Marriage of Cappello CA2/6

Filed 9/18/14 Marriage of Cappello CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of MARY ANN and A. 2d Civil No. B248106 BARRY CAPPELLO. (Super. Ct. No. SB184863) (Santa Barbara County)

MARY ANN CAPPELLO,

Appellant,

v.

A. BARRY CAPPELLO,

Respondent.

Mary Ann Cappello (Appellant) appeals from the order denying her request to modify spousal support and for payment of her attorney fees and costs. In 2005, the trial court reduced Appellant's monthly spousal support from $11,727 to zero, while reserving jurisdiction over the issue. In 2012, she filed an order to show cause why the amount of her monthly support should not be modified. The trial court concluded that factual findings made in support of the 2005 order were res judicata and precluded it from increasing monthly support based on Appellant's present economic circumstances. We affirm.

1

Facts The parties were married in 1970 and separated in 1990. Their 1992 marital settlement agreement awarded Appellant $23,500 per month in spousal support, with reductions as various items of property were sold and obligations liquidated. Appellant received additional cash and a parcel of unimproved real estate known as the "Mulholland property." The settlement agreement contemplated Appellant would sell the Mulholland property within three years, but provided for reduction in her monthly spousal support payment even if the property did not sell. In 1997, the trial court reduced her monthly spousal support to $11,727. Appellant invested the lion's share of her assets in real estate. In addition to the Mulholland property, she acquired a primary residence in Calabasas and rental properties in Scottsdale, Arizona, and in Los Angeles, La Quinta, Big Bear, and Encino, California. These investments have never generated positive cash flow. To the contrary, in June 2012, Appellant reported net rental income of negative $5,080 per month. In 2005, she acknowledged liquid assets of $833,708. By 2012, her liquid assets had dwindled to $67,500 and she estimated her net real and personal property were worth $1,100,000. Appellant's income for 2010 was negative $753,889. She has also amassed approximately $150,000 in credit card debt. In 2006, we affirmed a 2005 trial court order reducing Appellant's monthly spousal support payments from $11,727 to zero while reserving jurisdiction. The trial court's order was based on its factual finding that the value of Appellant's estate, "is sufficient, if properly managed, to provide for her reasonable support." The trial court also made factual findings that Appellant's testimony concerning her income, the value of her properties and her expenses suffered from a "total lack of credibility." It urged her to adjust her portfolio and investment strategy to generate income rather than capital growth. In July 2012, Appellant filed an order to show cause, requesting that her spousal support be increased to an amount sufficient for her to enjoy the marital standard of living. She contended that her financial circumstances had changed because, despite