USA – CA – DICK – 1993

In re Marriage of Dick (Cal.App. 2 Dist 4 Div 1993)15 Cal.App.4th 144, 18 Cal.Rptr.2d 743


Trope & Trope and Thomas Paine Dunlap for Appellant Wife.

Stephen A. Kolodny and Carole R. Azran for Appellant Husband.


WOODS (A. M.), P. J. **

These consolidated appeals arise from dissolution proceedings in the
marriage of John W. and Elisabeth L. Dick. Both have appealed, wife
from the judgment of dissolution, and husband from an order awarding
spousal support and attorney fees. We considered each appeal
separately. [Page 151]

Wife’s Appeal

Wife appeals from the judgment of dissolution, arguing that the court
lacked jurisdiction to render the judgment because husband’s status as
a nonimmigrant alien, i.e., a tourist, precluded a finding, for
purposes of jurisdiction, that he intended to make his domicile in
California. Viewed in the light most favorable to the judgment
(Sevier v. Locher (1990) 222 Cal.App.3d 1082, 1087 [272 Cal.Rptr.
287]), the evidence established the following facts:

The parties married on February 14, 1982, and separated in April 1987.
Wife filed an action for dissolution in Arapahoe County, Colorado, and
then refiled the action in Denver, Colorado. Husband was not served
with the Colorado actions.

On October 26, 1988, wife filed a petition for legal separation in the
Los Angeles Superior Court. In the petition she stated her intention
“to amend this Petition and request Dissolution of Marriage as soon as
residence requirements are met.” She subsequently filed a second
petition that omitted this statement. The petition was served on
husband by publication. In his response to the petition, husband
stated that if he was able to meet California’s “jurisdictional
requirements, this Response to Amended Petition will be amended to
seek dissolution of marriage.” On December 29, 1989, husband amended
his response to allege that he had satisfied the jurisdictional
requirements of residence by residing in the state for six months and
the county for three. He requested that the court dissolve the
marriage. He also moved for bifurcation of trial so that the issue of
status could be determined apart from the issue of spousal support.

Wife filed papers challenging husband’s claim that he had satisfied
the residence requirement. The core of her argument was that, because
husband was a nonimmigrant alien, he could not possess the intention
to be a resident of California. She cited deposition testimony by
husband in which he admitted he was a Canadian citizen who had tourist
status in the United States. She argued that under immigration law,
tourist status embodied an intent to return to one’s homeland, and
this conflicted with an intent to become a resident of California for
purposes of the dissolution proceedings.

The motion for bifurcation was granted and a trial conducted on the
issue of status. The only issue as to which evidence was taken went
to the question of whether husband had satisfied the residence

It was established at trial that during the marriage, the parties
resided in Englewood, Colorado, but they also maintained residences
elsewhere, including a manor on the Isle of Jersey in the Channel
Islands, two houses in [Page 152] Palm Springs, a house in Pasadena, a
penthouse in London and a skiing condominium in Breckenridge,

Husband testified that until 1984, he had dual American and Canadian
citizenships. That year he renounced his American citizenship and
became a citizen of the Dominican Republic. He continued to travel on
a Canadian passport.

From 1981 to 1988 or 1989, husband testified he considered his
principal residence to be on the Isle of Jersey. In June 1989,
husband rented a room at his sister’s house in Pasadena but
subsequently rented an apartment in Los Angeles. Husband came to Los
Angeles with the intent of remaining here indefinitely to develop
business contacts. Husband obtained a California driver’s license and
opened a local bank account. While he lived at his sister’s house, he
paid her $400 a month for the room he occupied and had a telephone
installed in it. He received his phone bill at her address and, after
he moved out, his mail was forwarded to his Los Angeles apartment from
his other residences. He also testified that he owned a car
registered in California at his present address.

Husband testified that his current immigration status was as a tourist
and that he was required to leave the country every six months and to
reenter. He testified that he had discussed with his lawyer the
possibility of obtaining a green card but had not yet filed an
application for one.

At the conclusion of the trial, the court found that “residence does
exist.” It then went on to find irreconcilable differences and
granted the judgment of dissolution. Wife appealed. We affirm.


Wife presents five contentions: (1) that husband’s immigrant status
as a nonimmigrant alien precludes a finding of residence for purposes
of dissolution; (2) that even if his immigrant status does not
preclude a finding of residence, there is insufficient evidence to
support that finding; (3) the court erred when it excluded wife’s
immigration expert from testifying; (4) the issue of status was not
before the court because husband failed to obtain leave of court to
file an amended response to her petition; and (5) the court erred by
depriving wife of an opportunity to request a statement of decision.
We deal with each contention seriatim.

“A judgment decreeing the dissolution of a marriage may not be entered
unless one of the parties to the marriage has been a resident of this
state for [Page 153] six months and of the county in which the
proceeding is filed for three months next preceding the filing of the
petition.” (Civ. Code, Sec 4530, subd. (a).) Whether the residency
requirement has been met is a question of fact and the burden of
establishing residence is on the party asserting it. (In re Marriage
of Thornton (1982) 135 Cal.App.3d 500, 510 [185 Cal.Rptr. 388]; Khan
v. Superior Court (1988) 204 Cal.App.3d 1168, 1180 [251 Cal.Rptr.
815].) For purposes of Civil Code section 4530, subdivision (a),
residency is synonymous with domicile, the latter term meaning ” ‘both
the act of residence and an intention to remain ….’ ” (Original
italics.) (In re Marriage of Thornton, supra, at p. 507, quoting
Smith v. Smith (1955) 45 Cal.2d 235, 239 [288 P.2d 497].)

The parties have not cited to us, nor has our research disclosed, a
California case that addresses the question of whether a nonimmigrant
alien can establish residency for the purpose of obtaining a
dissolution of marriage. However, the cases cited to us, and those
which we have found, from other jurisdictions hold that immigration
status is, at most, evidence of domiciliary intent, but not
dispositive of the residency issue as a matter of law. These cases
hold that a party’s nonimmigrant alien status does not bar that party
from establishing domicile for purposes of a dissolution statute.
(Rzeszotarski v. Rzeszotarski (D.C.App. 1972) 296 A.2d 431]; Alves v.
Alves (D.C.App. 1970) 262 A.2d 111 [52 A.L.R.3d 213]; Nicolas v.
Nicolas (Fla.Dist.Ct.App. 1984) 444 So.2d 1118; Abou-Issa v. Abou-Issa
(1972) 229 Ga. 77 [189 S.E.2d 443]; Cocron v. Cocron (1975) 84 Misc.2d
335 [375 N.Y.S.2d 797]; Pirouzkar and Pirouzkar (1981) 51 Ore.App. 519
[626 P.2d 380]; Bustamante v. Bustamante (Utah 1982) 645 P.2d 40;
Williams v. Williams (D.V.I. 1971) 328 F.Supp. 1380.) We agree with
the reasoning of these cases on this issue.

Wife acknowledges this authority, but insists that these cases are
factually distinguishable because in each of these cases the
nonimmigrant resident had applied for permanent resident status. This
is not true of every case cited, however, and even where it is true,
the intention of the noncitizen spouse to obtain a more permanent
immigration status was not dispositive. In Alves v. Alves, supra, 262
A.2d 111, for instance, there was no suggestion that the nonimmigrant
alien husband had demonstrated any intention to seek permanent
resident status. Yet, the court held that, regardless of his
immigration status, he had established domicile for purposes of
obtaining a divorce in the District of Columbia.

In its thoughtful analysis, the Alves court said: “The relationship
between an alien and a jurisdiction such as the District of Columbia,
and an alien and the United States are not of equal significance.
Domicile is concerned with [Page 154] one’s physical presence in a
particular locality and the ‘nexus between person and place of such
permanence as to control the creation of legal relations and
responsibilities of the utmost significance.’ It is the appellee’s
connection with the District of Columbia and the legal rights and
duties which accompany his presence here that is of importance.
Appellee’s retention of British citizenship does not preclude his
becoming domiciled in the District of Columbia. Nor do we think that
the fact appellee did not apply for permanent residence in the United
States forecloses the possibility of his being domiciled in the
District of Columbia. Under the Immigration and Nationality Laws it
is possible, for a variety of reasons, for an alien to remain in the
United States for many years, as appellee has done, without applying
for permanent residence. Furthermore, to impose such a requirement [of
seeking permanent resident status] would have the effect of denying
appellee access to our courts without regard to the period of time he
has resided in the District of Columbia, his intention in moving into
the District of Columbia and other relevant factors. Just as aliens
are subject to the jurisdiction of our courts, they should be entitled
to invoke the jurisdiction of the courts for their own benefit.” (Id.
at pp. 114-115, fns. omitted.) With respect to the question of
husband’s visa status, the court remarked, “A visa is a document of
entry required of aliens by the United States Government and is a
matter under control of the Government. It has little relevance to
the question of domicile.” (Id. at p. 115.)

Similarly, in Bustamante v. Bustamante, supra, 645 P.2d 40, the Utah
Supreme Court “emphasize[d] that a visa application or renewal form
indicating a date certain for return to one’s home country is not
necessarily inconsistent with an actual conditional intent to
establish permanent residency in the United States, if possible, by
means of renewals and extensions of one’s nonimmigrant status or
attainment of immigrant status.” (645 P.2d at p. 42.) The court held
“an alien may have a ‘dual intent’—an intent to remain if that may be
accomplished and at the same time an intent to leave if the law so
commands.” (Ibid.; Cocron v. Cocron, supra, 375 N.Y.S.2d at p. 809
[“[wife’s] arrival under a temporary visa is not enough to prevent
[her], from becoming a resident of this state for purposes of
maintaining an action for divorce [citation]. …”].)

We conclude that husband’s nonimmigrant status does not preclude a
finding of residence under California law for purposes of obtaining a
dissolution of marriage. We agree with Bustamante and Cocron that a
nonimmigrant alien in the United States on a renewable visa may have
the dual intention of remaining in this country indefinitely by
whatever means including renewal of a visa and of returning to his or
her home country if so compelled. At most, “alien status can …
operate as an evidentiary fact [Page 155] against the person’s alleged
intention to remain in the state permanently [citation].” (Cocron v.
Cocron, supra, 375 N.Y.S.2d at p. 809.)

This conclusion is buttressed by the different aims and purposes of
immigration and dissolution law; “[t]here is no rational ground for
intermingling these two distinct areas of law ….” (Williams v.
Williams, supra, 328 F.Supp. at p. 1383.) It is not necessary for the
courts of this state to carry out immigration policy by denying
nonimmigrant aliens a judicial forum when they otherwise meet
domiciliary requirements and when they are subject to the courts of
this state for other purposes. (Ibid. [“The enforcement of
immigration laws properly remains with those to whom it is entrusted
by law and does not need in aid of enforcement the judicially created
civil disability of exclusion from our divorce courts.”]; Pirouzkar
and Pirouzkar, supra, 626 P.2d at p. 384 [“The enforcement of the
immigration laws is the function of the federal government.”].)

Wife cites numerous cases, none of them, however, involving the
question before us. Chiefly, she relies on a Supreme Court case
called Elkins v. Moreno (1978) 435 U.S. 647 [55 L.Ed.2d 614, 98 S.Ct.
1338], which involved a claim by a nonimmigrant alien residing in
Maryland to the benefits of “in-state” status at the University of
Maryland. As was pointed out in Pirouzkar and Pirouzkar, supra, 626
P.2d 380, however, while Elkins “held that federal law did not prevent
the establishment of a domicile in this country by nonimmigrant aliens
present pursuant to visas which do not require the maintenance of a
foreign residence [it] specifically did not decide the issue as to
those nonimmigrant aliens whose visas require that a foreign residence
be maintained.” (Id. at p. 383, fn. 2.) Thus, because it
specifically declined to consider the issue, Elkins lends no support
to wife’s claim that husband is precluded from establishing domicile
because of his tourist status. Likewise, Seren v. Douglas (1971) 30
Colo.App. 110 [489 P.2d 601], involves the classification of a
nonresident alien for purposes of determining whether or not to extend
“in-state” university benefits and is not relevant to the issue before

Wife’s reliance on Anselmo v. Glendale Unified School Dist. (1981) 124
Cal.App.3d 520 [177 Cal.Rptr. 427], deals most directly with the issue
before us. Anselmo held that the child of nonimmigrant aliens was
ineligible to attend public school, despite the fact that her parents
had purchased a home in the district, because the statute under which
their visa was issued defined an alien as “having residence in a
foreign country.” In Illingworth v. State Bd. of Control (1984) 161
Cal.App.3d 274 [207 Cal.Rptr. 471], a decision that held a
nonimmigrant alien was eligible for monetary assistance under the
violent crime act, the court distinguished Anselmo: “The holding in
[Page 156] Anselmo clearly depended on the statute’s reference to
federal law and thus must be distinguished from this case, where the
statute is silent as to the definition of residence.” (Illingworth v.
State Bd. of Control, supra, at p. 281.) It is not as clear to us
that Anselmo’s reference to the United States Code definition of
status is sufficient reliance on federal law to distinguish it from
further consideration. With all due respect, in our opinion Anselmo
was wrongly decided. For reasons we have stated, we agree with those
courts which have held that the federal requirement of maintaining a
residence in a foreign country is not necessarily inconsistent with
establishing domicile under state law.

Accordingly, we hold that a nonimmigrant alien is not precluded from
establishing residence in California for purposes of the dissolution


Wife next contends that, even if husband’s immigration status did not
preclude him from establishing residence, the court abused its
discretion in determining that he had satisfied the residency
requirement. This is, of course, an attack on the sufficiency of the
evidence. Under the substantial evidence rule of appellate review,
“the reviewing court’s task begins and ends with a determination as to
whether there is any substantial evidence in the record to support”
the trial court’s finding of domicile. (In re Marriage of Leff (1972)
25 Cal.App.3d 630, 641 [102 Cal.Rptr. 195].) Moreover, where there was
conflicting evidence below “that which favors the judgment must be
accepted as true, and that which is unfavorable must be discarded as
not having had sufficient verity for acceptance by the trial court.
[Citations.]” (Ross v. Lawrence (1963) 219 Cal.App.2d 229, 232- 233
[33 Cal.Rptr. 135].)

As noted above, residence is established under Civil Code section 4530
if either party has resided in the state for six months prior to the
petition for dissolution and three months in the county where the
petition is filed. More generally, residence requires proof of
physical residence and an intention to remain. (In re Marriage of
Thornton, supra, 135 Cal.App.3d at p. 507.)

Applying the appellate standard of review, the record shows: that
husband has been a continuous resident of Los Angeles County since
June 1989; that he intends to remain indefinitely in Los Angeles
County; that he regards no other place in the world as his residence;
that he had moved from a room in his sister’s house to an apartment of
his own in furtherance of his intent to remain in Los Angeles County;
that he quit residence on the Isle of [Page 157] Jersey in 1989 and
has not continuously resided in Colorado since 1987; that the only
reason he failed to file state or federal tax returns was because he
had no taxable income in California or the United States; that he has
a California driver’s license and owns an automobile registered at his
current Los Angeles address; that his sole bank account was located in
Los Angeles; that he receives all of his mail in Los Angeles either
directly or by forwarding.

Wife contends that the trial court’s finding on residency is not
supported by the evidence and cites contrary evidence. It is obvious
that the trial court disregarded the evidence upon which wife relies,
and so must we. The trial court’s factual determination is binding on
this court “even though evidence conflicts or supports contrary
inferences. [Citations.]” (In re Marriage of Grinius (1985) 166
Cal.App.3d 1179, 1185 [212 Cal.Rptr. 803].) Under this standard of
review, we have searched the record and concluded that substantial
evidence supports the trial court’s finding of residency.


Wife complains that the court erred when it denied her request to call
an expert on immigration law. According to wife, the expert was
required to testify to “the requirements and significance relating to
entrance into the United States of a person in John’s circumstances.”
Whether or not to permit expert testimony is largely within the
discretion of the trial court. (Downer v. Bramet (1984) 152
Cal.App.3d 837, 842 [199 Cal.Rptr. 830].) Although strict application
has been criticized, the general rule is that expert testimony on
domestic law is usually inadmissible. (See 1 Witkin, Cal. Evidence
(3d ed. 1986) Sec 535, p. 507.) In this case, the issue of husband’s
nonimmigrant status was not dispositive of the question of residence,
and therefore the court could well determine that the proposed expert
testimony was tangential, cumulative or otherwise unnecessary. We
find no abuse of discretion in the exclusion of the proffered
testimony. In any event, wife fails to show that the ruling so
prejudiced her as to constitute a miscarriage of justice. (9 Witkin,
Cal. Procedure (3d ed. 1985) Appeal, Sec 324, pp. 334-335.)

Wife also complains that husband’s failure to obtain leave of the
court to formally amend his response to seek dissolution of marriage
renders the court’s judgment void. The contention is without merit
because the authority she relies on, Civil Code section 4530, fails to
support her. Civil Code section 4530, subdivision (b) states that a
party satisfying the residency requirement may “amend his petition or
responsive pleading in such proceeding [for legal separation] to
request that a judgment decreeing the [Page 158] dissolution of the
marriage be entered …. If an appearance has been made in the
proceeding, notice of such amendment shall be given to the other party
in the manner provided by rules adopted by the Judicial Council. …”
(Civ. Code, Sec 4530, subd. (b), italics added.)

Regarding notice, the Family Law Rules provide that “When a notice or
other paper is required to be given or served on a party, such notice
or service shall be given to or made on his attorney of record if he
has one.” (Cal. Rules of Court, rule 1201(b).) As husband points
out, he provided notice of his amendment to his response to wife’s
petition prior to the trial of the matter, thus satisfying Civil Code
section 4530, subdivision (b). Wife’s claim that that statute
required husband to seek leave of court to amend his response simply
misreads the statute; that section relates to notice, not the form, of
the amendment.

Finally, wife originally contended that the court erred by entering
judgment without permitting her to request a statement of decision. By
letter dated September 30, 1991, wife withdrew this argument and we do
not consider it further.

The judgment of dissolution is affirmed. Husband’s request for
sanctions is denied.

Husband’s Appeal

Husband appeals from an order awarding temporary spousal support and
payment of attorney fees. He contends (1) the court’s award of
spousal support was improper because it was retroactive to a date
before wife filed her order to show cause for spousal support; (2) the
order was based on husband’s ability to borrow rather than his ability
to pay; (3) there was insufficient evidence of his ability to borrow
funds to pay the sums required of him; (4) the order requiring payment
of attorney fees and other costs was also improperly based on
husband’s ability to borrow; and (5) the award of future attorney fees
exceeded the amount claimed by wife and must be vacated. After
review, we find no merit in these contentions and affirm.

We need not repeat the procedural facts which were previously stated
in connection with wife’s appeal. Suffice it to say that on October
26, 1988, wife filed a petition for legal separation in which she
requested spousal support, attorney fees and costs. A first amended
petition for legal separation, also seeking spousal support, fees and
costs, was filed on November 10, 1988, and served on husband by
publication. On July 27, 1989, husband filed his response to the
petition. As we have indicated, the court bifurcated [Page 159] the
issue of status from issues relating to temporary spousal support. On
February 9, 1990, husband filed an order to show cause on spousal
support and attorney fees. Husband declared that he had “no positive
net monthly disposable income.” On March 8, 1990, wife filed her
order to show cause on spousal support and attorney fees. In it, she
requested monthly spousal support of $101,268 per month and submitted
a declaration that detailed a lavish life-style enjoyed during the
marriage. She also requested a total of $1,050,000 in attorney fees,
accounting fees, appraisal fees and other costs.

Trial began on July 24, 1990, and ended nearly five months later, on
December 10, 1990. The trial judge awarded wife $35,000 a month in
spousal support retroactive to January 1, 1989, and present and
prospective attorney and accounting fees in the total amount of
$1,047,921.71 of which $900,000 was for future attorney and accounting
fees. We will set forth the additional facts adduced during the trial
as is necessary to our discussion.


The bulk of husband’s argument is directed to two points: (1) that
the court’s order of temporary spousal support and attorney fees and
costs was improper because it was based on his ability to borrow,
rather than his ability to pay, and (2) there was no evidence that he
had either income to pay or the ability to borrow the sums of money he
was ordered to pay. We find no merit in husband’s arguments. By its
express terms, the trial court’s order was based on husband’s ability
to pay and there was substantial evidence to support it.

Civil Code section 4357 permits a temporary award of spousal support
“that is necessary for the support and maintenance of the [spouse]
….” (Civ. Code, Sec 4357, subd. (a).) Similarly, Civil Code
section 4370 authorizes the payment of attorney fees and costs
pendente lite. (Civ. Code, Sec 4370, subd. (a).) (9) Awards under
these two sections are based on “a showing of two conditions: the
moving party’s needs, and the other party’s ability to pay ….” (11
Witkin, Summary of Cal. Law (9th ed. 1990) Husband and Wife, § 181, p.
215; In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 893 [274
Cal.Rptr. 194].) Ability to pay encompasses far more than the income
of the spouse from whom temporary support is sought; investments and
other assets may be used for both temporary spousal support and
attorney fees pendente lite. (Rosenthal v. Rosenthal (1961) 197
Cal.App.2d 289, 299 [17 Cal.Rptr. 186]; In re Marriage of Stich (1985)
169 Cal.App.3d 64, 74 [214 Cal.Rptr. 919].)

In the instant case, the trial court made the specific and unequivocal
finding that husband “has the ability to pay” based on the “extensive
[Page 160] assets and nonsalary income at his disposal” which “have
been placed by him in the control of others acting for his benefit
[and] have a value in excess of $20,000,000.” It was proper for the
court to look to assets controlled by husband, other than income, as a
basis for the award. (Rosenthal v. Rosenthal, supra, 197 Cal.App.2d
at p. 299; In re Marriage of Stich, supra, 169 Cal.App.3d at p. 74.)
The evidence supports the trial court’s finding of husband’s ability
to pay.

Husband’s claim that the temporary spousal support and attorney fees
awards were based on his ability to borrow is a deceptive
characterization of the trial court’s order based on husband’s
testimony that he was without the means to pay the sums ordered, and
had no hidden assets. It is clear that the trial court utterly
disbelieved him, and its assessment of husband’s credibility is
binding on this court. (Stokus v. Marsh (1990) 217 Cal.App.3d 647,
656 [266 Cal.Rptr. 90].) The record offers substantial evidence in
support of the trial court’s order. (In re Marriage of Grinius,
supra, 166 Cal.App.3d at p. 1185 [trial court’s factual determinations
binding and conclusive on appellate court if supported by substantial

As the trial court noted in its order, the reporter’s transcripts in
this case alone exceed 2,500 pages. While we have reviewed the entire
record, it is not necessary, for purposes of this opinion, to
summarize all of the evidence; we need only determine that there is
substantial evidence to support the trial court’s order, to affirm it.
(Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331,
337 [126 Cal.Rptr. 731].) Accordingly, we will follow the trial
court’s example and recount only that evidence which was cited by the
court in support of its specific factual findings.

Husband contends, without citation to the record, that wife failed to
prove her need for temporary spousal support. As a corollary, he
argues that, because she had been advanced over $2 million in loans by
her friend, Bill Daniels, she has no need for spousal support. The
court found, however, that wife was unable to support herself, had no
assets or income at her disposal and that the moneys extended to her
by Daniels were, in fact, loans which were to be repayed and not
gifts. Substantial evidence supports these findings.

The evidence shows that wife was sixty-three years old, that she had
not worked in eight and a half years, that she lacked vocational
skills, and that her formal education had ended with a year and a half
of college. The evidence also showed that the only support she had
received from husband was payments of $3,000 a month, which had been
stopped more than a year before the trial, forcing wife to borrow
money from Daniels. Both wife and [Page 161] Bill Daniels testified
that he had loaned her over $2 million which she used to support
herself and for litigation costs. Daniels testified that his motive
in making the loans was because he “[had] a problem … where husbands
… leave wives who have no money, can’t afford an attorney, can’t pay
the bills and say to the wife ‘So sue me.’ ” Notwithstanding
husband’s innuendo, both Daniels and wife denied having a romantic or
sexual relationship. Daniels also testified that he had decided not
to make further loans to wife, depriving her of her only source of
funds. The evidence thus established wife’s need for temporary
spousal support and an award for past and prospective attorney fees
and other litigation costs.

There was, as discussed, ample evidence to support the trial court’s
finding of husband’s ability to pay based on assets and nonsalary
income, not in husband’s name but under his control. The court found:

“The assets belonging to [husband], which have been placed by him in
the control of others acting for his benefit, have a value in excess
of $20,000,000.” The crucial finding was that husband had organized
his assets so that he had created “a labyrinth of trusts and
corporations designed by him … to shield and protect [him] from
creditors. … [A]lthough the evidence fails to disclose any assets
actually standing in the name of [husband], he has access to and
control of extensive assets ….” The court concluded “that the
transactions by which [husband] transferred ownership of assets from
his name to various off-shore trusts and corporation[s] were for the
purpose of tax avoidance and to create a shelter from creditors, and
that for the purpose of this proceeding, they must be disregarded.”
Ample legal authority supports this conclusion.

It is well-settled that a trust created for the purpose of defrauding
creditors or other persons is illegal and may be disregarded.
(Samuelson v. Ingraham (1969) 272 Cal.App.2d 804, 806 [77 Cal.Rptr.
750]; Prob. Code, Sec 15203 [“A trust may be created for any purpose
that is not illegal or against public policy.”].) This rule has been
applied to the creation of trust where the grantor’s intention “was to
prevent his wife, …, from reaching the property.” (Fn. omitted.)
(IA Scott on Trusts (4th ed. 1987) § 63, pp. 363-364; Farino v. Farino
(1982) 88 A.D.2d 902 [450 N.Y.S.2d 593].) The rule regarding
fraudulent corporations is equally well settled: “When a corporation
is used by an individual or individuals, or by another corporation, to
perpetrate a fraud, circumvent a statute, or accomplish some other
wrongful or inequitable purpose, a court may disregard the corporate
entity and treat the acts as if they were done by the individuals
themselves ….” (9 Witkin, Summary of Cal. Law (9th ed. 1989)
Corporations, § 12, p. 524, italics deleted; Kohn v. Kohn (1950) 95
Cal.App.2d 708, 717-720 [214 P.2d 71] [corporate entity disregarded to
the extent [Page 162] its purpose was to minimize husband’s assets for
alimony payments].) Thus, the court below was entitled to look past
the apparent form of ownership in which husband’s assets were held to
determine the extent of husband’s true interest in them and the
availability of those assets in assessing husband’s ability to pay.
(Rosenthal v. Rosenthal, supra, 197 Cal.App.2d at p. 299.)

The court’s factual findings, including its implied conclusion that
husband’s testimony was not believable, are also supported. For
example, husband testified that his only source of income was a $5
million “credit line” from a trust company called La Hogue Boete.
Husband, however, failed to supply any evidence documenting this
financial transaction. He testified that the line of credit was
guaranteed by a childhood friend named George Neufeld. However, as
far as husband knew, Neufeld, the alleged guarantor of the loans, had
never provided a personal financial statement to La Hogue Boete.
Moreover, in an earlier declaration, husband had disavowed any
business dealings with Neufeld: “Mr. Neufeld would have no knowledge
of my income, assets or personal affairs.” In contrast to husband’s
claim of penury, the court noted that husband’s 1984 and 1985 personal
financial statements, which were admitted into evidence, indicate net
worths of $42,008,193 and $46,459,473, respectively. The court
concluded that husband had “failed to credibly explain where the
assets he held in 1985 and 1986 went, particularly in view of [his]
ability to continue to use assets not standing in his name.”

As an example of husband’s ability to use assets not standing in his
name, the court pointed to husband’s use of an English manor house
called St. John’s Manor on the Isle of Jersey. Until 1989, husband
considered St. John’s Manor his principal residence. Title to the
property was held in trust by an entity called the Manorhouse Trust.
Husband denied being a trustee, trustor or beneficiary of that trust.
Yet, as the court pointed out, in a 1988 declaration to the Royal
Court of the Isle of Jersey, husband declared that he was the ”
‘Signeur [sic] of St. John’ ” and intended to be buried in the crypt
beneath the chapel. Additionally, husband’s initials “JWD” were
carved into a stone entryway. Moreover, a letter to the prior owner
from husband’s lawyers stated that the manor would be purchased, not
by husband in his own name, but “by a company incorporated in Jersey
and wholely [sic] owned by Mr. Dick known as ‘St. John’s Manor
Limited’.” (St. John’s Manor Limited continued to hold title to
farmland around the manor, while the house was held by the Manorhouse

The method by which title to the manor was held illustrates the
court’s finding that husband used “a labyrinth of trusts and
corporations” to avoid [Page 163] legal title to assets he otherwise
controlled. Manorhouse Trust, the record owner, was administered by a
trust company called La Hogue Boete. La Hogue Boete was not only
operated by former employees of a trust company that had previously
administered husband’s trusts, but its offices were located at St.
John’s Manor. The only other clients of La Hogue Boete that husband
knew of, were his brother-in-law and a longtime business associate.
Husband admitted, moreover, that he instructed La Hogue Boete on
investments and that it had never made an investment of which he

Husband was, moreover, the only person who resided at St. John’s
Manor. He paid no rent except by way of living expenses. These were
paid to the Manorhouse Trust through a client account at La Hogue
Boete. Although La Hogue Boete prepared statements for husband, they
were not mailed to him and he saw them only when he happened to be at
the manor. His children, the alleged beneficiaries of the Manorhouse
Trust, had never received any disbursements from the trust nor was
there evidence that they or anyone else resided at the manor without
husband’s consent.

It could be inferred from this evidence that, notwithstanding his
absence of legal title, husband controlled ownership of St. John’s
Manor through the fiction of a trust.

Another example, cited by the trial court, of husband’s use of an
asset not in his name was his use of a large house outside Denver,
Colorado, described by wife as “one of the largest residences in the
Denver metropolitan area.” The court found that the way in which
title to the house was held during the marriage illustrated the
“complicated scheme of ‘hide the assets’ …” engaged in by husband.
Title to the Denver residence was held by an entity called Alkobel.
Husband denied ownership or other interest in either the house or
Alkobel. Despite the denial, however, husband’s federal tax return
for 1981 reported the sale of the residence. He never replaced this
residence with another, nor did he ever declare a taxable gain on the
sale. From this the trial court inferred that the Denver residence
continued to be within husband’s control notwithstanding the claimed
change of ownership. Moreover, in a 1982 letter to the United Bank of
Denver for purposes of obtaining a loan, husband wrote, with respect
to this same piece of property, “I am the sole owner of my residence
at Seven Sunset Drive, Englewood, Colorado 80110.” Additionally, when
the house was remodeled, it was done under husband’s supervision. He
decided what changes would be made to the residence. He also chose
the furniture for the residence and directed the servants who worked

In addition to husband’s apparently unlimited and unrestrained use of
assets as to which he denied ownership, the trial court also observed
that [Page 164] “the evidence discloses that in 1984 through 1986,
[husband] parted with millions of dollars under suspicious
circumstances ….” The court specifically cited a transaction at the
end of 1984 in which husband allegedly “sold” millions of dollars of

That year, husband apparently rid himself of all his United States
assets by “selling” them to his former secretary, Corrine Brown, and
two business associates, Bill Pauls and Ray Near. No cash changed
hands. Instead, husband accepted promissory notes totalling $17.5
million that were not due until 1996. Husband put these notes up as
collateral for a short term $5 million loan from an entity called
“Sansend.” The $5 million loan, in turn, became past due, yet Sansend
made no effort to collect on it. The court found that this was a sham
transaction, the apparent purpose of which was to remove husband from
title of assets while still allowing him to exercise control of them
through complicit business associates.

The trial court found “[husband] has an obsession with the concept of
having no indicia of ownership of property standing in his name, yet
controlling and using said property as if it were his own.” As the
court noted, assets as disparate as a doll collection, automobiles,
condominiums used by husband’s parents and two Palm Springs houses,
one of which husband used as his residence, were all held in a network
of related trusts.

Regarding the value of husband’s hidden assets, wife’s expert
accountant testified that they were worth $160 million. This
evaluation took into account the value of various trusts and real
property, plus $91 million which was being held by a company called
Barclay Trust for an undisclosed beneficiary who wife’s expert
identified as husband. Husband offered no evidence contesting the
assessed value of those assets; he merely denied having any control
over them. The trial court’s conclusion that his assets are worth at
least $20 million is thus supported by substantial evidence.

The evidence we have set forth by way of illustration supports the
trial court’s finding that husband has the ability to pay spousal
support and attorney fees and the finding that husband has obsessively
sought to rid himself of any indicia of ownership of his considerable
assets, while using or drawing upon them. The evidence shows,
moreover, that when it has been convenient to him, husband has
asserted his ownership of various assets, the ownership of which he
now denies.

The evidence also shows that husband’s transfers of assets, by “sale”
or placing them into trust, involve people to whom he is related or
who are or have been his employees or business associates, and who
could, therefore, be [Page 165] expected to act at his behest. It can
be inferred from this evidence that husband is capable of complying
with the order for payment of support and attorney fees. Accordingly,
the order must be affirmed.

Before leaving our review of the court’s findings and the evidence
that supports them, we address husband’s additional claim that the
spousal support award is excessive. The amount of temporary spousal
support awarded by a court is a matter of discretion and will not be
reversed absent a clear showing of abuse of discretion. (In re
Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1316 [284 Cal.Rptr.
41].) Husband does not even attempt to make such a showing, but
simply refers to his testimony, which the trial court has rejected as
unworthy of belief.

The evidence supports the trial court’s award of $35,000 a month in
temporary alimony. The trial court has valued husband’s assets as
being in excess of $20 million. The expert evidence offered by wife
would indicate this estimate is conservative. Wife’s testimony
established that the parties enjoyed a lavish life-style that included
residences here and abroad, servants, continuous first-class travel,
the use of expensive automobiles and unlimited funds for clothing and
entertainment, among other luxuries. One of wife’s expert accountant
witnesses testified from a reconstruction of expenses that wife and
husband had spent $74,521 monthly during the last 17 months of their
marriage. We conclude that this evidence supports the amount of
spousal support ordered by the trial court.


Husband next contends that the court erred by making its spousal
support order retroactive to January 1, 1989. The argument is without

The trial court determined that jurisdiction to award temporary
spousal support existed from October 26, 1988, the date on which wife
filed her petition for legal separation. In that petition she
requested spousal support although she did not file her formal order
to show cause until March 8, 1990. Husband contends that she was not
entitled to temporary spousal support until the filing of the order to
show cause. Husband also claims that the order was a mistake, but
there was no mistake; the court intended precisely what the written
order set forth, spousal support was to be retroactive to January 1,
1989, approximately two months after wife requested support in her
petition for legal separation.

In support of his argument husband cites us to Civil Code section
4801, subdivision (a), which governs permanent spousal support, rather
than temporary spousal support. Section 4801, subdivision (a)(10)
provides in part: [Page 166] “Any order for spousal support may be
made retroactive to the date of filing of the notice of motion or
order to show cause therefor, or to any subsequent date.” (Civ. Code,
Sec 4801, subd. (a)(10).) Husband maintains that this language also
encompasses temporary support orders made under Civil Code section
4357, even though that section is neither mentioned in section 4801,
nor does similar language appear in section 4357.

Awards of temporary spousal support do not serve the same purpose, nor
are they governed by the same procedures, as awards for permanent
spousal support. “Pendente lite allowances and permanent allowances
differ fundamentally in nature [citation] and function [citation].
‘The manifest purposes of pendente lite allowances to a wife are to
enable her to live in her accustomed manner pending the disposition of
the action and to provide her with whatever is needed by her to
litigate properly her side of the controversy. [Citations.]…’ …
[¶] ‘On the other hand the object of permanent allowance is to make
an equitable apportionment between the parties. …’ ” (Italics
deleted.) (Estate of Fawcett (1965) 232 Cal.App.2d 770, 783-784 [43
Cal.Rptr. 160]; In re Marriage of Czapar, supra, 232 Cal.App.3d at p.
1316 [no factual findings required for temporary as opposed to
permanent support award].) Moreover, it is an accepted rule of
statutory construction that “[w]hen the Legislature ‘has employed a
term or phrase in one place and excluded it in another, it should not
be implied where excluded.’ [Citations.]” (Pasadena Police Officers
Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [273 Cal.Rptr.
584, 797 P.2d 608].) If the Legislature had wanted to limit the
retroactivity of temporary spousal awards to the date on which the
order to show cause was filed, as it had in Civil Code section 4801,
it could have expressly so provided, but since it did not, we will not
imply such a limitation.

Plainly inferable from husband’s argument is a concession that the
court could have made the temporary support award retroactive; his
quarrel is with the date to which it was actually made retroactive.
The trial court, in effect, found that jurisdiction to make the award
commenced upon wife’s filing of her petition for legal separation on
October 26, 1988, but that “through no fault of [wife], a conclusion
to these temporary support hearings has been delayed until this
date.”Except for his citation to Civil Code section 4801, husband
fails to provide any authority for his contention that retroactivity
is limited to the filing of the order to show cause. We therefore
reject his argument.


Husband attacks the trial court’s award of $750,000 in future attorney
fees to wife, contending the award must be reversed because wife [Page
167] had only requested $500,000 in such fees. The court’s award, he
claims, was without “advance notice or due process” to him. The
argument is without merit.

The purpose of an award of future attorney fees in a dissolution
proceeding is to provide the party to whom the award is made an
adequate amount to properly litigate the action. (In re Marriage of
Ward (1992) 3 Cal.App.4th 618, 627 [4 Cal.Rptr.2d 365].) “[T]he
[trial] court has broad discretion in awarding attorney fees and costs
in dissolution proceedings. Its determination will not be disturbed
on appeal absent a clear showing of an abuse of discretion.
[Citations.]” (Id. at p. 628.)

Civil Code section 4370.5 permits such award as “is just and
reasonable under the relative circumstances of the respective
parties.” (Civ. Code, § 4370.5, subd. (a).) Among other factors, the
court may consider ” ‘the nature of the litigation, its complexity,
the nature and extent of the contest, the amount involved, the
financial circumstances of the parties, the skill required, the
professional standing and reputation of the husband’s attorneys and
the attorneys selected by the wife.’ [Citation.]” (In re Marriage of
Norton (1988) 206 Cal.App.3d 53, 57 [253 Cal.Rptr. 354], quoting In re
Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219 [215 Cal.Rptr.
789].) Additionally, the trial court may employ its own experience in
fixing the amount of the award. (In re Marriage of Ananeh-Firempong
(1990) 219 Cal.App.3d 272, 280 [268 Cal.Rptr. 83].)

In Ananeh-Firempong, the trial court awarded wife $20,000 in attorney
fees, even though the only evidence of the amount was wife’s testimony
that she had been advised her legal fees were just over $15,000.
Husband appealed. The appellate court affirmed the award as within
the discretion of the trial court. In doing so, the court emphasized
the role of the trial judge in determining an appropriate amount of
fees, ” ‘The knowledge and experience of the trial judge afford a
sufficient basis for fixing the amount of a lawyer’s fee, even though
there was no specific evidence on the subject.’ ” (219 Cal.App.3d at
p. 280, quoting Frank v. Frank (1963) 213 Cal.App.2d 135, 137 [28
Cal.Rptr. 687].)

As wife notes, in the instant case, the judge who sat by stipulation
was formerly a supervising judge of the Family Law Department of the
Los Angeles Superior Court and, therefore, particularly qualified to
make a rational assessment of wife’s future litigation needs.
Moreover, as wife also points out, though the attorney fee award was
$250,000 more than she had requested, the total award for attorney
fees, accounting fees and costs was less than the total amount she had
requested for these fees and costs. Her requests were supported by
lengthy declarations and copies of billings. [Page 168]

Viewing the evidence in the light most favorable to the award (In re
Marriage of Huxley (1984) 159 Cal.App.3d 1253, 1263 [206 Cal.Rptr.
291]), substantial evidence supports the award for future fees. The
court found that wife was without any funds to support the litigation.

The inordinately lengthy record here presented, reveals a case of
stunning complexity, occasioned, for the most part, by husband’s
intransigence. For example, a declaration of wife’s Colorado attorney
revealed that after wife filed her original action in Colorado,
husband managed to evade service for 26 months. In addition to the
dissolution proceedings, wife was also required to defend against
efforts to evict her from the family residence in Denver, brought by
the trust that allegedly owned the home. The declaration also stated
that husband had originally filed a divorce action on the Isle of
Jersey, but then, fearing he would be served in the Colorado action,
withdrew the case, but only after wife’s attorney had gone to the
island to defend that action. Wife was eventually compelled to seek
jurisdiction in the California courts. Once in California, other
tactics caused wife’s attorney fees to escalate, such as the occasion
on which husband’s attorney scheduled wife’s attorney’s deposition in
California, and then failed to attend.

Quite apart from declarations and billing statements, the record of
this trial, which exceeds 5,000 pages in reporter’s transcripts and
appendices, is also a monument to the complexity of this case.1 Both
the record and the enormity of the fees which wife has already paid,
support the trial court’s award of future fees.

The judgment of dissolution and the orders of temporary spousal
support and attorney fees are affirmed. Each side to have his or her
own costs on appeal.

Epstein, J., and Hoffman, J.,* concurred.

The petition of appellant John W. Dick for review by the Supreme Court
was denied August 26, 1993. [Page 169]

FOOTNOTE *. Pursuant to California Constitution, article VI, section

FOOTNOTE **. Judge of the Municipal Court for the Los Angeles Judicial
District sitting under assignment by the Chairperson of the Judicial

FOOTNOTE 1. For example, wife called Preston Hofer, a litigation
accountant, whose testimony was directed at husband’s multifarious
trusts and corporations. His testimony alone takes up several hundred
pages of transcript in an effort to unravel husband’s business

FOOTNOTE *. Judge of the Municipal Court for the Los Angeles Judicial
District sitting under assignment by the Chairperson of the Judicial