one month before the actual trial. Likewise, an attorney fee request was not identified as one of the five trial issues in Alexander's trial brief.
Attorney fees is mentioned briefly (and, from the record before us, for the first time) in Rika's trial brief on the day before the trial commenced. She stated: "Given the difference in the parties' incomes, Rika requests that Alex pay the totality of her attorney fees and costs in this litigation of $104,752, which will be presented by declaration to the court." There was no separate motion, declaration, or income and expense declaration that accompanied the trial brief.
Attorney fees was not mentioned as a pending issue during the first day of trial, November 27, 2018. At the end of the second day of trial and after testimony had concluded, the court indicated that it understood that the parties "had agreed to submit [their] closing and [the court] assume[s] attorney fees request by briefing." The court ordered that the parties file and serve simultaneous closing briefs and the attorney fee request.
Rika submitted her closing brief on or about June 19, 2019. The end of her brief contained a four-paragraph discussion concerning attorney fees and costs, indicating that she had incurred approximately $130,000. Rika presented no citation of authority in support of her request, such as its statutory basis or law concerning the factors the court should consider in addressing her request for attorney fees. Her argument consisted of the statement, "[c]learly Alex has a greater ability to pay fees and should be ordered to contribute a substantial amount of fees to Rika."
At or about the same time, Rika filed an attorney fee declaration under Santa Clara County Superior Court Local Family Rule 4. The declaration provided a recitation of the history of the proceedings. Rika's attorney declared that she billed at the hourly rates of $425 and $175 for attorney and paralegal time, respectively. She declared that the total fees and costs that had been paid were $120,928, plus unpaid fees of approximately $15,000.
The declaration of Rika's attorney addressed the financial circumstances of the parties, apparently based upon their income and expense statements submitted in November 2018. Alexander indicated that his average monthly income was $21,222 regular income and $46,101 RSU vesting income. He stated he had cash assets of $1,100,000 (vested RSU's, ESPP, and 401(k) accounts); he did not list agreed separate property portion of funds being held in trust, approximately $110,000. Rika had no income in 2018 and was unemployed. She had a separate property claim in the proceeds of the sale of the family residence of approximately $340,000. It was indicated further in the attorney fee declaration that there had been no prior fee awards, and that the attorney had been practicing law for 37 years exclusively in the field of family law. It was concluded that "[i]t may be equitable for the court to assign payment of 87% of Rika's attorney fees to be paid by Alex." This was based upon Alexander's greater ability to pay attorney fees, his annual income of more than $600,000, and the allegation that through his conduct in the proceedings, he had "caused Wife's attorney fees to be excessive."
At the hearing on June 24, 2019, Alexander made a motion to continue Rika's request for attorney fees because the fee declaration of Rika's attorney had been submitted only a few days before the hearing; Alexander's attorney had not yet seen any of the invoices supporting the request; and he had not had an opportunity to submit a responsive declaration. The court granted the continuance request.
Rika's request for attorney fees was argued on January 13, 2020. After hearing argument, the court denied the request for attorney fees. The court stated that it "believe[d] that the request for attorney's fees [was] procedurally deficient. And based on the request made as pled, respondent ha[d] not met her burden. Each side will bear their own attorney's fees and costs." This decision was confirmed in the court's statement of decision in which the court denied the attorney fee request on both procedural and substantive grounds. The court concluded: "Substantively, the marital community has been equally divided and [Rika] received $230,000.00 more from the sale of the family residence. Both parties have the ability to pay their own fees from their share of the marital community. Additionally, while [Alexander] earns more than [Rika], he also pays child and spousal support essentially equalizing the parties' net spendable income."
There is nothing in the appellate record indicating that Alexander submitted a written response or responsive declaration concerning the attorney fee request after the matter was continued in June 2019.
2. Discussion
Although, from our review of the appellate record, Rika did not cite the statutory authority for her request, it appears that the request was brought under section 2030. In determining whether to award attorney fees under that statute, the court considers (1) the parties' respective income and needs, (2) whether there is a disparity in the parties' respective access to funds to retain legal counsel, and (3) whether one party has the ability to pay for the legal representation of both parties. (§ 2030, subd. (a)(1), (2).)
It is the burden of the applicant for attorney fees under section 2030 to establish need. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 824 (Marriage of Falcone &Fyke).) "A motion for attorney fees is left to the trial court's sound discretion and will not be disturbed on appeal absent a clear showing of abuse. [Citation.]" (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868 (Marriage of Bendetti).)
The trial court correctly concluded that the fee request was procedurally deficient. In presenting an attorney fee request, in addition to submitting a declaration, Rika was required to file an RFO, an RFO attorney fee attachment, and a current income and expense declaration. (Cal. Rules of Court, rule 5.427(b)(1)(A), (B), (C); see also Super. Ct. Santa Clara County, Local Family Rules, rule 4(A) [requiring moving party and responding party to file current income and expense statements].) The first two documents were not submitted. Rika did file an income and expense declaration. It was not, however, filed in conjunction with her fee request (i.e., her declaration in support of attorney fees filed in June 2019, six months after the trial. Rather, the income and expense declaration was filed in November 2018. It was thus not "current."
The income and expense declaration that is part of the appellate record is a document submitted as a trial exhibit that is an unsigned declaration with a handwritten date of "11/27/18"; it does not bear a court filing stamp. We will assume that an executed version of this document was filed with the court.
The court also denied Rika's request on the merits. One circumstance the court expressly relied on was the community property award to Rika from the sale of the family residence. In addressing need and ability to pay, the trial court may properly consider the parties' circumstances in light of their community property division. (See Marriage of McTiernan &Dubrow (2005) 133 Cal.App.4th 1090, 1110-1111.) Although there may have been other factors than those specifically stated by the court at the hearing and in its subsequent statement of decision, the court, in exercising its discretion in denying Rika's fee request, indicated that (1) its concerns in addressing the request were need and ability to pay; (2) community property had been equally divided in the case, resulting in Rika receiving "$230,000 more from the sale of the [] residence"; (3) each party had the ability to pay his or her own fees; and (4) the disparity in the parties' income notwithstanding, Alexander's payment of spousal and child support resulted in "essentially equalizing the parties' net spendable income." While the statement of decision does not provide a lengthy discussion of the court's reasoning, it should be considered in the context of Rika's request, which was cursory at best and was presented with no supporting points and authorities (or even a citation of the statute under which the request was made). Indeed, the court noted this when it observed that it was essentially "trying to make arguments for [Rika]" in support of the attorney fee request.
Rika cites In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1053 (Morton), arguing that a trial court's failure to make findings on a request for attorney fees constitutes "legal error." Section 2030, subdivision (a)(2) provides that "[w]hen 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." The Morton court held that the findings referred to in the statute were mandatory, that they needed to be explicit, and that they needed to be written or made on the record. (Morton, supra, at pp. 1050-1051.) Findings in this instance were made by the court, and it does not appear that Rika argues here that the court did not comply with this statutory obligation. Rather, she contends that "the court's findings [were] misleading and/or not supported by the evidence."
This court has considered Rika's arguments and concludes that the trial court did not err. It properly concluded that Rika failed to meet her burden as the requesting party, and that the request was both procedurally deficient, and, substantively, should not be granted. (See Marriage of Falcone &Fyke, supra, 164 Cal.App.4th at p. 824.) We acknowledge the trial court's "sound discretion" in deciding the attorney fee request, and we find no "clear showing of abuse" compelling reversal. (Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.)
IV. DISPOSITION
The judgment entered on March 29, 2022, is reversed. The case is remanded for the limited purposes of (1) correcting the statement of decision by striking any conclusions making the imputation of income to appellant retroactive to any date prior to July 1, 2019, and (2) correcting any calculation errors that were made as a result of the retroactive application of the imputation of income order as originally stated in the statement of decision.
Each party shall bear his or her respective costs on appeal.
WE CONCUR: DANNER, J. WILSON, J.