## Facts

- The parties married in 2001 and separated in 2014; they had no children.
- At separation, Husband was 68 and Wife was 66; both had been retired since about 2005.
- Husband encouraged Wife to retire so they could travel and spend time with family; Wife thereafter performed limited part-time work for several years and primarily handled household tasks.
- Wife received Social Security of about $746 per month (reduced for Medicare), while Husband received about $10,000 per month in retirement income.
- During the marriage, the parties built a 3,900-square-foot home in Big Bear City (stipulated value $775,000) without a mortgage, using cash over time.
- Funds used for construction included proceeds connected to Wife’s premarital Fawnskin property (refinanced during marriage) and Husband’s San Dimas property; proceeds moved through joint accounts and were commingled with other marital funds.
- In the dissolution judgment after bench trial, the family court ordered Husband to pay $4,000 per month in spousal support, awarded Wife $5,500 in need-based attorney’s fees, and denied Husband reimbursement under Family Code § 2640 for alleged separate-property contributions to the Big Bear home based on inadequate tracing.

## Issues

1. Whether the family court abused its discretion by awarding $4,000 per month in spousal support and declining to impute income to Wife on the theory she could remain retired.
2. Whether the $5,500 need-based attorney’s-fee award was an abuse of discretion.
3. Whether the court erred in denying Husband reimbursement under Family Code § 2640 for claimed separate-property contributions due to failure to trace.

## Decision

- The judgment was affirmed in full.
- The spousal-support order was within the family court’s broad discretion given the parties’ ages, long-term retirement, Wife’s limited income, and the marital standard of living that included retirement.
- The attorney’s-fee award was within the court’s discretion in light of the income disparity and relative ability to pay.
- Denial of § 2640 reimbursement was proper because Husband did not meet his burden to trace separate-property contributions with sufficient documentary evidence after commingling in joint accounts.

## Legal Principles

- Spousal support determinations under Family Code § 4320 are reviewed for abuse of discretion; appellate review views factual findings in the light most favorable to the order.
- A court may decline to impute earning capacity to a supported spouse of customary retirement age who has been retired for years as part of the marital lifestyle, including when retirement occurred with the other spouse’s encouragement.
- Need-based attorney’s-fee awards in dissolution proceedings may be based on relative financial circumstances and ability to pay, and may track the support analysis.
- Family Code § 2640 reimbursement for separate-property contributions to community property requires the contributing spouse to prove the contribution by adequate tracing; commingling in joint accounts heightens the need for specific documentary tracing, and generalized testimony is insufficient.

## Conclusion

The Court of Appeal upheld permanent spousal support and a modest fee award based on the parties’ long-term retired marital lifestyle and sharp income disparity, and it upheld denial of § 2640 reimbursement because the claimed separate-property contributions were not traced with sufficient documentation after commingling.


In re Marriage of McLain, 7 Cal. App. 5th 262, 212 Cal. Rptr. 3d 537 (Cal. Ct. App. 2017)