1

Filed 12/29/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re the Marriage of MARTHA J. NEVAI and JOHN 

KLEMUNES.

C086584

MARTHA J. NEVAI,

Appellant,

v.

JOHN KLEMUNES,

Respondent.

(Super. Ct. No. 15FL04534)

APPEAL from a judgment of the Superior Court of Sacramento County, Peter J. 

McBrien, Court Commissioner. Reversed in part and affirmed in part.

Codekas Family Law and Matthew J. Smith for Appellant.

Dick & Wagner, Stephen James Wagner; Law Offices of Gregory R. Ellis and 

Gregory R. Ellis for Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts II through IV. 
2

In this marital dissolution proceeding, Martha J. Nevai (wife) contends the trial 

court erred in various orders of reimbursement to the community for spending related to 

wife’s separate property. She also argues the trial court erred in setting spousal support 

and in refusing to award her attorney fees. We agree that the court erred in fixing the 

permanent spousal support award and in reimbursing John Klemunes (husband) for 

mortgage interest and property taxes on wife’s vacation home. We also find the court 

erred in ordering that each side pay their own attorney fees. We reverse the relevant 

portions of the judgment and remand the matter for recalculation and further 

consideration consistent with our opinion. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Husband and wife were married in February 2003. They had one child together, 

born in 2005. Husband and wife separated in August 2015. The trial occurred in 

September 2017. 

A. Evidence regarding the Tahoe property

Before the marriage, wife owned a cabin at Lake Tahoe (hereinafter referred to as 

the “Tahoe property”). She purchased the property as an empty lot in 1998 and built a 

house on it, spending approximately $289,000. The parties stipulated that at the time of 

the marriage, the Tahoe property was worth $525,000. There was a mortgage on the 

property at the time of the marriage, and wife testified that the $1,800 mortgage, which 

included an escrowed amount for property taxes, was automatically paid each month 

from a joint bank account. 

Between 2008 and 2015, husband and wife rented out the Tahoe property for the 

ski season (December through April) and occasionally during the summer. The rental 

income for the property would be deposited into the same joint bank account used to pay 

the mortgage and property taxes. 

In May 2016, husband’s attorney sent a disclosure letter to wife’s counsel setting 

forth husband’s knowledge regarding their joint and separate assets and liabilities. He 
3

asked that wife respond regarding any omitted assets or liabilities, and to correct any 

misstated facts. The letter stated the mortgage on the Tahoe property was $299,000 at the 

date of marriage and $202,400 as of the date of separation. The letter also stated that 

husband did not believe the Tahoe property was refinanced during the marriage. 

During the September 2017 trial, wife testified that she, husband, and child would 

use the Tahoe property for recreation, typically about two times per month during the 

summer. She and child would often stay for a week, and husband would stay on the 

weekends. The family often spent the Fourth of July holiday there. Husband testified 

that between approximately 2007 and 2014, he spent only four holiday weekends at the 

Tahoe property each year, but wife and child would stay there more often during the 

summers. 

Wife further testified that the value of the Tahoe property at the time of trial was 

$475,000 to $495,000, based on the opinion of a local real estate agent. Wife testified 

that if she were to try to sell the property at the time of trial, she would list it between 

$525,000 and $550,000. Husband testified that he thought the property was worth 

$700,000, based on an appraisal by Rick Sutliffe. 

Sutliffe testified the property was worth $735,000 in August 2017. He based this 

estimate on his inspection of the property and his analysis of comparable sales. Sutliffe

testified the property was in “generally good repair,” but had some small “finish issues” 

that led him to deduct $20,000 from his appraisal. Sutliffe also explained he had three 

comparable sales, two of which were in the same subdivision as the Tahoe property. 

Sutliffe testified it was “easy to find comparable sales in the area” because the houses are 

“relative[ly] homogenous” in the subdivision, with similar lots and home styles. Sutliffe

selected the two comparable sales that were the “most representative” and made 

adjustments for differences with the Tahoe property. 

Husband testified that approximately $7,000 in improvements were made to the 

Tahoe property during the marriage, including adding a hot tub and an electrical 
4

connection, and installing new flooring. Husband explained that “We” made the 

improvements. Husband testified that the hot tub “[d]efinitely” made the property more 

marketable as a vacation rental property because “people kind of expect a vacation rental 

to have a hot tub.” 

Darren Silva testified as a forensic expert for husband and prepared a propertizer,1

which valued husband and wife’s interests in the Tahoe property pursuant to

Moore/Marsden.

2

In making his calculation, Silva relied on wife’s testimony regarding 

the purchase price of the lot and the cost to build the cabin, the stipulated value of the 

property prior to marriage, husband’s uncontested testimony regarding the approximate 

$7,000 in improvements, and Sutliffe’s testimony of the current value of the property. In 

addition, Silva used a 2003 mortgage interest statement for the Tahoe property (IRS Form 

1098, hereinafter referred to as a “1098 form”) to determine that, at the date of marriage, 

the mortgage on the Tahoe property was approximately $300,000. Silva was not 

provided with a 1098 form for 2015, so he had to estimate the mortgage value at the date 

of separation. He did so by calculating the difference between (1) the 1098 form for 

2013, which showed a mortgage balance of $210,000, and (2) a statement dated March 

31, 2017, which showed a mortgage balance of $171,000. Based on the statements, Silva 

estimated the mortgage principal was $200,000 at the date of separation. Silva testified 

the evidence indicated that the loan had not been refinanced during the marriage. 

Accordingly, Silva opined the principal portion of the mortgage was paid down by 

approximately $100,000 during the marriage, and there were $7,000 in improvements 

during the marriage. There was no evidence that any separate property was used to pay 

1 The propertizer was admitted as exhibit C. 

2

In re Marriage of Moore (1980) 28 Cal.3d 366 (Moore) and In re Marriage of 

Marsden (1982) 130 Cal.App.3d 426 (Marsden).
5

these expenses. Based on these facts, Silva calculated the community’s interest in the 

Tahoe property was approximately $180,000.3 

Silva also calculated $176,951 reimbursement to the community for mortgage 

interest and property taxes paid by the community on the Tahoe property. Silva relied on 

the testimony that the payments were made out of the joint account. He also relied on the 

1098 forms for 2003 and 2013 to identify the mortgage interest and property taxes paid 

for these two years. To calculate years 2004 through 2012, Silva recognized that the 

interest paid each year on a fixed rate mortgage decreases each year. Based on the data in 

the 1098 forms for 2003 and 2013, he estimated that the interest paid decreased by $350 

each year. Since that estimate “for the most part” reconciled the data between 2003 and 

2013, Silva used the same figure to estimate the interest paid in 2014 and 2015. 

Silva similarly calculated the property taxes paid between 2003 and 2015 by 

recognizing that property taxes generally increase each year. He again compared the 

difference between the figures in the 1098 forms for 2003 and 2013 and estimated the 

property taxes increased by $100 each year. Silva recognized that his calculations were 

“not exact numbers,” but “they’re [the] best estimates I could come up with.” Silva 

testified he was satisfied that the figures were “probably fairly accurate.” As part of his 

calculation of the amount due to the community, Silva estimated the income tax benefit 

from the deductions for the property taxes and mortgage interest. He reduced the 

reimbursement sum accordingly. In other words, the $176,951 reimbursement figure 

includes the actual interest and property taxes paid, minus the tax benefit that the 

community received. 

3 Silva calculated that $107,000 would be the reimbursement amount, and $73,000 

would be the community’s share of the appreciation in the Tahoe property, from the date 

of marriage through the “current date.” 
6

B. Spousal support

Before trial, husband and wife each submitted statements of issues and 

contentions, including permanent spousal support. Husband argued wife should receive 

no spousal support under the factors in Family Code section 43204 because she was 

trained as an engineer and remained able to work. Husband also argued wife had more 

than $2 million in assets, and she could rent out the Tahoe property. Husband further 

stated that he and wife lived paycheck to paycheck during the marriage. Husband 

submitted a trial brief that included an exhibit detailing his argument regarding the 

section 4320 factors.5 

In both her statement of issues and contentions and her trial brief, wife argued she 

was entitled to $7,000 per month in spousal support under the section 4320 factors. Wife 

argued she and husband kept a high standard of living during the marriage, and she could 

not maintain it with the current temporary spousal support. She also argued husband 

earned between $16,000 and $18,000 per month and lived with his girlfriend, who also 

earned a high income and could contribute to household expenses. Wife additionally 

argued she lived with their child and had high expenses. According to wife, the 

mortgages on her properties were high because of husband’s spending during the 

marriage. 

During trial, wife testified that at the time of marriage, she was working as an 

engineer for the federal government. She stopped working when their child was born in 

2005, and she had not worked outside the home since. As of the time of trial, wife still 

had not looked for work because she had too much to manage with the divorce and caring 

for their child. Husband worked throughout the marriage. 

4 Undesignated statutory references are to the Family Code. 

5 The record does not contain a copy of this exhibit.
7

On average, wife received approximately $10,000 in annual rental income for the 

Tahoe property. At the time of trial, wife was receiving temporary spousal support of 

$3,673 per month. According to the income and expense declaration admitted into 

evidence at trial, husband was earning $15,947 per month in salary, excluding bonuses. 

In her May 2017 income and expense declaration, wife stated her monthly expenses were 

$19,114, but, during trial, she testified her current expenses were $10,000 per month, 

excluding the Tahoe property. During trial, she again asked for $7,000 per month in 

spousal support. Although this would not allow her to live in the manner and style as 

when she was married, it would be “adequate” when combined with the child support. 

At the close of evidence, husband’s counsel argued husband was currently already 

giving wife more than half of his available pay each month. Husband’s counsel reiterated 

that wife had not yet attempted to work, and she had allowed her engineering license to 

lapse. Husband’s counsel stated, “The spousal support should certainly at the very, very 

most—and we don’t suggest you do it—split the available net income equally. And I 

think the Court has that all in mind.” Wife submitted no additional argument on the 

issue. 

C. Evidence regarding attorney fees

Prior to trial, the parties agreed that husband would pay wife $15,000 in attorney 

fees ($5,000 was already paid as of August 2017). In her August 2017 statement of 

issues and contentions, wife stated she was likely to incur an aggregate total of $80,000 

in attorney fees if the matter proceeded to trial. She asked that husband pay for half of 

that sum, or an additional $25,000. 

In his August 2017 statement of issues and contentions, husband similarly 

requested need-based fees as follows: $24,000 in attorney fees and $4,000 in forensic 

accounting. Husband also argued he was entitled to these sums as sanctions under 

section 271 for wife’s “uncooperative behavior” and failure to honor her postseparation 

disclosure obligations. He likewise asserted that wife failed to take steps to reduce the 
8

adversarial nature of the case and asked for $10,000 in sanctions pursuant to sections 271 

and 2107. 

D. The court’s decision in September 2017

With respect to the Tahoe property, the court accepted the appraised value of 

$735,000. It also adopted Silva’s propertizer, with “various offsets and modifications.” 

Specifically, the court offset $105,000 of the community reimbursement for interest and 

property taxes, so as to reduce the equalization payment to zero. 

With respect to spousal support, the court elected to “defer[ ] the issue.” The court 

stated it had a “tentative[ ]” finding and provided each party with an XSpouse printout. 

The court reasoned, “[T]his really needed more time. And it wasn’t offered. And it isn’t 

available right now for the issue of support, which I’m confident you’ll be able to reach 

some agreement regarding.” The court clarified that it would retain jurisdiction over the 

issue, and the parties could return if they were not able to resolve it on their own. After 

discussing the parties’ availability, the court ordered the current temporary support order 

to remain in effect until September 30, and then, starting October 1, the court’s tentative 

support order would take effect without prejudice, with the proviso that any new support 

order would be retroactive to October 1. 

The court ordered each side to pay its own fees. The court reasoned that, “[w]hile 

[wife] might prevail in a [section] 2030 argument, she certainly would not prevail under a 

[section] 271 argument.” 

E. Judgment of dissolution

Judgment of dissolution was entered December 29, 2017. As part of the judgment, 

the trial court ordered permanent spousal support for wife in the sum of $3,584 per 

month, commencing January 1, 2018. The judgment also stated the court’s finding that 

“the amount of spousal support set forth herein is based upon the financial circumstances 

set forth in the Dissomaster attached hereto as exhibit B and incorporated herein by 

reference.” 
9

DISCUSSION

I

Wife argues the trial court erred when it ordered reimbursement for the 

community’s payment of mortgage interest and property taxes on the Tahoe property. 

Wife argues a community that has received a pro tanto interest in separate property 

(which includes reimbursement for payment of the mortgage principal) is not also entitled 

to reimbursement for payment of property taxes on separate property. 

In reply, husband cites to In re Estate of Turner (1939) 35 Cal.App.2d 576

(Turner), Somps v. Somps (1967) 250 Cal.App.2d 328 (Somps), In re Marriage of Walter 

(1976) 57 Cal.App.3d 802 (Walter), and In re Marriage of Epstein (Epstein) (1979) 24 

Cal.3d 76, arguing these cases stand for the proposition that a community is entitled to 

reimbursement for payments used to discharge a spouse’s separate debts, including taxes 

and mortgages related to separate property. We agree with wife.

“Where community funds are used to make payments on a property purchased by 

one of the spouses before marriage, ‘the rule developed through decisions in California 

gives to the community a pro tanto community property interest in such property in the 

ratio that the payments on the purchase price with community funds bear to the payments 

made with separate funds.’ [Citations.] This rule has been commonly understood as 

excluding payments for interest and taxes.” (Moore, supra, 28 Cal.3d at pp. 371-372.)

This pro tanto interest is awarded to the community along with reimbursement for 

community funds used to reduce the mortgage principal or improve the property during 

the marriage. (See Marsden, supra, 130 Cal.App.3d at pp. 439-440.) 

In other words, the community payments are similar to an investment and create a 

present property interest. Specifically, “[i]n calculating the community’s pro tanto 

interest, the following principles apply. First, the separate property estate is credited with 

both premarital and postseparation appreciation in the value of the property. Next, the 

community’s contributions to equity are considered. Finally, the community’s interest in 
10

the property, expressed as a percentage, is multiplied by the appreciation in the property’s 

value during the marriage.” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1425.)

Given the nature of the community’s payments, courts have made clear that 

expenditures for interest and taxes must not be included when calculating the 

community’s interest in the separate property. (Moore, supra, 28 Cal.3d at p. 372; see 

also In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 973 [“tax payments do not 

come within the rule established in Moore”] (Wolfe).) Such payments neither “contribute 

to the capital investment” nor “increase the equity value of the property.” (Moore, at p. 

372.) Instead, expenditures for interest and taxes are more properly considered as 

“expenses incurred to maintain the investment.” (Ibid.) Because they are not assets or 

debts of the community, they may not be considered by the court at dissolution. (Ibid.) 

“Moreover, if these items were considered to be part of the community’s interest, fairness 

would also require that the community be charged for its use of the property.” (Id. at pp. 

372-373.) 

In Wolfe, this court considered the use of community funds during the marriage to 

pay property taxes and improvements for the husband’s separate property. (Wolfe, supra, 

91 Cal.App.4th at p. 973.) Unlike Moore, the wife in Wolfe only requested 

reimbursement for the community; she did not claim the community was entitled to a 

share of the appreciation in the separate property. (Ibid.) We concluded the husband had 

to reimburse the community for one-half of the improvement costs, but not the property 

taxes. (Ibid.) We reasoned that “tax payments do not come within the rule established in 

Moore.” (Ibid.)

The cases cited by husband do not persuade us that we must affirm the trial court’s 

reimbursement determination, which is contrary to the Moore/Marsden rule. In Somps,

the court noted that the community must be compensated for assets of the community that 

are used for the enrichment of the separate property. (Somps, supra, 250 Cal.App.2d at 

pp. 332-333.) The Somps court concluded the wife was entitled to reimbursement for 
11

community funds spent to cover taxes and incidental expenses related to one of 

husband’s separate parcels of investment property. (Id. at pp. 336, 338.) Citing Somps,

the court in Walter concluded the community was entitled to reimbursement for 

community funds the husband had misappropriated during the marriage to pay taxes and 

make mortgage payments on the husband’s separate property. (Walter, supra, 57 

Cal.App.3d at pp. 806-807 [reasoning “the community is entitled to reimbursement if 

community funds are used to discharge the husband’s separate indebtedness”].) The 

court in Turner similarly concluded a surviving wife must be reimbursed for community 

funds used to pay for property taxes on two parcels of land that her deceased husband had 

owned separately. (Turner, supra, 35 Cal.App.2d at pp. 577-578.) In Epstein, our 

Supreme Court concluded the trial court erred in failing to charge a husband’s share of 

the community property for his use of community funds to pay income tax on his 

postseparation salary. (Epstein, supra, 24 Cal.3d at p. 89.) The court reasoned that, 

under Somps and Turner, “[w]hen a husband utilizes community funds to pay taxes 

relating to his separate property income he must reimburse the community for such 

sums.” (Epstein, at p. 89.)

The communities in Somps, Walter, and Turner each were reimbursed on a dollarfor-dollar basis for the use of community funds to enrich a spouse’s separate property (or, 

in Epstein, to satisfy a spouse’s postseparation debt). Here, in contrast, not only was the 

community reimbursed on a dollar-for-dollar basis for the community funds used to 

reduce the mortgage principal and to make improvements during the marriage, it also was 

compensated for the “expenses incurred to maintain the investment” in the separate 

property via an award of the share in the appreciation of the separate property during the 

marriage. (Moore, supra, 28 Cal.3d at p. 372.) Because Somps, Walter, Turner, and 

Epstein did not present the issue of whether the community should be compensated by 

awarding both a share in appreciation and reimbursement for property taxes, mortgage

principal, and interest, we find the cases inapposite to the facts here. 
12

We further note that, unlike the Tahoe property, Somps and Turner each involved 

undeveloped properties that were not used by the community during the marriage. There 

likewise was no evidence that the community in Walter used the husband’s “separately 

owned real property” during the marriage. (Walter, supra, 57 Cal.App.3d at pp. 806-

807.) As the Moore court noted, if payments for taxes and mortgage interest were 

considered part of the community interest, then “fairness would also require that the 

community be charged for its use of the property.” (Moore, supra, 28 Cal.3d at p. 373.) 

This view of fairness supports the conclusion that a community that uses separate 

property, such as the vacation home in this case, and is not charged for its use should not 

be reimbursed for property taxes and mortgage interest paid during the marriage, since 

these amounts do not add to the equity value of the property. (Id. at p. 372 [interest and 

taxes paid on separate property should not be included in community interest calculation 

because “such expenditures do not increase the equity value of the property [and 

therefore] should not be considered in its division upon dissolution of marriage”].) 

Accordingly, we conclude the trial court erred in determining the community was 

entitled to reimbursement in the amount of $176,951 for property taxes and mortgage 

interest related to the Tahoe property. Because the court offset that sum by $105,000 in 

order to reduce the equalization payment to zero, we will remand the matter for the trial 

court to redetermine the equalization payment. 

Given our conclusions, we need not address wife’s argument that there was 

insufficient evidence to support the trial court’s determination of the amount of 

reimbursement due to the community for its payment of mortgage interest and property 

taxes on the Tahoe property. 

II

We turn now to wife’s argument that Silva’s testimony was insufficient to support 

his calculation of the community interest in the Tahoe property, pursuant to 

Moore/Marsden. Wife first argues that although Silva testified as to the numbers he used 
13

in his calculations and ultimate conclusions, he failed to explain his methodology or 

formula in arriving at these conclusions. Second, wife questions Silva’s calculation of 

$100,000 in reimbursement for community funds used to pay down the mortgage 

principal, arguing there was no independent evidence of the mortgage balance at the time 

of marriage and separation. Third, wife argues Silva failed to explain how he reached his 

estimate that the loan balance on the date of separation in 2015 was $200,000. Fourth, 

wife argues Silva erroneously relied on Sutliffe’s valuation of the Tahoe property, 

because Sutliffe never explained what methodology he used to calculate his valuation. 

Fifth, wife challenges the $7,000 for improvements to the Tahoe property, arguing there 

was no evidence (1) that the improvements were paid for with community funds or

(2) that the improvements increased the value of the property. 

Husband responds that wife invited these alleged errors by failing to provide 

necessary documents during discovery. Regardless, wife’s contentions are without merit.

Where the record does not contain express findings of fact or a statement of 

decision, we must assume the trial court made any findings of fact necessary to sustain 

the judgment if there is supporting evidence in the record. (In re Marriage of Carlsen 

(1996) 50 Cal.App.4th 212, 215.) “On review for substantial evidence, we examine the 

evidence in the light most favorable to the prevailing party and give that party the benefit 

of every reasonable inference. [Citation.] We accept all evidence favorable to the 

prevailing party as true and discard contrary evidence. [Citation.]” (In re Marriage of 

Hokanson (1998) 68 Cal.App.4th 987, 994.) We do not substitute our judgment for that 

of the trier of fact, reweigh the evidence, or reevaluate the credibility of witnesses. 

(Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292.)

Despite wife’s contentions, Silva made clear during the bench trial that he was 

relying on Moore/Marsden in making his calculations. We assume the trial court was 

aware of and understood the well-established Moore/Marsden mathematical formula. 

(Evid. Code, § 664; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308 [it is 
14

presumed that the trial court knows and applies the correct statutory and case law].) Silva 

detailed the inputs he used in reaching his conclusions, and it was reasonable for the trial 

court to have found Silva’s conclusions to be credible. 

We also reject wife’s claims that the evidence was insufficient to support 

(1) Silva’s calculation of the mortgage balance at the time of separation and (2) his 

related calculation of the total amount of mortgage principal paid by the community 

during the marriage. Although Silva was not given documentation regarding the exact 

balances, he was able to determine from the 1098 form for 2003 that the mortgage 

balance at the time of marriage was approximately $300,000. Silva similarly used the

1098 form for 2013 (which he testified showed a balance of $210,000) and a statement 

from 2017 (which he testified showed a balance of $171,000) to estimate the mortgage 

balance at the time of separation in 2015 was $200,000. Silva’s estimates of the balances 

are bolstered by the fact that the mortgage was not refinanced during the marriage. In 

addition, Silva used the data in the 1098 forms to extrapolate the interest paid during each 

year of the marriage; Silva’s calculations reconciled from 2003 to 2013 and were “fairly 

accurate.” Although the underlying documents from 2003, 2013, and 2017 were not 

admitted, wife did not object to Silva’s detailed trial testimony describing the key facts 

from these documents. The evidence was sufficient to support Silva’s conclusions, and 

we decline wife’s invitation to reweigh Silva’s credibility.

We similarly reject wife’s contentions regarding Sutliffe’s appraisal. Similar to 

Silva’s calculation of the Moore/Marsden calculation, Sutliffe may not have testified as 

to each step in his appraisal methodology. But, as the Supreme Court has explained, 

“[p]roperty valuation, though admittedly complex, is at bottom just ‘an issue of fact about 

possible market prices.’ ” (CSX Transportation, Inc. v. Georgia State Board of 

Equalization (2007) 552 U.S. 9, 19 [169 L.Ed.2d 418, 429].) Sutliffe here provided 

evidence regarding the factors he considered in estimating the value of the Tahoe 

property, including the “finish work” that was needed, leading him to deduct $20,000. 
15

Sutliffe also performed an analysis of comparable sales, which he described as “easy to 

find” because the Tahoe property was in a subdivision where the home styles were 

similar and on the same kind of lots. On this record, it was reasonable for the trial court 

to accept Silva’s reliance on Sutliffe’s appraisal.

Finally, we turn to the issue of the $7,000 in improvements to the Tahoe property, 

which Silva testified he calculated based on husband’s testimony during the trial. Given 

wife’s testimony that the mortgage and other expenses for the Tahoe property were paid 

from the joint account, it would have been reasonable for the trial court to infer the 

improvement expenses also were paid from community funds, especially given the lack 

of evidence to the contrary, and since husband testified that “We” did the improvements. 

It also was reasonable for the trial court to infer that the improvements increased the 

value of the Tahoe property, since husband testified the hot tub made the property more 

marketable as a vacation rental property. In sum, we reject wife’s challenges to Silva’s 

testimony and the trial court’s adoption of his Moore/Marsden calculations related to the 

Tahoe property.

III

We next address wife’s contention the trial court erroneously used a computerbased temporary spousal support formula calculation in awarding permanent spousal 

support. Spousal support can be temporary or permanent. Temporary spousal support is 

awarded while the dissolution proceeding is pending, and it is authorized by section 

3600. Temporary spousal support orders are intended to maintain the spouses’ standard 

of living pending trial and final division of their assets and obligations. (In re Marriage 

of Burlini (1983) 143 Cal.App.3d 65, 68.)

A court must decide whether to order permanent spousal support based on the 

factors listed in section 4320, including the needs of the parties, their respective abilities 

to meet those needs, the length of the marriage, the age and health of the parties, and the 

“goal” that the supported spouse should become self-supporting within a reasonable 
16

period of time. (§ 4320.) As courts have noted, “permanent support orders will usually 

be lower than temporary orders.” (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 

525 (Schulze).) The trial court has broad discretion in ordering permanent support. (In re 

Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.) 

Nothing in section 4320 requires the trial court to state on the record its weighing 

process as to each individual factor. Given that neither party here requested a statement 

of decision, we ordinarily would presume that the court followed the law by considering 

all of the statutory factors in the absence of an affirmative showing to the contrary. (See 

In re Marriage Hebbring (1989) 207 Cal.App.3d 1260, 1273-1274.) Husband argues we 

should do so here, given that the trial court heard testimony regarding the section 4320 

factors, including wife’s ability to work, the marital standard of living, the parties’ 

obligations and assets, and the parties’ postseparation incomes. Husband further notes 

that the trial court was aware that husband was paying more than half of his take-home 

pay to wife in support. In this case, however, we decline to apply the presumption that 

the court considered and applied the statutory factors in reaching its conclusion. 

A trial court may not rely on a computer-generated figure used as a guideline to 

calculate permanent spousal support. (In re Marriage of Zywiciel (2000) 83 Cal.App.4th 

1078, 1079; Schulze, supra, 60 Cal.App.4th at pp. 525-528.) For example, in Schulze, the 

court calculated permanent spousal support via a computer program designed to calculate 

temporary spousal support. (Schulze, at pp. 524-525.) On appeal, the wife noted the 

judgment mentioned several of the section 4320 factors. (Id. at p. 526.) Accordingly, she 

argued, the trial court must have actually based its order on the statutory factors relevant 

to permanent support, even though the ordered sum was virtually the same as that 

calculated by the computer program. (Ibid.) The appellate court disagreed, reasoning 

that “[s]ection 4320 requires an independent evaluation of all of a variety of specifically 

enumerated factors. If the trial judge begins with the proposed temporary figure and then 

makes adjustments (or merely uses some of the section 4320 factors to justify a figure 
17

based on the temporary order), the ultimate order is not really the product of a truly 

independent exercise of judicial discretion.” (Schulze, at pp. 526-527.)

As in Schulze, the court here appears to have relied upon the computer report as a 

benchmark to calculate spousal support. Despite the parties’ pretrial briefs citing section 

4320 and the testimony relevant to spousal support, the court stated it was deferring the 

issue of spousal support because the issue “really needed more time.” The court then 

offered its tentative ruling via a copy of an XSpouse printout. Nothing in the record 

indicates the trial court took further steps to consider the section 4320 factors. Indeed, 

the final award of $3,584, which the court said was “based upon” the financial 

circumstances as detailed in the DissoMaster, is only $89 less than the temporary support 

award of $3,673. In sum, the record does not support the conclusion that the trial court 

exercised its discretion in making the award of spousal support. We therefore will 

reverse the award and remand to the trial court with directions to reconsider the issue, and 

to make the required factual findings under section 4320.

IV

Finally, we address wife’s argument that the trial court abused its discretion in 

refusing to award her need-based attorney fees. 

The trial court has “ ‘considerable latitude’ ” in deciding whether to award 

attorney fees under section 2030. (In re Marriage of Sharples (2014) 223 Cal.App.4th 

160, 165 (Sharples).) Still, “the court’s ‘decision must reflect an exercise of discretion 

and a consideration of the appropriate factors as set forth in code sections 2030 and 

2032,’ ” as well as section 4320 (as incorporated by § 2032, subd. (b)). (Sharples, supra, 

at p. 165; see also In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111-112; In re 

Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975 [it must be reflected in the 

record that the trial court exercised its discretion and considered the statutory factors].) 

When ruling on a request, a court must make three specific findings: “[1] whether 

an award of attorney’s fees and costs . . . is appropriate, [2] whether there is a disparity in 
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access to funds to retain counsel, and [3] whether one party is able to pay for legal 

representation of both parties.” (§ 2030, subd. (a)(2); see In re Marriage of Morton

(2018) 27 Cal.App.5th 1025, 1050.) The findings “must be explicit”; they may not be 

implicit. (Morton, supra, at p. 1050.) A reviewing court will find abuse of discretion 

when a trial court fails to exercise discretion. (Sharples, supra, 223 Cal.App.4th at p. 

165.)

Wife argues the record does not reflect that the trial court considered the necessary 

factors in ordering each side to bear its own attorney fees.6 Husband acknowledges the 

trial court failed to provide any formal rationale for its ruling, but notes that the court had 

“ample evidence” of the parties’ finances, assets, debt obligations, access to funds, and 

wife’s behavior with respect to discovery and trial. And, similar to his argument about 

spousal support, husband points to the absence of a statement of decision and argues we 

must presume the court followed the law and made all findings necessary to support the 

judgment. (See In re Marriage Hebbring, supra, 207 Cal.App.3d at pp. 1273-1274.) 

Given the record, we decline to rely upon such a presumption.

Instead of analyzing the statutory factors, the court here merely mused that wife 

“might prevail in a [section] 2030 argument,” but she “certainly would not prevail under 

a [section] 271 argument.” (Italics added.) This equivocal statement fails to make 

explicit whether the court granted or denied wife’s request for need-based fees, let alone 

whether and how it weighed the three required findings regarding reasonableness, 

disparity in access to funds, and husband’s ability to pay for legal representation for both 

parties. Moreover, as previously discussed, the record makes clear that the trial court did 

6 Wife also argues for the first time in her reply brief that the issue of sanctions was 

not properly before the trial court because husband failed to file the required motion. 

This argument is forfeited. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 

Cal.App.4th 401, 427-428 [arguments raised for the first time in the appellant’s reply 

brief are forfeited].)
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not properly consider the section 4320 factors with respect to spousal support. More was 

required, and we will reverse this portion of the judgment and remand the matter for 

further consideration. 

DISPOSITION

The judgment is reversed with respect to (1) the award of reimbursement for 

mortgage interest and property taxes for the Tahoe property and corresponding 

calculation of the equalization payment and (2) the permanent spousal support award. 

The matter is remanded for the purpose of recalculating those awards and calculations, 

consistent with this opinion. We also reverse the order that each side pay its own 

attorney fees and remand the matter for further proceedings consistent with this opinion. 

In all other respect, we affirm the judgment. Wife is awarded her costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(3), (5).)

 KRAUSE , J.

We concur:

 MURRAY , Acting P. J.

 RENNER , J.