Filed 8/8/13 Marriage of Plunkett CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re the Marriage of CHRISTA and CHAD PLUNKETT. CHRISTA PLUNKETT, Respondent,

v. CHAD PLUNKETT, Appellant. D062540
(Super. Ct. No. ED74842 )

APPEAL from a judgment of the Superi or Court of San Diego County, William C. Gentry, Judge. Affirmed.

Patrick L. McCrary for Appellant. John J. McCabe, Jr., for Respondent.2 This dissolution action between Christa Plunkett and Chad Plunkett went to a
court trial wherein Christa 1 asserted that Chad secretly withdrew over $231,000 in community funds just before th eir separation. Following the court trial, of relevance to this appeal, the court, in its statement of decision, (1) ordered Chad to pay $50,000 in attorney fees to Christa; (2 ) charged Chad with a prelimin ary distribution of community funds in the sum of $181,951 that he se cretly removed from various accounts; (3) reserved jurisdiction over child and spousal su pport; and (4) ordered division of Christa's IRA account pursuant to In re Marriage of Brown (1976) 15 Cal.3d 838 ( Brown ). Thereafter, when the court entered judgm ent, it set child support at $0. On appeal, Chad asserts that the court (1) failed to make appropriate findings in its award to Christa of attorney fees based upon her need and his ability to pay; (2) erred in not granting attorney fees to him based upon his need and ability to pay; (3) erred in charging him with a preliminary distribution of community funds; (4) erred in not giving him credit for living expenses he paid from t hose funds; (5) erroneously failed to make findings and orders concerning child and spousal support; and (6) erred in ordering Christa's IRA account divided under the Brown rule. We affirm.

1 As is the custom in family law proceeding s, and in the interest of clarity, we refer to the parties by their first names. ( In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 390, fn. 1.) We in tend no disrespect.3 FACTUAL AND PROCEDUR AL BACKGROUND A. Marriage and Dissolution The parties were married in 1992 and sepa rated in July 2009. Chad and Christa had two children of the marriage. Christa's mother died in February 2008 , and Christa inherited the house where the family had resided with her mo ther prior to her death. Chad and Christa owned an unimproved lot on Sage Road in El Cajon (Sage Road property), a home on La Cresta Boulevard in El Cajon (La Cresta property) and a home on Scottford Drive in El Ca jon (Scottford property). The value of the Sage ro ad property was $115,000, with no encumbrances. The La Cresta property had a value of $430,000, with total encumbrances of $322,654. The Scottford property had a value of $360,000, with total encumbrances of $437,375. During the marriage Christa worked as a hair stylist and Chad's work primarily involved maintaining, improving and managing the real property owned by the parties. Chad and Christa had several equity lines of credit prior to separation, secured by their real property. In the months precedin g separation, Chad drew $231,399 from those lines of credit. A substantial portion of thes e funds were deposited in a bank account in the name of Chad's father. Several postsep aration expenses tota ling $20,110 were made from that fund. The parties had three vehicles: a 1999 Dodge Durango valued at $2,000, a 2009 Toyota Corolla purchased by Chad postsepa ration with community funds, and a 2004 Ford F-150 with a value of $2,400.4 B. Trial and Court's Decision This matter was tried over five days in April, June, August and September 2001. The issues outstanding at the time of trial were (1) the four parcels of real property and their associated debt; (2) co mmunity funds withdrawn from the lines of credit; (3) the disposition of funds from the sale of the Dodg e Durango; (4) division of Christa's IRA; (5) which party would manage the children's bank accounts; (6) allocation of community credit card debts; (7) disposition of the 2009 T oyota Corolla and the 2 004 Ford F-150; (8) child support; (9) spousal support; (10) damages, if any, due to Christa for Chad's breach of fiduciary duty; and (11) atto rney fees and costs. In her trial brief Christa alleged Chad was responsible for secretly withdrawing $231,399 from the equity lines of credit shortly before the parties' separation. Christa testified she was not aware Chad had with drawn the funds until a year following the parties' separation. Christa further testified she did not agree to the withdrawals. Chad admitted at trial that he did not disclose ev idence of the withdraw als in bank documents contained in his discovery responses produced three months after the inception of this proceeding. Christa asserted she had no knowledge of Chad's control of these funds until he prepared and served his preliminary declar ation of disclosure on e year later, in July 2009. Chad testified he provided an accounti ng of the funds at the mandatory settlement conference. However, Christa testified she never saw such an accounting until several days before the trial.5 Following trial, the court issued a statem ent of decision. Of relevance to this appeal, with regard to Chad's withdrawals from the lines of credit the court found that $181,951 be characterized as a predistribution of community property assets. In doing so, the court stated as follows: "The Court is suspicious of the motivations surrounding such large draws upon virtually every line of credit the co uple had in place without consultation with Christa in such a short period of time. While the parties had used equity lines of credit in the pa st, the fact that the funds were deposited into an account to which Christa did not have access is distur bing." The court ordered Christa's IRA account "divided pursuant to the holding of In Re Marriage of Brown ." The court found that Christa earned approximately $2,600 per m onth from her job as a hair stylist. The court did not state the amount that Chad coul d earn, but found that Chad had "the ability to undertake general labor and service indu stry jobs, recognizing he may have some physical limitations." The court reserved jurisdiction over child and spousal support. The court awarded Christa $50,000 in attorney fe es and costs, but did not indicate whether it was based upon the parties' needs and ability to pay or as a sanction based upon Chad's conduct. Neither party filed an y objections to the statement of decision. Thereafter, when the court entered judgm ent, it set child support at $0. DISCUSSION I. AWARD OF ATTORNEY FEES Chad first asserts the court erred in awar ding Christa attorney fees in the amount of $50,000 without first making adequate findings on Christa' s need and Chad's ability to6 pay. Chad further assert s that the court erred in not awarding fees to him based upon his need and Christa's ability to pay. These contentions are unavailing. With respect to an award of need -based attorney fees, Family Code 2 section 2030, subdivision (a)(2) provides: "When a request for attorney's fees a nd costs is made, the court shall make findings on wh ether an award of attorney's fees and costs under this section is appropriate, whether there is a disp arity in access to funds to retain counsel, and whether one party is able to pay for le gal representation of bo th parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." Section 2032 further provides: "(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonabl e under the relative circumstances of the respective parties. [¶] (b) In determining wh at is just and reasonable under the relative circumstances, the court shall take into cons ideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consid eration, to the extent relevant, the circumstances of the respective parties describe d in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and cost s requested. Financial resources are only one

2 All further undesignated statutory references are to the Family Code.7 factor for the court to consider in determ ining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." Further, section 271 provides for an awar d of attorney fees as a sanction for unreasonable conduct: "Notwith standing any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates th e policy of the law to promote settlement of litigation and, where possible, to reduce the co st of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's f ees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all eviden ce concerning the par ties' incomes, assets, and liabilities. The court shall not impose a sa nction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstr ate any financial need for the award." The statement of decision does not state wh ether the attorney fee award to Christa in the amount of $50,000 was based upon he r need or as a sanction based upon Chad's conduct. However, the record reflects that the court had an adequate basis to either award fees to Christa based upon need, or as a sanction against Chad. As to need-based fees, the court found that Christa made $2,600 a month as a hairstylist and that Chad had the ability to earn money consiste nt with "general labor and se rvice industry jobs." The court further attributed $181,951 in w ithdrawn funds to Chad as a preliminary distribution of community assets, furt her evidencing an ability to pay.8 Moreover, there was ample evidence from which the court could base an award of attorney fees under section 271, which does not necessitate a show ing of need by the requesting party. The trial in this matter centered in large part on Chad's withdrawal of over $231,000 from the couple's equity lines of credit without notice to, or permission from, Christa. In its statem ent of decision, the court fou nd these actions "suspicious" and "disturbing." These findings amply support the court's imposition of attorney fees under section 271 and a denial of fees to Chad. II. CHARGE OF $181,951 AGAINST CHAD Chad next asserts that the court erred in charging him with $181,951 to be characterized as a predistribution of comm unity property assets. We reject this contention. As the Court of Appeal stated in In re Marriage of Prentis-Margulis &Margulis (2011) 198 Cal.App. 4th 1252, 1269 ( Margulis ): "Family Code pr ovisions detailing the fiduciary obligations between spouses provide strong support for shifting the burden of proof to the managing spouse when determ ining the value and disposition of missing assets. The starting point is section 721, which provides that ac countability for the management of community assets is a fundame ntal aspect of the fiduciary duties owed between spouses. [¶] Section 721, subdivis ion (b), states, in relevant part: '[I]n transactions between themselv es, a husband and wife are s ubject to the general rules governing fiduciary relationships which co ntrol the actions of persons occupying confidential relations with each other. This confidential relations hip imposes a duty of the highest good faith and fair dealing on eac h spouse, and neither shall take any unfair9 advantage of the other. This confidential rela tionship is a fiduciary relationship subject to the same rights and duties of nonmarital busine ss partners, as provided in Sections 16403, 16404, and 16503 of the Corpor ations Code, including, but no t limited to, th e following: [¶] (1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. [¶] (2) Rendering upon request, true and full information of all things affecting any transaction wh ich concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community propert y transactions. [¶] (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which conc erns community property.'" In addition, "[c]onsistent with thes e fiduciary obligati ons, section 2100, subdivision (c) provides that 'a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.'" ( In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1476.) The Court of Appeal in Margulis further stated that: "Taken together, these Family Code provisions impose on a managing spouse affirmative, wide-ranging duties to disclose and account for the existence, valuation, and disposition of all community assets from the date of separation through fina l property division. These statutes obligate a managing spouse to disclose soon after sepa ration all the property that belongs or might10 belong to the community, and its value, and th en to account for the management of that property, revealing any material changes in th e community estate, such as the transfer or loss of assets. This strict transparency both discourages un fair dealing and empowers the nonmanaging spouse to remedy any breach of fiduciary duty by giving that spouse the 'information concerning the [co mmunity's] business' needed for the exercise of his or her rights [citations], including the right to purs ue a claim for 'impairment to' his or her interest in the community estate [citation]." ( Margulis, supra, 198 Cal.App.4th at pp. 1270–1271.) The court did not err in char ging Chad with pres eparation assets. It is undisputed that Chad withdrew over $231,000 from the pa rties' equity lines of credit within three months prior to the separation in July 2008. During trial, Chad id entified the specific withdrawals from the lines of credit during those three months. In his preliminary declaration of disclosure, Chad acknowled ged there was $186,000 remaining from his withdrawal from one line of credit. The ev idence of Chad's secret withdrawals was detailed in the statement of decision in suppor t of its finding that Chad would be charged with a preliminary distribution of community funds removed from the various accounts in the sum of $181,951. III. LIVING EXPENSES Chad asserts he should be given a credit for his use of the preseparation withdrawn funds for his living expenses. This contention is unavailing. Chad admitted at trial that at an early h earing in this proceedi ng, his counsel told the court that Chad should be permitted to remain in the La Cresta residence because he11 had the ability to maintain the re sidence, either alone or with the help of his parents. However, for the first time at trial, Chad th en testified his attorney was misinformed and incorrect when he made that representation. During the pendency of this proceeding, Chad filed three income and expense declarations

. A review of these declarations reveal s that at no time did Chad disclose he was utilizing funds to live on that he secretly withdrew from community accounts. Chad cannot now assert that, having withdrawn comm unity funds and secretly applied them for his personal benefit before separation, such funds should be deducte d from the total funds he concealed and misused. Th e evidence reflects, as the c ourt found in its statement of decision, Chad hid them in hi s father's account a nd then used them as he chose after separation. Chad cannot profit from his own wrongdoing. IV. CHILD AND SPOUSAL SUPPORT Chad asserts that the cour t erred by making only "min imal findings" in reserving jurisdiction over child a nd spousal support in its statemen t of decision, and thereafter in the final judgment, reducing child support to $0. We reject this contention. First, Chad never objected to the statement of decision, although authorized to do so under California Rules of Court, rule 3.1590(g). He has therefore forfeited any contention the court's findi ngs were inadequate. ( Atari, Inc. v. State Bd. of Equalization (1985) 170 Cal.App.3d 665, 674-675.) Moreover, there is substa ntial evidence in the record to support the court's decision. At trial, the court had before it both Chad's and Christ a's income and expense declarations. Both declarations set forth, in detail, the nature and extent of each party's12 income and respective financial need. In the statement of de cision, the court detailed the work history of the parties, including Chad's college hist ory and prior work as an accountant. The court also noted in its statem ent of decision that Chad had the skills and ability to secure employment. Thus, there is substantial evidence in the record to support the court's decision concerning child and spousal support. V. DIVISION OF CHRISTA'S IRA ACCOUNT Chad asserts that the court erred in orde ring the division of Christa's IRA account in accordance with Brown, supra, 15 Cal.3d 838. He argues that the "time rule" enunciated in Brown, which applies to pension benefits that are based on the number of years of employment, is inapplicable because there is no evidence that Christa's IRA was related to her employment. Th is contention is unavailing. Contrary to Chad's contention, " Brown did not either establish or promote the use of the time rule, or any other specific fo rmula, as a method fo r the ultimate pension division on the court's exercise of its retained jurisdiction." ( In re Marriage of Gray (2007) 155 Cal.App.4th 504, 519.) The Gray court explained that the reference to the Brown formula in the parties' judgment in that case was reasonably interpreted as only an indication that at the time of the partie s' judgment the court had determined the community had in interest in the husband's pension and had directed that community interest would be divided "i n kind" in the future exerci se of its discretion. ( Id. at p. 509.) Likewise, in this case the community had an interest in Christa's IRA. That interest needs to be divided, but not pursuant to any time rule. Rath er, the interest must13 be divided based upon the nature and exte nt of community and separate property contributions. DISPOSITION The judgment is affirmed.

NARES, J. WE CONCUR:
HUFFMAN, Acting P. J.

HALLER, J.