Filed 5/29/20 Marriage of Alvizo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
In re the Marriage of FRANK and NINA ALVIZO. B294032
FRANK ALVIZO,

Appellant,

v.

NINA ALVIZO,

Respondent. Los Angeles County

Super. Ct. No. BD602649
APPEAL from an order of the Superior Court of Los Angeles County, Lynn H. Scaduto, Judge. Affirmed.

Law Offices of Richard A. Marcus and Richard A. Marcus for Appellant.

Law Office of Aaron Leetch and Aaron J. Leetch for Respondent.

INTRODUCTION

Frank Alvizo appeals from a family court order awarding need-based attorney’s fees to Nina Alvizo, his ex-wife. He contends the court awarded the fees under the wrong statute, and, in any event, he lacks the ability to pay them. As Frank has not established prejudice from the former or an abuse of discretion as to the latter, we affirm.

BACKGROUND

1. Domestic Violence and Divorce
2.
Nina and Frank married in 2003. They have three minor children.

In October 2012, Nina and Frank got into a physical altercation in front of their oldest two children. As a result, Frank moved out of the house, and Nina obtained a criminal protective order against him. In December 2012, Frank and Nina reconciled. They resumed their marital relationship and had a third child the next year.

In May 2014, Frank and Nina got into an argument while driving home from a couples’ retreat, and Frank threatened to kill Nina if she took the children away from him.

The couple separated on May 24, 2014, and on May 29, 2014, Nina filed an application for a domestic violence restraining order (DVRO). She was granted a temporary DVRO pending a hearing on the matter.

On June 2, 2014, Frank filed a petition to dissolve the marriage. On October 21, 2014, after a contested evidentiary hearing, the court issued a three-year DVRO protecting Nina from Frank. The DVRO would expire on October 21, 2017, at 5:00 p.m.

Nina subsequently filed a request to relocate with the children to her home state of Illinois. The court appointed an expert to conduct a child custody evaluation. On June 18, 2015, based on the evaluator’s written report and testimony at a contested hearing, the court concluded Frank had overcome the Family Code section 3044 presumption against granting joint custody to a parent who has perpetuated domestic violence, and, if Nina moved to Illinois, it would be in the children’s best interests to remain with Frank in California.

On August 6, 2015, the court entered a stipulated judgment on the bifurcated issue of custody and visitation, effectively denying Nina’s request to relocate with the children. A judgment of dissolution of marriage was entered on October 21, 2016.

On October 20, 2017, Nina filed a timely request to renew the DVRO permanently. About a month later, the court held a three-hour contested hearing on the renewal request. Both Nina and Frank testified. The court heard argument, then granted Nina’s request for permanent renewal of the DVRO.

Frank filed a timely notice of appeal. On appeal, he argued he was denied due process of law because the court would not consider evidence from the 2015 custody hearing before a different bench officer. Because Frank had neither requested judicial notice of the documents below nor attempted to admit them as exhibits, we concluded he had forfeited the issue and affirmed by unpublished opinion. (Alvizo I, supra, B287476.)

3. Nina’s Request for Attorney’s Fees
4.
Several months after the renewal of the DVRO, but before Frank’s appeal from that order was resolved, Nina filed a request for $24,116.95 in need-based attorney’s fees and costs under sections 2030 and 2032. The requested amount comprised $6,421.75 in fees and costs incurred in connection with the DVRO renewal and $17,695.20 in fees and costs she expected to incur in the Alvizo I appeal.

To support her request, Nina declared that she worked as a receptionist for 35 hours per week at $17.50 per hour, earning an average of $3,274 per month. Nina had $4,779 in average monthly expenses, which she paid for with a combination of her wages, $428 in spousal support, $1,159 in child support, and $200–$300 from her mother.

When she made the fee request, Nina had $375 in her checking account, a car worth about $2,500, and miscellaneous personal effects worth about $1,000. On the other hand, she owed about $1,700 in credit card debt and $55,000 in personal loans from her family.

In response, Frank argued Nina was not eligible for fees under section 2030, and, in any event, he lacked the ability to pay. Frank reported that he earned $7,713 per month, had $6,578 in a checking account, and $147,000 of equity in his home. He claimed $6,088 per month in expenses.

After a contested hearing, the court concluded Nina could recover fees under section 2030. It held that the “evidence supports a conclusion that, even with the $428 monthly spousal support payment taken into account, [Frank’s] monthly income is double that of [Nina]. He owns a home, she rents. The distributions she received in connection with the divorce appear to be gone, and she has recently borrowed money from her mother to make ends meet. [¶] In light of these facts, the court [found] that there [was] a disparity in access to funds and that an award of attorney’s fees [was] just and reasonable. The court further [found] that [Frank could] afford to pay his fees as well as [Nina’s] to the extent [then] ordered by the court, which [was] $12,000, payable in monthly installments of $1,000 commencing October 2018 until paid in full. The court [found] this amount of fees [had] either already been reasonably incurred in connection with the proceedings in the trial court on [Nina’s] application to renew the DVRO ($6,421.75) or [would] be reasonably incurred in connection with the ongoing proceedings on [Frank’s] appeal of the trial court’s order renewing the restraining order ($5,578.25). The court [found] credible [Nina’s] FL-157 declaration regarding the sec. 4320 factors, which [Frank] did not rebut in his responsive papers, at the hearing, or in his supplemental submission to the court.”

Frank filed a timely notice of appeal from the fee order.

DISCUSSION

Frank contends the court erred by awarding Nina $12,000 in need-based attorney’s fees under section 2030 because fees were only available to her under section 6344. He also argues that if section 2030 applies in this case, the court abused its discretion in ordering him to pay Nina’s fees because he lacks the ability to pay.

1. Frank does not argue that the claimed statutory error was prejudicial.
2.
“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) Thus, to obtain a reversal of a judgment or order, an appellant must affirmatively establish both error by the trial court and prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court’s ruling was prejudicial. [Citations.]” (Ibid.)

To ensure parity of legal representation in dissolution proceedings, sections 2030 and 2032 allow courts to allocate attorney’s fees and costs between the parties based on their respective incomes, need, and ability to pay. In actions under the Domestic Violence Protection Act (DVPA) (§ 6200 et seq.), section 6344 requires courts to award need-based attorney’s fees to prevailing petitioners. (§ 6344, subd. (b).) While section 6344 has a prevailing-party requirement, section 2030 does not.

Here, Nina requested—and the court awarded—$12,000 in need-based attorney’s fees under sections 2030 and 2032. Frank argues that because Nina initially sought protection under the DVPA, and because the attorney’s fees she requested stemmed from the post-dissolution renewal of her DVRO, the court could only award fees under section 6344, the Act’s fee provision. And, as Frank’s appeal from the renewal order in Alvizo I had not been resolved, Nina could not establish that she was the prevailing party in the DVRO proceeding, and therefore, was not eligible for fees under section 6344.

We do not address the merits of this argument, however, because our opinion in Alvizo I is now final, and Nina has prevailed below and on appeal. Therefore, even if Frank were right that she cannot recover fees under section 2030, Nina, as the prevailing party, would still be entitled to fees under section 6344. But Frank has not argued that the court’s fee award would have been different under section 6344. That is, Frank has not established that any error was prejudicial. As Frank has not met his burden on appeal, we reject his argument.

3. The court did not abuse its discretion in concluding Frank had the ability to pay Nina’s attorney’s fees.
4.
Frank argues that even if section 2030 applies in this case, the court erred in ordering him to pay Nina’s attorney’s fees because he lacks the ability to pay. We disagree.

4.1. Legal Principles and Standard of Review
4.2.
“[T]rial courts enjoy broad discretion in awarding attorneys’ fees in marital proceedings. [Citation.] The exercise of that discretion is guided by statute.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314–315; § 2030.)

In determining whether to award attorney’s fees, “the trial court considers the respective needs and incomes of the parties.” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) It must evaluate “whether an award of attorney’s fees and costs … 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.” (§ 2030, subd. (a)(2).) The “court is not restricted in its assessment of ability to pay to a consideration of salary alone, but may consider all the evidence concerning the parties’ income, assets and abilities. [Citations.]” (Sullivan, at p. 768; § 2032, subd. (c) [“The court may order payment of an award of attorney’s fees and costs from any type of property, whether community or separate, principal or income.”].)

We review orders under section 2030 for abuse of discretion. (In re Marriage of Sullivan, supra, 37 Cal.3d at pp. 768–769.) “In the absence of a clear showing of abuse, [the trial court’s] determination will not be disturbed on appeal. [Citations.]” (Id. at p. 769.)

4.3. The court did not abuse its discretion.
4.4.
In addition to his $7,713 monthly salary, the evidence established that Frank had $6,578 in his checking account, $147,000 of equity in his home, $21,329.88 in a retirement account, and owned at least two cars.

Frank claimed he needed the $6,578 in his checking account to pay $6,088 per month in living expenses. Yet he also claimed to need $6,088 of his $7,713 monthly salary to pay those same expenses. This discrepancy—combined with his earlier January 2017 income-and-expense declaration, in which he had reported paying his monthly expenses with only $150 in his checking account—supports the court’s implied finding that the $6,578 in Frank’s checking account was available to pay Nina’s fees.

Frank’s two income-and-expense declarations revealed other inconsistencies as well. While Frank claimed $6,088 in monthly expenses in his August 2018 income-and-expense declaration, that total reflected a $595 per month increase in discretionary spending over the previous January. For example, in January 2017, Frank reported spending $251 per month on utilities; in August 2018, the number had increased to $300. In the first declaration, he reported spending $235 per month on telephone, cell phone, and email service; by August 2018, that number had also increased to $300. The money Frank spent dining out more than doubled—from $75 to $160—and his clothing budget increased by 50 percent. The court could reasonably conclude that the second set of numbers was inflated and that Frank could afford to redirect the extra $595 per month, totaling $7,140 over 12 months, to Nina’s attorney’s fees.

Taken together, the $6,578 checking account balance and $7,140 ($595 per month) in inflated expenses were sufficient to support the court’s award of $12,000 in attorney’s fees to be paid in 12 monthly $1,000 installments. But these were not Frank’s only assets.

As discussed, Frank had $147,000 in home equity. He insisted that he could not access the equity in his home because he would not qualify for mortgage refinancing or a second mortgage. He also claimed, however, that he needed the inaccessible equity to finance his retirement: He did “not have any other savings or assets that [could] be sold to generate cash. The equity [was] the only possible source of funds for [his] retirement.” It seems, however, that Frank also had $21,329.88 in a retirement account, which he failed to report. When confronted, counsel argued: “My client is 59 years old. He has $22,000 in a retirement account that is his separate property monies that he needs for retirement. That does not mean the $22,000 is available.” Nevertheless, the court could properly consider those assets when assessing Frank’s ability to pay Nina’s attorney’s fees and costs. (See In re Marriage of Hofer (2012) 208 Cal.App.4th 454, 460 [court may order party to borrow money under appropriate circumstances].)

In sum, we are satisfied that the court thoroughly analyzed the issues, and that substantial evidence supported its determination that Frank had the ability to pay $12,000 in $1,000 monthly installments.

DISPOSITION

The order awarding attorney’s fees and costs is affirmed. Respondent Nina Alvizo shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.