Filed 11/18/21 Marriage of McNeil CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re Marriage of MICHELLE 

VITTONE-MCNEIL and KEVIN 

MCNEIL.

 B306063

 (Los Angeles County

 Super. Ct. No. 17VEFL00566)

MICHELLE VITTONEMCNEIL,

Respondent,

v.

KEVIN MCNEIL,

Appellant.

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael R. Amerian, Judge. Affirmed.

Pamela Rae Tripp for Appellant.

Alpert Law Group, Jeffrey Alpert and Dean Asher for 

Respondent.
2

In this marital dissolution action, appellant Kevin McNeil 

(Kevin)1 appeals from the trial court’s order denying his request 

to modify spousal support and denying his request for 

reimbursement for postseparation mortgage payments he made 

on a community property residence. We affirm the trial court’s 

order.

BACKGROUND

Petition for dissolution and domestic violence restraining 

order

Respondent Michelle Vittone-McNeil (Michelle) filed a 

petition for dissolution of marriage on August 17, 2017. An 

incident of domestic violence between the parties on September 6, 

2017 resulted in the issuance of a temporary restraining order 

against Kevin the following day. On January 30, 2018, the trial 

court (the Honorable Shirley K. Watkins) granted Michelle’s 

request for a domestic violence restraining order (DVRO) against 

Kevin for a period of one year and accorded Michelle exclusive 

use of the couple’s home.2 The court ordered both parties to pay 

one-half of the mortgage, noting that it was taking into 

consideration Michelle’s ability to pay: “[R]ight now she does not 

have demonstrated income to pay the entire mortgage payment 

and to provide for her own support.” Michelle was not working at 

the time, although she had historically earned more than Kevin 

during the marriage. The trial court further noted that the 

1 Because the parties share the same surname, we refer to 

them by their first names to avoid confusion.

2 The DVRO was subsequently extended for an additional 

five years.
3

payment order was “subject to reallocation, Watts[3] credits, all 

these things.”

Marital settlement agreement and judgment

In May 2018, the parties entered into a stipulation and 

marital settlement agreement (MSA) that required Kevin to pay 

spousal support to Michelle in the initial amount of $2,000 per 

month for 24 months following the sale of the community 

residence and in decreasing amounts thereafter for a period of up 

to five years. The MSA also incorporated Kevin’s obligation to 

pay one-half of the mortgage: “Pending the commencement of 

spousal support as set forth herein [Kevin] shall continue to pay 

1/2 of the Wooden mortgage in the approximate sum of $1828 

[per] month.” The MSA was entered as a judgment on 

October 26, 2018, by the Honorable Michael Amerian, to whom

the matter had been reassigned.

On June 8, 2019, Kevin filed a request for an order seeking 

credits, pursuant to In re Marriage of Epstein (1979) 24 Cal.3d 76 

(Epstein), superseded by statute on other grounds as stated in In 

re Marriage of Walrath (1998) 17 Cal.4th 907, 914, for mortgage 

payments made from his separate property since October 1, 2017,

and pursuant to Watts, supra, 171 Cal.App.3d 366 that Michelle 

3 The community may assert a claim for reimbursement for 

the value of one spouse’s exclusive use of community property 

between the date of separation and the date on which the 

community no longer has an interest in the property. Such 

claims are commonly referred to as Watts charges or credits, after 

In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts), in 

which the court held that reimbursement to the community may 

be ordered for a spouse’s postseparation exclusive use of a 

community asset.
4

be charged with the fair rental value of the residence since 

October 1, 2017. The trial court issued an order on 

September 19, 2019, denying without prejudice Kevin’s request 

for Watts charges and requiring the parties to meet and confer on 

the issue of Epstein credits. The order stated that “[i]f the parties 

cannot agree on the issue of credits amount either party may file 

a motion to determine credits.”

The parties were unable to agree on Epstein credits, and 

Kevin filed a request for an order determining credits. At the 

December 17, 2019 hearing on Kevin’s request, the parties 

informed the trial court that the couple’s residence had been sold 

and that the sale proceeds were being held in escrow. The trial 

court denied Kevin’s request for Watts charges and for Epstein 

credits after October 26, 2018—the date judgment had been 

entered—finding that the MSA contemplated that Kevin’s 

mortgage payments would be in lieu of spousal support. In its 

December 17, 2019 minute order, the trial court reasoned as 

follows:

“The fact that [Kevin’s] half of the mortgage payments until 

the property sold was $1,818.63/month and the MSA provides 

that [Kevin] will pay $2,000 in spousal support upon the close of 

escrow reasonably supports this conclusion. Moreover, the only 

reason [Michelle] was left with sole possession of the residence is 

because of [Kevin’s] conduct which led to the issuance of the 

Domestic Violence Restraining Order. That fact reinforces the 

Court’s belief that the overall equities of this case are best served 

by denying [Kevin’s] request for Watt’s charges to [Michelle].”

On December 19, 2019, Kevin filed a request for an order 

terminating spousal support based on Michelle’s earnings, 

earnings ability, and income and expense declaration. Kevin’s 
5

declaration in support of the request stated that on October 24, 

2019, Michelle had received more than $400,000 in proceeds from 

the sale of the community residence, that throughout the 

marriage she had earned more than he, and that her income and 

expense declaration for the first nine months of 2019 showed that 

she had out-earned Kevin during that period.

On January 29, 2020, the trial court denied the request to 

modify spousal support, finding that Kevin failed to meet his 

burden of proving a change of circumstances. The court denied 

the request without prejudice, noting that the MSA required the 

parties to exchange updated income and expense declarations 

every six months. The court interpreted the agreement to allow 

the parties to request reconsideration of spousal support every 

six months.

The trial court denied Kevin’s request for Watts charges or 

Esptein credits from the date of the DVRO to the date of 

judgment, reiterating the reasons articulated in its December 17, 

2019 order denying Kevin credits for mortgage payments made 

after entry of the judgment:

“The Court looks to the procedural history and the 

terms of the parties’ MSA as evidence that [Kevin’s] 

payment of half of the mortgage was in lieu of 

spousal support between the time he was ordered to 

vacate the community residence on September 7, 

2017, pursuant to the Temporary Domestic Violence 

Restraining Order (‘DRVO’) and the entry of 

judgment in October 2018. First, the procedural 

history shows that [Michelle] never sought temporary 

spousal support. Second, the fact that [Kevin’s] half 

of the mortgage payments until the property sold was 

$1,818.63/month and the MSA provides that [Kevin] 

will pay $2,000 in spousal support upon the close of 

escrow reasonably supports the conclusion that the 
6

court should consider the payments in lieu of spousal 

support. Moreover, the only reason [Michelle] was 

left with sole possession of the residence is because of 

[Kevin’s] conduct which led to issuance of the 

Domestic Violence Restraining Order. That fact 

reinforces the Court’s belief that the overall equities 

of this case are best served by denying [Kevin’s] 

request for charges for this time period just as it 

arrived at the same conclusion for the same reasons

for the period after Judgment was entered.”

Kevin filed this appeal challenging the trial court’s 

January 29, 2020 order denying his request for Epstein credits 

and his request to modify spousal support.4

DISCUSSION

I. Epstein credits

A. Applicable law and standard of review

Family Code section 2626 gives a court “jurisdiction to 

order reimbursement in cases it deems appropriate for debts paid 

after separation but before trial.” A court has broad discretion to 

order reimbursement to a spouse who uses separate property 

funds to make postseparation payments on a preexisting 

community obligation. (Epstein, supra, 24 Cal.3d at pp. 83-84.) 

Such reimbursements are commonly referred to as Epstein 

credits.

The court in Epstein set forth equitable guidelines for 

determining when reimbursement is and is not appropriate. The 

court stated, for example: “‘[R]eimbursement should not be 

ordered where the payment on account of a preexisting 

4 Kevin does not challenge the denial of his request for Watts 

charges.
7

community obligation constituted in reality a discharge of the 

paying spouse’s duty to support the other spouse . . . . Following 

separation, the preferred source for payment of support is the 

separate property of the supporting spouse that would have been 

community property if the spouses were not separated. . . . 

Payment of a debt, of course, may constitute payment of spousal 

or child support. . . . When in fact it does, reimbursement is 

inappropriate.’” (Epstein, supra, 24 Cal.3d at p. 85, citations 

omitted, quoting In re Marriage of Smith (1978) 79 Cal.App.3d 

725, 747-748.)

We review the trial court’s rulings on Epstein credits for 

abuse of discretion. (In re Marriage of Oliverez (2019) 33 

Cal.App.5th 298, 318-319.) In doing so, we do not replace the 

trial court’s exercise of discretion with our own. We must uphold 

the trial court’s decision if any substantial evidence supports it, 

without considering whether there also exists substantial 

evidence to support a contrary decision. (Id. at p. 319.)

B. Forfeiture re: postjudgment credits

As a preliminary matter, Kevin has forfeited any challenge 

to the trial court’s December 17, 2019 order denying him Epstein 

credits for the period following entry of judgment on the MSA 

because he did not appeal from that order. Kevin does not 

dispute that fact; however, he contends the trial court “clearly 

revisited the issue” of postjudgment credits in its January 29, 

2020 order. (Boldface and capitalization omitted.) The record 

does not support that contention. The January 29, 2020 order 

simply states that the trial court’s reasons for denying Kevin 

credits for the period between issuance of the DVRO and entry of 

judgment were the same reasons for denying him postjudgment 

credits: “[T]he overall equities of this case are best served by 
8

denying [Kevin’s] request for charges for this time period just as 

it arrived at the same conclusion for the same reasons for the 

period after Judgment was entered.”

C. No abuse of discretion re: prejudgment credits

The trial court found that Kevin’s postseparation mortgage 

payments made before entry of judgment were in lieu of spousal 

support. Substantial evidence supports that finding. At the 

January 30, 2018 hearing at which Judge Watkins ordered both 

parties to pay one-half of the monthly mortgage payments, 

Michelle presented an income and expense declaration stating 

that she earned no more than $3,500 a month. When Kevin 

argued that requiring him to pay one-half of the mortgage in 

addition to his own rent was inequitable, Judge Watkins 

responded: “But I’m also taking into consideration ability to pay 

and right now she does not have demonstrated income to pay the 

entire mortgage payment and to provide for her own support.”

“Courts have recognized that the existence of a need for 

support is a prime consideration in determining whether a given 

payment is, in reality, in discharge of an obligation of support. 

[Citations.] A second key consideration is whether the payment 

was in addition to reasonable support already being provided by 

the paying spouse, either pursuant to or in the absence of a court 

order.” (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 893 

(Garcia).) The evidence here shows that Michelle needed support 

but did not seek temporary spousal support pending sale of the 

community residence. Because Kevin was not providing such 

support, “the inference is compelling that the mortgage payments 

were intended as a form of support.” (Ibid.)

The record does not support Kevin’s contention that Judge 

Watkins ordered him to pay one-half of the mortgage solely to 
9

preserve the community asset, and not in lieu of spousal support. 

At the January 30, 2018 hearing, in response to a question by 

Kevin’s counsel, Judge Watkins reiterated her reasons for 

ordering Kevin to pay one-half of the monthly mortgage 

payments:

“THE COURT: There were three reasons actually; to 

preserve the asset, current disparity in income, and 

because she has a right to possession of the property 

as a protected person.

“[KEVIN’S COUNSEL]: I understand that.

“THE COURT: So she has to have the ability to live 

there and that, and if I think she doesn’t have the 

ability to pay, then that defeats the purpose of her 

living there.

“[KEVIN’S COUNSEL]: Right. I understand that.”

Substantial evidence also supports the trial court’s finding 

that the MSA contemplated that Kevin’s postseparation 

mortgage payments were in lieu of temporary spousal support. 

Kevin’s monthly mortgage payments of $1,818.63 per month from 

the date of separation until the sale of the residence roughly 

equal his initial $2,000 monthly spousal support obligation. 

Cessation of Kevin’s obligation to pay one-half of the mortgage 

and commencement of his obligation to pay spousal support are 

both tied to the same event—sale of the community residence.

The record does not support Kevin’s contention that the 

trial court “did a complete reversal” of its prior findings and 

orders purportedly according him Epstein credits for 

postseparation mortgage payments. Neither Judge Watkins nor 

Judge Amerian stated that Kevin would be issued credits for the 

mortgage payments. Rather, the record shows that when Judge 

Watkins ordered Kevin to pay one-half of the mortgage, she
10

stated that the payments would be “subject to reallocation” and 

credits. Judge Amerian understood that statement to mean 

“flagging the issue” of credits, “rather than making a formal 

finding.”

Judge Amerian indicated at the August 21, 2019 hearing 

that he thought Epstein credits generally were appropriate under 

the terms of the parties’ MSA but stated that he lacked the 

information necessary to order such credits:

“Unfortunately, I don’t have enough information to 

make specific orders because neither side has given 

me a full and complete accounting of what each of 

them has contributed to the house in the meantime, 

while this has been pending. [¶] So what I would 

like to do is set it over for 30 days and give everyone 

a chance to provide me with declarations that set 

forth a complete accounting of what they have 

contributed. That way the court at the next 

appearance can make specific orders than can be 

incorporated into escrow instructions, and each side 

can be made whole for what they’ve been contributing

up until now and up through the close of escrow.”

The written order issued after the August 21, 2019 hearing 

required the parties to meet and confer on the issue of Epstein 

credits: “As to [Kevin’s] request for credits, credits will be 

retroactive to the date of separation. . . . The parties are to meet 

and confer on the issue of credits. If the parties cannot agree on 

the issue of credits amount either party may file a motion to 

determine credits.” Judge Amerian subsequently made clear that 

any determination of Epstein credits would not include mortgage 

payments. He rejected an argument by Kevin’s counsel to the 

contrary: “Well, when I made that ruling, I didn’t contemplate 

that the mortgage payments would be included in that. I 
11

contemplated things like whatever miscellaneous expenses were 

incurred over the course of the last two years or so while the 

property and the parties’ relationship, at least as it related to the 

property, was still in flux.”

The record does not support Kevin’s assertion that he was 

accorded Epstein credits for his postseparation mortgage 

payments. The trial court did not abuse its discretion by denying 

Kevin’s request for such credits.

II. Modification of spousal support

A. Applicable law and standard of review

To modify an order for spousal support, a trial court must 

first find “‘“a material change of circumstances since the last 

order.”’” (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 

956 (Minkin).) A court may not find a change of circumstances in 

reconsideration of a circumstance that has not changed since the 

previous order. (In re Marriage of Farrell (1985) 171 Cal.App.3d 

695, 703 (Farrell).)

When support is governed by an MSA, the trial court’s 

changed-circumstances determination must “‘“give effect to the 

intent and reasonable expectations of the parties as expressed in 

the agreement.”’” (Minkin, supra, 11 Cal.App.5th at p. 957.) A 

trial court’s discretion to modify a spousal support order is also 

constrained by the terms of the parties’ MSA. (In re Marriage of 

Dietz (2009) 176 Cal.App.4th 387, 398.) MSA’s are interpreted 

under the same rules governing contract interpretation generally. 

(In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012.) 

“‘“The fundamental goal of contractual interpretation is to give 

effect to the mutual intention of the parties. [Citation.] If 

contractual language is clear and explicit, it governs.”’” (Id. at

p. 1013.)
12

We review the order denying Kevin’s request to modify 

spousal support for abuse of discretion. (In re Marriage of 

Schmir (2005) 134 Cal.App.4th 43, 47.)

B. No abuse of discretion

The record discloses no abuse of discretion. Sale of the 

community residence yielded proceeds equal to Michelle’s onehalf interest in a community asset and was not a material change 

in circumstance warranting reduction of spousal support. (In re 

Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1081.)

The trial court did not err by rejecting Kevin’s claim that 

Michelle’s return to work in 2019 was a material change in 

circumstance. Kevin knew when he signed the MSA that 

Michelle had out-earned him throughout the marriage. Kevin 

also knew that Michelle was not working at the time the parties 

entered into the MSA, yet the MSA contains no provision for 

reduction in support payments upon her return to work. 

Substantial evidence supports the trial court’s finding that 

Michelle’s greater earning capacity was known and contemplated 

by both parties at the time of the MSA. (Farrell, supra, 171 

Cal.App.3d at p. 703.)

The trial court similarly did not err by finding Kevin’s 

request to modify spousal support to be premature. Under the 

terms of the parties’ MSA, Kevin’s obligation to pay spousal 

support commenced upon the sale of the community residence. 

Kevin’s request to modify support was filed shortly thereafter, 

only two or three months after his support obligation commenced. 

In denying Kevin’s request, the trial court also weighed and 

considered the relatively short duration of Kevin’s support 

obligation in relation to the couple’s 21-year marriage.
13

The trial court did not abuse its discretion by denying the 

request to modify spousal support.

DISPOSITION

The trial court’s January 29, 2020 order denying Kevin’s 

request to modify spousal support and denying his request for 

Epstein credits for postseparation mortgage payments is 

affirmed. Michelle shall recover her costs on appeal.

______________________________

CHAVEZ, J.

We concur:

______________________________

ASHMANN-GERST, Acting P. J.

______________________________

HOFFSTADT, J.