California Court of Appeal Jun 25, 2013 No. D060089Unpublished
Filed 6/25/13 Marriage of Meyer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Marriage of MARTIE and SCOTT MEYER. D060089 MARTIE MEYER,
Respondent, (Super. Ct. No. D481420)
v.
SCOTT MEYER,
Appellant.
APPEAL from orders of the Superior Court of San Diego County, Robert C.
Longstreth, Judge. Affirmed in part, reversed in part.
Scott Meyer, in pro. per., for Appellant.
Melissa J. Schmitt for Respondent.
Scott Meyer appeals the trial court's order of June 1, 2011 requiring him to pay his
former wife Martie Meyer $5,000 in attorney fees pursuant to Family Code1 section 2030
1 All statutory references are to the Family Code.
(attorney fees order).2 Scott also appeals a June 24, 2011 order increasing his child
support obligation (child support order) from $2,000 to $4,132.
As we explain, we agree with Scott's contention that the court erred in awarding
Martie attorney fees because there is no evidence in the record whatsoever proffered by
Martie—including, by way of example only, billing records or statements and/or a sworn
declaration from counsel—showing the work done and time spent by her counsel in
opposing Scott's passport motion. We therefore vacate the attorney fees order based on
the lack of (substantial) evidence in the record to support it.
As we further explain, we affirm the child support order because we conclude that
the court properly exercised its discretion when it made findings regarding the respective
income and expenses of Scott and Martie, which findings we also conclude are supported
by substantial evidence in the record.
DISCUSSION
A. Brief Overview
Scott is a neurosurgeon, and Martie is a paralegal. They have three children
together. Their marriage was dissolved in 2003.
2 Martie states that Scott never filed an appeal to the attorney fees order and thus Martie did not address the merits of this issue in her briefing to this court. However, the record clearly shows Scott on June 21, 2011, filed his notice of appeal of the attorney fees order, which notice was included in the appellate record. Although the failure to serve a notice of appeal neither prevents its filing nor affects its validity (Cal. Rules of Court, rule 8.100, subd. (a)(3)), on this court's own motion we requested further briefing from the parties, which we have read and considered, regarding whether the family court erred when it awarded Martie attorney fees under section 2030. 2
After Scott's lucrative medical practice failed, he began working as a "locum
tenens"3 neurosurgeon, which often required him to travel for work and thus be away
from his children.
In January 2011, Scott filed a motion to obtain passports for the children.
According to Scott, Martie in retaliation filed a motion to modify child support based on
records she subpoenaed from Scott's employer. Martie contended that although her
monthly income remained unchanged, Scott's monthly income had increased from
$24,700, as allegedly determined in October 2010, to an average of $39,495.
B. Attorney Fees
1. Brief Additional Background
Martie opposed Scott's motion to obtain passports for the three children based on
her claims that Scott was mentally unstable, was "terrible" to the children and was apt to
flee with them and not return. Included in Martie's opposition was a request for an award
of attorney fees of $2,000 pursuant to section 2030.4
3 The term "locum tenens" is defined as "one filling an office for a time or temporarily taking the place of another." (Webster's 3d New Internat. Dict. (2002) p. 1329, col. 1.) The term often is used in connection with "a physician or clergyman." (Ibid.; see also Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121- 1122 [noting a court may refer to dictionaries as sources of a word's ordinary, usual meaning].)
4 Evidence of the amount of fees sought by Martie was included in documents subject to Scott's opposed motion to augment the record, which this court granted on December 30, 2011. 3
After the court granted Scott's request to obtain passports for their three children, it
turned to the issue of attorney fees. The record shows the court specifically asked Martie
if she was seeking $7,000 in fees, to which Martie's counsel responded, "Yes." In
considering Martie's request for fees, the court noted that Scott had not filed an income
and expense declaration in connection with his opposition to that request. In any event,
Scott contended he had "zero money" to pay an attorney fees award to Martie.
The record shows the court carefully considered the arguments of both parties,
including reviewing the various documents Scott lodged with the court. Martie, on the
one hand, argued that her income was about $3,700 a month, whereas Scott's was about
$25,000 a month, although she further noted that the $25,000 figure was based on "dated
information" and that Scott's monthly income (discussed post) was actually then about
$39,000.
Scott, on the other hand, argued that in September 2010 a child support order was
based on the finding he earned $18,000 monthly. However, Scott argued he had "zero
money" in part because of the ongoing litigation between him and Martie5 and because
of his substantial debt, which included support payments not only for their three children
but also for another child from a different relationship.
The parties agreed to use Scott's past income and expense declaration to determine
whether Scott then had an ability to pay Martie's attorney fees. Martie noted that Scott's
monthly expenses of $14,920 included $2,000 for eating at restaurants and $1,500 in
5 We note that in the year and a half leading up to the hearing on Scott's passport motion, Scott and Martie had participated in at least 32 hearings on a variety of issues. 4
groceries, which Martie argued was excessive. According to Martie, even assuming the
court used the $18,000 a month income figure for Scott, he had sufficient assets to pay
her fees.
At the conclusion of the lengthy hearing, the court awarded Martie $5,000 in fees
pursuant to section 2030, ruling as follows:
"I find that there is a disparity in income. I find that there is an ability to pay. Or
maybe more accurately, that 'presumption' is the right word because a legal connotation
to it, the sense that I would have that somebody at that level of income would be able to
afford fees with the level we are talking about. I don't see any evidence to rebut that sort
of common sense view. I'll award a total of $5,000 in fees and costs."
2. Governing Law and Analysis
Section 2030 provides in relevant part as follows: "[I]n any [related] proceeding
subsequent to entry of a . . . judgment [in a marital dissolution action], the court shall
ensure that each party has access to legal representation . . . to preserve each party's rights
by ordering, if necessary based on the income and needs assessments, 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 during the pendency of the
proceeding. [¶] . . . 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
5
demonstrate disparity in access and ability to pay, the court shall make an order awarding
The public policy underlying section 2030 is to "'"level[ ] the playing field" and
permit[ ] the lower-earning spouse to pay counsel and experts to litigate the issues in the
same manner as the spouse with higher earnings.' [Citation.]" (In re Marriage of Tharp
(2010) 188 Cal.App.4th 1295, 1315.) A trial court "'"must consider the respective
incomes and needs of the parties, including all evidence concerning income, assets and
abilities, in exercising its discretion to award attorney's fees. [Citations.]"'" (In re
Marriage of Hobdy (2004) 123 Cal.App.4th 360, 371.)
We review an attorney fee award under section 2030 for abuse of discretion. (In
re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1166.) The trial court's decision in a
particular case will not be disturbed on appeal absent a clear showing of abuse of
discretion. (In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 763.) We must
affirm the court's order unless "'no judge could reasonably make the order made.'" (In re
Marriage of Sullivan (1984) 37 Cal.3d 762, 769.)
Here, we conclude there is a clear showing of abuse because the court awarded
Martie $3,000 more in fees than what she had sought in her responsive declaration in
opposition to Scott's passport motion when the record shows there was no evidence
whatsoever to support Martie's request for an award of fees in any amount. (Cf. In re
Marriage of Dick (1993) 15 Cal.App.4th 144, 167 [affirming award of attorney fees when
the request for such fees was "supported by lengthy declarations and copies of billings"].)
6
Because there is a lack of substantial evidence, much less any evidence, in the record to
support the award, we vacate the attorney fees order.
C. Modification of Child Support
1. Brief Additional Background
In January 2009, the family court made a temporary order of support in the
amount of $1,218 per month, effective August 1, 2008. In connection with that order, the
court found Scott's gross income was $10,325, Martie's gross income was $3,500 and
Martie's child share was 50.01 percent.
Martie in September 2010 alleged there had been a change in circumstance as
Scott's income had increased, and the time share percentages had changed because the
oldest child was then living with Martie 100 percent of the time, with the two younger
children still living with Martie 50 percent of the time. The matter came on for hearing
before Commissioner William Wood.
In ruling to increase Scott's child support obligation, Commissioner Wood rejected
Scott's contentions that his income had not increased, that the time share percentages
proffered by Martie were inaccurate and that Martie's income should reflect a 40-hour
work week. Commissioner Wood thus found Martie's income was $3,648 per month;
that Scott's income was $18,083 per month, based on Scott's 2009 tax return; that no
guideline deductions were necessary; that the time share for the two younger children
was 50 percent and 100 percent for the oldest; and that effective September 1, 2010,
Scott's support obligation would be $2,112.
7
As we noted ante, in March 2011 Martie again alleged there had been a change in
circumstance as she claimed that Scott's income had increased since Commissioner
Wood's findings and order. Martie based her claim on Scott's employment records she
subpoenaed that Martie alleged showed Scott was then earning about $39,495 monthly.
At the hearing on Martie's motion, Scott disputed that Martie's gross monthly
income was then about $3,726, as reflected by her 2009 and 2010 income tax returns and
her paycheck stubs. Scott instead contended that Martie's monthly income was about
$8,000 based on her bank statements and his belief that Martie, as a paralegal, was
"bartering" to obtain "free" legal services from her counsel that qualified as income under
the tax code. Scott also disputed that his income had increased since Commissioner
Wood's findings and order in October 2010.
Scott asked the court to appoint a special master to make findings regarding the
parties' respective income and expenses and to order Martie to pay all costs associated
with that appointment. Although Scott disputed he then was making $40,000 monthly, he
acknowledged that in the hearing before Commissioner Wood he had admitted his
monthly income was $25,000. However, Scott contended his income then was actually
substantially less than that figure because his employment in Redding, California had
ended, and the money he earned from that employment was, in his words, an
"aberration."
The court noted its assessment of Scott's income was based on figures provided by
Scott. The court found Scott's monthly income to be $24,669, based on a 21-month time
8
period. The record shows the court next considered Scott's expenses and concluded Scott
was not entitled to a "financial hardship" deduction to his income because "looking at the
nature of these expenses, and comparing his total expenses, even dripping wet with all of
these things that are on his I&E [income and expense declaration], to the income from
self-employment, I don't think that this is an appropriate case for a hardship deduction."
As such, the court set Scott's child support obligation at $4,132 per month, or $811 for
the first child, $1,235 for the second child and $2,036 for the third child. The court
denied Martie's request for fees under section 2030 and Scott's request for appointment of
a special master.
2. Governing Law and Analysis
An appellate court reviews child support orders for abuse of discretion. (In re
Marriage of Alter (2009) 171 Cal.App.4th 718, 730.) We review the court's factual
findings made in the exercise of its discretion to determine whether they "'"are supported
by substantial evidence and whether the court acted reasonably in exercising its
discretion." [Citation.] We do not substitute our own judgment for that of the trial court,
but determine only if any judge reasonably could have made such an order.' [Citation.]"
(Id. at pp. 730–731.)
In assessing whether substantial evidence supports the trial court's factual findings,
we consider the evidence in the light most favorable to the party prevailing below.
(Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th
1021, 1026.) We accept all evidence supporting the order as true and discard contrary
9
evidence. (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1151.) The order will
be affirmed unless the trial court abused its discretion, and it will be reversed only if
prejudicial error is found. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221,
1233-1234.)
In seeking to modify a child support order, a party must demonstrate a change in
circumstance justifying the proposed modification. (In re Marriage of Laudeman (2001)
92 Cal.App.4th 1009, 1015; In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291,
1304.) On appeal, we review the court's decision against the same standard of review—
abuse of discretion. (In re Marriage of Bardzik, supra, at p. 1304.)
"California has a strong public policy in favor of adequate child support.
[Citations.] That policy is expressed in statutes embodying the statewide uniform child
support guideline. (See Fam. Code, §§ 4050-4076.) 'The guideline seeks to place the
interests of children as the state's top priority.' (§ 4053, subd. (e).) In setting guideline
support, the courts are required to adhere to certain principles, including these: 'A
parent's first and principal obligation is to support his or her minor children according to
the parent's circumstances and station in life.' (§ 4053, subd. (a).) 'Each parent should
pay for the support of the children according to his or her ability.' (§ 4053, subd. (d).)
'Children should share in the standard of living of both parents. Child support may
therefore appropriately improve the standard of living of the custodial household to
improve the lives of the children.' (§ 4053, subd. (f).)" (In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 283, fn. omitted.)
10
Here, on this record, we conclude the trial court properly exercised its discretion
when it found: (i) there had been a change in circumstance to justify the proposed
modification (see In re Marriage of Bardzik, supra, 165 Cal.App.4th at p. 1304); (ii)
Martie's gross monthly salary was $3,726, as reflected by her 2009 and 2010 income tax
returns and paycheck stubs (see In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332
[recognizing that a parent's gross income as stated in recent tax returns is presumptively
the correct income for determining child support obligations]); and (iii) Scott's monthly
salary was $24,669, or a little less than the $25,000 figure Scott admitted to earning both
in the hearing on Martie's motion and previously in the hearing before Commissioner
Wood. We further conclude these findings are supported by substantial evidence in the
record.
We reject Scott's contention that the court erred and abused its discretion when it
used a 21-month sampling period in determining Scott's average monthly income for
purposes of his child support obligation. Typically, to arrive at the "monthly net
disposable income" (§ 4060), a court divides the annual income figure by 12 as there is
an assumption that past income is a good measure of future income. (Ibid.; see also M.S.
v. O.S. (2009) 176 Cal.App.4th 548, 554 [noting that "'past income is a good measure of
the future income from which the parent must pay support'"].) However, when income
fluctuates, as is true in the instant case, a court may exercise its sound discretion and
determine a fair and representative time sampling from which to calculate average
monthly income. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1081.)
11
In the instant case, the record shows some months Scott earned substantial income
and other months he earned very little, if any, income. Even Scott recognizes that
calculating his income can be "complex." Mindful of the fluctuations in Scott's monthly
income, the court properly exercised its discretion and went beyond the 12-month time
period to calculate Scott's average monthly income. That in making this determination
the court also included the time period previously considered by Commissioner Wood, in
our view, does not constitute an abuse of discretion inasmuch as we agree with the trial
court that, given the fluctuations in Scott's income, using a longer time period was a
better indicator to calculate Scott's true "monthly net disposable income." (See § 4060;
see also In re Marriage of Riddle, supra, 125 Cal.App.4th at p. 1082 [noting that "the
time period on which income is calculated must be long enough to be representative, as
distinct from extraordinary"].)
In a related argument, Scott separately contends the court erred and abused its
discretion when it used his past income to determine his future income from which he
must pay support. Specifically, Scott contends section 4060 and case law are "clear" that
when income fluctuates, as is true in his case, a court lacks discretion to consider past
income and instead must base child support on prospective earnings. We disagree.
First, the plain language of section 4060 does not support Scott's contention. This
statute provides: "The monthly net disposable income shall be computed by dividing the
annual net disposable income by 12. If the monthly net disposable income figure does
not accurately reflect the actual or prospective earnings of the parties at the time the
12
determination of support is made, the court may adjust the amount appropriately."
(§ 4060.)
We discern no language in section 4060 requiring the court to base child support
only on prospective earnings when those earnings fluctuate. (See Yolo County Dept. of
Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246 ["The fundamental
rule of statutory interpretation is to ascertain the intent of the Legislature as to the
purpose of the law by first looking at the plain meaning of the words in the statute," and
"'[i]f there is no ambiguity in the language of the statute, "then the Legislature is
presumed to have meant what it said, and the plain meaning of the language governs."
[Citation.]'"].)
To the contrary, section 4060 expressly gives a court the discretion to adjust the
amount of "actual or prospective earnings" when the presumptive benchmark (i.e.,
dividing the annual net disposable income by 12) does not accurately reflect a party's
"monthly net disposable income." (See § 4060.) We therefore decline Scott's invitation
to read language into section 4060 that does not otherwise exist. (See Fair v. Fountain
Valley School Dist. (1979) 90 Cal.App.3d 180, 187 ["The role of the courts is not to
legislate or to rewrite the law, but to interpret what is before them."].)
Moreover, the cases Scott relies on also do not support his contention. In In re
Marriage of Mosley (2008) 165 Cal.App.4th 1375, for example, the court held the trial
court abused its discretion when it found there was no change of circumstances after the
father in that case was terminated from his employment as a partner in a large law firm,
13
where he was making what the court described as a "hefty income" (id. at p. 1379), and
took a new position working in-house for a homebuilder in a difficult economy where he
made less than half of his former annual salary but had the opportunity to receive a
substantial, end-of-the-year discretionary bonus. (Id. at pp. 1384-1385.) In reaching its
decision, the court in In re Marriage of Mosley noted it was unreasonable for the trial
court to consider the father's substantial bonus in determining whether there was a change
in circumstances "based on only a one-year history [of working] with the
homebuilder . . . ." (Id. at p. 1386; cf. M.S. v. O.S., supra, 176 Cal.App.4th at pp. 556-
557 [the father's semi-annual bonuses properly included as income in determining his
child support obligation when evidence showed the father was unemployed and received
his entire income from an Indian tribe's ongoing gaming revenues and there was no
evidence suggesting he would not continue to receive such bonuses in the future].)
The facts of In re Marriage of Mosley are vastly different from the facts of the
instant case. In contrast to the father in In re Marriage of Mosley, Scott does not receive
an annual salary, which would make it far easier to calculate his "monthly net disposable
income" pursuant to section 4060. In addition, a key issue in In re Marriage of Mosley
that is absent in the case before us involved whether the father's receipt of a one-time
discretionary bonus should be included as income in determining his "monthly net
disposable income." (See § 4060.) In re Marriage of Mosley thus does not support
Scott's contention.
14
Scott's reliance on County of Placer v. Andrade (1997) 55 Cal.App.4th 1393 is
also unavailing. There, the trial court excluded the father's bonus and overtime pay from
his "annual gross income" (§ 4058) in calculating his support obligation, despite evidence
the father had earned bonus and overtime pay for two and one-half years before the
support hearing. (County of Placer v. Andrade, supra, at p. 1396.) In reversing the trial
court's order and remanding the matter, the court concluded that the trial court "cannot
deduct predictable overtime and bonuses in determining [father's] prospective earnings
merely because they occur sporadically." (Ibid.) The court further concluded that the
trial court "can disregard past bonus and overtime payments from the calculation [for
child support] only if it determines that [father] is unlikely to receive them in the future"
and that for father to make this showing, he needed to proffer "admissible evidence." (Id.
at p. 1397.)
County of Placer v. Andrade does not stand for the proposition espoused by Scott
that only prospective earnings should be used in determining support obligations when a
party's income fluctuates. In fact, County of Placer v. Andrade actually supports the
opposite conclusion, as there the court held it was error for the trial court to exclude
"predictable" (i.e., past) bonuses and overtime pay merely because they were earned
sporadically. (Id. at p. 1396.) As such, we reject Scott's contention that a court must use
only prospective earnings to determine a party's "monthly net disposable income" when
that party's income fluctuates.
15
Scott also contends the trial court erred because it should have deducted debt
repayment from his income for purposes of determining his support obligation. In
support of this theory, Scott cites to In re Marriage of Kirk (1990) 217 Cal.App.3d 597.
Briefly, in In re Marriage of Kirk the court reversed the trial court's order
modifying the father's child support obligation after the trial court refused to include
$4,450 as monthly income because the father had entered into an employment agreement
requiring him to pay his employer this amount each month in return for debt cancellation.
(In re Marriage of Kirk, supra, 217 Cal.App.3d at pp. 600-601.) In so doing, the court
noted that the father had contractually shifted income from the control of an earning
parent to a creditor and that if the court sanctioned "this sort of transaction [it] can
envision all manner of special contracts, with employers or others . . . , which shift funds
from available income to utilization for other purposes benefiting the parent (such as
savings plans, retirement plans, miscellaneous fringe benefits), resulting in the contention
that the support order must be reduced." (Id. at p. 607.)
In re Marriage of Kirk clearly does not support Scott's contention that involuntary
debt repayment is a deduction from income. Rather, this case actually supports the
opposite contention.
Scott also contends the trial court erred when it "lumped" all of his requests for
deductions/offsets for expenses he incurred for his child from another relationship into
the severe "financial hardship" deduction codified in section 4070 et seq.
16
Section 4070 provides: "If a parent is experiencing extreme financial hardship due
to justifiable expenses resulting from the circumstances enumerated in Section 4071, on
the request of a party, the court may allow the income deductions under Section 4059 that
may be necessary to accommodate those circumstances."
Section 4071 provides in part: "(a) Circumstances evidencing hardship include the
following:
"(1) Extraordinary health expenses for which the parent is financially responsible,
and uninsured catastrophic losses.
"(2) The minimum basic living expenses of either parent's natural or adopted
children for whom the parent has the obligation to support from other marriages or
relationships who reside with the parent. The court, on its own motion or on the request
of a party, may allow these income deductions as necessary to accommodate these
expenses after making the deductions allowable under paragraph (1)."
Our review of the record shows that Scott agreed with the trial court's conclusion
that such expenses should be considered in connection with the severe financial hardship
deduction:
"THE COURT: . . . I think the things that you're mentioning aren't really
deductions from income. They're more expenses. And they're more in the nature of, you
know, a hardship deduction or whatever, given the expenses.
"THE RESPONDENT [Scott]: Well, that's where I put them [on the I&E].
17
"THE COURT: Right. I agree. And so, but right now you were characterizing
them as deductions from gross income. So I think it's more accurate to do what you did
in your statement. [¶] And in deciding whether to do a hardship deduction, looking at
the nature of these expenses, and comparing his total expenses, even dripping wet with all
of these things that are on his I&E, to the income from self-employment, I don't think that
this is an appropriate case for a hardship deduction. I have not made such a deduction in
the past in any case. And I'm certainly not going to do it in this case. It's not
appropriate."
We agree with Scott's contention that it was irrelevant to his case whether the trial
court in other cases had applied the severe financial hardship deduction. However, we
conclude the record shows the trial court properly exercised its discretion in the instant
case when it refused to reduce Scott's income for reasons of extreme financial hardship.
Indeed, the record shows that Scott's monthly income was then $24,669 and that he was
then paying $1,100, or less than 5 percent of his monthly income, in support for his child
from another relationship. We further conclude this finding is supported by substantial
evidence. (See Kern County Dept. of Child Support Services v. Camacho (2012) 209
Cal.App.4th 1028, 1036 [in reviewing factual findings regarding support obligations we
make all reasonable inferences in support of the findings and do not reweigh the evidence
or second-guess the trial court's credibility determinations].)
Finally, Scott also raises other contentions that would require us to make new
factual findings based on (conflicting) evidence in the record, something we cannot do in
18
this case based on the applicable standard of review.6 As such, we reject Scott's
contention that the trial court erred when (i) in calculating his "monthly net disposable
income" (see § 4060) it refused to exclude or otherwise limit his income from the work
he performed in Redding, California from August 2010 to February 2011 because Scott
contends those earning were an "aberration"; (ii) it refused to impute additional income to
Martie and to modify her income based on Scott's claims his former wife allegedly has
not been honest "in her court documents, her I&E, or her tax returns" about "her income,
the sources of her income, and her expenses," including his claim that his wife received
income as a result of "bartering" her services as a paralegal in return for receiving "free"
legal services from her counsel; and (iii) it discounted Scott's unreimbursed job-related
expenses that Scott contends averaged $850 monthly to $200 per month.
6 We acknowledge that Scott is representing himself in this proceeding, as he did in the trial court. However, "[w]hen a litigant is appearing in propria persona, [the litigant] is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) 19
DISPOSITION
The June 1, 2011 order requiring Scott to pay Martie $5,000 in attorney fees is
vacated for lack of substantial evidence in the record. The June 24, 2011 order increasing
Scott's child support obligation from $2,000 to $4,132 is affirmed. Each party to bear his
or her own costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
20
AI Brief
AI-generated · verify before citing
Holding. The court vacated the attorney fees order due to a lack of evidence supporting the award, but affirmed the child support order, finding the trial court properly exercised its discretion in calculating income and expenses.
Issues
Did the trial court err in awarding attorney fees under Family Code section 2030 without evidence of work performed or time spent?
Did the trial court abuse its discretion in modifying the child support order based on the parties' respective incomes and expenses?
Did the trial court err in its methodology for calculating the appellant's average monthly income and denying a financial hardship deduction?
Disposition. Affirmed in part, reversed in part.
Quotations verified verbatim against the opinion
“We therefore vacate the attorney fees order based on the lack of (substantial) evidence in the record to support it.”
“We affirm the child support order because we conclude that the court properly exercised its discretion when it made findings regarding the respective income and expenses of Scott and Martie”
“Because there is a lack of substantial evidence, much less any evidence, in the record to support the award, we vacate the attorney fees order.”