Marriage of Arnold

Filed 8/15/06 Marriage of Arnold CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Commissioner.

Susan Burt Baumberger for Appellant.

Law Office of Tasha M. Bollinger and Tasha M. Bollinger for Respondent.

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Appellant Rodney L. Arnold challenges the trial court's award of permanent spousal support in the amount of $1,900 per month as an abuse of discretion. Based upon the record before us, we must affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The parties married on May 25, 1995, and separated on September 12, 2001. Prior to marriage, the parties had cohabited for several years. There were no children from the marriage. The wife, Carrie Arnold,^[1] was not employed during the marriage. Carrie petitioned for legal separation on October 15, 2001. Rodney's response sought dissolution of the marriage. Carrie sought temporary spousal support and both parties filed income and expense declarations. Carrie's showed zero income and claimed $2,353 in monthly expenses. Rodney's income and expense declaration showed a monthly income of $6,214.62 during the marriage. Rodney had been laid off from his previous job, however, and currently was employed at a lesser income of $4,450 per month. He had monthly expenses of $3,364.02, including mortgage payments on the family home and monthly payments on other community debt. In April 2002, the trial court made an award of temporary spousal support in the amount of $1,372 per month.

Rodney filed an updated income and expense declaration on March 3, 2004. Rodney showed an average gross monthly income of $5,861.73, with monthly expenses of $3,323.73, including the mortgage and community debt payments. Carrie never filed an updated income and expense declaration.

A contested hearing was held on December 15, 2004. The trial court entered a judgment dissolving the marriage, fixing permanent spousal support and dividing the community assets. In the statement of decision, with respect to spousal support, the trial court found that the marriage was of long duration, fixed permanent spousal support at $1,900 per month, payable by Rodney to Carrie as an amount necessary for Carrie to maintain the standard of living established during the marriage, and did not fix a termination date for the spousal support.

No transcript of the December 15, 2004, hearing is included in the record. Either there was no court reporter present for the hearing or no reporter's transcript was ordered.

Rodney filed a motion for reconsideration of the judgment. In part, Rodney requested that the trial court reconsider its finding that the marriage was of long duration and modify downward the $1,900 awarded as permanent spousal support. If Carrie filed any opposition to the motion, it is not in the record.

The motion for reconsideration was heard on February 7, 2005. No testimony was presented and Carrie was not present. Rodney argued the marriage should be deemed to be of short duration and he objected to the trial court's award of lifetime spousal support. He also challenged Carrie's claim that she was disabled and unable to seek employment, asserting that there was no medical evidence whatsoever supporting this claim.

Carrie acknowledged, through counsel, that there had been no medical evidence presented at the contested hearing to support her claim of disability. She argued that the marriage was not of short duration, but fell between a short- and long-term marriage.

When the hearing on the motion for reconsideration turned to the dollar amount of the spousal support, Rodney argued that spousal support should not have increased from the temporary support amount because there was no increase in expenses to Carrie. He also argued that support should have been decreased because she was living with her father and had reduced expenses. Carrie claimed that she was living rent free with her father because the amount of the temporary support award had not been sufficient for her to support herself.

The trial court noted that there seemed to have been some errors in the DissoMaster calculations that caused a lower amount to be awarded as temporary support. Ultimately, the trial court took the matter under submission.

The trial court vacated its earlier judgment and issued a new judgment and statement of decision. In that statement of decision, the trial court acknowledged that an analysis of the factors set forth in Family Code section 4320^[2] was required before fixing an award of spousal support. The statement of decision notes that the parties had been separated for four years, during which Rodney paid health insurance for Carrie, spousal support, and made other payments that benefited Carrie. During this same period, Carrie had made no effort to become self-supporting or to obtain any employment.

The trial court determined the marriage was of â€