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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

FAMILY LAW

Chui Chey and Minh Nguyen

Case No: 1439251
Hearing Date: Tue May 13, 2014 10:30

Nature of Proceedings: Req. for Order: SS/Atty Fees & Costs

This dissolution action was filed on 12/13/13 after 8 years of marriage and no children; a Response was filed in 2/2014.

 

Wife’s RFO

 

On 4/1/14 Wife filed a RFO requesting spousal support (seeks $3,396/mo based on the assumption husband earns $10,800/mo and wife earns zero/mo) and attorney fees; wife deposited $6,000 with her attorney which is borrowed money; reports $3,000 is for accountant; (seeks $15,000 for fees and costs); she filed Points and Authorities.

 

She also filed her Income and Expense Declaration; reports she is unemployed; was a waitress until 12/2013; 47 years old; reports husband earns $10,800/mo and attaches a calculation of restaurant gross receipts minus expenses; she has virtually no cash or liquid assets and “other property is unknown;” her living expenses are $3,830/mo and she lives with sister and brother-in-law who pays some of her living expenses; also living with them are her nephew and sister; reports nominal installment debt.

 

Wife prepared a declaration wherein she reported husband is “receiving” at least $10,800/mo in gross income from the restaurant; she prepared the estimate based upon her personal knowledge working at the restaurant; it is based upon an average of monthly credit card charges at the restaurant utilizing Merchant Statements that she has in her possession for the months of October 2012, March, April and October 2013; claims it  reflects monthly deposits in excess of $32,000 and does not include cash payments; points out that it is based on a six-day week and the restaurant is now open seven days a week.

 

She submits a proposed DissoMaster calculation; assumes husband earns $10,800/mo and she earns zero/mo; shows spousal support of $3,396/mo.

 

Husband’s Response

 

On 4/8/14 husband filed a response contending he does not consent to the order, but does consent to guideline support; he attached a DissoMaster calculation that assumes husband earns $2,000/mo and wife earns $1,376/mo; spousal support is $36/mo. On 4/8/14 his lawyer declared he needed a brief continuance to do a more accurate job in compiling the necessary documents to show the Court what an appropriate level of support should be; believes there are more debts than assets; would like to use John Snowball to value the business; agrees that interim support should be set but at a different amount and only after he has had a chance to compile all the records; records submitted by wife are misleading; he has given wife cash several times; he attached a DissoMaster “using data from our 2011 & 2012 tax returns;” imputed minimum wage to wife who always worked throughout the marriage.

 

Unaccountably husband has filed no Income and Expense Declaration; he does not attach any documents supporting his assumptions; there is no declaration or documentation of any kind that supports or buttresses husband’s claimed income in the file other than the rudimentary statements of his lawyer.

 

The matter was continued from 4/22/14 to 5/13/14 by stipulation; the Court marked “no further continuances.”

 

Husband’s New DissoMaster

 

On May 8, one month from his first response, husband filed a new DissoMaster calculation; assumes wife earns $1,280/mo (imputes minimum wages) and husband earns $2,500/mo (claims it is a generous estimate from tax returns); the DissoMaster shows spousal support, under this calculation, as $298/mo.

 

Status Reports

 

On 5/8 husband’s lawyer filed a status report; claims wife has access to all financial information that involves the parties; they have the same accountant; claims the case appears to be about “who gets the debts;” opines the Court has sufficient information to make an interim order.

 

On 5/9 wife’s lawyer filed a status report; wife has moved to Los Angeles to live with her sister; has limited English skills; her life has changed dramatically; reiterates husband’s “net income” is $10,800/mo [previously reported as his “take home income” or his “gross receipts minus expenses”].

 

Rulings

 

1. The critical issue here is husband’s income; to say the estimates vary is a gross exaggeration; wife assumes he earns $10,800/mo [albeit whether it is net or gross remains elusive] and husband’s lawyer claims it is $2,500/mo [albeit husband has provided significantly less supporting data]; the fact remains husband elects not to provide any real support for his statement of income. I have concluded wife’s analysis, although certainly not what I am used to having with such competent lawyers, is more persuasive; I will round husband’s income to $10,000/mo and wife’s income to $1,500/mo [matches the amount she reported in her I&E as “waitressing tips $1,500 per month”]; the lack of any real supporting data or even an income and expense declaration from husband makes wife’s reporting more believable; the fact is the Court has no credible indication of what husband earns or what assets or debts he has. The Court is surprised there is no report whatsoever from an accountant even though there must be one.

 

2. Spousal support will be $2,678/mo; I have assumed husband’s income is $10,000/mo and wife’s income is $1,500/mo; they file tax returns as SINGLE; my DissoMaster will be available in the Courtroom. Support is retroactive to 4/1/14 with credit for money paid.

 

3. Wife is given the following work hardening order: The recipient of spousal support should make reasonable efforts to assist in providing for her support needs, taking into account the particular circumstances considered by the court pursuant to Family code section 4320. Marriage of Gavron (1988) 203 Cal. App. 3d 705. Wife cannot be penalized now by the Court reducing support because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the then-unrevealed expectation that she become self-sufficient.

 

4. This case needs to be resolved; the Mandatory Settlement Conference date is 9/5/14 at 8:30 in Department 5; the Trial Call is at 11:30 am on 9/23/14 in this Department.

 

5. The Court will allow both parties the opportunity to revisit the spousal support set herein at such time as when there is persuasive and credible support for any change in the amount now set; BUT with that said, I will not permit either party to seek to change the spousal support now set retroactive to any date before a new motion is filed, even should the assumptions I have made today prove inaccurate.

 

5. The Court awards wife attorney fees of $5,000 to be paid on or before June 1, 2014. The standard of proof regarding need-based fees is that the Court shall first make findings of whether fees and costs are appropriate [they are appropriate here]; whether there is a disparity in access to funds [there is clearly a disparity of access to funds because husband has very significant earnings and wife’s earnings are just reasonably imputed], and whether one party is able to pay for both parties’ legal representation [husband is able to pay for some part of both parties’ legal fees]; that only if the Court makes a finding demonstrating disparity in access and ability to pay should the Court award fees [I have followed the protocol here before awarding any fees]. The award of additional fees and costs, and the allocation of the fees and costs awarded are reserved.