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Filed 8/23/21 Marriage of Daneman CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 FIVE

In re the Marriage of DEBORAH 

and ALEX G. DANEMAN.

DEBORAH DANEMAN,

Respondent,

v.

ALEX G. DANEMAN,

Appellant.

 A159773

 (Marin County

 Super. Ct. No. FL 000821)

Appellant Alex G. Daneman (Husband) appeals from a January 2020 

spousal support order in favor of respondent Deborah Daneman (Wife). We 

affirm the trial court’s order.

BACKGROUND

Husband and Wife filed a stipulated judgment of dissolution in May 

2011, which was accompanied by an attachment and a May 2006 marital 

settlement agreement (MSA). According to the MSA, the parties were 

married in 1977, and Wife filed the dissolution action in 1996.

The MSA divided the marital property, and provided that Wife would 

receive certain investment income from Husband and would not seek spousal 

support from Husband unless he failed to make the investment income 
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payments, if he bore responsibility for that failure. The attachment to the 

2011 stipulated judgment specified that Husband would pay Wife $1,277 per 

month. During 2019, Husband failed to make a number of the monthly 

payments, and, in August 2019, Wife petitioned for an order of postjudgment 

spousal support. Husband opposed the request, and the trial court conducted 

an evidentiary hearing on January 2, 2020 that included testimony from 

Husband, Wife, and an expert retained by Wife.

On January 8, 2020, the trial court entered an order granting Wife’s 

request for spousal support, ordering Husband to pay her $3,000 per month, 

commencing in September 2019 “and continuing until Wife’s death or 

remarriage, or further order of court, whichever shall first occur. In view of 

the parties’ agreement in their stipulated judgment, spousal support shall 

not terminate upon Husband’s death.” The trial court also concluded there 

were arrearages of $11,493, plus interest, because Husband failed to pay Wife

the $1,277 a month owed to her in nine months in 2019. The court also 

ordered Husband to pay Wife $7,500 for attorney’s fees.

The present appeal followed.1

DISCUSSION

On appeal, Husband challenges the duration and amount of the trial 

court’s support order. We reject his claims.

1 According to Husband, in November 2020 the trial court entered a 

contempt order against him due to his failure to comply with the trial court’s 

support order. Husband challenges the entry of the order and the sentence 

imposed by the court in two writ proceedings (A161532, A161937) that will be 

decided separately.
3

I. Background

A. The Stipulated Judgment and MSA

The attachment to the 2011 stipulated judgment stated that, since 

execution of the MSA, “certain events have transpired which are the basis for 

the additional terms set forth herein. Except as specifically modified here, 

the terms of the MSA are incorporated herein.”

The MSA contains provisions disposing of various marital assets, 

including, as relevant on appeal, the proceeds from the sale of a home in 

Tiburon held in trust at a title company. Paragraph 2.4 of the MSA requires 

Husband to invest his share of those proceeds. Paragraph 2.4 further states,

“All of the investment income emanating from Husband’s investment of his 

share of the house sale proceeds shall be distributed to Wife on a quarterly 

basis after first deducting the projected federal and state income taxes 

attributable to said investments . . . .”

Paragraph 2.4 of the MSA also contains a provision specifically 

addressing termination of the obligation, stating, “Should Wife predecease 

Husband, all obligations with respect to the income distributions to [W]ife 

under this paragraph 2.4 shall cease and be of no further effect. Should 

Husband predecease Wife, the obligations under paragraph 2.4 shall continue 

in full force and effect and shall be an obligation of Husband’s estate.” That 

language is consistent with a prior general statement in the MSA that “The 

objective of this Agreement is to maximize the income from the remaining 

community assets for use by Wife during her lifetime in lieu of spousal 

support from Husband.”

Paragraph 3.2 of the MSA explains that the investment income is a 

substitute for spousal support, stating, “It is the intention of the parties that 

by reason of Husband’s agreement to share his investment income under the 
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provisions of paragraph 2.4 for Wife’s life, spousal support will not be paid by 

Husband to Wife. Only in the event that (a) Husband deliberately defaults 

on the obligation to provide income or (b) the income from Husband’s share of 

the investment income is not paid to Husband for reasons within his control 

may Wife seek spousal support from Husband. The Court retains jurisdiction 

to award spousal support under a proper showing by Wife in these limited 

circumstances. Otherwise, Wife waives spousal support from Husband and 

recognizes that she will not be able to seek spousal support at any future date 

for any reasons other than the circumstances described in this paragraph.”

The attachment to the 2011 stipulated judgment states that “[a]fter the 

MSA was signed and proceeds from the sale of the Tiburon residence were 

distributed, Husband used a portion of his share of the proceeds [from sale of 

the parties’ home] to acquire a business, Hench Control Systems [HCIS]. . . . 

Husband represents that his income averages about $4,000 per month at this 

time.” The attachment also stated that Wife’s medical condition had 

worsened and that she was living at “subsistence level only.” The attachment 

to the stipulated judgment provides that Husband “will continue the monthly 

payments of $1,277 per month to Wife so long as he is financially able to do 

so. In addition he will on a voluntary basis provide whatever other 

assistance he can.”

B. Evidence at the Contested Hearing and the Trial Court’s Ruling

At the evidentiary hearing on January 2, 2020, Husband testified he 

worked sixty hours a week and earned on average $400 per week from his 

company, HCIS. He also received $2,400 per month in Social Security. He 

testified that he had loaned HCIS around $300,000, and that the company 

had not made a profit in recent years. Husband also presented somewhat 

unclear testimony regarding his personal and real property assets, as well as 
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his expenses. He was unable to explain certain significant discrepancies on 

his income and expense statement and on corporate tax returns filed by 

HCIS.

Also at the January 2020 hearing, Wife presented expert testimony 

from a forensic accountant, Richard Schiller. He testified, “It’s very difficult 

to make any sense out of anything that [Husband] has said or that the tax 

returns reflect. I believe that they are significantly incorrectly prepared.” 

Importantly, Mr. Schiller testified that HCIS had improperly taken an 

amortized deduction for $2 million in software that Husband testified the 

company did not pay for. Mr. Schiller called the return “a completely 

fabricated tax filing” and observed that the $2 million was being amortized 

over a 15-year period. Deductions had already been taken for nine of the 

years, leading Mr. Schiller to comment, “So, in effect, he’s under reported his 

income taxes for the last nine years by $133,000.00.” The expert also 

testified that business activity from HCIS before it was incorporated should 

have been reflected on Husband’s 2017 individual tax returns, but was not. 

Mr. Schiller testified the corporate tax returns reflected a deduction for 

interest expenses even though Husband had testified the company had no 

debts. The expert also referenced a “very questionable” $387,000 “earn out 

payable.” He commented, “So, once again, what we’re seeing is that there’s 

line items that don’t appear to make any sense.” On cross-examination, 

Husband’s attorney elicited from Mr. Schiller that the HCIS tax returns 

showed a negative taxable income, but he did not question the expert about 

any of the irregularities the expert had identified. Neither did Husband offer 

additional testimony or documentary evidence to explain any of the 

irregularities.
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Wife was the final witness at the evidentiary hearing. She testified 

that, among other things, Husband was nine months in arrears on the $1,277 

payments specified in the 2011 stipulated judgment and that she was 

requesting $4,500 per month in support because that was the amount 

necessary to cover her living expenses.

On January 8, 2000, the trial court entered a written order granting 

Wife’s request for spousal support. The main thrust of Husband’s opposition 

to the request for spousal support had been that Wife was required to show a 

material change of circumstances in order to obtain a support order (see 

Marriage of West (2007) 152 Cal.App.4th 240, 246), and that Wife had not 

shown that either of the conditions described in paragraph 3.2 of the MSA 

had been satisfied. The trial court rejected those contentions, concluding 

that, under the MSA, the relevant question was not whether there was a 

change of circumstances but whether the circumstances described in the MSA 

had occurred. Based on the evidence at the January 2 hearing, the trial court 

concluded that both of those circumstances had occurred. That is, the court 

concluded that Husband had deliberately defaulted on his obligation to pay 

Wife his investment income and/or that the income had not been paid to him

for reasons within his control. The trial court observed that the stipulated 

judgment contemplated that Husband would pay Wife from his return on his 

HCIS investment, stating, “Although it was not specified in the stipulated 

judgment, it is clear from the parties’ submissions that the $1,277 per month 

figure relates to Wife’s share of Husband’s income from HCIS, Inc.,

Husband’s wholly owned corporation.” Appellant does not challenge any of 

those findings on appeal.
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In making the spousal support determination, the trial court 

considered the 14 factors listed in Family Code section 4320.2 The court 

noted that Wife’s financial resources were minimal: her health was 

“deteriorating,” the parties agreed in 2011 that she “was living at a 

‘subsistence level only,’ ” her only asset is her home, and she is unable to 

work. On the other hand, the trial court found that Husband reported no 

obligations and that “[h]e owns a community interest in a waterfront home in 

Richmond, an 80’ yacht, two cars, and his corporation, HCIS, Inc. The value

of his holdings is unknown, because Husband has not been candid with Wife 

or with this court.”

On the subject of Husband’s income, the trial court found that his 

testimony and his financial disclosure form “are not credible on the issue of 

his finances.” The trial court relied in part on Mr. Schiller’s expert 

testimony, explaining that the expert had testified the corporate “tax returns 

were inconsistent with [Husband’s] sworn testimony. Husband testified that

he purchased the software for HCIS, Inc. for nothing. Nevertheless, he 

carries it on his books at an acquisition value of $2,000,000. Mr. Schiller 

testified that Husband cannot write off software that he has not paid for, and 

therefore, Husband has been pocketing about $133,000 per year for the last 

11 years in illegitimate write-offs.” 

In determining Husband’s income at the time of the January 2020 

order, the trial court noted that the parties agreed his income was $4,000 per 

month at the time of the 2011 stipulated judgment, and stated, “It is difficult 

to know exactly how much income Husband enjoys at the present time, but 

based on Mr. Schiller’s uncontradicted analysis, it appears to be at least 

2 All undesignated statutory references are to the Family Code.
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$15,750 per month ($133,000 + $56,000 = $189,000 ÷ 12 = $15,750),3 and that 

income appears to be tax free.” The trial court also observed, “when, as in 

this case, a spouse has committed perjury on his income and expense 

declarations, the court may rely on other evidence to determine that party’s 

income.”

As noted previously, the trial court ultimately ordered Husband to pay 

Wife $3,000 a month in spousal support—continuing until Wife’s death or 

remarriage, or further order of the court—in addition to arrears and attorney 

fees.

II. Analysis

On appeal, Husband does not contend the trial court erred in 

concluding that, under the MSA, Wife is entitled to seek spousal support. 

Neither does Husband contend the trial court erred in ordering him to pay 

$11,493, plus interest, in arrearages and $7,500 for attorney’s fees. Instead,

Husband contends that the duration of the trial court’s support order violates 

section 4337 and that the court abused its discretion in determining the 

amount of the support order. Husband has not shown error.

A. Section 4337

Section 4337 provides, “Except as otherwise agreed by the parties in 

writing, the obligation of a party under an order for the support of the other 

party terminates upon the death of either party or the remarriage of the 

other party.” “Although a written agreement between the parties is required 

to waive the provision of section 4337, ‘[n]o particular words are required. 

[Citation.] On the other hand, silence will not do. [Citation.]’ ”

(In re Marriage of Martin (2019) 32 Cal.App.5th 1195, 1199.)

3 It appears the trial court mistakenly stated $56,000 rather than 

$48,000, which is $4,000 times 12 months.
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The trial court’s support order states, “In view of the parties’ agreement 

in their stipulated judgment, spousal support shall not terminate upon 

Husband’s death.” Husband argues the 2011 attachment and the 2006 MSA 

do not contain an agreement to continue support after Husband’s death, so 

the support order is in excess of the court’s authority. Contrary to Husband’s 

contention, the MSA expressly sets forth the parties’ intent to provide for 

Wife after Husband’s passing. Thus, paragraph 2.3 states, “The objective of 

this Agreement is to maximize the income from the remaining community 

assets for use by Wife during her lifetime in lieu of spousal support from 

Husband.” And paragraph 2.4.d states, “Should Husband predecease Wife, 

the obligations under paragraph 2.4 shall continue in full force and effect and 

shall be an obligation of Husband’s estate.” It was reasonable for the trial 

court to construe the spousal support order authorized by paragraph 3.2 as a 

replacement for the investment income support provided for in paragraph 

2.4. And nothing in the 2011 attachment modifies that aspect of the MSA.4

Husband’s briefs on appeal fail to address any of the specific language 

in the MSA, so Husband has necessarily failed to show there is another

reasonable interpretation of the agreement. We observe that, if the 

agreement is interpreted to terminate support under paragraph 3.2 upon 

Husband’s death, then Husband could at any time eliminate the obligation to 

provide lifetime support to Wife by intentionally defaulting on the investment 

income payments. That would be directly contrary to the express intent of 

the MSA to provide support for Wife’s lifetime, as set forth in paragraph 2.3.

4 Husband points out that the 2011 attachment only requires him to 

make payments “so long as he is financially able to do so,” but that is not 

inconsistent with the trial court’s order. The court found he is able to pay 

and any question as to his estate’s ability to pay is premature.
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“ ‘Section 4337 does not go so far as to require a written agreement 

expressly stating that the’ ” death of the party providing support “ ‘will not 

terminate spousal support.’ ” (In re Marriage of Martin, supra, 

32 Cal.App.5th at p. 1202.) Husband has not shown the trial court erred.

B. The Amount of the Support Award

“Permanent spousal support ‘is governed by the statutory scheme set 

forth in sections 4300 through 4360. Section 4330 authorizes the trial court 

to order a party to pay spousal support in an amount, and for a period of 

time, that the court determines is just and reasonable, based on the standard 

of living established during the marriage, taking into consideration the 

circumstances set forth in section 4320.’ [Citations.] The statutory factors 

include the supporting spouse’s ability to pay; the needs of each spouse based 

on the marital standard of living; the obligations and assets of each spouse, 

including separate property; and any other factors pertinent to a just and 

equitable award.’ ” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 108.) 

“ ‘ “In making its spousal support order, the trial court possesses broad 

discretion so as to fairly exercise the weighing process contemplated by 

section 4320, with the goal of accomplishing substantial justice for the parties 

in the case before it.” ’ ” (Ibid.)

Husband argues the trial court “miscalculated” his income in 

determining the appropriate amount of support. He argues there was no 

foundation for Mr. Schiller’s testimony because it was based only on tax 

returns for the 2017–2018 period. But he fails to explain why he was 

prejudiced by any testimony that contained assertions regarding prior 

periods. Husband also complains that the court predicated its support order 

in 2019 in part on the expert testimony based on the 2017–2018 returns, but 

Husband’s counsel represented to the court that the returns provided were 
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“the most recent year prepared” and “all that was available.” Husband fails 

to explain how it was error for the court to base its support order on the most 

recent information he provided. (See In re Marriage of Berman (2017)

15 Cal.App.5th 914, 925–926 [“Nor did the court abuse its discretion in using 

the 2014 income in particular, as this was the only tax return presented to 

the court.”].)

Husband also argues it was improper to treat the $133,000 in improper 

annual deductions taken by HCIS as Husband’s income. He points out that 

“[a] tax deduction is applied to reduce income before determining the tax 

owed,” and that the deductions “increased HCIS’ post-tax profits, the funds 

used to pay” Wife. He continues, “[t]here is no evidence that those profits 

were paid to [Husband], who reported none on his taxes.”

At the outset, we observe that Husband has forfeited his claims by 

failing to raise them below. “ ‘As a general rule, issues not properly raised at 

trial will not be considered on appeal.’ ” (In re Marriage of Olson (1993) 

14 Cal.App.4th 1, 15; see also In re Marriage of Brewster & Clevenger (2020)

45 Cal.App.5th 481, 512 [“A party implicitly waives or forfeits claims of error 

if he or she fails to bring the error to the trial court’s attention in an 

appropriate manner.”].) This is because “ ‘[i]t is unfair to the trial judge and 

to the adverse party to take advantage of an alleged error on appeal where it 

could easily have been corrected at trial.’ ” (Cabrini Villas Homeowners Assn. 

v. Haghverdian (2003) 111 Cal.App.4th 683, 693.) Although Husband made 

general objections to Mr. Schiller’s testimony below regarding Husband’s 

underreported income (“[m]isstates the evidence; misstates prior testimony 

. . . [i]t lacks foundation”),5 he did not cross-examine Mr. Schiller on the issue, 

5 Husband does not argue the trial court erred in overruling his 

objections.
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he did not present evidence controverting Mr. Schiller’s testimony, and he did 

not argue at the end of the hearing that the trial court could not rely on 

Mr. Schiller’s testimony for the reasons posited on appeal.

Furthermore, financial records provided by Husband support the trial 

court’s finding that Husband could pay support from HCIS’s profits, 

regardless of how the improper deduction impacted HCIS’s taxes. In 

particular, Husband cites to HCIS’s 2017–2019 “Profit & Loss” statements to 

support his assertion that there were no profits for HCIS to disburse to Wife. 

The 2017 statement shows a “Net Income” of negative $110,355.38, but it 

lists as expenses $112,837 for “Depreciation/Amortization”6 and $17,735.42 

for “Interest Expense.” Mr. Schiller testified there was no basis for those 

claimed expenses. Regarding the latter expense, Mr. Schiller testified any 

claimed interest expenses were improper in light of Husband’s testimony the 

company had no debts. The 2018 statement shows a “Net Income” of only 

$3,213.84, but it lists an improper “Interest Expense” of over $20,000. And 

the 2019 statement, which covers through October 2019, actually shows a

profit—a “Net Income” of over $66,000, which should actually be higher 

under Mr. Schiller’s analysis because the statement includes an improper

“Interest Expense” of over $11,000.

7 Thus, documents provided by Husband, 

6 Mr. Schiller explained the 2017 depreciation was less than $133,000 

because it was for a ten-month period. In his testimony he said 2017 

depreciation was $111,000, which was the amount on the corporate tax 

return. It is not clear why the 2017 Profit & Loss statement lists the 

amortized depreciation amount as $112,837, but the trial court could infer 

that was the same depreciation testified to by Mr. Schiller because there is no 

evidence of other significant sources of depreciation.

7 The 2019 statement also lists an unexplained “Bad Debt Expense” of 

over $59,000.
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when viewed in light of Mr. Schiller’s uncontroverted testimony, support the 

trial court’s finding that Husband has the ability to pay the ordered support.

Further, Husband’s argument disregards the trial court’s finding that 

Husband’s financial evidence was not credible. (See In re Marriage of 

Brewster & Clevenger, supra, 45 Cal.App.5th at p. 500 [“As the judge of 

credibility, the trial court may reject evidence, even uncontradicted evidence, 

as unworthy of credence.”]; In re Marriage of Dick (1993) 15 Cal.App.4th 144, 

160 [“It is clear that the trial court utterly disbelieved [the husband], and its 

assessment of husband’s credibility is binding on this court.”].) Indeed, the 

trial court stated that Husband had “committed perjury on his income and 

expense declarations.” Husband does not challenge that finding on appeal, 

which is supported both by Husband’s evasive testimony and by Mr. Schiller’s 

testimony regarding the irregularities in HCIS’s tax returns. Given the trial 

court’s finding regarding Husband’s dishonesty, it was not obligated to take 

any of the financial records or Husband’s testimony at face value, including 

Husband’s claims about the amount of HCIS’s profits, about his ability to 

pay, or about the accuracy of the corporate and personal tax returns.

Finally, Husband fails to show any error was prejudicial. “ ‘It is a 

fundamental principle of appellate jurisprudence in this state that a 

judgment will not be reversed unless it can be shown that a trial court error 

in the case affected the result.’ ” (In re Marriage of Falcone & Fyke (2008) 

164 Cal.App.4th 814, 822.) Husband does not argue the trial court erred in 

finding he continued to make the $4,000 in income described in the 2011 

stipulated judgment; he does not show he realized no benefit from HCIS’s

improper deductions and other accounting irregularities; he does not argue 

his assets could not support the award (including his loan to HCIS, his 

80-foot yacht, and his interest in his current home) (see § 4320, subds. (c) & 
14

(e)); and he does not deny Wife’s dire health and economic circumstances (see 

§ 4320, subds. (e), (h), & (k)). In other words, Husband articulates no 

argument why, in light of the statutorily mandated considerations, it is 

“reasonably probable” the support order would have been more favorable,

even if we assume the trial court erred in treating the entirety of the 

improper deductions as Husband’s income. (Falcone & Fyke, at p. 822.)

Husband has not shown the trial court erred in entering the challenged 

spousal support order.8

DISPOSITION

The trial court’s order is affirmed. Costs on appeal are awarded to 

respondent Wife.

SIMONS, Acting P. J.

We concur. 

NEEDHAM, J.

BURNS, J. 

(A159773)

8 We also reject Husband’s argument that the trial court’s order “fails 

to identify any source of income from which that support is to, or even could, 

derive.” Husband has not shown the court erred in concluding Husband was 

able to pay the ordered support.