Filed 4/16/15 Marriage of Jones and Ballard CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of JAMES SCOTT JONES

and HOLLIE AMBER BALLARD.

JAMES SCOTT JONES,

 Respondent,

v.

HOLLIE AMBER BALLARD,

 Appellant.

 G050152

 (Super. Ct. No. 14D001171)

 O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Glenn R. Salter, Judge. Petition granted in part 

and denied in part.

Chavis Law Firm, L. Michelle Chavis and Stephanie Finelli for Appellant.

John R. Schilling for Respondent.
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I. INTRODUCTION

This is a dissolution case involving a short, five-year, marriage, no 

children, a separate property business, an extremely high income on the part of the 

husband, and no appreciable income on the part of the wife. It comes to us via a 

premature appeal, which we treat as a de facto writ petition. We conclude the trial judge 

did not abuse his discretion in not making the initial spousal order retroactive to the date 

of filing. But we also conclude he could not refuse to award the low-income spouse any

funds at all for a forensic accountant, given the virtual certainty the proper litigation of 

her case will require one. 

II. FACTS

James Scott Jones filed for divorce from his wife Hollie A. Ballard on 

February 6, 2014. Jones was 45 and Ballard 36, and the marriage had lasted 5 years, 4 

months. There are no children. 

On February 14, eight days after Jones’ filed his petition, Ballard filed what 

is sometimes called in family law an “initial OSC” or order to show cause proceeding. 

She asked the court to award her $21,900 in monthly spousal support pending trial. She 

also asked the court to require Jones to pay the mortgage on the family home in 

Capistrano Beach where Ballard continued to live, and make the payments on the BMW

she had kept. Finally, she sought to have the court require Jones to advance her $30,000 

for attorney fees and another $30,000 to retain a forensic accountant. 

Ballard alleged that Jones is the owner of a business, USD Products, that 

earns at least $1 million a month. She estimated Jones’ monthly income at $62,000, 

which works out to $744,000 a year, presumably before taxes. Her moving papers on the 

request for $30,000 to retain a forensic accountant said she had to retain a forensic 

accountant because she is “the out-spouse and [Jones] is self-employed.”
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The OSC took place about a month later. The hearing generated a minute 

order reflecting a court reporter was present. And while it also reflects that both Jones 

and Ballard were sworn to testify, it does not reflect that either party did testify. The 

closest the minute order comes to substantive information received by the trial court was 

a line indicating oral argument by counsel: “The Court receives [Ballard’s] proposed 

support calculations; [Jones] refutes the calculations provided.”

As to monthly spousal support, the court awarded Ballard $14,100 a month, 

required Jones to make the house mortgage and tax payments, and also make the car 

payment. The value of the in-kind house and car payments, at least according to a later 

declaration filed by Scott, is about $6,000 a month. The court ordered the support to 

begin April 1. There was no provision for any retroactivity. The court also awarded 

$20,000 in attorney fees, but payable at a rate of $2,000 a month. And it did not award 

any money at all for a forensic accountant, though the denial of Ballard’s request in that 

regard was expressly without prejudice. The minute order merely said the court was not 

convinced “the business is more than separate property.” The minute order also directed 

Jones’ counsel to prepare a formal “Findings and Order After Hearing” reflecting the trial 

court’s orders.

III. DISCUSSION

Ballard has filed an appeal from the minute order of March 17. Her appeal 

does not include a reporter’s transcript of the proceedings on that day. She presents two 

arguments: (1) the trial court abused its discretion in not making the spousal support 

payments retroactive to her February 14 filing date, and (2) the trial court abused its 

discretion in not awarding any money for the costs of a forensic accountant, even if the 

denial was without prejudice.
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Preliminarily, we deal with Jones’ argument the appeal must be dismissed 

because of the absence of a formal “Findings and Order After Hearing.” Jones is correct

to the degree that the absence of signed findings technically renders Ballard’s appeal 

premature. (See In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1072, fn. 12

[observing minute order was not appealable where court directed appellant’s counsel to 

prepare order after hearing]; see also County of Alameda v. Johnson (1994) 28 

Cal.App.4th 259, 261, fn. 1 [“When a minute order expressly directs that a written order 

be prepared, an appeal does not lie from the minute order, but only from the later 

order.”].) 

However, if circumstances warrant, this court has discretion to treat 

Ballard’s premature appeal as a de facto petition for a writ of mandate. (Morehart v. 

County of Santa Barbara (1994) 7 Cal.4th 725, 745-747.) We exercise our discretion in 

this case because we do not think Jones should receive the benefit of his counsel’s 

omission. The minute order specifically directed Jones’ counsel to prepare the formal 

findings document. Any prematurity in this appeal is thus Jones’ counsel’s fault. 

Turning to the merits, both issues of retroactivity and costs for a forensic 

accountant are tested under an abuse of discretion standard. (See In re Marriage of 

Wittgrove (2004) 120 Cal.App.4th 1317, 1327 [“We also review temporary spousal 

support orders under the abuse of discretion standard.”]; see also In re Marriage of 

Falcone & Fyke (2012) 203 Cal. App. 4th 964, 975 [in making pretrial attorney fee and 

cost order, trial court “has broad discretion” and will not be reversed “absent a showing 

that no judge could reasonably have made the order, considering all of the evidence 

viewed most favorably in support of the order”].)

To be sure, there is no reporter’s transcript. That restricts the scope of our 

review, but is not necessarily fatal to Ballard’s case on the merits. If reversible error (or 
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abuse of discretion) appears on the face of the record, we may still correct it. (See 

Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) 

On the retroactivity issue, no abuse of discretion appears on the face of the 

record. The dissolution commenced February 6, the temporary order began April 1, so 

the gap was less than two months. The minute order and Ballard’s own declaration in 

support of her OSC give rise to a reasonable inference that Ballard lived in the Capistrano 

Beach home continuously during that two-month period; it was Jones who moved out. 

The same documents similarly indicate that Ballard had possession of a BMW 

automobile over the same period. The value of those two items alone is around $6,000 a 

month, so it isn’t true that Ballard effectively had no money during the period February 6 

to April 1. The worst that can be said is that she simply didn’t have any cash coming in. 

And in this regard, there is no showing that Jones cut off any of Ballard’s credit cards or 

left her without money in a checking account. (There is, in fact, nothing in this record 

involving bank records.) There is thus no showing in this record that Ballard suffered 

any deprivations or incurred any debts for her living expenses during this relatively brief 

gap period. 

The two cases on which Ballard most relies on the retroactivity issue, In re 

Marriage of Cheriton (2001) 92 Cal.App.4th 269, and In re Marriage of Dick (1993) 15 

Cal.App.4th 144, are both inapposite. Cheriton involved an abuse of discretion by the 

trial court in not making a permanent support order that included child support

retroactive to the date of filing a motion for modification. The abuse of discretion 

stemmed from the trial court’s lack of focus on the needs of the couple’s children. (See 

Cheriton, supra, 92 Cal.App.4th at p. 300 [“So far as we can glean from the record, the 

court did not independently assess the children’s needs in acting on Iris’s request for a 

fully retroactive support modification.”].) Here there are no children, and any inequity 

can be cured in the final order. 
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Dick involved a temporary support order extended to the maximum 

conceivable extent, the date of filing of the petition. (See Dick, supra, 15 Cal.App.4th at 

pp. 165-166.) But that extreme retroactivity was justified by the unusual circumstance of 

the husband’s avoiding service of process for about two years, plus the resultant financial 

distress the wife suffered in the interim. (See id. at p. 168 [noting that the husband there 

“managed to evade service for 26 months” all the while wife was defending against 

“efforts to evict her from the family residence”].) Here, Jones is the spouse who filed the 

proceeding, and there is no indication of any financial distress on Ballard’s part.

The other issue – the denial of the request for funds to employ a forensic 

accountant – is a different matter. The basic theory of pretrial attorney fee and cost 

orders is to even out the playing litigation field between spouses of unequal incomes. 

(See In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315 [purpose is to permit 

lower-earning spouse to have a comparable ability to obtain and pay for counsel in 

litigating essential issues as the spouse with higher earnings]; see also Alan S. Jr. v. 

Superior Court (2009) 172 Cal.App.4th 238, 252 [“The idea is that both sides should 

have the opportunity to retain counsel, not just (as is usually the case) only the party with 

greater financial strength.”].) 

While Ballard’s moving papers could have been more expansive as to the 

need for a forensic accountant, the fact of the inequality of incomes between the spouses

and Jones’ operation of what appears to be a profitable business were still before the 

court. If Ballard needs a forensic accountant at all, Jones is going to have to foot the bill, 

particularly given that the attorney fee award is being parceled out at the rate of $2,000 a 

month. It seems unreasonable to expect Ballard’s counsel to restrict her work or discount 

her own fees so that Ballard can have access to a forensic accountant.

The question then becomes, did Ballard show she needed a forensic 

accountant at the March 17 hearing? The trial judge didn’t think so, because he wasn’t 

convinced USD Products is anything other than Jones’ separate property.
7

The (probable) separate status of USD Products, however, is not dispositive 

of Ballard’s need for a forensic accountant. In making his determination, the trial judge 

overlooked the possibility of a “Pereira” community property component in the value of 

what is otherwise Jones’ separate property business. (Pereira v. Pereira (1909) 156 Cal. 

1.) Under Pereira, Jones’ community efforts over the past five years may have increased 

the value of his separate business beyond a normal return on investment, hence there 

might be a community component to its value. (See In re Marriage of Koester (1999) 73 

Cal.App.4th 1032, 1034, fn. 2 [“The Pereira problem typically arises when one spouse 

owns a business before marriage and keeps working at it during the marriage. When the 

couple divorce, the family law court is faced with the task of differentiating any increase 

in the value of the business resulting from the ‘community effort’ of the spouse during 

marriage from the return on his or her separate capital.”].) But ascertaining the existence 

of any such increase in value from community efforts is going to require a forensic 

accountant.1 

Ballard has an additional need for a forensic accountant on the issue of 

Jones’ true income. That figure seems to be a moving target. Ballard’s initial 

impression, stated in her moving papers, was that the figure is $744,000 per year. In his 

response to Ballard’s papers, Jones asserted a gross income of $569,448 per year, or 

$47,454 gross monthly. That, after all, is what the couples’ tax returns for 2012 showed. 

On the other hand, his income and expense declaration only admitted to income of 

$35,749, or $428,988. 

 

1 Ballard didn’t help her case by making gratuitous references in her moving papers to Jones’ 

alleged alcoholism. Normally, an alcoholism problem on the part of an operator-spouse of a separate business 

would suggest that any growth in the value of the business was not the result of his or her efforts, but because of 

economic circumstances and previous capitalization independent of that spouse’s efforts. (Cf. Van Camp v. Van 

Camp (1921) 53 Cal.App. 17, 28 [“in the instant case, it is impossible to say what part of the enormous dividends 

paid by the Van Camp Sea Food Company should be apportioned to the skill and management thereof and what part 

should be apportioned to the investment of the capital and the favorable conditions under which the business was 

conducted”].) That said, we cannot on this record assume that Jones’ efforts necessarily did not contribute to the 

growth of his separate business.
8

On another point, we cannot now say, as a matter of law, that after 

litigation of the case there will be absolutely no support ordered at all. At least on this 

record, a step-down order is not beyond possibility. (See Hogoboom et al., Cal. Practice 

Guide: Family Law (The Rutter Group 2015) ¶ 6:1040, p. 6-376.1 [“Even where openended or ‘permanent’ support is inappropriate after a short marriage, a short period of 

postjudgment support may be warranted to assist the ‘economically disadvantaged’

spouse in making an orderly and less traumatic transition to self-supporting status.”].)

We are mindful that the trial judge denied the motion for a forensic 

accountant “without prejudice,” reserving the possibility it could be considered at a later 

date. But we don’t think that will suffice. The point of pre-trial attorney fee and cost 

orders is to insure that the lesser-income spouse has the same opportunity to present his 

or her case as does the higher-income spouse. At the very least, the trial judge’s denial of 

the forensic accountant request necessitates a needless expenditure of funds awarded for 

attorney fees to prepare another request for accounting fees, itself made problematic by 

the rationing of attorney fees to $2,000 a month. As we have discussed, Ballard has a 

genuine need for a forensic accountant, and that accountant needs to get working right 

away. 

IV. DISPOSITION

We do not dismiss Ballard’s premature appeal. Rather, we treat it as a 

petition for writ of mandate. Treating it as such, we deny the petition to the extent it 

challenges the trial court’s decision to commence the pendente lite spousal support order 

on April 1 instead of February 14. However, we grant the petition to the extent it seeks to 

vacate the trial court’s outright denial of all costs for a forensic accountant. We direct the 

trial court to vacate its denial order, and determine a reasonable amount for such costs.
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The trial court will have discretion, at the conclusion of the litigation, to

apportion the costs of this writ proceeding as it, in its reasonable discretion, deems 

appropriate.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.