California Court of Appeal Mar 26, 2013 No. D059062Unpublished
Filed 3/26/13 Marriage of Prokop CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re Marriage of STANLEY and MARIA PROKOP. D059062 STANLEY PROKOP,
Respondent and Appellant, (Super. Ct. No. D513103)
v.
MARIA ARROYO PROKOP,
Petitioner and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joel
Wohlfeil, Judge. Affirmed.
Stanley J. Prokop appeals from a judgment that, among other things, imputed
income to him and denied him spousal support. He contends the trial court erred in
deciding these and other issues. We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Maria and Stanley were married in 1998 and have one minor child. Maria served
as an officer in the United States Army, became an attorney and worked as a juvenile
court referee until 2003 when multiple sclerosis rendered her permanently disabled and
unable to work. Maria received disability benefits from the Veterans Administration and
retirement disability from her work as a referee. Stanley worked for Science
Applications International Corp (SAIC) as the manager of the computer security
As a threshold matter, Stanley cited no authority that a trial court is mandated to
order reimbursement for the violation of an ATRO. Rather, we review an order on a
reimbursement claim for abuse of discretion. (See, e.g., In re Marriage of Reilley (1987)
196 Cal.App.3d 1119, 1124-1125.) Where the trial court's exercise of discretion is based
on the facts of the case, it will be upheld "as long as its determination is within the range
of the evidence presented." (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
McTiernan instructs that the violation of an ATRO need not be malicious to
warrant reimbursement. (McTiernan, supra, 133 Cal.App.4th at pp. 1102-1103.)
There, the improper sale of community assets by the husband resulted in a large loss to
the wife. (Ibid.) Here, in contrast, the trial court found that both parties made
unauthorized distributions of about equal amount, but declined to order reimbursement to
either party because neither party unreasonably benefited and the distributions were
reasonable or necessary. Stanley did not challenge the trial court's finding that he had
made an unauthorized distribution and he has not demonstrated how the trial court's
decision to essentially treat the violations as a "wash" amounted to an abuse of discretion.
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On this record we cannot conclude that the trial court abused its discretion in denying
Stanley's request for reimbursement.
V. Retroactive Retirement Payments
A. Facts
In the April 2010 partial judgment, the trial court awarded Stanley "[o]ne-half of
the community interest in [Maria's] retirement benefits and accounts, including but not
limited to her [San Diego County Employees Retirement Association (SDCERA)]." In
his trial brief, Stanley claimed that an issue to be litigated included his community
property interest in Maria's SDCERA. He argued that Maria should be ordered to pay
him his share of the $4,222 monthly benefit for 17 months.
After the court issued its intended statement of decision, Maria filed an objection
thereto stating that in its attachments to the intended statement of decision the court
"included the entirety of [her] SDCERA retirement as income to [her] and failed to
include any portion of the SDCERA retirement to [Stanley]. Pursuant to the Partial
Judgment, filed April 2, 2010, [Stanley] has been awarded '[o]ne-half of the community
interest in [Maria's] . . . SDCERA." Accordingly, Maria represented that she was in
SDCERA for 9.6 years, that she was married to Stanley for six of those years, which
equaled 62.5 percent and that Stanley's portion would be half of that, or 31.25 percent,
which amounted to $1,319 per month to Stanley.
The court held a hearing on the parties' objections to its intended statement of
decision. Maria's counsel represented to the court that the parties had reached a
stipulation in relation to Maria's objection about the child support and "regarding the
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division of retirement." Thereafter, Maria's counsel represented that as to Maria's
objections "regarding the recalculation of child support, and the issue of [Stanley]
receiving a portion of [Maria's] SDCRA [sic] retirement" that the parties agreed "as of
August 1st, 2010, counsel will meet and confer and recalculate child support on the basis
that [Stanley] will be receiving" about "$1,319 per month from [Maria's] SDCRA [sic]
retirement." In its order after the hearing the court commenced Stanley's SDCERA
retirement payments of about $1,319 per month effective August 1, 2010, and stated that
the parties taxable income for purposes of child support would be adjusted accordingly.
B. Analysis
Stanley asserts the trial court erred when it did not award him retroactive
SDCERA payments. He claims that Maria received a windfall of at least $799 a month
for 20 months (December 2008 to July 31, 2010) or $15,980. Maria responds, among
other things, that Stanley waived this issue when his counsel stipulated in open court that
Maria's monthly SDCERA benefit would be reduced "as of August 1, 2010." Stanley
asserts that Maria has mischaracterized the record and that this agreement was the result
of his "objection number 1" to the intended statement of decision. We agree with Maria.
Stanley is incorrect that the stipulation pertained to his objection number one. The
record clearly indicates that the stipulation addressed Maria's objection regarding how
child support should be calculated taking into consideration that Stanley would be
receiving a portion of her SDCERA retirement. Apparently based on the parties'
stipulation that Stanley would begin receiving $1,319 per month starting August 1, 2010
from Maria's SDCERA retirement account, the court commenced Stanley's SDCERA
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retirement payments of about $1,319 per month effective August 1, 2010. Accordingly,
we agree with Maria that Stanley waived any alleged error in its division of Maria's
SDCERA retirement under the doctrine of invited error. (Jentick v. Pacific Gas &
Electric Co. (1941) 18 Cal.2d 117, 121.)
VI. Attorney Fees
A. Facts
In July 2009, the trial court awarded Stanley $14,472.43 out of the proceeds from
the sale of the family home and reserved jurisdiction over the allocation of this payment.
After trial, Stanley requested attorney fees under section 2030, citing his need and the
disparity in income between the parties. Stanley's counsel represented that each party
expended about $80,000 in attorney fees, for a total of $160,000 and that Stanley should
be responsible for 30 percent of the total, or $48,000, based on his imputed income.
Stanley stated that he sought a minimum award of $32,000.
In its intended statement of decision, the trial court denied any further award and
ordered that each party bear their own attorney fees and costs stating it "is not persuaded,
under the current circumstances, that directing [Maria] to make a further contribution to
[Stanley's] attorney fees and costs would be just and reasonable." Stanley objected to this
portion of the intended statement of decision claiming the court's analysis was incomplete
because it failed to consider: the section 4320 factors; his failure to receive any
temporary spousal support; that he used his credit card to pay his fees; and the disparity
in income between the parties. The trial court overruled the objection.
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B. Analysis
Stanley claims the trial court erred when it denied his request for a need based
attorney fee award under section 2030. Specifically, he contends the record does not
reflect what the court considered and the trial court failed to make factual findings
necessary to resolve disputed material issues. We reject his contentions.
The trial court may order one party to pay the other party's attorney fees "if
necessary based on the income and needs assessments." (§ 2030, subd. (a)(1).) In
assessing ability to pay, the court is not restricted to salary alone, but may consider "all
the evidence concerning the parties' income, assets and abilities." (In re Marriage of
Sullivan (1984) 37 Cal.3d 762, 768.) An award under section 2030 is proper when it is
"just and reasonable under the relative circumstances of the respective parties." (§ 2032,
subd. (a).) In determining what is just and reasonable the court may also consider any
other factors including such matters as earning capacity, age and health, and the balance
of the hardships to each party. (§§ 2032, subd. (b), 4320.)
Because a trial court has broad discretion in ruling on a motion for fees and costs,
we will not reverse absent a showing that no judge could reasonably have made the order,
considering all of the evidence viewed most favorably in support of the order. (In re
Marriage of Sullivan, supra, 37 Cal.3d at pp. 768-769.) Nonetheless, "the record must
reflect that the trial court actually exercised that discretion, and considered the statutory
factors in exercising that discretion." (In re Marriage of Braud (1996) 45 Cal.App.4th
797, 827.)
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We review the entire record to determine whether the trial court properly
considered the statutory factors. As discussed above, the trial court addressed all of the
section 4320 factors in that portion of the intended statement of decision regarding
spousal support. (Pt. II.B., ante.) The court was not required to reiterate those same
findings in regard to attorney fees and we similarly decline to repeat them here. The trial
court necessarily considered all of its previous findings when it concluded that further
contribution by Maria to Stanley's attorney fees and costs "would [not] be just and
reasonable." (§ 2032, subd. (a).) Stanley's singular focus on the income of the parties is
insufficient to show the trial court abused its discretion when it declined Stanley's request
for a further contribution.
Finally, while Stanley asserts the trial court did not make factual findings
necessary to resolve disputed material issues, he failed to explain what factual findings
the court failed to make. On this record, we conclude the trial court did not abuse its
discretion.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
23
AI Brief
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Holding. The court affirmed the trial court's judgment, holding that the trial court did not abuse its discretion in imputing income to the appellant, denying his request for spousal support, or denying his request for reimbursement regarding unauthorized asset distributions.
Issues
Did the trial court abuse its discretion by imputing income to the appellant based on his earning capacity?
Did the trial court abuse its discretion by denying the appellant's request for permanent spousal support?
Did the trial court abuse its discretion by denying the appellant's request to reallocate a prior distribution as temporary spousal support?
Did the trial court abuse its discretion by denying the appellant's request for reimbursement for the respondent's violation of an automatic temporary restraining order?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“A trial court has the discretion to substitute earning capacity for actual income in applying the guideline formulas for child and spousal support.”
“The trial court properly imputed income to Stanley.”
“In sum, Stanley has failed to demonstrate that the trial court abused its discretion when it declined his request for spousal support.”