Opinion
B285270
07-01-2020
In re Marriage of BARRY and NICOLE ROSANI SHY. BARRY SHY, Appellant, v. NICOLE ROSANI SHY, Respondent.
Mansouri Law Offices, Pedram Mansouri and Michelle R. Rolfs for Appellant. Summers, Levine & Kretzmer and Gary J. Cohen for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BD626154) APPEAL from an order of the Superior Court of Los Angeles County, Michael J. Convey, Judge. Affirmed. Mansouri Law Offices, Pedram Mansouri and Michelle R. Rolfs for Appellant. Summers, Levine & Kretzmer and Gary J. Cohen for Respondent.
In this marriage dissolution proceeding, Barry Shy appeals from an interim order awarding pendente lite spousal support and attorneys' fees in which the family court ordered Barry to pay to his wife Nicole Rosani Shy $25,805 per month for prospective temporary spousal support (including $10,000 per month to cover housing costs), $284,490 in temporary spousal support arrears, and $700,000 for past and prospective attorneys' fees and costs. Barry contends substantial evidence does not support the family court's order because the award is based on the erroneous premise Barry could borrow unlimited funds from an irrevocable trust into which Barry transferred the vast majority of his assets prior to marriage. Barry also contends substantial evidence does not support the family court's housing costs award of $10,000 per month, and the family court erred in failing to account for income earned by Nicole during the arrearage period. Because the family court's order was based on Barry's substantial assets in addition to his ability to borrow from the trust, we affirm.
An order regarding payment of temporary spousal support is directly appealable (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 26), as is an order for payment of pendente lite attorneys' fees (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311).
FACTUAL AND PROCEDURAL BACKGROUND
The background facts are taken from Nicole's June 2017 declarations in support of her requests for orders, Barry's August 2017 responsive declarations, and the attachments to the declarations.
Barry is a successful commercial real estate developer in Los Angeles. In 1998 he transferred most of his assets into the B.R. Shy Irrevocable Trust (the Trust). At that time Barry loaned the Trust $20 million, for which he holds two $10 million promissory notes. Barry also sold a property to the Trust in 2004, for which he continues to receive payment. Barry has the ability to request a $5 million repayment from the Trust in 2021. In 2003 Barry transferred his membership interests in Harpro, LLC, to two other irrevocable trusts held for the benefit of Barry's children. The deeds transferring the interests provide that Barry may request $5 million in compensation from each of the trusts in 2023. B. Barry and Nicole's Marriage and Dissolution
Barry declared he transferred "99%" of his assets into the Trust in 1998.
Barry and Nicole began their romantic relationship in 2008 and married on February 11, 2011. Nicole was financially dependent on Barry throughout the marriage. During the marriage, Barry and Nicole lived together on Viewmont Drive in Los Angeles (Viewmont residence), a property owned by S.B. Spring, LLC, which in turn is owned by the Trust. Barry and Nicole have no children together.
Barry filed a petition for dissolution on August 24, 2015. After separating on September 10, Nicole continued to live at the Viewmont residence. On February 17, 2016 Nicole filed a request for order (RFO) for pendente lite spousal support and attorneys' fees and costs. On May 2, 2016 the family court issued a domestic violence restraining order granting Nicole exclusive use and possession of the Viewmont residence.
The family court held a six-day trial on the parties' requests for domestic violence restraining orders. The court found both Nicole and Barry perpetrated domestic violence, and it issued each spouse a permanent restraining order against the other.
However, on June 28, 2016 S.B. Spring brought an unlawful detainer action against Nicole to remove her from the Viewmont residence. On April 17, 2017 the parties settled the unlawful detainer action, and Nicole moved out of the Viewmont residence.
The family court deferred ruling on Nicole's February 17, 2016 RFO for pendente lite spousal support and attorneys' fees and costs so it could conduct a bifurcated trial on the validity of the parties' premarital agreement. Following trial, on May 5, 2017 the family court issued a final statement of decision and partial judgment after trial, ruling Barry and Nicole did not have a valid premarital agreement. C. Nicole's Renewed RFO's for Temporary Spousal Support and Attorneys' Fees and Costs
In June 2017 Nicole filed renewed RFO's for pendente lite spousal support and attorneys' fees and costs. Nicole requested attorneys' fees and costs in the amount of $1,025,000 under Family Code section 2030 et seq., including $425,000 in outstanding fees and $500,000 in prospective fees. Nicole argued, "Given [Barry's] superior financial position and that he has been the cause of the lion's share of litigation expenses thus far, an award of need-based attorneys['] fees . . . is required to level the playing field . . . ."
Further statutory references are to the Family Code.
In her income and expense declaration, Nicole attributed no income to herself and reported as assets $365,000 in a bank account, noting, "$325,000 of this amount is held by [Nicole's] son." Nicole estimated Barry's gross monthly income was $1.5 million. Nicole estimated her total monthly expenses were $58,662, including $30,000 for monthly housing costs.
Nicole stated in her declaration in support of her RFO for attorneys' fees she was not employed and lacked the financial ability to pay fees she already incurred in the litigation or to pay for future services. Nicole declared she had received no financial support from Barry since their separation in 2015. Nicole detailed an extravagant marital lifestyle, with extensive international travel, "lavish parties" for hundreds of attendees, fine dining, designer retail purchases, and several multimillion-dollar real property acquisitions.
Nicole attached to her RFO excerpts from Barry's testimony during the bifurcated trial, in which he estimated the Trust's value was around $150 or $200 million and his own wealth was approximately $33 million. Nicole also submitted an unsigned contract addendum from a draft prenuptial agreement, in which Barry represented to Nicole his total assets exceeded $33 million.
In his responsive declaration, Barry stated he had "always lived a very simple lifestyle," which was "nowhere near as high and upscale as Nicole suggests." Barry reported monthly income of $42,368 ($14,350 in interest payments on the promissory notes, $14,361 in rental property income, and $13,657 in capital gains); assets of $133,000 in a bank account; $500,000 in Las Vegas real estate; and a business interest in three companies totaling $1.5 million, including 100 percent ownership of Brae LLC, which Barry valued at $700,000. Barry estimated his total monthly expenses were $17,150, including $9,000 for housing. Barry explained his $9,000 monthly rent was "considerably less than the fair market value for the home" because it reflected a discount for consulting services he performed for the Trust. Barry attached copies of his 2015 state and federal tax returns showing an adjusted gross income of $508,500.
Barry declared he repaid a $600,000 loan to Nicole in February 2016. Barry submitted an excerpt from Nicole's August 15, 2016 deposition, in which Nicole testified she rented out the Viewmont residence for a profit several times from September 2015 until May 2016 and transferred $325,000 to her son in March 2016. Barry asserted Nicole received $180,000 in rental income during this period. Barry further contended payments he made to Nicole during the marriage should offset any award of temporary spousal support, submitting a ledger of payments Barry purportedly made to Nicole and copies of several checks and wire transfers paid to Nicole during the marriage. One such payment in the amount of $20,000 was made by Spring 7 Loft, LLC. Three others were made by DTLA Management, LLC.
In reply, Nicole included in her attorney's declaration excerpts from Barry's January 11, 2016 deposition, in which he testified the fair market rental value of the Viewmont residence was approximately $20,000 per month. Nicole also attached copies of business registration documents filed with the California Secretary of State between 2000 and 2016 evidencing Barry's service as a manager, member, or agent for service of process for 12 companies. Nicole argued Barry's own evidence (including cancelled checks and wire transfer instructions) showed he used the companies' "bank accounts as if they were his own personal accounts." Nicole also attached a copy of a bank account summary she asserted was one of several personal bank accounts Barry failed to disclose in his income and expense declaration. D. August 21, 2017 Hearing
At the August 21, 2017 hearing on Nicole's renewed RFO, the family court outlined its tentative findings. The court noted the short duration of the marriage, the absence of children, and the contentiousness of the proceedings. The court stated it intended to order support dating back to March 1, 2016, the first day of the month after Nicole filed her initial RFO. The court found it "apparent . . . and persuasive . . . that [Nicole] does not have income at this time" and noted, "There is some indication from [Barry's] declaration and arguments that [Nicole] recently had the benefit of having a $600,000 loan repaid and that . . . a sum of over [$]300,000 may have been transferred to her son recently. [¶] I'm not sure what effect [Barry] argues those things should have."
The family court noted a "principal point of disparity" between the parties' reported expenses was the amount each purported to need for rent. The court "found insufficient evidence in the record to support the contention that [Nicole] needs $30,000 a month for rent." The court opined the $9,000 per month reported by Barry "seem[ed] to be closer to some sense of a luxurious rental space." The court estimated the need of each party to be "about $10,000 per month" for housing.
The family court opined Barry's income "more than adequately demonstrates to this court that he has an ability to pay reasonable spousal support. [¶] On top of that and as argued effectively by [Nicole], [Barry] has a significant ability to borrow practically any sum he would need to fund spousal support and then that would carry over more appropriately into attorneys' fees." The court found Barry's income and expense declaration credible, while noting pending discovery might reveal further sources of unreported income. Based on Barry's reported income and attributing no income to Nicole, the court used the DissoMaster program to calculate temporary spousal support in the amount of $15,805 per month. The court noted its order "create[d] an immediate arrears going back to March 1, 2016." The court denied Barry's request for a credit or offset for payments made by Barry to Nicole prior to separation, reasoning "it's not appropriate to characterize those advances during marriage, before separation as anything other than gifts or advances of money to be spent by a husband and a wife in a marital situation."
DissoMaster is a computer software program widely used by courts and the family law bar in setting child and spousal support pursuant to the statewide uniform guideline set by the Family Code and local rules. (See In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3.)
With regard to Nicole's RFO for attorneys' fees, the family court tentatively found a significant disparity between the parties' access to resources to pay attorneys' fees. The court took into account that Nicole recently received $600,000, but reasoned the amount received by Nicole was "greatly disproportionate to . . . [Barry's] access to over a half million dollars a year in income on a regular and recurring basis, access to be able to borrow funds as he has in the past from one . . . or more . . . of the several S.B. Trust or other trust entities in which he has his assets housed since before the date of marriage. There has been a demonstrated ability to borrow money. And the court may take that into account as well." The court noted the case was complicated "by the detail of the finances, the detail of the records, . . . the various business entities . . . which [Barry] owns or has an interest in, the substantial sums of money[,] perhaps as much as $30 million or more[,] which [Barry] has access to or an interest in[,] [to] decipher[] how much of that [Barry] actually has an interest in and concurrently with that how much of it may be deemed community property to which [Nicole] may be entitled at the time of trial." The court concluded Barry had "the ability to pay all of the fees for both parties . . . based on his borrowing history, his income history, his own reporting of his net worth, and his annual income as compared with [Nicole's] resources."
In response to the family court's tentative ruling, Nicole's attorney requested the court award a housing allowance of $10,000 in addition to the $15,805 DissoMaster calculation for spousal support, relying on the $20,000 per month fair market rental value of the Viewmont residence in which the parties resided during their marriage.
Barry's attorney argued Barry did not have an "unlimited ability to borrow or to get money from . . . the [T]rust," explaining that checks issued by Trust-owned companies to Nicole and to Barry's attorneys were on behalf of the Trust and offset against the interest payments the Trust made to Barry. Barry's attorney explained Barry "does not get a regular check for . . . $20,000 a month. That is just not the way he operates. They pay him a certain amount as he needs it. They pay his expenses. They pay whatever expenses that he needs."
The family court asked Barry's attorney whether the court could look to the "sources of money that [Barry] can borrow against," noting the decision in In re Marriage of Dick (1993) 15 Cal.App.4th 144 (Marriage of Dick). Barry's attorney inquired, "Where is he borrowing the money from?" The court responded, "Against his interest in the [T]rust." Barry's attorney continued, "Where is the evidence of that?" The family court replied, "He testified to that. It's in excerpts of his deposition transcript that he did that in the past and got I think $10 million if I remember correctly. And he said that he's worth $30 million. So being worth $30 million means that one has means by which one can apply through sources we don't yet know that have not been revealed to get . . . funds to pay for things."
Barry's attorney contended Barry could not access the $30 million because it was held in an irrevocable trust, arguing, "He cannot ask for any of the money back until 2021 at which time he could ask for $5 million back. That is what the promissory note says. Any money that he's received from the [T]rust has been an offset against the $500,000 or so that he's owed." Barry's attorney noted, "They are making arguments about alter ego. And [Nicole's attorney] said it several times. 'S.B. Spring equals Barry Shy.' . . . I don't believe the court is making that finding today that S.B. Spring is Barry Shy." The court stated, "It's not before me." The court added, "In thinking through the year 2021, the court could enter a judgment for attorneys' fees and [Nicole] could wait until the year 2021 to collect on it. Judgments are good for ten years and they're renewable. And this is not dischargeable. [¶] So, again, there's a gamesmanship going on here. And when one has access to funds through other sources, Marriage of Dick tells us that the court can impose [an order to] go get the money and fund this litigation." E. September 13, 2017 Order After Hearing
On September 13, 2017 the family court issued an order after hearing. The court found "[i]t was persuasive to the Court that [Nicole] has no income, and that [Barry's] income is significant. His income more than adequately demonstrates his ability to pay. [Barry] also has the ability to borrow any sum for the payment of spousal support and attorneys' fees and costs." The court found "credible the statements made by [Nicole] in her pleadings concerning the parties' luxurious marital lifestyle."
With regard to attorneys' fees, the family court found, "An acute disparity exists between the parties' access to resources to pay for legal representation to effectively and equitably address the issues in this matter. [Barry] had far greater resources than [Nicole]. He also has the ability to pay the attorneys' fees of both parties. He has at least $500,000 in annual income, substantial assets in his name, and the ability to borrow from his irrevocable [T]rust. [Nicole] has no income and approximately $300,000 in a bank account. [Nicole] has some ability to pay her own attorneys' fees (and she has done so). However, her ability to contribute towards her own fees is not itself a bar to a contributory award from [Barry]." The court noted discovery of assets and liabilities had been "made more complicated by the degree of non-cooperation by [Barry] and having to go through every contested issue as if it's hotly contested." The court found its award of prospective attorneys' fees and costs was "reasonably necessary for [Nicole] to protect her rights and interests and address the remaining issues in this matter."
The family court ordered Barry to pay Nicole temporary spousal support of $15,805 per month, beginning March 1, 2016 and continuing until July 1, 2018. The court identified arrears of $284,490 from the 18-month period between March 1, 2016 and August 31, 2017, which it ordered Barry to pay in three consecutive bi-monthly installments of $94,830, with the first payment due on October 2, 2017. The family court further ordered Barry to pay additional temporary spousal support in the amount of $10,000 per month for Nicole's housing costs for an 11-month period beginning September 1, 2017 and continuing until July 1, 2018. The court denied Barry's request "for credits or off-sets against the temporary support order for purported payments made by [Barry] to [Nicole] during marriage." The court noted its temporary spousal support orders were based on each party's reported taxable income.
The family court ordered Barry to pay a total of $450,000 to Nicole's attorneys, including $300,000 in prospective attorneys' fees and costs. The court ordered Barry to pay $100,000 of this amount by September 15, 2017, with the remaining $350,000 to be paid by December 31, 2017. The court also ordered Barry to pay $250,000 for attorneys' fees and costs incurred by Nicole's prior counsel, to be paid by December 31, 2017.
The family court denied without prejudice Nicole's request for attorneys' fees and costs incurred in litigating the parties' cross-petitions for domestic violence restraining orders and the unlawful detainer matter.
On April 20, 2018 Nicole filed a motion to dismiss Barry's appeal under the disentitlement doctrine for noncompliance with the family court's order. We requested supplemental briefing on Nicole's motion. Nicole reported Barry made only a partial $185,000 payment to Nicole's attorneys in May 2018. She also revealed that on August 21, 2018 the court entered a stipulated judgment of dissolution on reserved issues, in which Nicole waived her right to spousal support and attorneys' fees from Barry. On December 19, 2019 the family court granted Nicole's motion to set aside the stipulated judgment. We invited supplemental briefing addressing what effect, if any, the family court's order setting aside the stipulated judgment has on the appeal. Barry filed no response. In her letter brief, Nicole contended the family court's order vacated the stipulated judgment, thereby reinstating its prior order regarding temporary spousal support and attorneys' fees. Nicole is correct. However, we deny Nicole's motion to dismiss Barry's appeal under the disentitlement doctrine given the unique circumstances of this case—that the parties entered into a stipulated judgment on August 21, 2018 in which Nicole waived her right to spousal support and attorneys' fees, which remained in effect until the family court set it aside on December 19, 2019. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1230 ["'Appellate disentitlement "is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . ."'"].)
DISCUSSION
A. Standard of Review
"The standard of review that applies to an order for temporary spousal support is abuse of discretion." (In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 773; accord, In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove) ["We . . . review temporary spousal support orders under the abuse of discretion standard."].) The same standard applies to the review of an order for pendente lite attorneys' fees and costs. (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868 ["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."]; In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662 [under §§ 2030 & 2032, "a trial court has wide discretion in fashioning an award of attorney fees in marital proceedings"].) "'"[T]he trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made."'" (Bendetti, at pp. 868-869, quoting In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769.)
"'"[T]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious."'" (In re Marriage of Lim & Carrasco, supra, 214 Cal.App.4th at p. 774; accord, Marriage of Dick, supra, 15 Cal.App.4th at p. 160 [reviewing record to determine whether substantial evidence supported the findings underlying the family court's order]; see In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 104 [on appeal from modification of temporary spousal support award, reviewing court "determine[s] whether factual findings are supported by substantial evidence, and if so, affirm[s] if any reasonable judge could have made such an order"]; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1530 [reviewing findings underlying award of attorneys' fees as sanction under § 271 for substantial evidence].) B. Substantial Evidence Supports the Family Court's Attorneys' Fees Award
Sections 2030 and 2032 govern an award of attorneys' fees and costs in a dissolution action. Under section 2030, subdivision (a)(1), the family court "shall ensure" all parties have access to legal representation. The court may award attorneys' fees "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) "When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (§ 2030, subd. (a)(2); accord, In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 111; In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1052; In re Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868 ["In deciding whether to award attorney fees, the trial court considers the parties' respective needs and incomes, including their assets and liabilities."].) "The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b).)
Here, as the family court found, the record demonstrates "a disparity in access to funds to retain counsel." (§ 2030, subd. (a)(2).) Barry does not challenge the family court's finding "[a]n acute disparity exists between the parties' access to resources to pay for legal representation to effectively and equitably address the issues in this matter." Rather, Barry contends the family court erred in ordering him to pay the sum of $700,000 toward Nicole's attorneys' fees and costs by December 31, 2017 because he did not have the ability to pay that large an amount. Barry argues the family court's award was based on its erroneous finding he could "borrow any sum," a finding not supported by substantial evidence.
We agree with Barry substantial evidence does not support the family court's finding Barry could "borrow any sum" from the Trust. At the hearing, the family court explained its finding was based on "excerpts of [Barry's] deposition transcript that [showed] he [borrowed from the Trust] in the past and got . . . $10 million . . . ." However, the excerpts of Barry's deposition transcript filed with the court in connection with Nicole's requests for fees and temporary spousal support reflect the opposite—Barry made two $10 million loans to the Trust, for a total of $20 million.
However, the family court relied not only on Barry's purported ability to borrow from the Trust, but also on the "substantial assets in [Barry's] name." These assets include $500,000 in Las Vegas real estate, 100 percent ownership of Brae LLC, which Barry valued at $700,000, and a 50 percent ownership in two other businesses. The family court could rightly expect Barry to liquidate or borrow against these interests to satisfy the court's order. (Marriage of Dick, supra, 15 Cal.App.4th at p. 160 [it is "proper for the court to look to assets controlled by husband, other than income, as a basis for the award"].)
Given Barry's substantial annual income, business and real estate assets, and his ability to request $5 million from the Trust in 2021 and $10 million from the other two irrevocable trusts in 2023, it was not an abuse of discretion for the trial court to award Nicole $700,000 in attorneys' fees and costs by December 31, 2017. (See In re Marriage of Sorge, supra, 202 Cal.App.4th at pp. 662-663 ["[T]he statute is concerned with relative need, and, thus, that the trial court may appropriately consider the fact that [husband] has a significantly greater net worth than [wife] in deciding whether to award her some or all of the attorney fees that she requested."]; In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 879-880 [affirming award of $700,000 in pendente lite attorneys' fees and costs to husband despite husband's $2 million in assets, where wife possessed at least $40 million in assets].) C. Substantial Evidence Supports the Family Court's Temporary Spousal Support Award
Because we conclude Barry's self-reported assets constitute substantial evidence of his ability to satisfy the family court's order, we do not reach Nicole's argument the family court's order is supported by evidence Barry could withdraw at will from the bank accounts of the companies he owned or for which he acted as member or officer, or her argument the holding in Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486 shows Barry controlled and used assets purportedly belonging to Trust-owned companies.
Section 3600 provides the family court may order temporary spousal support in "any amount that is necessary for the support of the other spouse," as long as the amount is consistent with section 4320 (listing circumstances to consider in ordering support) and section 4325 (limiting spousal support to a spouse convicted of domestic violence). "The purpose of pendente lite spousal support is to maintain the parties' standards of living in as close as possible to the preseparation status quo, pending trial. In fixing temporary spousal support, trial courts are not restricted by any set of statutory guidelines. The amount of the award lies within the trial court's sound discretion, and is reversible only on a showing of clear abuse of discretion." (In re Marriage of Ciprari, supra, 32 Cal.App.5th at pp. 103-104; accord, In re Marriage of Samson (2011) 197 Cal.App.4th 23, 29 [An award of temporary spousal support "is based on the supported spouse's needs and the other spouse's ability to pay."]; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 ["Awards of temporary spousal support . . . may be ordered in 'any amount' [citation] subject only to the moving party's needs and the other party's ability to pay."].) "'[I]n exercising its broad discretion, the court may properly consider the "big picture" concerning the parties' assets and income available for support in light of the marriage standard of living.'" (In re Marriage of Lim & Carrasco, supra, 214 Cal.App.4th at p. 773; accord, Wittgrove, supra, 120 Cal.App.4th at p. 1322.)
"In making initial temporary spousal support orders, the trial court has discretion to issue its orders retroactive to the date of the petition for dissolution. [Citations.] At minimum, the court can make its orders retroactive to the date of a motion for such orders." (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 512; accord, In re Marriage of Mendoza & Cuellar (2017) 14 Cal.App.5th 939, 943; Marriage of Dick, supra, 15 Cal.App.4th at pp. 165-166.) Here, the family court ordered temporary spousal support arrears of $15,805 per month beginning March 1, 2016, based on the February 17, 2016 filing date of Nicole's initial RFO for temporary spousal support, for a total of $284,490 in temporary spousal support arrears.
Barry contends the trial court abused its discretion in ordering him to pay Nicole the full $284,490 in temporary spousal support arrears by February 1, 2018, just over four months from the date of the order. Just as with the order for attorneys' fees, the trial court's order is supported by substantial evidence of Barry's significant income and assets, including $1.2 million in business and real estate assets held in Barry's name.
Barry also argues the family court erred by failing to impute to Nicole $180,000 in rental income from the Viewmont residence during the period from October 2015 through May 2016, as well as the $600,000 payment Barry made to Nicole in February 2016 to repay a loan she made to Barry during the marriage. Barry also notes Nicole transferred $325,000 to her son in March 2016. Barry asserts these income sources and Nicole's transfer of money to her son demonstrate Nicole had no need for temporary spousal support before May 1, 2017. This contention lacks merit.
Barry misrepresents that Nicole gifted her son $325,000 "for no apparent reason." Nicole testified her son contributed $300,000 to the initial loan to Barry, thus entitling the son to his share of the repayment in February 2016. She also testified the additional $25,000 was a gift from Barry to the son.
There is no evidence Nicole profited from Barry's repayment of the loan, especially given her repayment of a portion of the loan to her son. Further, Barry did not present any evidence Nicole had regular income during the 20 months following their separation in September 2017. Thus, even with the payments to Nicole, substantial evidence supports the trial court's finding of Barry's superior ability to pay spousal support to preserve the status quo. (See In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1317 ["Spousal support must be established according to the needs of both parties and '"their respective abilities to meet these needs."'"].) Loeb v. Loeb (1948) 84 Cal.App.2d 141, relied on by Barry, is not to the contrary. There, the Court of Appeal reversed the family court's award of $500 per month in temporary spousal support to the wife where "according to [wife's] own evidence, her monthly income exceeded her maximum monthly expenses by almost $ 130." (Loeb, at p. 147.) Unlike the wife in Loeb, Nicole had no monthly income, and the family court found additional support was necessary to maintain Nicole's preseparation "luxurious" marital lifestyle. (See Wittgrove, supra, 120 Cal.App.4th at p. 1327 ["Trial courts may properly look to the parties' accustomed marital lifestyle as the main basis for a temporary support order."]; In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932.)
Barry also relies on Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 408, disapproved on another ground by Hudson v. Hudson (1959) 52 Cal.2d 735, for his argument a spouse seeking temporary spousal support "must establish necessity," but that case did not involve a challenge to an award of temporary spousal support. Rather, Kalmus was an appeal, in part, from the denial of a wife's request for pendente lite spousal support and attorneys' fees based on the wife's acceptance of spousal support for 27 years pursuant to a prior Massachusetts divorce decree and valid contract between the parties and on the wife's failure to show she and her former husband had resumed a marital relationship. (Kalmus, at pp. 409-412.)
Barry contends further the family court's award of $10,000 per month for housing costs from September 1, 2017 through July 1, 2018, in addition to its award of $15,805 for living expenses, was not supported by substantial evidence because it "was based on the presumption that Barry had some unknown and unreported income." This argument is not persuasive. The family court used the DissoMaster program to calculate $15,805 in guideline spousal support based on Barry's reported monthly income of $42,368. The family court properly used its DissoMaster calculation as a starting point, but was persuaded at the hearing by the argument of Nicole's counsel that additional support was necessary to approximate the "luxurious" marital lifestyle. As the court explained in In re Marriage of Carter (1994) 26 Cal.App.4th 1024, 1027, footnote 3, "'Unusual factors affecting temporary spousal support . . . require the judge to make adjustments to the calculations made by the basic computer program.'" As discussed, according to Barry's deposition testimony, the fair market rental value of the Viewmont residence where Nicole and Barry had lived was approximately $20,000 per month. The court estimated the need of each party to be "about $10,000 per month" for housing. Thus, absent an additional housing payment, Nicole would only have about $5,000 per month for her luxurious lifestyle if she had to pay her share of housing costs from her monthly spousal support.
Barry argues the award of housing expenses to Nicole exceeds what she needed to maintain the marital lifestyle, pointing to the expenses he claimed on his income and expense declaration. Barry ignores that the family court credited Nicole's evidence of a "luxurious" marital lifestyle. That Barry now may live in relative modesty compared to the marital lifestyle does not render the family court's award an abuse of discretion. (See Wittgrove, supra, 120 Cal.App.4th at p. 1328 [it is "proper to maintain the marital lifestyle" even where a party's stated living expenses are reduced "because he or she has cut back or is living frugally"].) Further, although Barry reported monthly rent of $9,000 for his current residence, that amount reflected reduced rent to offset consulting work Barry performed for the Trust. Barry did not identify this offset as income or include the true rental value of his residence in his income and expense declaration, thus overstating the difference between the amount of the temporary spousal support award and the amount of his own reported expenses.
Barry also argues that because the family court's DissoMaster calculation of $15,805 per month in temporary spousal support accounted for Nicole's housing needs, the court's award must be reduced by $10,000 per month for those months during which Nicole resided in the Viewmont residence to avoid "double dip[ping]." But the family court based its DissoMaster calculation on the relative incomes of Barry and Nicole, not on the declared expenses of the parties. Further, the family court ordered the payment for housing costs to cover the period starting September 1, 2017, after Nicole had already moved out of the Viewmont residence.
DISPOSITION
The family court's September 13, 2017 order is affirmed. Nicole is to recover her costs on appeal.
FEUER, J. We concur:
SEGAL, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.