Marriage of Walther CA2/6

Filed 8/17/16 Marriage of Walther CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 KIRA and HOWARD 2d Civil No. B267209 WALTHER. (Super. Ct. Nos. 1440419, 1440375) (Santa Barbara County)

KIRA WALTHER,

Respondent,

v.

HOWARD WALTHER,

Appellant.

Howard Walther (husband) appeals from an order directing him to pay $50,000 in pendente lite attorney fees to Kira Walther (wife). He also appeals from (1) an order directing him to pay attorney fees to counsel who was representing the parties’ son, and (2) an order directing a child custody evaluator to prepare a report. The latter order is nonappealable. We dismiss the appeal to the extent it seeks review of this order. In all other respects, we affirm. This is the second time that husband has appeared before us on appeal in this case. In an unpublished opinion filed in 2015, we ordered the trial court to determine a “reasonable rate of return” on husband’s assets and to recalculate temporary child and spousal support. (In re Marriage of Walther (Nov. 30, 2015, B260104).)

Factual and Procedural Background The parties married in February 1998 and separated in February 2014. They have two children: a son born in 2003 and a daughter born in 2009. In March 2014 wife filed a petition for dissolution of marriage. In August 2015 wife filed a request for pendente lite attorney fees. According to her Income and Expense Declaration filed on August 12, 2015, her average monthly wages for the last 12 months were $2,078, but she had earned $3,131 the previous month. She was receiving monthly spousal support of $1,952. Her sole asset was $20,991 in cash. Her average monthly expenses were $8,335. According to husband’s Income and Expense Declaration filed on July 21, 2015, his average monthly income for the last 12 months was $1,500. His income was derived entirely from dividends and interest. His assets consisted of $1,500 in cash, $1,120,000 in “[s]tocks, bonds, and other assets [he] could easily sell,” and $1,183,000 in real property. The real properties were “up for sale and no longer rented.” His average monthly expenses were $3,507. At a hearing in September of 2015, the court ordered husband to pay wife’s attorney fees of $50,000. Pursuant to husband’s request, the court asked wife to prepare a statement of decision. On September 30, 2015, husband filed a notice of appeal. The court did not sign a statement of decision. Instead, on November 4, 2015, it signed and filed a document entitled, “Findings and Orders after Hearing Granting [Wife’s] Request for Order for Pendente Lite Attorney Fees” (hereafter “Findings and Orders”). On October 18, 2015, wife filed an “Ex Parte Application In Support of Emergency Orders Pending Trial.” Wife requested, inter alia, that San Filippo, a child custody evaluator, be ordered to prepare a report and that husband be ordered to immediately pay attorney fees of $8,332.45 to Charles Oxton, who was representing the parties’ son. At a hearing on October 26, 2015, the trial court granted the requested relief and directed wife to prepare an order. Three days later, husband filed a notice of appeal.