Filed 6/1/20 Lacourciere v. Lacourciere 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PAUL LACOURCIERE,

Appellant,

v.

MICHELLE LACOURCIERE,

Respondent.

A155881

(San Mateo County

Super. Ct. No. 17-FAM-00553)

Paul Lacourciere appeals from an order and judgment entered in dissolution proceedings with his former wife, Michelle Lacourciere. He contends that the trial court improperly divided community property by assigning him certain Watts charges and wrongly awarded Michelle attorney fees under Family Code section 271 (section 271). We affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

Paul and Michelle married in February 2003 and have two children together. They separated in 2017. They settled many issues involving the division of their property, but a one-day trial was held on October 22, 2018, to decide a handful of unresolved issues. After the trial, Paul requested a statement of decision, and the trial court issued one in October 2019.

Paul appeals from two of the trial court’s rulings on the tried issues. First, he first challenges the court’s decision to assign him Watts charges in the amount of $900 for months during the parties’ separation when he lived in the family residence and Michelle lived elsewhere. Second, he challenges the court’s award under section 271 that required him to pay Michelle $30,000 in attorney fees. We affirm.

II.
DISCUSSION

A. The Standards of Review

We review a trial court’s division of community property and imposition of sanctions in dissolution proceedings for an abuse of discretion. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478 [sanctions under section 271]; In re Marriage of Quay (1993) 18 Cal.App.4th 961, 966 [property division].) An abuse of discretion is not shown unless, “ ‘ “considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order.” ’ ” (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.)

We review the trial court’s factual findings for substantial evidence. In doing so, “we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630–¬631.) Credibility is an issue for the trier of fact to resolve. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622–623.)

The party appealing from an order has the burden to affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) In order to demonstrate error, an appellant must present a “ ‘cogent argument supported by legal analysis and citation to the record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) “It is an appellant’s duty to direct the court to evidence that supports [the appellant’s] arguments[,] . . . not the court’s duty to . . . comb through the record” to ascertain whether error occurred. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.)

B. The Trial Court Did Not Err by Assigning Watts Charges to Paul.

Paul contends that the trial court erred in assigning him Watts charges to compensate Michelle for months during their separation when he lived in the family residence. There was no error.

Trial courts are afforded wide discretion to fashion appropriate solutions to equalize property distribution in dissolution proceedings. (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) As part of that discretion, “ ‘[w]here one spouse has the exclusive use of a community asset during the period between separation and trial,’ ” the court may require that spouse “ ‘to compensate the community for the reasonable value of that use.’ ” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978 (Falcone).) This compensation, “commonly known as a ‘Watts charge,’ ” is used in the calculation for dividing community property. (Ibid.; see Watts, supra, 171 Cal.App.3d at pp. 373–374.) Watts charges are in essence “ ‘usage charges.’ ” (In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552.)

In early March 2017, Paul moved out of the family residence in Pacifica, and Michelle remained there with the children for about six months. She then moved out, and Paul moved back in and lived there while the parties remained separated. In a previous appeal brought by Paul, we affirmed the trial court’s characterization of the family residence as a community asset. (Lacourciere v. Lacourciere (Jun. 12, 2019, A154399) [nonpub. opn.].) During the trial on the unresolved issues, Michelle sought to have Watts charges assigned to Paul for the time he separately lived in the home.

The trial court found that the fair-market monthly rental value of the property for purposes of calculating Watts charges was $1800. Since Michelle lived in the residence from about March to August 2017 (six months), and Paul lived in the residence from about August 2017 to March 2018 (six months), the court declined to assign any charges or credits to either party for this 12-month period. Instead, it assigned Watts charges to Paul starting in March 2018, in the amount of $900 per month. As summed up by the court, “after separation, each party had exclusive use of the community asset for a period of six months, offsetting their respective Watts claims prior to March 18, 2018[,] . . . [so] it [is] appropriate to charge [Paul] for his continued exclusive use of the home beginning March of 2018.”

On appeal, Paul does not challenge the amount of the monthly charges or the time period they covered. Instead, he argues that he should not have been assigned any charges whatsoever because he did not have exclusive use of the home within the meaning of Watts. Specifically, he claims he did not have exclusive use because he lacked exclusive legal control over the property. This, he argues, was evidenced by Michelle’s refusal to let him rent it out for a period of time and by the fact that community assets were stored in the house while he lived in it. The argument is meritless.

Paul’s lack of solitary legal control of the property had no bearing on Michelle’s entitlement to be compensated for half of the value of his using it. By definition, a community asset is an asset over which neither spouse has exclusive legal control. If Paul were correct that Watts charges can be assigned to a spouse only if he or she had exclusive legal control over the asset, Watts charges could never be assigned since they only apply when a spouse has used and benefitted from a community asset. (Falcone, supra, 203 Cal.App.4th at p. 978.) Paul cites no authority, and we have found none, supporting the illogical proposition that Watts charges can be assigned to a spouse who has benefitted by using a community asset only if the non-benefitting spouse had no legal interest in or control over the asset.

Nor was the trial court precluded from assigning Watts charges to Paul because personal property not yet classified as separate or community might have been stored in the house while he lived there. The community—i.e., both parties—benefitted by the storage of any such property, and the value of any benefit would have been a financial wash in terms of calculating the parties’ property division. But only Paul—not the community or Michelle—benefitted financially by his living in the home. The court did not abuse its discretion in assigning Watts charges to Paul.

C. The Trial Court Did Not Abuse its Discretion by Awarding $30,000 in Attorney Fees to Michelle.

Paul also argues that the trial court abused its discretion in awarding Michelle $30,000 in attorney fees under section 271. According to him, the award was the equivalent of 30 percent of his net worth and therefore constituted an “unreasonable financial burden” under the statute. We are not persuaded.

To begin with, although Paul objected below that he “does not earn enough money to pay an award of attorney[] fees,” he has cited no portion of the record showing that he challenged the award on the basis it was excessive in relation to his net worth. Thus, he has forfeited the issue. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Even if we assume that the argument was sufficiently preserved, it fails on its merits, as we now discuss.

Section 271, subdivision (a), authorizes a trial court to sanction a party for impeding settlement or increasing litigation expenses in a dissolution proceeding by ordering the party to pay the other party’s attorney fees. Specifically, the provision states: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting [the award] is not required to demonstrate any financial need for the award.” (§ 271, subd. (a).)

This provision “advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ ” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) “The duty imposed by [section 271] requires a party to a dissolution action to be cooperative and work toward settlement of the litigation on pain of being required to share the party’s adversary’s litigation costs.” (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102.)

At the time of the trial, Michelle claimed to have incurred over $55,000 in attorney fees, and she requested a fees award in the amount of $45,000. After considering the evidence, the trial court found that Michelle incurred attorney fees in the amount of $41,000, an amount Paul does not challenge. The court then awarded her $30,000, finding that this amount would not impose an unreasonable financial burden on Paul.

Paul claims that the trial court failed to consider all the evidence in reaching its ruling, but the record belies his contention. To begin with, the court considered both parties’ respective earnings. Even though Michelle, as the party requesting the sanction, had no burden to demonstrate a financial need for the award (§ 271, subd. (a)), the court found that she had earned $88,000 in the previous year, while Paul had earned at least $18,000 per month in the same period (amounting to at least $216,000).

The trial court went on to find that “[Paul] made an average income of $240,000 in the years of 2015, 2016, and 2017. Specifically, his earnings in 2017 were $266,000— a monthly income of $22,249. Even with a monthly income of $18,000 as he alleged, [Paul] also has significant assets in the community house, which is valued at approximately $1.2 million.” Based on these earnings and assets, the court concluded that Paul “has the ability to pay the sanction, and the order does not impose an undue burden on him.”

We discern no abuse of discretion. Paul claims in his briefing that at the time of trial he had “a total of $5,091 in cash, and his share of the house was worth approximately $350,000,” and that these assets were offset by “more than $238,000 in debts.” It appears that these are the sums he relies upon in arguing that the attorney fees award imposed an unreasonable burden on him because they were the equivalent of 30 percent of his assets, since $30,000 is about 26 percent of his total claimed assets minus his claimed debts.

But Paul has failed to identify where in the record he showed that his assets were as low as he now claims. The trial court found that the house was “valued at approximately $1.2 million.” In support of his assertion that his equity interest in the home was only $350,000, Paul cites an Income and Expense Declaration he filed on October 30, 2018, which was about a week after the trial. But he cites nothing in the record showing how this claimed equity interest was calculated, why it is correct, or whether it was considered by the court. And even if he did present some evidence below that might support the amount of his claimed equity interest, the court was not obligated to accept it, especially having found that Paul was not credible.

Finally, even if we assumed Paul’s net worth was indeed $117,091 at the time of the trial, we would not conclude that the trial court erred in entering the attorney fee award. In addition to having at least this amount in assets, Paul has substantial annual earnings. At the time of trial, he claimed his average monthly income in 2017 was $18,019 (or $216,228 for the year), but his actual income that year as reflected on his 1099 tax form was an average of $22,249 monthly (or $266,988 for the year). In the Income and Expense Declaration he filed after trial, Paul claimed that his average monthly income had dropped to $17,774. But again, he cites nothing in the record showing that the court ever determined this claimed amount was accurate. Although we recognize that Paul is required to pay a significant amount of monthly child and spousal support, even he concedes that his monthly income varies and that he earns substantially more than $200,000 per year. No abuse of discretion appears in the amount of the award.

In resisting this conclusion, Paul relies on In re Marriage of Keech (1999) 75 Cal.App.4th 860, but the case does not advance his cause. There, the Court of Appeal concluded “[i]t was an abuse of discretion [for the trial court] to order [the] husband to pay [the] wife’s attorney fees without making any inquiry into the reasonableness of those fees.” (Id. at p. 870.) But as we have discussed, the trial court here engaged in an inquiry into Paul’s income and assets and made express findings as to the reasonableness of its award.

In the end, Paul has only himself to blame for any financial pressure he faces as a result of the attorney fee order. The trial court found that he did not act in good faith to settle disputes with Michelle and was not forthright in his financial disclosures. In addition, as we observed in our prior opinion, he has over-litigated the case and pursued ill-conceived arguments that delayed resolution and added to litigation costs. It was eminently fair for the court to decide that Michelle should not have to bear the expense of all the attorney fees that she incurred as a result of Paul’s truculent, and ultimately self-defeating, behavior. In short, the court did not abuse its discretion in awarding $30,000 in attorney fees to Michelle.

III.
DISPOSITION

The judgment is affirmed. Michelle is awarded her costs on appeal. 

_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Sanchez, J.

Lacourciere v. Lacourciere, A155881