Opinion
D056797
08-18-2011
In re the Marriage of ANN MARIE and THOMAS J. TIGHE. ANN MARIE TIGHE, Respondent, v. THOMAS J. TIGHE, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. D369656)
APPEAL from an order of the Superior Court of San Diego County, Lisa A. Foster, Judge. Affirmed.
Thomas J. Tighe (Husband) appeals two postjudgment orders awarding Ann Marie Tighe, his former wife (Wife), the costs of certain repairs to the former marital home in which Wife continues to reside, attorney fees Wife incurred in obtaining the repair cost award, and attorney fees Wife incurred in responding to Husband's prior motion for a determination of his child support arrears. On appeal, Husband contends the trial court erred by awarding Wife: (1) $4,653.60 for the cost of replacing the kitchen floor and the living room carpet; (2) $2,645.53 for the cost of repairing the hallway bathroom; (3) $3,000 for attorney fees incurred in obtaining the repair cost awards; and (4) $3,000 for attorney fees incurred in responding to Husband's prior motion for a determination of his child support arrears.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2002, a judgment of dissolution (Judgment) was entered, dissolving Husband and Wife's marriage as of March 14, 2002, and providing (per the parties' stipulation) for payment of child support by Husband, division of their interests in the marital residence, and payment of costs for repairs to the marital residence. The Judgment provided in pertinent part:
The parties waived any rights to spousal support.
"4. The residence . . . shall be deemed to be owned 20% by [Wife] and 80% by [Husband]. This shall be reflected in a new deed executed by the parties in which they shall hold title as Tenants in Common on the above percentage basis. Within 60 days [Husband] shall obtain a new first Trust Deed on the residence in the amount of $65,000.00 of which $15,000.00 shall be paid to [Wife] and $45,000.00 shall be paid to [Wife's attorney] as and for [Wife's] attorney's fees. The remaining $5,000.00 shall be deposited into a joint account for major repairs on the house which are defined to be hallway bathroom repair and furnace repair. [Wife] shall fully cooperate with [Husband] in obtaining this financing. [Husband] shall be responsible for the first Trust Deed payment on an ongoing basis until the house is sold. [¶] . . .[¶]
"7. [Wife] may remain in the residence until the parties' youngest child reaches the age of 18 or graduates from high school, whichever is later, and while she continuously remains there she shall have
exclusive use and possession of the residence. Once the youngest child graduates from high school or becomes 18 years of age, whichever is later, the house shall be listed and sold at the request of either party with a mutually agreed upon price, terms and broker. From the proceeds from the sale of the residence, [Husband] shall be reimbursed $5,000.00 off the top, plus interest at 6% compounded per annum anticipated for repairs previously mentioned. Any remaining balance on the first Trust Deed shall be paid from [Husband's] 80% share of the proceeds from the sale, and any other liens created by him shall be his responsibility. . . .
"8. All minor repairs to the residence shall be the sole responsibility of [Wife]. Minor repairs shall be defined as those repairs less than or up to $1,000.00. She shall be responsible for ongoing maintenance. Any repairs over $1,000.00 in agreed repairs shall be paid 80% by [Husband] and 20% by [Wife]. [Wife] shall maintain the home in reasonably good condition." (Italics added.)
In 2006, Husband filed a motion for a determination by a child support court commissioner of his child support arrearages. Wife responded to that motion and filed a "companion motion," requesting attorney fees and an order requiring Husband to reimburse her for certain home repairs pursuant to the Judgment's provisions. The commissioner issued orders deciding the child support and home repair issues and awarding Wife attorney fees. Husband appealed the commissioner's orders.
On April 25, 2008, we issued a nonpublished opinion in Tighe v. Tighe (April 25, 2008, D049832) (Tighe I), in which we affirmed the commissioner's child support determinations, but reversed his home repair determinations because he did not have jurisdiction to consider issues unrelated to child support. We also reversed the commissioner's award for attorney fees incurred by Wife relating to both the child support and home repair issues and remanded the matter for reconsideration. Our disposition stated that: "On remand, the commissioner may exercise discretion in determining an appropriate attorney fee award for work related to addressing the child support issues. [Wife] may file with the superior court judge a motion requesting reimbursement for amounts she claims are owed to her pursuant to the [Judgment]."
On October 16, 2008, Wife filed an order to show cause (OSC) in San Diego County Superior Court, seeking reimbursement from Husband for certain home repairs and attorney fees incurred in obtaining that relief. Wife sought $2,645.34 for the cost of repairing the hallway bathroom and a total of $4,937.15 toward the cost of replacing the kitchen flooring and living room carpet, which were damaged by flooding. She also requested an award of $3,000 in attorney fees. Wife lodged documents showing Husband had received insurance proceeds of $5,817.15 for the flood damage to the kitchen flooring and living room carpet. Wife declared that Husband kept all of the insurance proceeds and did not pay her for replacement of the kitchen flooring or living room carpet.
Husband opposed Wife's motion. Wife filed a supplemental declaration in response. Husband filed a responsive declaration and lodged certain documents.
On December 7, 2009, following a hearing, the trial court issued an order (First Order) granting Wife's motion. The First Order ordered Husband to reimburse Wife $2,645.34 for the cost of repairing the hallway bathroom and pay Wife $4,653.60 toward the cost of replacing the kitchen flooring and living room carpet. The court also awarded Wife $3,000.00 for attorney fees incurred in moving for the repair costs.
Also on December 7, 2009, following a de novo hearing on the commissioner's ruling after remand in Tighe I, the trial court issued an order (Second Order) awarding Wife $3,000.00 for attorney fees incurred in the 2006 child support arrears proceeding. Husband timely filed a notice of appeal, challenging the First Order and Second Order.
DISCUSSION
I
Kitchen and Living Room Award
Husband contends the trial court erred by awarding Wife $4,653.60 toward the cost of replacing the kitchen flooring and living room carpet.
A
In her supplemental declaration in support of her repair cost motion, Wife stated:
"In 2004, the washer overflowed and flooded both the kitchen and the living room. The kitchen had [an] old, ripped linoleum floor. . . . Since the existing old linoleum floor could not be repaired, new flooring would have to be installed. Prior to the flood, I hired James Scott . . . and started to have Pergo flooring installed. The floor had not yet been sealed and when the washer overflowed and flooded the kitchen and living room, it destroyed the floor. The floor had to [be] ripped up in the kitchen and the living room carpet had to [be] ripped up, too.Wife also lodged documents showing Husband received $5,817.15 in insurance proceeds for the floor damage to the kitchen flooring and living room carpet.
"I contacted [Husband] about the flooding, but I never heard back from [him] . . . . I also called the insurance company. The insurance company would cover the damage, but I had to pay a $200.00 insurance deductible before they could issue the check . . . . The cost of the floor was $1,050.00 and the labor was $1,500.00, a total of $2,550.00, which I paid for, plus the $200 deductible, for a total cost of $2,750.00. [Husband] was sent a check from the insurance company for $5,817.15, which was to cover the cost to make the repairs and replace the kitchen floor and the living room carpet. However, [Husband] has never given me this money so that I could be reimbursed for the cost of replacing the kitchen floor and to put in a new carpet in the living room. As a consequence, there still is no living room carpet and the old, ripped up linoleum floor is still in the kitchen. . . .
" . . . [Husband] kept all the insurance money and I cannot afford to pay for a kitchen floor or a living room carpet. I would request, therefore, that along with reimbursing me $2,240.00, [Husband] give me the rest of the insurance proceeds so that I can replace the floor and carpet. I believe that [Husband], by cashing the insurance check, gave his implicit agreement to the work that had been done."
In response, Husband declared: "I was not given any notice of any repairs [Wife] made or intended to make to the community home, nor did I agree to any repairs." He also lodged photographs of the kitchen floor, purportedly showing it "as it is now and as it was before [Wife] installed her new Pergo flooring." He asserted the photographs "show the very poor quality of workmanship—certainly not worth the alleged money she paid without my agreement."
Regarding the cost of replacing the kitchen flooring and the living room carpet, the trial court stated in the First Order:
"[T]he Court finds that the [original] replacement of the kitchen floor [with Pergo flooring] was not an agreed-to repair, so does not order any reimbursement [for that repair]. However, subsequent to [Wife] replacing the kitchen floor, there was a flood in the house and [Wife] made a claim to the insurance company to pay for the damage to the kitchen floor as well as the living room carpet. [Wife] paid the $200.00 deductible and [Husband] received $5,817.15 in insurance proceeds from [Wife's] claim. The Court finds that the insurance proceeds belong to [Husband], as he is the insured under the policy. However, the Court further finds that [Husband] is to provide [Wife] 80% of the insurance proceeds because although [Husband] never actually agreed in writing or orally that the flood necessitated repairs, the Court believes there is a covenant of good faith and fair dealing in any contract, including with an insurance company and [Husband's] acceptance of the insurance proceeds is a tacit agreement of the need for repair of the home after the flood.The First Order ordered Husband to pay Wife $4,653.60 for the replacement of the kitchen flooring and living room carpet.
Although there is some disagreement as to the cost of the repairs, the Court finds the insurance company is in the best position to determine the amount and it made the determination of $5,817.15. Under the terms of the Judgment, agreed-to repairs were to be shared 80/20, so the Court finds that [Husband] is to provide [Wife] with 80% of the insurance proceeds, $4,653.60, so she can make the repairs to the home. Once [Husband] pays [Wife] $4,653.60, she is required to use the money to make the repairs, i.e., replace the kitchen floor and replace the living room carpet, and provide proof that the repairs are done." (Italics added.)
B
Husband asserts the trial court erred in awarding Wife $4,653.60 for the replacement of the kitchen flooring and living room carpet because the Judgment only required him to pay 80 percent of "agreed repairs" over $1,000 and he did not agree to the replacement of the kitchen flooring and living room carpet. As the trial court noted, Husband did not expressly agree (e.g., in writing or orally) to the replacement of the kitchen flooring and living room carpet. However, the court found Husband's "acceptance of the insurance proceeds is a tacit agreement of the need for repair of the home after the flood." (Italics added.) Reasonably construing that finding favorably to support the court's order, we conclude the court in effect found Husband's acceptance of the insurance proceeds showed his tacit agreement to the repairs of the home after the flood (i.e., replacement of the kitchen flooring and living room carpet). Alternatively stated, the court expressly found Husband tacitly agreed to the need for the repairs and implicitly found Husband tacitly agreed to the actual repairs.
Contrary to Husband's assertion, the trial court's findings did not have the effect of revising the provisions of the Judgment. Rather, the court simply made a factual finding based on Husband's actions (i.e., that he tacitly agreed to the repairs). It then applied that finding to the express provisions of the Judgment, without revising any of its provisions, and found Husband was responsible for 80 percent of the costs of repairs to which he had tacitly agreed.
We conclude there is substantial evidence to support the trial court's finding that Husband tacitly agreed to the replacement of the kitchen flooring and living room carpet. As noted above, Wife paid to have new Pergo flooring installed in the kitchen. That new flooring (as well as the living room carpet) was then damaged by flooding. However, because Wife was not named as an insured under the homeowner's policy, Husband, as the named insured, received insurance proceeds of $5,817.15 for the flood damage even though he had not paid for the new Pergo flooring. We conclude the trial court reasonably inferred that Husband's acceptance of the insurance proceeds showed his tacit agreement to the home repairs required by the flood damage (i.e., replacement of the kitchen flooring and living room carpet).
Because Husband tacitly agreed to the repairs (i.e., replacement of the kitchen flooring and living room carpet), the trial court correctly found he was required under the Judgment to pay for 80 percent of those repairs that cost over $1,000. The Judgment provides: "Any repairs over $1,000.00 in agreed repairs shall be paid 80% by [Husband] and 20% by [Wife]." The court reasonably found the insurance company's determination of the cost of those repairs ($5,817.15) was the most accurate estimate of the cost of those repairs. Accordingly, the court properly awarded Wife 80 percent of that $5,817.15 repair cost, or $4,653.60, pursuant to the provisions of the Judgment.
C
We are not persuaded by Husband's arguments that the trial court erred in awarding Wife those repair costs. The trial court did not find that insurance covers property, rather than indemnifies the insured for damage to property. The court expressly found that the insurance proceeds belonged to Husband because he was the insured under the policy. In so doing, the court implicitly recognized that insurance protects the insured for property damage. Accordingly, the court did not make any mistake of law, as asserted by Husband.
Likewise, we reject Husband's assertion that the trial court erred in awarding Wife part of the insurance proceeds because it erroneously believed there is a contractual or legal requirement that insurance proceeds must be used to repair the damaged property. Although the court referred to the covenant of good faith and fair dealing that is included in an insurance contract, it did so in inferring Husband tacitly agreed to the need for repairs and not that the insurance proceeds were required to be used to repair the damaged property. In any event, the court's finding did not depend on its interpretation of insurance contracts or law, but instead was based on its reasonable inference that, in accepting the insurance proceeds, Husband tacitly agreed to the repairs.
We also reject Husband's argument that the court erred because he presented evidence (e.g., photographs) showing replacement of the kitchen flooring and living room carpet was not necessary. However, in so arguing, he misconstrues and/or misapplies the substantial evidence standard of review. Husband has the burden on appeal to show that the evidence is insufficient to support the trial court's finding, not that there may have been substantial evidence to support a different finding by the court (e.g., that repairs were not necessary). (See, e.g., Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) By arguing there was substantial evidence that could have supported a finding that replacement of the kitchen flooring and living room carpet was not necessary, Husband has not carried his burden on appeal to show the evidence is insufficient to support the court's finding that he agreed to those repairs.
We also reject his assertion Wife did not present any evidence the repairs were necessary. On the contrary, she submitted evidence showing the insurance company made an implicit, if not express, determination that replacement of the kitchen flooring and living room carpet was required by its issuance of the $5,817.15 check to Husband arising from the claim for flood damage.
We also reject Husband's assertion that the trial court exceeded its jurisdiction by awarding Wife $4,653.60 toward the replacement of the kitchen flooring and living room carpet. He argues the court exceeded its jurisdiction because he did not agree to the repairs, as required by the Judgment and therefore the court did not have "jurisdiction" or authority to award Wife repair costs to which he had not agreed. However, as we concluded above, the trial court reasonably inferred Husband agreed to the repairs and therefore awarded Wife $4,653.60 toward the cost of those agreed repairs pursuant to the provisions of the Judgment. The court did not exceed its jurisdiction or authority as Husband asserts.
To the extent Husband argues the trial court erred in awarding Wife $4,653.60 toward the cost of replacing the kitchen flooring and living room carpet because she should not have complete control over those repairs as only a 20 percent co-tenant owner of the home, Husband has not cited any case showing, or otherwise persuaded us, that the court erred in awarding Wife those repair costs.
II
Hallway Bathroom Award
Husband contends the trial court erred by awarding Wife $2,645.34 for the cost of repairing the hallway bathroom.
A
In her initial declaration in support of her repair cost motion, Wife stated:
"The 2002 Judgment ordered [Husband] to put $5000 in a joint account to pay for the 'hallway bathroom repair and the furnace repair.' He never opened the account. It was clearly the intent of the Judgment that [Husband] was to use his $5000 to pay for the bathroom and furnace repair.Wife lodged several receipts showing the amounts she paid to repair the hallway bathroom.
"[Husband] never repaired the hallway bathroom, which he was ordered to repair, as that is part of what the $5,000 was to cover. Since the hallway bathroom repair was to be paid solely by [Husband] . . . and he never opened the bank account, he owes me 100% of what I finally had to pay to repair the hallway bathroom, a total of $2,645.34."
In response, Husband filed a declaration, stating:
"2. I was unable to obtain the new Trust Deed mentioned in the Judgment herein because of bad credit but I nevertheless replaced the furnace at a cost to me of $3319, and I contributed $1631 for repair of the hallway bathroom. Exhibit A attached hereto is a true and correct copy of a letter I sent to [Wife] on July 14, 2004. . . .Her supplemental declaration then itemized the amounts she paid to repair the hallway bathroom, which totaled $2,645.34.
"3. I was not given any notice of any repairs [Wife] made or intended to make to the community home, nor did I agree to any repairs."
Wife then filed a supplemental declaration, stating in pertinent part:
"As the hallway/guest bathroom was to be repaired by [Husband] pursuant to the Judgment, solely at his cost, I do not believe I needed an 'agreement' for these repairs to be done. Because [Husband] never put the $5000 into the account to pay for the repairs, after two years I finally had to pay to repair the hallway/guest bathroom and have never been reimbursed for what I paid. The total cost to repair the hallway/guest bathroom was $2,645.34, which [Husband] owes to me in full as the Court ordered him to pay for this as part of the 2002 Judgment."
In response, Husband lodged Exhibit C, purporting it to be "a true and correct copy of a deposit slip I received when I deposited the $1631.09 into [Wife's] bank account for the repair of the hallway bathroom." That deposit receipt is dated April 2, 2004. He also filed a declaration, stating: "As to the bathroom repair it is important to note that [Wife] did not refute my assertion that I gave her $1631 for the bathroom repair, and Exhibit C is evidence that I deposited that amount in her account for same."
Regarding the cost of repairing the hallway bathroom, the trial court stated in the First Order:
"[Wife] paid $2,645.34 to repair the hallway bathroom. The Court finds that this repair was to be paid from the $5,000.00 joint account that was to be set up by [Husband]. As [Husband] never set up the account, the Court orders [Husband] to reimburse [Wife] the $2,645.34. If he reimburses the $2,645.34 to [Wife], he will then be reimbursed that amount from the proceeds of the sale of the home. The Court notes that the letter dated April 2, 2004 [sic] provided byAccordingly, the First Order ordered Husband to pay Wife $2,645.34 for the cost of repairing the hallway bathroom.
[Husband] plainly indicates that insurance money was for the master bathroom repairs, not the hallway bathroom repairs, as [Husband] claims."
The April 2, 2004, letter to which the trial court referred apparently was the July 14, 2004, letter in which Husband discussed his $1,631.09 check that he deposited into Wife's account that the parties had been using for his child support payments. In that letter, Husband states in part: "The [$1,631.09] check was from First American[,] which was the company providing standard homeowners insurance on [the home]. The check was an insurance pay-off due to an overflow of the toilet in the master bathroom at [the home] sometime in November 2003." (Italics added.)
B
Husband asserts the trial court erred in awarding Wife $2,645.34 for the cost of repairing the hallway bathroom because he was unable to obtain the first trust deed loan the Judgment ordered him to obtain, which would have provided the $5,000 amount for the joint account for repair of the hallway bathroom and furnace. Alternatively stated, Husband argues his obligation under the Judgment to pay for the hallway bathroom repair was conditioned on his obtaining the first trust deed loan and, because he could not obtain the loan, he is not obligated to pay for that repair.
We are not persuaded by Husband's proposed interpretation of the Judgment. As quoted above and as the trial court noted, the Judgment required Husband to obtain a first trust deed loan in the amount of $65,000 and to deposit $5,000 of the loan proceeds into a joint account for the repair of the hallway bathroom and furnace. Assuming arguendo that Husband could not, in fact, obtain that loan because of his poor credit or other legitimate reasons, the Judgment cannot reasonably be interpreted as relieving Husband from its implicit requirement that he pay for the full cost of repairing the hallway bathroom. Based on our review of the entire stipulated Judgment, it is necessarily implied in the Judgment that Husband is required to pay for the full cost of repairing the hallway bathroom, regardless of whether he was able to obtain the first trust deed loan contemplated therein. Therefore, the trial court properly ordered Husband to pay Wife $2,645.34 for the cost of repairing the hallway bathroom.
C
We are not persuaded by Husband's arguments that the trial court erred in awarding Wife that repair cost. The trial court did not exceed its jurisdiction or authority, make a mistake of law, or amend the Judgment when it properly interpreted the Judgment as requiring him to pay for the full cost of repairing the hallway bathroom even though he was unable to obtain the first trust deed loan. Husband does not cite any case showing, or otherwise persuade us, that the court so erred. By ordering Husband to pay the full cost of repairing the hallway bathroom, the trial court simply enforced the original provisions of the Judgment, as reasonably interpreted by the court.
We also reject Husband's assertion that the trial court erred in awarding Wife the full cost of repairing the hallway bathroom because he submitted evidence showing he paid Wife $1,631 toward that repair. However, in so arguing, Husband misconstrues and/or misapplies the substantial evidence standard of review. Husband has the burden on appeal to show the evidence is insufficient to support the trial court's finding, not that there may have been substantial evidence to support a different finding by the court (e.g., that he should be credited $1,631 toward the cost of repairing the hallway bathroom). (See, e.g., Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.) By arguing there was substantial evidence that could have supported a finding he paid $1,631 toward the cost of repairing the hallway bathroom, Husband has not carried his burden on appeal to show the evidence is insufficient to support the court's finding he did not, in fact, pay that amount toward that repair. Based on our review of the record, we conclude there is substantial evidence to support the trial court's finding that Husband's $1,631 payment was for repair of the master bathroom and not for repair of the hallway bathroom. The trial court was not required to accept Husband's assertions in his July 14, 2004, letter to Wife that they had agreed the $1,631 amount deposited in the child support account would be used toward repair of the hallway bathroom. Accordingly, the trial court properly awarded Wife $2.645.34 for the cost of repairing the hallway bathroom.
III
First Order Attorney Fees
Husband contends the trial court abused its discretion by awarding Wife $3,000 toward the attorney fees she incurred in obtaining the repair cost awards.
A
In moving for awards for the costs of repairing the hallway bathroom and replacing the kitchen flooring and living room carpet, Wife requested an award of $3,000 for reasonable attorney fees incurred in making that motion. In her declaration in support of her motion, Wife stated:
"Family Code § 2030 allows for a party to be ordered to pay attorney's fees and costs for the other party based upon the . . . respective incomes and needs of the parties, and any factors affecting the parties' respective abilities to pay. My only source of income is SSI of approximately $870 per month, which clearly demonstrates a need for attorney fees. [Husband] is an attorney who has his own law practice. His monthly income has been imputed by the Courts at between $4,000 and $5,270 per month. [Husband] has the greater ability to pay attorney fees and I would request the Court order him to make a contribution to my fees of no less than $3000.00."
In response, Husband filed an income and expense declaration (IED) dated October 29, 2008, in which he stated he was 65 years old, he was a patent attorney, and his income had changed because he retired. He claimed he had business income of $600 per month and real property worth $250,000. He stated Christine Harris lived with him and paid some of the household expenses, but did not identify his relationship with her or what her income was. He also stated: "I have retired. I am in the process of closing out a handful of remaining cases. I have no office nor staff. I will not draw social security for another year. This recession has dropped my business income drastically."
Husband also filed a responsive declaration opposing Wife's request for an award of attorney fees, asserting she "has more than ample resources from which to pay her own fees." On January 8, 2009, he filed another IED, substantially the same as his prior IED (except for omitting business income and adding that he had deposit accounts totaling $4,950).
At the hearing on Wife's motion on April 17, 2009, the trial court found Husband's IED "wholly inadequate. It is blank in most places and does not comply with the local rules . . . ." Husband represented to the court that "I'm being basically supported by the woman I'm living with and . . . I have no income. I haven't had income for over a year." He further represented: "I don't get social security until September, and at that point I'm only going to be getting about $1,500 [per month]. On the other hand, [Wife is] getting over [$]900 [per month] in S.S.I., which I think the court can consider." He also stated he last filed an income tax return in 2005. He stated: [T]oday I have had no income in the last year. I've got no paying clients. I've got no business. I'm out of business. My last paying clients went out of business because of this recession over a year ago." He further stated: "I've always worked for small companies and small clients in the patent business, and the patent business has dried up completely. People don't have money to spend on patents." The trial court ordered Husband to file a complete and current IED by April 30, 2009. The court stated that it would then take the question of attorney fees under submission.
On April 30, 2009, Husband filed an IED, substantially the same as his prior IED (except stating he had deposit accounts totaling $1,465 and was married to Christine Harris but did not know her income). In that IED, he also stated: "Recession has basically forced retirement. Have not had any income from any source for over a year."
On June 16, 2009, the trial court issued a minute order awarding Wife $3,000 for attorney fees she incurred in obtaining the repair cost awards. In that order, the court stated:
"In his most recent IED, . . . [Husband] claims that he is unemployed and has no income. He makes this claim despite the fact that he is a patent attorney. At a hearing on May 19, 2006, Commissioner Magnuson found that [Husband] had the ability to earn $5270 per month and imputed income to [Husband] in that amount for purposes
of calculating child support. [Husband] has presented no evidence as to why that finding is no longer valid, other than his contention, written on his most recent IED, that he is now 'unemployed' and has had 'no income from any source for over a year.' The Court finds this representation curious. On an IED filed on January 8, 2009, [Husband] indicated that he was 'retired' and that he retired in 2007. On still another IED, filed on October 29, 2008, less than a year ago, [Husband] also stated that he retired in 2007, but he also listed income, albeit a small amount, from the practice of law at [a] business entity known as Tighe & Associates. The Court does not find [Husband's] IED to be credible, and as noted, finds no reason nor any evidence that would cause the Court to reconsider Commissioner Magnuson's finding regarding [Husband's] ability to earn.
"[Wife] receives $907 per month in disability benefits. She is disabled from working and has been since at least 2006. Accordingly, the Court finds that there is a disparity of income between the two parties warrant[ing] an award of attorney's fees. The Court finds that the fees incurred are reasonable for the amount of work performed and awards [Wife] $3000 in attorney fees." (Italics added.)
On December 7, 2009, the First Order was filed, in effect incorporating that attorney fee award.
B
Husband asserts the trial court abused its discretion by awarding Wife $3,000 in attorney fees because it erred in relying on Commissioner Magnuson's 2006 finding imputing income to Husband of $5,270 per month. Husband argues the trial court erred by imposing on him the burden to refute his ability to earn imputed income, rather than on Wife to affirmatively show his ability to earn imputed income. However, the court did not impose on either party the burden to show imputed income for Husband. Rather, it simply noted there was a prior finding by Commissioner Magnuson in 2006 imputing income to Husband of $5,270 per month. The court properly considered that finding, along with all other relevant factors, in determining whether Wife should be awarded attorney fees pursuant to Family Code section 2032. The fact that Commissioner Magnuson made that imputed income finding in a child support proceeding does not make it irrelevant to the trial court's determination of an attorney fee award in the instant repair cost proceeding. Rather, we conclude the trial court properly considered the 2006 imputed income finding in making the instant determination. In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291 and the other cases cited by Husband are inapposite to this case and do not persuade us to reach a contrary conclusion. Section 2032 provides in part: "(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320." Section 2030 provides, in part: "(a)(1) In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation . . . to preserve each party's rights by ordering . . . one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding . . . ."
All statutory references are to the Family Code.
Furthermore, the trial court did not abuse its discretion by imputing income to him of $5,270 per month. As we concluded above, the court properly considered, together with all other relevant factors, Commissioner Magnuson's 2006 finding imputing income to Husband of $5,270 per month. We presume the court considered Husband's age and purported lack of ability or opportunity to work or earn income. The court presumably considered Husband's claim that the general economic recession adversely affected his law practice, forcing him to retire. However, the trial court reasonably could, and apparently did, reject Husband's claim that he lacked an ability or opportunity to earn income. Husband is a patent attorney and had imputed income of $5,270 per month in 2006. The court could reasonably find Husband did not present evidence persuading it that the general economic recession adversely affected his patent law practice to such an extent that in 2009 he could not earn any income whatsoever from that practice. As noted above, the trial court found Husband's IED was not credible, presumably rejecting his assertion that he could not earn any income. We conclude the trial court did not abuse its discretion in adopting the 2006 imputed income finding and concluding Husband had the ability and opportunity to earn $5,270 per month.
Finally, we reject Husband's assertion that there was insufficient evidence presented by Wife to support her request for the award of $3,000 in attorney fees. The trial court was aware of the papers filed by Wife's attorney in the instant repair cost proceeding. Furthermore, the court was aware of the appearances and arguments made by Wife's attorney at the hearings on Wife's repair cost motion. Based on its own observations and expertise regarding the value of services rendered by attorneys, the trial court could conclude the reasonable value of the services rendered by Wife's attorney was $3,000. (1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 204, p. 274.) Wife was not required to present an itemized statement of her attorney's services and fees for the trial court to make a determination of the reasonable value of her attorney's services. We conclude the trial court did not abuse its discretion in awarding Wife $3,000 for reasonable attorney fees incurred in obtaining her repair cost awards.
IV
Second Order Attorney Fees
Husband contends the trial court abused its discretion by awarding Wife in the Second Order $3,000 for attorney fees she incurred in responding to Husband's prior motion for a determination of his child support arrears.
A
As noted above, in Tighe I we reversed the attorney fee award and remanded the matter for a new determination of Wife's request for attorney fees incurred in responding to Husband's child support arrears motion. On June 30, 2009, the child support commissioner (Commissioner Ratekin) issued findings and recommendations ordering Husband to pay Wife $3,000 for attorney fees pursuant to sections 2030 and 3557.Husband objected to the commissioner's finding on attorney fees and requested a de novo review by the trial court. Following a de novo hearing on September 8, 2009, the trial court issued the Second Order on December 7, 2009, awarding Wife $3,000 in attorney fees. The Second Order stated:
In 2009, section 3557 provided, in part: "(a) . . . [A]bsent good cause to the contrary, the court, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party's rights, shall award reasonable attorney's fees to any of the following persons: [¶] (1) A custodial parent or other person to whom payments should be made in any action to enforce any of the following: [¶] (A) An existing order for child support. . . ."
"The Court notes that Commissioner Magnuson made a finding in May 2006 that [Husband] had the ability to pay [Wife's] attorney fees and costs. This Court made a finding on June 16, 2009 [in the repair cost proceeding] that [Husband] had the ability to pay [Wife's] attorney fees and costs. The Court, therefore, finds that there is no reason and no evidence in front of it today that it should reconsider its own findings. Based on this, the Court affirms Commissioner Ratekin's ruling made in the Findings and Recommendation of Commissioner filed June 30, 2009 as to the attorney fee award."
B
In challenging the attorney fee award in the Second Order, Husband essentially repeats the same arguments made in challenging the attorney fees award in the First Order. We incorporate herein our discussion of those arguments in parts III.B. and III.C. above and conclude the trial court did not abuse its discretion in awarding Wife $3,000 in attorney fees incurred in responding to Husband's prior child support arrears motion.
DISPOSITION
The orders are affirmed. Husband shall pay Wife's costs on appeal.
McDONALD, J. I CONCUR:
NARES, Acting P. J. I CONCUR IN THE RESULT:
IRION, J.