Filed 10/30/14 Marriage of Shannon CA5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

In re the Marriage of DENNIS P. and MARY 

SHANNON. 

DENNIS P. SHANNON, 

Respondent, 

 v. 

MARY SHANNON, 

Appellant. 

F067406 

(Super. Ct. No. S-1501-FL-622161) 

ORDER MODIFYING OPINION 

[NO CHANGE IN JUDGMENT] 

BY THE COURT: 

 It is ordered that the opinion filed herein on October 21, 2014, be modified as 

follows: 

1. On page 1, the first sentence, we correct the misspelled name to henceforth 

read as follows: 

Stephen D. Schuett, Judge. 

There is no change in the judgment. 

 

 ___________________________ 

 HILL, P. J. 

WE CONCUR: 

________________________ 

GOMES, J. 

________________________ 

CORNELL, J.
Filed 10/21/14 (unmodified version) 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

In re the Marriage of DENNIS P. SHANNON 

and MARY SHANNON. 

DENNIS P. SHANNON, 

Respondent, 

 v. 

MARY SHANNON, 

Appellant. 

F067406 

(Super. Ct. No. S-1501-FL-622161) 

OPINION 

THE COURT* 

 APPEAL from a judgment of the Superior Court of Kern County. Stephen D. 

Shuett, Judge. 

 Mary Shannon, in pro. per.; Richard Monahan; Law Offices of Donald C. Duchow 

and Donald C. Duchow for Appellant. 

 The Law Offices of Edward J. Quirk, Jr., and Edward J. Quirk, Jr., for 

Respondent. 

 

* Before Hill, P. J., Gomes, J. and Cornell, J. 
2 

-ooOoo- 

 Wife appeals from the judgment of dissolution, challenging the order for 

reimbursement of husband’s separate property contribution to the purchase of the family 

residence and the awards to wife for spousal support and attorney fees and costs. We 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 The parties were married for 11 years eight months. Both parties retired prior to 

the dissolution. During the marriage, they purchased a residence which they shared until 

separation; title to the residence was held in joint tenancy. Husband testified he paid the 

$160,000 purchase price, using the proceeds from the sale of a separate property 

residence he owned prior to marriage. Wife contended at trial that placing title in the 

names of both parties as joint tenants constituted a gift of husband’s separate property to 

the community. The trial court determined the residence was presumed to be community 

property, but husband was entitled to reimbursement for his separate property 

contribution to its acquisition. It ordered that the residence be sold, that husband receive 

the first $160,000 of the net proceeds of sale, and that any remaining proceeds be divided 

equally between the parties. 

 The trial court set spousal support to be paid by husband to wife at $400 per 

month. This was less than the $800 per month temporary support wife had been 

receiving prior to judgment. The trial court also awarded wife $1,500 in attorney fees 

and costs. 

Wife challenges the trial court’s judgment, contending there was no substantial 

evidence to support tracing the source of the funds used to purchase the residence to 

husband’s separate property, the trial court abused its discretion by reducing the spousal 
3 

support award without a change in circumstances, and the trial court abused its discretion 

by failing to state its reasons for the amount of the award of attorney fees and costs. 

DISCUSSION 

I. Family Residence 

 Wife contends there was insufficient evidence that the funds used to purchase the 

family residence were husband’s separate property. She asserts funds paid from a 

commingled account are presumed to be community funds, rebutting that presumption 

requires tracing of the funds to a separate property source, and the evidence tracing the 

funds to a separate property source was insufficient. Husband contends this issue was not 

raised in the trial court and cannot be raised for the first time on appeal. 

 “‘A party is not permitted to change his position and adopt a new and different 

theory on appeal. To permit him to do so would not only be unfair to the trial court, but 

manifestly unjust to the opposing litigant.’ [Citations.]” (In re Marriage of Broderick

(1989) 209 Cal.App.3d 489, 501 (Broderick).) There is an exception “when the issue 

involves purely a legal question which rests on an uncontroverted record which could not 

have been altered by the presentation of additional evidence.” (Ibid.) 

In the trial court, wife argued the residence was community property “although 

purchased in all or in part from [husband’s] separate funds.” She argued the separate 

funds used to purchase the property were a gift to the community. She contended the 

joint tenancy form of ownership gave rise to a presumption that the residence was 

community property, and the presumption could only be rebutted by a clear statement in 

the deed that the property was separate property or proof that the parties had a written 

agreement that the property was separate property. (Fam. Code, § 2581.)1 

In the trial court, husband contended that, even if the residence was presumed to 

be community property, he was entitled to reimbursement for his separate property 

 

1 All further statutory references are to the Family Code unless otherwise indicated. 
4 

contribution to the purchase of the residence pursuant to section 2640. Section 2640 

provides that, unless a party has waived the right to reimbursement in writing, “the party 

shall be reimbursed for the party’s contributions to the acquisition of property of the 

community property estate to the extent the party traces the contributions to a separate 

property source.” (§ 2640, subd. (b).) Husband testified he paid the entire purchase price 

for the residence out of funds he obtained from the sale of a house he owned prior to 

marriage. Wife presented no evidence contradicting husband’s testimony; she presented 

no evidence and no argument that the residence was paid for with commingled funds. 

Thus, wife’s theory that husband was not entitled to reimbursement for his 

contribution to acquisition of the family residence because he failed to trace the funds 

used to purchase the residence back to a separate property source is a new theory, not 

raised in the trial court. It does not fall within the exception that permits consideration of 

some issues for the first time on appeal. It is not a pure issue of law resting “on an 

uncontroverted record which could not have been altered by the presentation of additional 

evidence” (Broderick, supra, 209 Cal.App.3d at p. 501); if the issue had been raised in 

the trial court, husband would have had an opportunity to present further evidence to 

support his claim the residence was paid for entirely with his separate funds. 

 In any event, substantial evidence supports the trial court’s determination that the 

$160,000 purchase price for the residence was paid out of husband’s separate property 

funds. Wife testified the purchase price of the home was $160,000. Husband testified he 

paid $160,000 to purchase the residence out of the proceeds of the sale of his separate 

property house. He stated he was careful to keep his money in his own name; wife 

conceded the parties kept their money separate, in separate accounts, during marriage. 

Wife also admitted she did not have an account with husband with $160,000 in it. Thus, 

there was no evidence of commingling of husband’s separate funds with community 

funds requiring elaborate tracing to determine the source. 
5 

“Whether the spouse claiming a separate property interest has adequately met his 

or her burden of tracing to a separate property source is a question of fact and the trial 

court’s holding on the matter must be upheld if supported by substantial evidence.” (In 

re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.) Substantial evidence 

supports the trial court’s finding that husband contributed $160,000 of his separate 

property to the purchase of the residence and was entitled to reimbursement of that 

amount. 

II. Spousal Support 

 The trial court awarded wife $400 per month spousal support. Wife contends the 

trial court improperly reduced her support from that awarded prior to judgment without 

any change in circumstances and failed to provide an adequate reason for doing so. 

 A change in circumstances is not necessary in order to include in the judgment of 

dissolution an award of spousal support that is different from the amount awarded 

pendente lite. (In re Marriage of McNaughton (1983) 145 Cal.App.3d 845, 849.) “There 

are fundamental differences in the functions and purposes of pendente lite support and 

permanent support orders. The court, in making each award, is governed by different 

authority.” (Ibid.) The purpose of a temporary support order “is to maintain the living 

conditions and standards of the parties as closely as possible to the status quo, pending 

trial and the division of the assets and obligations of the parties.” (Ibid.) In contrast, 

“[t]he purpose of permanent spousal support is to ‘... provide financial assistance, if 

appropriate, as determined by the financial circumstances of the parties after their 

dissolution and the division of their community property.’ [Citation.] The determination 

of permanent spousal support at trial must be de novo. Only at trial is all the evidence 

presented. The permanent order is to be based upon circumstances existing at trial, and a 

change of circumstances from the time of the pendente lite order is irrelevant to a 

determination of the amount of support which is ‘just and reasonable’ at that time.” 
6 

(Ibid.) Consequently, the trial court did not err in awarding a different amount of spousal 

support in the judgment than it awarded as temporary support.2

 Wife complains that, although the trial court in its judgment discussed the relevant 

factors to be considered is setting the amount of spousal support, “the record on appeal is 

devoid of any information that will support the court’s sudden modification of the 

original spousal support order.” She concludes awarding a different amount of spousal 

support in the judgment was an abuse of discretion. 

 Again, the factors to be considered in setting temporary spousal support and 

awarding spousal support in the judgment are different.3 The fact that the trial court 

reached a different result in determining temporary support than it did in determining 

support to be awarded in the judgment, in itself, does not indicate any abuse of discretion 

in setting the latter amount. Both parties are retired. The trial court took into account the 

amount of husband’s retirement income and wife’s Social Security income. It noted the 

purposes of permanent spousal support, and discussed the relevant factors under section 

4320. The trial court recognized that husband’s income from his retirement will be 

reduced postjudgment because of the division of his retirement benefits between the 

parties. Wife will receive her share of those benefits. After discussing all the relevant 

factors, the trial court balanced them and determined the amount of spousal support to be 

awarded. 

 “In setting the amount of spousal support, a wide discretion is vested in the trial 

court [citation], ‘and thus an appellate court must act with cautious judicial restraint, even 

 

2 The cases on which wife relies to support her contention the trial court could not change 

the amount of spousal support awarded in the absence of changed circumstances are 

distinguishable. They all involved postjudgment requests to modify the spousal support awarded 

in the judgment. (See Edwards v. Edwards (1975) 52 Cal.App.3d 12; In re Marriage of 

Kuppinger (1975) 48 Cal.App.3d 628; Hester v. Hester (1969) 2 Cal.App.3d 1091.) 

3 Temporary support is governed by section 3600. Support awarded in the judgment of 

dissolution is governed by section 4320.
7 

though the particular award might appear on appeal to be modest or generous under the 

particular circumstances.’ [Citation.] A trial court has abused its discretion when, after 

calm and careful review of the entire record, it can fairly be said that no judge would 

reasonably make the same order under the same circumstances.” (In re Marriage of 

Roesch (1978) 83 Cal.App.3d 96, 102.) After considering the entire record, we cannot 

say no reasonable judge would make the same order under the same circumstances. We 

find no abuse of discretion in the award of spousal support. 

III. Attorney Fees 

 “‘It is well settled that the award of attorney fees and costs in family law matters is 

within the broad discretion of the trial court and that court’s decision in a particular case 

will not be disturbed on appeal absent a clear showing of abuse of discretion.’ 

[Citation.]” (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 279-

280.) Wife contends the trial court did not adequately explain why it awarded wife only 

$1,500 in attorney fees. Evidence in wife’s September 5, 2012, request for spousal 

support and attorney fees, as well as the accompanying income and expense declaration, 

indicated she had paid her attorney $1,600 in attorney fees at that time. The record 

contains no other evidence of the amount of attorney fees wife incurred. Wife has not 

met her burden of establishing an abuse of discretion. 

DISPOSITION 

 The judgment is affirmed. Husband is entitled to his costs on appeal.