Filed 12/2/19 Marriage of Castia CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of RONNIE JOE and THERESA ANN CASTIA.
RONNIE JOE CASTIA,

Appellant,

v.

THERESA ANN CASTIA,

Respondent.

A155088

(Alameda County

Super. Ct. No. HF15792278)
Appellant Ronnie Joe Castia (Ronnie) challenges the trial court’s orders terminating spousal support and denying his request for respondent Theresa Ann Castia (Theresa) to contribute towards his attorney fees and costs. As we explain, Ronnie fails to meet his appellate burden to demonstrate the court abused its discretion and we therefore affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married for more than 26 years and have two adult sons, one of whom has been profoundly disabled since birth. During the majority of the parties’ marriage, Theresa was employed full-time as the primary caregiver for their disabled son. She has continued in that role since the parties’ separation.

In November 2015, Ronnie filed a petition for dissolution of marriage and requesting spousal support. He reported he was presently receiving $100 per week in support from Theresa. In March 2016, the parties entered into a stipulation for temporary spousal support at $2,000 per month. Support was negligibly reduced to $1,999 per month following an August 2016 court hearing. At that hearing, the trial court reportedly did not issue a seek-work order but told Ronnie to “make efforts to increase his income” and advised him that the court might issue a seek-work order or impute income to him in the future.

Trial commenced on May 16, 2018, on the issues of property evaluation, characterization, attorney fees and costs, community debt, and spousal support.

In advance of trial, Ronnie requested permanent spousal support of $3,000 per month and a contribution from Theresa toward his attorney fees and costs. Theresa testified that her income is derived from her son’s special needs trust and payments she receives from In Home Support Services (IHSS). The money in the trust came from a medical malpractice suit. As of April 2018, her average monthly income from the trust was $3,360. Her average monthly income from IHSS was $4,705. Theresa was not required to pay income tax on her income. It is undisputed that someone must be present at all times when the disabled son is home.

Their disabled son receives $967 per month in social security benefits. Theresa is required to use all the social security proceeds for her son’s personal expenses. The home she lives in belongs to her disabled son through his trust. If he predeceases his parents, half of the home’s value will go to Theresa and half to Ronnie. At the time of trial, Theresa was also fully supporting the parties’ other son, who was living at home and attending college. She has never done any other work except to care for her disabled son, which is a full-time job. Theresa’s income from the trust and the State will end if her son predeceases her, as will her son’s social security benefits.

Ronnie testified that in 2000 he obtained an AS degree in drafting and AutoCAD design from an unaccredited college called ITT Technical Institute. He worked for a traffic engineering firm called TJKM from 2000 until mid-2008, when he was laid off. He has not worked in this field since 2008. Ronnie began working as an instructor at Cambrian Academy in February 2017. He works 16 hours per week teaching music classes and physical education and is paid $36 per hour. He has occasional short-term jobs as a sound and video technician. Ronnie testified he had been offered a few more hours at the school, but he claimed his prospects are limited because he does not have a teaching credential. He devotes much of his time—about 20 to 40 hours per week—to a cycling apparel business that he started with a business partner in 2014. He hoped this venture would eventually provide all his income; however, the company has not generated any meaningful profit since its inception. Ronnie’s salary and wages on his May 2018 income and expense declaration are listed as $1,917, based on his work at Cambrian Academy. His income from other ventures is listed as negative $88.

Ronnie requested $3,000 per month in spousal support because his cost of living increased substantially after he moved out of the family home. He was currently paying $1,250 in rent, $300 to $400 in groceries, $70 in clothing, $150 to $200 in vehicle expenses, $20 to $30 in cleaning supplies, and $60 to $100 in eating out. He described the couple’s standard of living during the marriage as frugal to average. He also asked that Theresa pay $17,000 for his attorney fees because “[t]he divorce was her idea” and she was in a better financial position. He emphasized she receives close to $100,000 a year in mostly nontaxable income and lives rent free in a house that would otherwise rent for $3,500 a month.

On August 6, 2018, the trial court issued its statement of decision. In reviewing all the factors under Family Code section 4320, the court found Ronnie had not acted in good faith in trying to become self-sufficient since the date of separation. Rather than acquiring skills, education, or training to allow him to teach more classes or pursue other employment opportunities, Ronnie focused on his cycling apparel business, “a business that after four years has only shown minimal profits.” The court was not inclined to “require Theresa to fund his efforts to continue down this unprofitable path.” The court ordered a reduction in spousal support to $1,000 per month effective September 1, 2018 through February 1, 2019. Support was thereafter reduced to $500 per month until December 1, 2019, when it would terminate. The court reasoned “there is sufficient evidence that Ronnie can become self-supporting in the near future should he elect to engaged [sic] in retraining and or full-time employment.” The court also denied his request for attorney fees, finding that Theresa was not in a superior financial position. This appeal followed.

DISCUSSION

I. Spousal Support

We turn first to Ronnie’s spousal support challenge. “An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines.” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).) Those guidelines include section 4320. (Ibid.)

Section 4320 identifies more than a dozen factors a trial court must consider in ordering spousal support. These factors include (1) each spouse’s ability to maintain the marital standard of living; (2) contributions to the supporting spouse’s education, training, or career; (3) the supporting spouse’s ability to pay support; (4) the needs of each spouse based on the marital standard of living; (5) the obligations and assets of each spouse; (6) the duration of the marriage; (7) the supported spouse’s ability to engage in gainful employment without unduly interfering with the interests of dependent children; (8) the age and health of the spouses; (9) documented evidence of any history of domestic violence; (10) tax consequences; (11) the balance of hardships; (12) an abusive spouse’s criminal convictions; and (13) any other factors the court deems just and equitable. (§ 4320, subds. (a)–(n).)

“In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) “Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] ‘Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.’ ” (Kerr, supra, 77 Cal.App.4th at p. 93.) Reversal is warranted only where “no judge reasonably could make the [support] order.” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)

Ronnie asserts the trial court abused its discretion and acted arbitrarily “by simply glossing over certain highly relevant aspects of the Parties’ financial circumstances and completely disregarding others.” He first complains that he did not receive a “Gavron warning” that his support might be abruptly terminated if he did not become self supporting in a relatively short period of time.

A Gavron warning—named after In re Marriage of Gavron (1988) 203 Cal.App.3d 705—“is a fair warning to the supported spouse he or she is expected to become self-supporting.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55.) This judicial holding was subsequently codified by the Legislature. Section 4330, subdivision (b) states, in relevant part: “When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, . . . unless, in the case of a marriage of long duration . . ., the court decides this warning is inadvisable.”

Ronnie contends that at the August 2016 hearing, his income was approximately $810 per month from all sources, while Theresa reported monthly average income of $7,133. While he concedes that the court told him to “ ‘increase his income,’ ” he emphasizes that the court expressly declined to issue a seek-work order. He asserts he complied with the court’s directive by increasing his income to $1,917 per month by the May 2018 trial, and contends the court erroneously presumed he had received Gavron notice, wrongfully punishing him for not becoming entirely self sufficient in “relatively short order.”

Ronnie’s failure to provide a transcript of the August 2016 hearing is fatal to his claim. In the absence of an adequate record on which to review a claim of error, we will not presume that the instructions he received from the trial court at that hearing were insufficient to put him on notice that his support was subject to possible termination. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483). Even if his characterization of what transpired is accurate, we can discern no error. The statute in which the Gavron warning is codified is not mandatory and states that a court “may” issue the advisement. In any event, it appears the court did advise Ronnie as early as August 2016 that he needed to make reasonable efforts to support himself, even if it did not explicitly state that termination of support was contemplated. If the court had indeed made this statement to Ronnie, it is reasonable to infer that directing him to “increase his income” gave fair warning that his current support would not be indefinite. Moreover, Ronnie’s support was not abruptly terminated. After the August 2016 hearing, he continued to receive the same level of support for two more years, followed by a reduced amount of support for an additional 15 months. In short, he had every opportunity to establish his self-support, but as the court found, did not make a good faith effort to do so.

Ronnie next asserts that the court unjustly applied the expectation of self sufficiency that would generally be applied to a supported party in a short-term marriage, whereas the parties’ marriage was one of almost 27 years. Even if the court did not fully account for the length of the marriage, Ronnie worked outside the home from 2000 to 2008 and likely would have continued to do so had the economic downturn not occurred. On the other hand, Theresa worked continuously throughout the marriage caring full-time for their profoundly disabled adult child. Theresa had no opportunities to advance her career or to prepare for a future career, and her income will only last as long as their son is alive. The record does not appear to support Ronnie’s contention that Theresa has an advantage over Ronnie with respect to her future economic prospects. The trial court did not abuse its discretion, therefore, in considering a shorter time frame for Ronnie to achieve self-sufficiency in light of the circumstances.

Because he does not have teaching credentials, Ronnie also claims the court unreasonably expected that he could increase his hours at Cambrian Academy by teaching more classes. It is undisputed, however, that his employer had already offered him more hours but he refused them in order to spend time on his cycling apparel venture. And while he claims he cannot afford to further his education because he still owes on a prior student loan, the trial court did not find sufficient evidence of this alleged obligation.

Ronnie faults the trial court for failing “to account for the Parties’ true respective incomes and needs.” He asserts that the responsibilities that Theresa has for the care of their disabled son “should not influence an evaluation of the financial resources presently available to her for the payment of long-term spousal support.” We disagree. Theresa’s full-time care for their profoundly disabled child is directly relevant to the availability of resources for other purposes, such as the support of Ronnie. We note as well that while Theresa earns more money that Ronnie, she is only paid $12.50 per hour for in-home supportive care, whereas Ronnie is paid $36 per hour for his teaching job, or almost three times her hourly salary. Thus, the parties are not similarly situated with respect to the amount of time they currently expend to earn their respective incomes. If Ronnie were employed full-time at his current hourly wage, his gross income would exceed the combined total of his current income plus the $3,000 in spousal support that he requested.

Finally, the trial court’s statement of decision reveals that the court explicitly considered every single factor under section 4320, and we conclude all applicable statutory factors were properly evaluated. An abuse of discretion will only occur “when it can be said that ‘no judge reasonably could have made the same order.’ ” (In re Marriage of Meegan (1992) 11 Cal.App.4th 156,161.) The trial court’s statement of decision is well reasoned and supported by the record. Ronnie has the demonstrated capacity to become self-sufficient even without further education or certification. Rather than seek additional employment opportunities or further training, he made the choice to pursue an as-yet unprofitable business venture. We find no abuse of discretion.

II. Attorney Fees

Ronnie challenges the trial court’s decision denying his attorney fees request. Section 2030 requires the trial court to “ensure that each party has access to legal representation, including access early in the proceedings, 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, or to the other party’s attorney, 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.” (§ 2030, subd. (a)(1).) Section 2032, subdivision (a), authorizes the court to make an attorney fee award under section 2030, “where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.”

Such “ ‘need-based’ ” fee-shifting is not premised on prevailing party considerations. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) Instead, the statutory purpose “is to ensure a party has sufficient resources to adequately and properly litigate the controversy and to implement public policy favoring ‘a parity between spouses in their ability to obtain legal representation’ (equalizing litigating strengths).” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 14:155, p. 14-56.) “ ‘[T]he [trial] court has broad discretion in awarding attorney fees and costs in dissolution proceedings.’ ” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167.) “ ‘The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.’ ” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)

The trial court below explained: “Ronnie clearly has less income from wages than Theresa, but Theresa has more debt and expenses. Neither party presented any evidence of maintaining any savings beyond their investment accounts, which the Court is dividing equally. Therefore, on balance, the Court finds that Theresa is not in a better position to pay for Ronnie’s attorneys’ fees.” Again, the court did not abuse its discretion.

While Ronnie complains that the trial court denied his request based solely on a minor difference in the amount of debt each party had, it is notable that the court equally divided the parties’ marital assets. Because neither party enjoyed a substantial financial advantage over the other in this regard, the court’s order was justified on that ground alone. “In assessing one party’s relative need and the other party’s ability to pay, the family court may consider all evidence concerning the parties’ current incomes, assets, and abilities.” (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662; see In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313–1314.) The goal “is not the redistribution of money from the greater income party to the lesser income party.” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251.) The court considered these factors and found there was financial parity between the parties. We will not disturb this determination.

DISPOSITION

The orders are affirmed.

_________________________

Sanchez, J.

WE CONCUR:

_________________________

Margulies, Acting P. J.

_________________________

Banke, J.

A155088 Castia v. Castia