Filed 7/27/20 Marriage of Campillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 RITA and ALEJANDRO CAMPILLO.
RITA CAMPILLO,

Appellant,

v.

ALEJANDRO CAMPILLO,

Appellant. D075051

(Super. Ct. No. EFL19503)
APPEAL from an order of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed.

Marcus Family Law Center, Ethan Marcus, Erin K. Tomlinson, Christian J. Limon, and Brandon L. Connors for Appellant, Rita Campillo.

Law Offices of Bruce W. Cozart, Bruce W. Cozart; Patrick L. McCrary for Appellant, Alejandro Campillo.

Alejandro Campillo (Husband) and Rita Campillo (Wife) each appeal the family court’s order requiring Husband to pay Wife $190,000 for attorney fees and costs under Family Code section 2030. Husband contends the court failed to make the statutorily required findings because the court’s use of a Judicial Council form that mirrors the statutory language “do[es] not reflect any analysis of the parties’ finances” and, thus, precludes us from determining whether the court abused its discretion in making the award. (Italics added.) We disagree. As we shall explain, section 2030 requires the court to make certain requisite findings; it does not require the court to state the reasons for those findings. The record shows the court considered the relevant factors and made the required findings, which were not an abuse of discretion. Husband does not challenge the sufficiency of the evidence supporting the court’s findings.

For her part, Wife contends the family court erred by ordering that Husband pay a portion of the fee award on a payment plan that will take 12.5 years to fulfill. She maintains this was an abuse of discretion in light of the parties’ health and advanced ages—she was 73 and Husband was 87—and because it deprives her of the immediate use of the funds to pay for legal services. For reasons we will explain, we find no abuse of discretion.

Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Husband and Wife were married in October 1999. Wife filed a petition for dissolution in February 2017, when Husband was 86 years old and Wife was 72 years old.

Initial Award of Support, Attorney Fees, and Exclusive Use of Property

In April 2017, Wife filed a request for order (RFO) seeking spousal support of $11,074 per month; attorney fees and costs totaling $20,042.45; and exclusive use of a condominium and vehicle.

In her accompanying income and expense declaration (IED), Wife disclosed monthly income of $1,927 from social security and a pension from her time working as a nurse in Mexico; total savings of $650; and monthly expenses of $4,120. Wife stated she had retired over 10 years earlier, and was no longer able to work because of her age and recent diagnosis with early-onset Alzheimer’s disease. Based on tax filings for 2015, Wife estimated Husband’s monthly income was $34,275.

On May 25, 2017, the family court granted Wife’s RFO “by default.” The court ordered that Husband pay Wife spousal support of $11,074 per month and attorney fees and costs of $20,000, and that Wife have exclusive use of the condominium and vehicle.

Order Awarding Wife Attorney Fees and Costs

In November 2017, Husband filed an RFO seeking to modify and set aside the court’s order granting Wife’s RFO. Husband asserted that whereas Wife’s average monthly income had increased to about $13,000 (from his spousal support payments) and she was enjoying the exclusive use of the condominium and vehicle (both of which were paid off), his income had decreased substantially and he had “depleted [his] savings paying on the current support order.”

Wife opposed Husband’s request and, in turn, requested an additional award of attorney fees and costs. The court’s ruling on Wife’s request is the subject of this appeal.

Evidence of Wife’s Financial Condition

While Wife’s request for fees was pending, she filed three IED’s—in January, April, and September 2018. She consistently reported monthly income of $12,724, consisting of spousal support and retirement benefits. Whereas Wife had previously disclosed savings of $650, her new IED’s stated “See schedule,” but no schedules appear to have been attached. Finally, Wife reported that her monthly expenses had increased from $4,120 to $5,343 in January (primarily from a new monthly caretaker expense), and nearly doubled to $11,843 in April and September (largely attributable to increases of $2,900 for “[e]ntertainment, gifts, and vacation”; and $4,000 for unspecified “[s]avings and investments”).

Evidence of Husband’s Financial Condition

Wife supported her request with a declaration from Husband’s son from a prior marriage (Son). Son stated he was partners with Husband in two business: A Campillo Enterprises, Inc. (ACE), in which Husband held a 57% interest, and which had received a purchase offer of $3,100,000 in 2017; and Campillo Food Services, Inc. (CFS), in which Husband held a 50% ownership interest, and which had been valued by a broker at $3,100,000 in 2016. Son estimated that Husband’s income from his business holdings was $332,423.51 in 2016 ($27,702 per month); $470,784.10 in 2017 ($39,232 per month); and in excess of $500,000 in 2018 ($41,667 per month). Son also asserted Husband paid many of his personal expenses through his businesses.

Husband filed IED’s in May and August 2018. In his May IED, Husband sought to establish his income through a report from a forensic accountant. Based on his review of tax records, financial statements, and other documents pertaining to Husband and his business interests, the accountant concluded Husband had $28,184 of average monthly earnings available for support in 2016 and 2017. Husband reported savings of $141,331, and real and personal property holdings of $398,039 (excluding his business holdings, the value of which he did not estimate). Husband reported total monthly expenses of $27,878.

In his August IED, Husband reported monthly income of $11,000, consisting of $9,000 in wages and $2,000 in social security. He reported savings of $26,000 (a decrease from $141,331), and real and personal property holdings of “TBD.” His monthly expenses totaled $21,578.

In a supporting declaration, Husband explained that he has “a very unfortunate relationship” with Son, who “is openly hostile” to him and “has aligned himself with [Wife, his stepmother,] in this case.” Husband claimed he was “not aware of any personal expenses that [he] paid for from corporate funds,” and asserted that Son had used incorrect numbers or assumptions in his estimates. Husband maintained that despite receiving an unsolicited purchase offer for ACE (which was never consummated) and a business valuation for CFS (which expressly stated it was not an appraisal), he had “no way of determining [their] value.”

Wife hired an accountant of her own, who responded to the report prepared by Husband’s accountant. This sparked a string of exchanges between the accountants about their respective assumptions and methodologies. At bottom, Wife’s accountant determined Husband’s monthly income available for support was as high as $60,887 in 2016, and $63,354 in 2017.

The Hearing

On September 21, 2018, the court heard Wife’s request for additional attorney fees and costs. By stipulation, the court took Husband’s RFO to modify support off calendar.

Wife’s counsel stated the current request was for $230,825 in fees and costs, consisting of the following: $124,485 for fees incurred to date, $42,840 for the accountant’s expert work, and an advance of $63,500 “for the preparation ahead.” Counsel argued there should be no “quibble about the reasonableness of” the fees because they were comparable to those incurred by Husband. The only comment from Wife’s counsel about timing was that “the court should order that at least some of that [amount] be advanced—I mean, the whole order should be forthwith, but some portion of that should be advanced by a date certain.”

Husband’s counsel argued an award of attorney fees and costs was unwarranted because Wife could afford to pay “at least a significant portion” of them from the difference between her income (which consisted primarily of spousal support) and a reasonable amount of monthly expenses, which counsel proposed was $5,000 (not the more-than-$11,000 Wife reported). Counsel claimed Husband had only $1,000 in savings, and $400,000 in assets. Thus, he argued there was no disparity in Husband’s favor that would justify an award of fees and costs.

The court observed that although it found the amount of Wife’s request “a little shocking,” it was not completely out of the ballpark in light of the court’s view that Husband had employed “a strategy . . . to over-litigate and delay and incur attorney’s fees.” The court further observed that Wife’s financial situation was “pretty transparent”—”[s]he has what the Court orders [Husband] to pay.”

The court viewed Husband’s situation as less transparent: “[T]he degree to which there are assets is what this case is about. There’s no question that it was [Husband’s] position from the beginning . . . , from a strategy point of view perhaps, that he had all [the] assets. She had no assets and he didn’t have to tell her what he had. [¶] . . . [¶] I don’t think there’s any way to avoid the conclusion that [Husband] has a far greater ability to have access to counsel and has demonstrated it.”

Finally, the court noted that because it had not yet had “the opportunity to read the two experts’ documents that were submitted,” the court would take the matter under submission so it could “take some time to read [them].”

The Ruling

Four days after the hearing, the family court issued an order on Judicial Council forms partially granting Wife’s request. Instead of the approximately $231,000 Wife had requested, the court awarded her $190,000 consisting of the following: $100,000 in incurred attorney fees; $50,000 in anticipated attorney fees; and $40,000 in costs. The court ordered that Husband pay $40,000 forthwith, with the balance being due in monthly payments of $1,000 until paid in full with “[n]o interest . . . accru[ing] as long as payments are timely made.”

As for the findings underlying the award, the court checked boxes on Judicial Council form FL-346 (New Jan. 1, 2012; hereafter, form FL-346) corresponding to the following text:

“THE COURT FINDS

“1. An award of attorney’s fees and costs is appropriate because there is a demonstrated disparity between the parties in access to funds to retain or maintain counsel and in the ability to pay for legal representation.

“a. The party requested to pay attorney’s fees and costs has or is reasonably likely to have the ability to pay for legal representation for both parties.

“b. The requested attorney’s fees and costs are reasonable and necessary.”

DISCUSSION

I. Relevant Legal Principles
II.
Sections 2030 and 2032 govern the award of need-based attorney fees and costs in marriage dissolution proceedings. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111.) Section 2030, subdivision (a)(1) requires the court to “ensure that each party has access to legal representation . . . to preserve each party’s rights by ordering, if necessary based on . . . income and needs assessments, one party . . . to pay” the other party’s reasonable attorney fees and costs. The statute “reflects the public policy of providing, ‘ ” ‘at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.’ ” ‘ ” (In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 164 (Sharples); Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251 (Alan S.) [“Its purpose is parity: a fair hearing with two sides equally represented.”].)

“In ruling on a request for fees and costs under section 2030, the court is guided by section 2032, which provides that an award of fees and costs under section 2030 may be made ‘where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.’ ” (Sharples, supra, 223 Cal.App.4th at pp. 164-165, quoting, § 2032, subd. (a).) “In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [s]ection 4320.” (§ 2032, subd. (b); see § 4320.)

“Section 4320 presents a near-exhaustive list of factors that are to go into a spousal support award . . . . [N]ot all section 4320 factors will be relevant all the time (hence the ‘to the extent relevant’ language in § 2032). But obviously a number of section 4320 factors will usually bear on a pendente lite fee order. These . . . include earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k)).” (Alan S., supra, 172 Cal.App.4th at p. 253.)

“The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider . . . .” (§ 2032, subd. (b).) “In addition to the parties’ financial resources, the court may consider the parties’ trial tactics.” (Sharples, supra, 223 Cal.App.4th at p. 165; see In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974-975 (Falcone & Fyke).)

Effective January 1, 2011, the Legislature amended section 2030, subdivision (a)(2) to require that courts make three specific findings when ruling on a request for fees and costs under that section: “[1] whether an award of attorney’s fees and costs . . . is appropriate, [2] whether there is a disparity in access to funds to retain counsel, and [3] whether one party is able to pay for legal representation of both parties.” (Stats. 2010, ch. 352, § 4; see In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050 (Morton).) The findings must be express; they may not be implied. (Morton, at p. 1050.)

When it amended section 2030 to add the findings requirement, the Legislature also amended it to add a new subdivision (e), which directed the Judicial Council to “adopt a statewide rule of court to implement [section 2030] and develop a form for the information that shall be submitted to the court to obtain an award of attorney’s fees . . . .” (Stats. 2010, ch. 352, § 4; § 2030, subd. (e).) In response, the Judicial Council adopted rule 5.427 (originally numbered as rule 5.93), which expressly “applies to attorney’s fees and costs based on . . . sections 2030 . . . [and] 2032 . . . .” (Rule 5.427(a); see Sharples, supra, 223 Cal.App.4th at p. 165.) Subdivision (e) of this rule states that “[t]he court may make findings and orders regarding attorney’s fees and costs by using . . . form FL-346,” which is titled “Attorney’s Fees and Costs Order Attachment.” (Rule 5.427(e).)

If the court’s findings under section 2030 “demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (§ 2030, subd. (a)(2), italics added; see Morton, supra, 27 Cal.App.5th at p. 1049 [noting the Legislature’s use of “shall” throughout section 2030 imposes mandatory, rather than discretionary, duties].)

We review the family court’s ruling on a section 2030 fee request for an abuse of discretion, and matters of statutory construction de novo. (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 276 (Schleich).)

III. Husband’s Appeal
IV.
Husband contends that by using form FL-436, the family court failed to make the findings required by section 2030 and has thus precluded us from determining whether the court abused its discretion in awarding attorney fees and costs to Wife. We disagree.

As noted, section 2030 required the family court to make three specific findings when ruling on Wife’s request: “[1] whether an award of attorney’s fees and costs . . . is appropriate, [2] whether there is a disparity in access to funds to retain counsel, and [3] whether one party is able to pay for legal representation of both parties.” (§ 2030, subd. (a)(2).) The family court made each of these findings on form FL-436. By checking box 1, the court made the first two required findings: that “[1] [a]n award of attorney’s fees is appropriate [2] because there is a demonstrated disparity between the parties in access to funds to retain or maintain counsel and in the ability to pay for legal representation.” And by checking box 1.a, the court made the third required finding: that “[t]he party requested to pay attorney’s fees and costs has or is reasonably likely to have the ability to pay for legal representation for both parties.” Thus, on its face, the court’s order makes the three findings required by section 2030.

This should come as no surprise. The Judicial Council adopted form FL-436 at the Legislature’s direction, and rule 5.427(e) expressly provides that courts “may make findings and orders regarding attorney’s fees and costs by using . . . form FL-346.” (Rule 5.427(e); see 11 Witkin, Summary of Cal. Law (11th ed. 2019) Marriage § 219, p. 274 [“The court may make findings and orders on Judicial Council Form No. FL-346”]; Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 5:192.6, p. 5-122 [“The court may make findings and orders regarding attorney fees and costs using the optional FL-346 Attorney Fees and Costs Order Attachment.”].) This is precisely what the court did here.

Husband contends the “statement on th[e] form is not an explicit finding.” We disagree. The checked boxes and corresponding text on form FL-346 are preceded by the phrase, “THE COURT FINDS.” (Italics added.) It is difficult to imagine how the court could have indicated more explicitly that it was making findings.

Husband’s real complaint is that “[t]he court made only a simple conclusory finding” and “did not explain its decision.” (Italics added.) But section 2030 requires only that the court make findings. If the Legislature had intended to require that courts also state the reasons for their findings on attorney fee awards, it would have said so—precisely as it has in countless other Family Code provisions. (See, e.g., § 217, subd. (b) [“a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing,” italics added]; § 3042, subd. (c) [if the court finds it is against the best interests of a child 14 or older to address the court regarding custody or visitation preferences, “the court shall state its reasons for that finding on the record,” italics added]; § 4056, subd. (a)(2), (3) [requiring a court, when awarding child support that deviates from the statewide guideline formula amount, to “state, in writing or on the record,” the “reasons the amount of support ordered differs from the guideline formula amount” and the “reasons the amount of support ordered is consistent with the best interests of the children,” italics added]; § 4072, subd. (a)(1) [“If a deduction for hardship expenses is allowed, the court shall . . . [¶] [s]tate the reasons supporting the deduction in writing or on the record,” italics added]; § 3653, subd. (b) [providing that an order modifying support based on unemployment “shall be made retroactive . . . unless the court finds good cause not to make the order retroactive and states its reasons on the record,” italics added]; § 3751, subd. (a)(2) [“If the court determines that the cost of health insurance coverage [as a component of child support] is not reasonable, the court shall state its reasons on the record,” italics added]; § 3011, subd. (a)(5)(A) [when granting custody to a parent accused of domestic violence or substance abuse, “the court shall state its reasons in writing or on the record,” italics added]; § 3030, subd. (a)(1) [denying custody or visitation to certain sex offenders, “unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record,” italics added]; § 3654 [“At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision,” italics added].)

Having expressly made the findings required by section 2030, the family court was not further required to explain the reasons for those findings. (See In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410 [“While the members of this panel might, if we were in the Legislature, favor amending the attorney fee award statutes to require an explanation in open court, there is no such statutory requirement now.”].) Notably, Husband never asked the court to provide an explanation or a statement of decision. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280 [“Husband did not request a statement of decision on the computation of attorney’s fees, and thus he has waived any right to such a computation.”]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140 [“The superior court was not required to issue a statement of decision with regard to the fee award. [Citation.] Moreover, although [the appellant] opposed the motion for attorney fees, he did not request a statement of decision with specific findings.”].)

Of course, the “absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.) What matters is that ” ‘the record . . . reflect that the trial court actually exercised [its] discretion, and considered the statutory factors in exercising that discretion.’ ” (Falcone & Fyke, supra, 203 Cal.App.4th at p. 975; see In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1280 (Shimkus) [“checking boxes on a form does not satisfy the section 2030 requirement that the court make findings” if the record reveals the court did not actually make those findings].) ” ‘In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors.’ ” (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 995.)

The record here shows that the family court actually made the required findings after considering the relevant factors. The court had before it several IED’s from each party addressing their respective incomes, expenses, and savings; supporting declarations from each party addressing how their respective ages and health impacted their earning capacity; several declarations from the competing accounting experts who attempted to determine the scope of Husband’s income and assets; and a declaration from Son regarding the same.

At the hearing, the court heard extensive argument from counsel and made several comments regarding its observations of the parties’ respective financial conditions. The court remarked that Wife’s financial situation was “pretty transparent,” whereas Husband’s was less so. The court observed that “this case is about” determining the state of Husband’s assets, a topic on which he had not been forthcoming with Wife during the litigation. The court’s comments during the hearing reflected its familiarity with the history of the case, including Husband’s litigation tactics, which the court could properly consider. (Sharples, supra, 223 Cal.App.4th at p. 165.) Based on what it already knew of the parties’ financial conditions, the court shared its preliminary view that it “d[id]n’t think there’s any way to avoid the conclusion that [Husband] has a far greater ability to have access to counsel and has demonstrated it.” Finally, before taking the matter under submission, the court stated it was going to “take some time to read” the experts’ reports.

The parties’ arguments and the court’s comments during the hearing reflect that the court was properly focused on the section 4320 factors that are typically relevant to requests for attorney fees and costs: “earning capacity (subd. (a)); ability to pay, taking into account such things as assets and standard of living (subd. (c)); respective needs (subd. (d)); obligations and assets (subd. (e)); age and health (subd. (h)); and the overall balance of hardships (subd. (k)).” (Alan S., supra, 172 Cal.App.4th at p. 253.) To the extent the evidence on some of these factors was conflicting, we conclude that on the record before us the family court did not abuse its discretion by resolving the conflicts in Wife’s favor. Having done so, the court’s findings are supported by substantial evidence—a point Husband does not contest on appeal.

The cases on which Husband relies do not persuade us otherwise. In Morton, supra, 27 Cal.App.5th 1025, although the family court made some findings (e.g., that “[b]oth parties have sufficient resources to pay for their own attorney’s fees and costs” because they each received sizeable distributions from the sale of assets (id. at p. 1052)), they were not the findings required by section 2030. Here, however, the court’s findings on form FL-436 track the language of the statutorily required findings nearly verbatim.

In In re Marriage of Keech (1999) 75 Cal.App.4th 860, the appellate court found an abuse of discretion where the family court had ordered the husband, who earned about $5,400 per month, to pay attorney fees and support at a level that left him unable to provide for his own needs and legal expenses. (Id. at p. 868.) The appellate court observed, “Leaving husband $93 per month after payment of his court-ordered obligations and rent virtually speaks for itself.” (Ibid.) Here, by contrast, the family court could reasonably have found that Husband had monthly income in excess of $60,000 and assets in excess of $3 million, leaving him with sufficient funds from which to pay his own living expenses (about $21,500 per month, based on his most recent IED), spousal support of about $11,000, and both parties’ attorney fees and costs. These figures virtually speak for themselves in terms of demonstrating a financial disparity in Husband’s favor.

In sum, the family court properly used form FL-436 to expressly make the statutorily required findings, which were not an abuse of discretion on this record.

V. Wife’s Appeal
VI.
Wife’s sole contention on appeal is that—in light of the parties’ health, advanced ages, and her immediate need for the funds—the family court abused its discretion by ordering Husband to pay $150,000 of the $190,000 award on a $1,000-per-month installment plan that will take 12.5 years to fulfill. We are not persuaded.

First, Wife never made these arguments to the family court. Second, it was not unreasonable for the family court to put Husband on a payment plan when a significant portion of the award ($50,000) was for anticipated future expenses. Third, the fact that Wife’s IED’s for April and September of 2018 disclosed $4,000 of unspecified monthly “[s]avings and investments” undermines her claim of immediate need for the funds. Finally, Husband introduced evidence that his financial condition had significantly changed.

On balance, although we may not have made the same ruling that the family court made here, we cannot say ” ‘that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.’ ” (Schleich, supra, 8 Cal.App.5th at p. 295.) Accordingly, Wife has not met her burden to show that the family court abused its discretion.

DISPOSITION

The order is affirmed. The parties are to bear their own costs on appeal.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.