1

Filed 12/14/23 Marriage of Wittry 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 KIMBERLY 

WITTRY and JARED WITTRY.

KIMBERLY WITTRY,

Appellant,

v.

JARED WITTRY,

Respondent.

 A163676

 (Solano County

 Super. Ct. No. FFL150132)

Appellant Kimberly Wittry appeals from a judgment in the dissolution 

of her marriage to respondent Jared Wittry.* Kimberly contends the trial 

court abused its discretion by pressuring her to accept Jared’s proposed 

settlement and then penalizing her for rejecting the proposal by awarding 

Jared $15,000 in sanctions under Family Code section 271.† She also argues 

that the court erred when it did not allow her to present her arguments 

regarding child custody and her evidence of the fair rental value of the 

* Because the parties share the same last name, we will refer to them 

by their first names for the sake of clarity and intend no disrespect.

† All undesignated statutory references are to the Family Code.
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marital home. She further argues that the court erred in its ruling on the 

parties’ date of separation. Finally, she contends that the court abused its 

discretion in determining the amount and duration of her post-dissolution 

spousal support. We reject those contentions and affirm.

I. BACKGROUND

Kimberly and Jared were married in May 2005. They have three 

children together. During the majority of the parties’ marriage, Kimberly 

was the children’s primary caretaker.

In June 2018, Kimberly filed a petition for dissolution, listing the 

parties’ separation date as April 1, 2018. She requested spousal support, 

joint legal and physical custody of the children, and child support. In his 

answer to the petition, Jared requested sole legal and physical custody of the 

children with supervised visitation for Kimberly, asserting that she had left 

the children in his care in February 2018.

In August 2018, the court issued temporary orders giving Jared sole 

legal and physical custody of the children with supervised visitation for 

Kimberly and requiring him to pay her spousal support at $3,841 per month. 

The parties later entered into a stipulation and order agreeing to continue 

with the court’s temporary child custody and visitation orders with some 

modifications. 

A few months later, Jared moved for a Gavron order‡ and for an order 

for a vocational evaluation for Kimberly, as the parties disputed her earning 

‡ A Gavron warning is an order issued to the supported spouse that he 

or she is expected to become self-supporting. (In re Marriage of Gavron

(1988) 203 Cal.App.3d 705; see In re Marriage of Schmir (2005) 134 

Cal.App.4th 43, 55; § 4330, subd. (b).)
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capacity. Although Kimberly claimed that she ran her own business, Jared 

argued that there was “little indication she [was] earning at all.” 

The court issued a Gavron warning to Kimberly in May 2019. The

parties agreed to Jared retaining Jaye Davis as a vocational expert for an 

evaluation of Kimberly. 

A. The Child Custody and Visitation Trial

Trial on the child custody and visitation issues commenced on July 9, 

2019, and concluded on August 1, 2019. After the matter was submitted, the 

court awarded the parties joint legal custody of the children and gave Jared 

primary physical custody and Kimberly parenting time on alternating 

weekends and after school twice a week. The court found that the “primary 

concerns that tip the scales the most” was Kimberly “not making the children 

and visitation a priority,” as Jared had testified that she was constantly late 

for visitation and often did not exercise her parenting time. 

The record indicates that after trial, despite Jared agreeing to 

Kimberly receiving more parenting time, she continued to show up late for 

visits or miss them entirely, and she had also missed a custody mediation

appointment.

B. Settlement Conference

Jared filed a settlement conference statement in November 2020. 

Kimberly, who was representing herself at that point, did not file a 

settlement conference statement. In his statement, Jared proposed that 

Kimberly receive permanent spousal support in the amount of $1,274 a 

month, taking into account imputed income of $4,616 a month and the other 

section 4320 factors. He also proposed “guideline” child support, that he buy

out Kimberly’s interest in the community real property, that each party take 
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the personal property in their possession without offset, and that the 

retirement accounts be divided equally. 

At the settlement conference, the parties agreed to equally divide the 

work-place benefits and share the costs of the qualified domestic relations 

order. They did not reach agreement on any other issues. The court 

sanctioned Kimberly under California Rules of Court, rule 5.10 for her failure 

to file a settlement conference statement.

C. The Trial on the Remaining Issues

Trial on the remaining issues—including, as relevant to this appeal, 

spousal support and the parties’ date of separation—was to commence in 

January 2021, but Kimberly informed the court on the morning of trial that 

she was ill and could not appear. The court continued the trial to May 2021.

Prior to trial, Jared filed a declaration in which he requested that the 

court order Kimberly to pay him over $50,000 in attorney fees and costs as 

sanctions under section 271 due to her “unreasonable” conduct throughout 

the litigation and her “unwillingness to settle.” Then, a few days before the 

continued trial date, Kimberly appeared at an ex parte hearing to request a 

further trial continuance of 90 days to allow her to obtain legal counsel. The 

court denied her request on the ground that she had already had over four 

months to seek new counsel after her last attorney withdrew from the matter. 

Trial began on May 24, 2021, and concluded on June 30, 2021. The 

court heard testimony from Ms. Davis, Jared, and Kimberly, who represented 

herself during trial.

Ms. Davis testified that her appointments with Kimberly were “very 

difficult.” Kimberly was “verbally irritated[,]” she kept “fiddling” with her 

phone and spent a lot of time on it, and she was almost two hours late for her 

first appointment. Kimberly had told Ms. Davis that she was working on a 
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business, but when Ms. Davis asked her to provide documentation of the 

existence of the business, she provided “only one page of random expenses” 

that were “mostly personal . . . .” Ms. Davis informed her that she could 

receive “retraining” as a teacher, which was her profession before becoming a 

stay-at-home parent, but Kimberly said she did not want to do that. Ms. 

Davis testified that there was “nothing presented to me where [Kimberly has]

made any effort” to become self-supporting.

Jared testified that the parties’ separation date was February 1, 2018. 

On that date, the parties were in Mexico. According to Jared, Kimberly kept 

talking to a man named Taz in the middle of the night. He testified that the 

“last straw” for him was when a photographer invited Kimberly to his hotel 

room for a party, and she told Jared that he was not invited.

Regarding spousal support and the section 4320 factors, Jared testified 

that Kimberly had marketable skills, as she had a four-year degree and 

teaching certificates in other states. According to Jared, he had been the 

children’s primary caretaker for more than a year after Kimberly had moved

out of the marital home in February 2018. He testified that the parties’ 

standard of living during the marriage was middle class and that his monthly 

income was currently $19,018. When asked how Kimberly contributed to his 

ability to earn, Jared said that he had acquired his college degree and 

professional degree prior to their marriage. And when asked whether 

Kimberly helped “enhance” his career, he replied “[n]o.” 

Kimberly testified that she asked Jared for a separation in April 2018. 

She testified that when their first child was a few months old, they decided 

that she would be a stay-at-home mom. Jared worked a lot, and she was a 

“full-time mom . . . .” She testified that she cooked Jared dinner, that the 

“house was immaculate,” and that she “had the kids in every activity you 
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would think of.” She further testified that it would be “impossible” for Jared 

to have been the children’s primary caretaker prior to their separation 

because of how much he worked.

In August 2021, the court ruled on the submitted matters. As relevant 

to this appeal, the court concluded that the parties’ date of separation was 

February 1, 2018, as asserted by Jared, finding that Kimberly was 

“inconsistent[]” in her testimony and generally lacked credibility. The court 

also found sanctionable conduct “in unnecessary attorney fees and costs” on 

the part of Kimberly, awarding Jared $15,000 in attorney fee sanctions under 

section 271. 

Regarding spousal support, the court made detailed findings, 

addressing each of the fourteen factors enumerated in section 4320. This 

included consideration of Kimberly’s earning capacity and the fact that she 

“w[ould] have substantial funds” from the division of the community 

property. Based on the relevant circumstances, the court awarded Kimberly 

monthly spousal support of $2,500 for the remaining six months of 2021, with 

a decrease of $500 in each subsequent year until 2025, when the amount of 

monthly spousal support would be $500. Spousal support was to terminate in 

2027. 

Kimberly appeals.§ 

§ Kimberly appealed from the court’s ruling one month before the court 

entered judgment. “The reviewing court may treat a notice of appeal filed 

after the superior court has announced its intended ruling, but before it has 

rendered judgment, as filed immediately after entry of judgment.” (Cal. 

Rules of Court, rule 8.104(d)(2).) We exercise our discretion and construe the 

premature notice of appeal as filed immediately after entry of judgment.
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II. DISCUSSION

Kimberly challenges the court’s section 271 sanctions order as 

unsupported by the record. She claims that the court sanctioned her in 

retaliation for her refusal to accept a proposed settlement. She also contends 

that the court abused its discretion in determining the amount and duration 

of her spousal support, because it failed to adequately consider one of the 

mandatory section 4320 factors and “misread” some of the evidence relevant 

to its determination. As explained below, these contentions lack merit, and

she has forfeited her remaining arguments, which concern the court’s rulings 

on child custody, the parties’ date of separation, and the fair rental value of 

the marital home. 

A. Settlement, Child Custody, and Section 271 Sanctions

Kimberly’s first point in her appellate brief is not entirely clear, as she 

asserts what appears to be three separate arguments under a single heading. 

First, she contends that the court did not allow her to respond to a

declaration Jared filed shortly before a January 2020 child custody review 

hearing, in which he alleged numerous instances where she was a no-show or 

was late for her allotted parenting time. Second, she argues that the court 

“pressured” her in chambers to accept a global settlement that she found 

unfair. Finally, she argues that the court sanctioned her under section 271 in 

retaliation for her refusal to settle because there is no support in the record 

for the sanctions order.

Putting aside the fact that Kimberly has violated California Rules of 

Court, rule 8.204(a)(1)(B) by failing to “[s]tate each point under a separate 

heading or subheading summarizing the point,” as Jared has pointed out, she 

fails to support her first two contentions factually or legally. The cited 

evidence does not show that she attempted to respond to the allegations in 
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Jared’s declaration or that the court barred her from doing so. To the 

contrary, the record shows that the court granted her request for a 

continuance of the review hearing because Jared had filed his declaration 

late. Nor does she support her assertion that the court pressured her to 

settle with citation to the record. And she fails to support her arguments 

with authority, citing only an unpublished case. Thus, we deem those 

arguments forfeited. (See EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 

770, 775 [argument deemed waived where unsupported legally and 

factually].)

Regarding her contention that the court’s sanctions order is 

unsupported by the record, Kimberly has arguably forfeited her substantial 

evidence argument by failing to “set forth, discuss, and analyze all the 

evidence on [the disputed] point, both favorable and unfavorable.” (Doe v. 

Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 

218.) In any event, the trial court’s findings regarding her sanctionable 

conduct under section 271 are supported by substantial evidence. 

“Section 271 provides that a family court may impose an award of 

attorney fees and costs ‘in the nature of a sanction’ where the conduct of a 

party or attorney ‘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.’ ” (In re Marriage of Tharp

(2010) 188 Cal.App.4th 1295, 1316.) “Expressed another way, section 271 

vests family law courts with an additional means with which to enforce this 

state’s public policy of promoting settlement of family law litigation, while 

reducing its costs through mutual cooperation of clients and their counsel.” 

(Id. at p. 1318.) “We review an award of attorney fees and costs under section 
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271 for abuse of discretion.” (In re Marriage of Fong (2011) 193 Cal.App.4th 

278, 291.) 

In this case, the court properly based its section 271 sanctions award on 

Kimberly’s uncooperative conduct. The court found that she acted in “bad 

faith” because of her failure to comply with local filing rules pertaining to 

trial briefs, settlement conference statements, and other pleadings, and 

because she arrived late to hearings and failed to prepare for hearings or 

follow court orders, causing delays. The court further found that she was 

“disruptive” during hearings and failed to participate, and she made 

misrepresentations to the court, failed to timely file certain documents, 

including Income and Expense Declarations, and attempted to communicate 

ex parte with the court. The court also found that she failed to comply with 

the Gavron order and to meaningfully participate in the vocational 

evaluation ordered by the court. 

The evidence cited by Jared shows that several of these findings are 

supported by substantial evidence. He cites evidence that Kimberly had 

missed a custody mediation. He also points to evidence that she failed to file 

a settlement conference statement or a trial brief. Additionally, the 

vocational evaluator testified that Kimberly had not cooperated with the 

evaluation as ordered by the court and did not show that she had made any 

effort to become self-supporting.

We presume the trial court’s other findings concerning Kimberly’s

uncooperative conduct is supported by substantial evidence, given her failure 

to address many of those findings and her selective recitation of the record. 

“The rule is well established that a reviewing court must presume that the 

record contains evidence to support every finding of fact, and an appellant 

who contends that some particular finding is not supported is required to set 
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forth in his brief a summary of the material evidence upon that issue. Unless 

this is done, the error assigned is deemed to be waived.” (In re Marriage of 

Fink (1979) 25 Cal.3d 877, 887.) She therefore has not shown that the court 

abused its discretion in awarding Jared $15,000 in sanctions under section 

271.

B. The Parties’ Date of Separation

Kimberly next argues that the trial court abused its discretion by 

“misstating” the parties’ date of separation. As previously mentioned, the 

trial court determined that the parties’ date of separation was February 1, 

2018. Kimberly contends this was error because the parties separated after 

Jared had received a bonus from work in March 2018, and thus, she argues,

the court should have divided the bonus between them. We conclude that 

Kimberly has failed to demonstrate an abuse of discretion.

Section 771 classifies property acquired “after the date of separation” 

as the acquiring party’s separate property. The Family Code defines “ ‘[d]ate 

of separation’ ” to mean the “date that a complete and final break in the 

marital relationship has occurred, as evidenced by both of the following: [¶] 

(1) The spouse has expressed to the other spouse the intent to end the 

marriage. [¶] (2) The conduct of the spouse is consistent with the intent to 

end the marriage.” (§ 70.) “ ‘The ultimate question to be decided in 

determining the date of separation is whether either or both of the parties 

perceived the rift in their relationship as final.’ ” (In re Marriage of Manfer

(2006) 144 Cal.App.4th 925, 930, italics omitted.) 

“Date of separation is a factual issue to be determined by a 

preponderance of the evidence.” (In re Marriage of Manfer, supra, 144 

Cal.App.4th at p. 930.) “Our review is limited to determining whether the 

court’s factual determinations are supported by substantial evidence and 
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whether the court acted reasonably in exercising its discretion.” (In re 

Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.) 

Here, Kimberly fails to demonstrate that the trial court abused its 

discretion in finding that the parties’ date of separation was February 1, 

2018. She does not provide a summary of the evidence favorable to the 

court’s decision, evidence that included Jared’s testimony explaining why 

February 1, 2018 “was the last straw” for him, as previously mentioned. Nor 

has she offered any analysis or citations to the record to suggest the trial 

court erred in concluding that the parties had separated before Jared 

received a bonus in March 2018. The cited evidence shows only that Jared

received a bonus at some unspecified time. Kimberly’s failure to offer any 

legal argument, citation to the record, or a summary of the material evidence 

waives her argument that the trial court erred in determining the parties’ 

separation date. (See EnPalm, LLC v. Teitler, supra, 162 Cal.App.4th at p. 

775; In re Marriage of Fink, supra, 25 Cal.3d at p. 887 [error is deemed 

waived if appellant fails to provide a summary of the material evidence in his 

brief]; see also Cal. Rules of Court, rule 8.204(a)(1)(B) & (C) [appellant must 

identify points of law and error, support them by argument and, if possible, 

citation of authority, and provide citations to the record in support of those 

arguments].) Accordingly, Kimberly has failed to demonstrate an abuse of 

discretion. She therefore has also failed to show the court erred when it did 

not divide between the parties any bonus that Jared received after February 

1, 2018.

** (See § 771.)

** During oral argument, Kimberly argued that even if the parties’ date 

of separation was February 1, 2018, she is entitled to a share of the bonus 

because Jared had earned all or some of it during the parties’ marriage. 

Although she cited In re Marriage of Finby (2013) 222 Cal.App.4th 977, 991 

in her opening brief for the proposition that bonuses “accrued” during 
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Kimberly also asserts under the same heading that the trial court 

“confiscated” her trial exhibits and “refused” to allow her to present them as 

evidence that the fair rental value of 50% of the family home was greater 

than 50% of the mortgage payments. But again, she does not support her 

argument with authority or citation to the record. An appellant’s burden to 

demonstrate error “ ‘requires more than simply stating a bare assertion that 

the judgment, or part of it, is erroneous and leaving it to the appellate court 

to figure out why; it is not the appellate court’s role to construct theories or 

arguments that would undermine the judgment . . . .’ ” (Lee v. Kim (2019) 41 

Cal.App.5th 705, 721.) We therefore treat the point as forfeited. (See ibid.)

C. Spousal Support: Kimberly’s Domestic Contributions

Kimberly next argues that the court abused its discretion in

determining the amount and duration of her post-dissolution spousal 

support, because it failed to adequately address one of the mandatory factors 

under section 4320 regarding her domestic contributions to Jared’s career. 

We disagree.

Section 4320 sets forth fourteen factors courts must consider in 

determining whether to award permanent spousal support and, if so, how 

much and for how long. These factors include the supported spouse’s 

“contributions to the supporting spouse’s education, training, or career; the 

marriage constitute community property, she did not develop this point 

further or claim prior to oral argument that Jared had earned the bonus 

before February 1, 2018. We therefore treat this argument as forfeited. 

(People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13 [“Because counsel failed 

to raise this . . . argument in her briefs, to raise it at oral argument was 

improper”]; EnPalm, LLC v. Teitler, supra, 162 Cal.App.4th at p. 775 [issue 

deemed waived where it is not supported by “argument, discussion, analysis, 

or citation to the record”].)
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supporting spouse’s ability to pay; the needs of each party, based on the 

marital standard of living; the obligations and assets of each party; the 

duration of the marriage; the opportunity for employment without undue 

interference with the children’s interests; the age and health of the parties; 

tax consequences; the balance of hardships to the parties; the goal that the 

supported party be self-supporting within a reasonable period of time; and 

any other factors deemed just and equitable by the court.” (In re Marriage of 

Cheriton (2001) 92 Cal.App.4th 269, 303–304 (Cheriton), superseded by 

statute on other grounds as stated in In re Marriage of Morton (2018) 27 

Cal.App.5th 1025, 1049; § 4320, subds. (a)–(l).) The court may determine the 

appropriate weight to be given each factor, with the goal of accomplishing 

substantial justice for the parties. (In re Marriage of Smith (1990) 225 

Cal.App.3d 469, 481–482.) The trial court has wide discretion in setting the 

amount and duration of permanent spousal support. (Id. at pp. 479–480.) 

Kimberly’s argument focuses on one of the section 4320 factors—“[t]he 

extent to which the supported party contributed to the attainment of an 

education, training, a career position, or a license by the supporting party.” 

(§ 4320, subd. (b).) As to this factor, the trial court found that “[n]o credible 

evidence was presented supporting the premise that the Petitioner 

contributed to the Respondent’s educational qualifications for his current 

career or position.” Kimberly contends the court erred because it ignored 

evidence that she had contributed to Jared’s “current career position.”

Cheriton, supra, 92 Cal.App.4th 269 is instructive. There, the wife 

challenged the trial court’s order requiring the husband to pay her $2,000 per 

month in permanent spousal support. (Id. at p. 302.) She argued that the 

court failed to adequately consider how her role as the children’s primary 

caretaker contributed to the husband’s career development during the 
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marriage. (Id. at p. 306.) The trial court had made specific findings that she 

was the primary caretaker for the children, that she did not contribute to the 

attainment of the husband’s education because he had obtained his degree 

prior to marriage, and that he was already a professor at the time of the 

marriage. (Ibid.) Based on those findings, the appellate court was “not 

troubled by the lack of a specific finding on the question of whether and to 

what extent [the wife’s] role as the children’s primary caretaker fostered [the 

husband’s] career.” (Ibid.) It noted that section 4320 requires consideration 

of the supported party’s contributions “to the attainment of an education, 

training, a career position, or a license by the supporting party[,]” and the 

trial court “impliedly determined that [the wife] did not contribute to the 

‘attainment’ of [the husband’s] ‘career position’ as a university professor.” 

(Cheriton, supra, 92 Cal.App.4th at p. 306.)

Similar to Cheriton, the court in this case specifically found that 

Kimberly was a “stay-at-home mom” during the marriage who “was very 

active in her childrens’ [sic] lives and school” and that she did not contribute 

to the attainment of Jared’s education, which is supported by Jared’s 

testimony that he obtained his degrees prior to their marriage. Although the 

court did not make any express findings regarding the extent to which 

Kimberly contributed to Jared’s “attainment” of his “career position,” we 

imply all findings necessary to support the order, given that the parties did 

not request a statement of decision. (See In re Marriage of McLain (2017) 7 

Cal.App.5th 262, 270, fn. 2 [“Generally, the absence of a statement of decision 

means that we must conclude the lower court made all findings necessary to 

support its order under any theory argued”].) We can therefore infer that the 

trial court impliedly found that Kimberly did not contribute to the 

“attainment” of Jared’s “career position.” (§ 4320, subd. (b).) We only find 
15

error if the evidence compels a finding to the contrary as a matter of law. 

(See Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th

828, 838 [“ ‘where the issue on appeal turns on a failure of proof at trial, the 

question for a reviewing court becomes whether the evidence compels a 

finding in favor of the appellant as a matter of law’ ”]; Evid. Code, § 500.) 

On that point, Kimberly contends that her testimony showed that she 

contributed to Jared’s career development and was credible and “without 

contradiction.” However, the cited testimony is from the parties’ child 

custody trial, which had concluded almost two years prior to the trial on 

spousal support and other issues. It is unclear whether Kimberly presented 

this evidence at the second trial and whether she even raised the issue of her 

contributions to Jared’s career advancement at that trial, as she did not file a 

trial brief, and she does not cite to any portion of the record showing she 

testified on those matters or sought to admit her prior testimony from the 

child custody trial. It would be unfair to both the trial court and to Jared “to 

reverse a judgment on grounds that the opposing party did not have an 

opportunity to argue and the trial court did not have an opportunity to 

consider.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 

115 Cal.App.4th 168, 178; see also In re Marriage of Diamond (2021) 72 

Cal.App.5th 595, 603 [“Given that the court . . . expressly considered the 

three applicable factors raised by husband, we find the trial court did not 

abuse its discretion when it did not articulate its consideration of any other 

factors in its statement of decision”].) 

Moreover, even assuming the cited testimony from the prior trial was 

properly before the trial court, the court was free to reject that testimony. 

Credibility determinations are the “ ‘ “exclusive province of the [trier of fact] . 

. . .” ’ ” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) “[W]here 
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uncontradicted testimony has been rejected by the trial court, it ‘cannot be 

credited on appeal unless, in view of the whole record, it is clear, positive, and 

of such a nature that it cannot rationally be disbelieved.’ ” (Adoption of 

Arthur M. (2007) 149 Cal.App.4th 704, 717.) We defer to the trial court’s 

credibility determinations about Kimberly’s testimony. Any testimony by 

Kimberly regarding her contributions to Jared’s professional or career 

advancement was contradicted by Jared’s testimony that she did not 

“enhance” his career, and her cited testimony was not clear and positive as to 

whether his career advanced after she became the children’s primary 

caretaker. 

We acknowledge that it is undisputed that Kimberly was the children’s 

primary caretaker for much of the parties’ marriage. The trial court 

recognized this fact when considering another section 4320 factor—the extent 

to which the supported spouse’s earning capacity is impaired by periods of 

unemployment that were incurred during the marriage to permit the 

supported spouse to devote time to domestic duties—finding that “[d]uring 

the parties’ marriage, [Kimberly] was a stay-at-home mom who was very 

active in her childrens’ [sic] lives and school.” But Kimberly has not pointed 

to any evidence in the record that would compel a conclusion as a matter of 

law that she made substantial contributions to Jared’s “attainment” of a 

“career position.” (§ 4320, subd. (b).)

D. Spousal Support: Kimberly’s Efforts to Become Self-Supporting

Two of Kimberly’s remaining arguments challenge the trial court’s 

findings regarding her efforts to obtain employment. We consider and reject 

each in turn. 

Section 4320, subdivision (a) requires that in awarding spousal 

support, the court consider the extent to which the supported party possesses, 
17

or may come to possess, marketable employment skills sufficient to achieve 

the marital standard of living. Section 4320, subdivision (l) directs that the

court also consider “[t]he goal that the supported party shall be selfsupporting within a reasonable period of time.” A court may issue a Gavron

warning to the supported spouse that he or she is expected to become selfsupporting. (In re Marriage of Schmir, supra, 134 Cal.App.4th at p. 55; see §

4330, subd. (b) [“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 their support needs.”].) 

In this case, in August 2018, the trial court ordered Jared to pay 

Kimberly $3,841 a month in temporary spousal support. The court then 

issued a Gavron warning to Kimberly in May 2019 and ordered her to 

undergo a vocational evaluation. Over two years later, in its final ruling, the 

court found that Kimberly had “repelled” the efforts of the vocational 

evaluator, ignored the court’s orders, and had “made no material efforts to 

secure meaningful employment . . . .” Additionally, the court found that 

because she failed to participate in the vocational evaluation, it was limited 

to considering her past employment positions rather than potentially 

“allocat[ing] community resources to retraining for new careers identified 

during the professional evaluation.” The court found that she had a four-year 

college degree and previously held a teaching credential in other states, and 

that there was no evidence that she would not qualify for a California 

teaching credential. 

Kimberly presents two arguments that the trial court “misread” the 

evidence relevant to her efforts to become self-supporting. Both lack merit. 

First, she contends that the trial court erroneously “claimed there was no 

evidence of [her] working in the three-plus years of separation.” She points 
18

out that she informed Ms. Davis, the vocational evaluator, that she was 

working on opening a general store or gift shop, and that Ms. Davis 

“inexplicably” claimed that there was no evidence the shop existed, 

“apparently because [Kimberly] did not supply documentation.” Although 

Kimberly’s argument is unclear here, she appears to contend that because 

the court found that she had a four-year degree and a teaching license even 

though no documentation was presented to support those findings, the court’s

adoption of Ms. Davis’s assertion regarding the doubtful or unverified 

existence of Kimberly’s business based on lack of documentation was 

“inconsistent.”

Kimberly misconstrues the substantial evidence standard of review. So 

long as there is any substantial evidence to support the trial court’s findings 

of fact, even if contradicted, we must affirm. (See Schmidt v. Superior Court

(2020) 44 Cal.App.5th 570, 582.) “ ‘Stated another way, when there is 

substantial evidence in support of the trial court’s decision, the reviewing 

court has no power to substitute its deductions.’ ” (Rupf v. Yan (2000) 85 

Cal.App.4th 411, 429, fn. 5, italics omitted)

††

 

Here, there was substantial evidence supporting the trial court’s 

findings regarding Kimberly’s ability and efforts to become self-supporting. 

The trial court’s findings that she had a four-year degree and a teaching 

license were supported by Jared’s testimony on those matters. Likewise, the 

trial court’s findings concerning her lack of effort to become self-supporting

†† The case Kimberly relies on as support for her argument is 

inapposite, as it concerns one party’s evidentiary objections to the evidence of 

another. (See Wang v. Fang (2021) 59 Cal.App.5th 907, 916, fn. 9.) She does 

not contend that she objected to any of the evidence regarding her efforts to 

become self-supporting. 
19

were supported by Ms. Davis’s testimony. Ms. Davis testified that she met 

with Kimberly almost two years after the parties’ separation for a vocational 

evaluation, and “[t]here was nothing [Kimberly] presented to me where she’s 

made any effort [to become self-supporting].” According to Ms. Davis, 

Kimberly had told her that she (Kimberly) started a business in 2018. Ms. 

Davis requested several documents from Kimberly regarding the business, 

including a copy of the lease agreement, a profit and loss statement, and the 

marketing plan. Yet Kimberly provided “only one page of random expenses” 

that were “mostly personal . . . .” Considering that Kimberly should have 

been able to produce some documentation of the existence and operation of a 

business she claimed to have started the prior year, it was reasonable for the 

trial court to infer from Ms. Davis’s testimony that Kimberly had made little, 

if any, effort to establish her business. We must indulge all reasonable 

inferences in support of the judgment. (Leung v. Verdugo Hills Hospital 

(2012) 55 Cal.4th 291, 308.) 

Kimberly next contends that the trial court erroneously concluded that 

she could have “immediately” secured a job as a teacher, because Ms. Davis 

and the court did not consider certain factors that would make it difficult to 

obtain employment, including the COVID-19 pandemic and the length and 

complexity of the interview process.‡‡

‡‡ Kimberly further points out that subdivision (l) of section 4320 

provides that a “reasonable period of time” for a spouse to become selfsupporting is generally half the length of the marriage. However, by its 

express terms, that subdivision does not apply in cases involving marriages of 

long duration. (§ 4320, subd. (l).) Section 4336 defines a marriage of long 

duration as a marriage of 10 years or more. The parties here had a marriage 

of long duration. Section 4320, subdivision (l), therefore, is inapplicable. 
20

This mischaracterizes the record, however, because there is no 

indication the trial court concluded that Kimberly should have been able to 

“immediately” secure employment as a teacher. Rather, the court found that 

despite issuing a Gavron warning to Kimberly over two years previously, she

had made “no material efforts to secure meaningful employment . . . .” (See

In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1204 [“When 

evidence exists that the party to be supported has unreasonably delayed or 

refused to seek employment consistent with his/her ability, that factor may 

be taken into consideration in fixing the amount of support in the first 

instance or in modification proceedings”]; In re Marriage of Mason (1979) 93 

Cal.App.3d 215, 221 [trial court did not abuse its discretion in denying wife 

spousal support where she was a credentialed teacher and had not 

“ ‘exercised due diligence’ ” in seeking employment].) By the time of trial, 

Jared had been paying her monthly spousal support for almost three years. 

Kimberly does not cite any evidence in the record supporting an inference 

that it was difficult for her to secure a teaching position or any other 

employment during that time. Notwithstanding her failure to make 

reasonable efforts to become self-supporting, the court awarded her spousal 

support for another five years, albeit in a lesser amount.

Under the circumstances we have described above and given that 

Kimberly does not challenge the court’s other section 4320 findings except as

we have already discussed, we cannot say the trial court’s spousal support 

decision was an abuse of discretion.

E. Spousal Support: Standard of Living

Finally, citing In re Marriage of Andreen (1978) 76 Cal.App.3d 667

(Andreen), Kimberly maintains that it is an abuse of discretion to order 
21

support in an amount that leaves the supported spouse with a significantly 

lower standard of living than the supporting spouse.§§ 

In Andreen, the Court of Appeal found that the trial court had abused 

its discretion in awarding the wife $500 per month for five years and $1 per 

month for the next five years, with automatic termination after 10 years. (Id.

at p. 671.) The duration of the marriage was 27 years and the parties had an 

upper middle class lifestyle. (Ibid.) The Andreen court reasoned that the 

difference in post-separation income meant the difference between poverty for 

the wife and relative comfort for the husband and assumed that the wife, who 

was then 50 years old, would reenter the job market and earn enough to 

afford a higher standard of living, even though her expected future income 

would only be $500 per month. (Id. at pp. 671–672.) The wife also had no 

assets to supplement her earnings. (Ibid.) 

Andreen is distinguishable, as in that case there was no discussion of 

community debt and assets. Here, in comparison, the trial court considered 

that Jared would have a “considerably higher debt load” after purchasing 

Kimberly’s share of the community residence and would have a “substantially 

higher mortgage . . . .” The court also found that his ability to pay spousal 

support would be “hindered” by his “almost exclusive support” of the parties’ 

children. And, unlike the wife in Andreen, Kimberly would have “substantial 

§§ Kimberly also cites In re Marriage of Ficke (2013) 217 Cal.App.4th 10 

for the proposition that a court cannot impute income to a party “in a manner 

that leaves less money available for a child’s expenses” because it is 

“detrimental to that child’s best interest.” However, the Ficke court’s 

conclusion that the imputation of income to one parent must benefit the 

children concerned the trial court’s child support order. (Id. at p. 13.) 

Kimberly presents no cogent argument that the trial court erred in imputing 

income to her for purposes of child support. 
22

funds” to augment her spousal support as a result of Jared’s purchase of her 

interest in the community real property, and would have an equal share of 

his workplace benefits, “which were substantial.” We therefore find no abuse 

of discretion.

III. DISPOSITION

The judgment is affirmed. Respondent Jared Wittry shall recover his 

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
23

HUMES, P.J.

WE CONCUR:

MARGULIES, J.***

BANKE, J.

A163676N

*** Retired Associate Justice of the Court of Appeal, First Appellate District, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.