Marriage of Bazar and Shorr
Filed 6/17/13 Marriage of Bazar and Shorr CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re Marriage of RENEE BAZAR
and ALAN SHORR.
B239592
(Los Angeles
County
Super. Ct.
No. BD458883)
RENEE M. BAZAR,
Appellant,
v.
ALAN SHORR,
Respondent.
APPEAL from
an order of the Superior Court
of
County, Michelle Court,
Judge. Reversed and remanded.
Renee M.
Bazar, in pro. per., for Appellant.
Klopert
& Ravden, Scott Klopert; Alan Shorr, in pro. per., for Respondent.
_________________________
Renee M. Bazar
(formerly Shorr) appeals from an order modifying the spousal support
established in a marital settlement
agreement following dissolution of her marriage to Alan Shorr. We reverse.
factual and procedural background
1.
Previous Proceedings
In January 2007 Renee
of her nearly 19-year marriage to Alan.
On June 3, 2008
the superior court entered a judgment of dissolution, status only, pursuant to
Family Code section 2337, subdivision (a).
2008 Renee obtained a temporary spousal support order of $8,120 per
month.
On January
5, 2010 the parties entered into a marital settlement agreement
(MSA) that reduced Renee’s spousal support to $5,500 per month “until the death
of either party, remarriage of Renee or further order of court.†The MSA’s support provision contained a
4330, subdivision (b). (See
Cal.App.3d 705, 711-712.) The case was
set for trial on Alan’s breach of fiduciary duty claim and the remaining
property issues.
On January
6, 2011, the day scheduled for trial, Renee failed to appear and
did not notify the court of the reason for her absence. Alan proceeded with his case. Based on the evidence he presented, the court
awarded Alan $600,000 in damages arising from Renee’s breach of fiduciary duty
and ordered Renee to reimburse Alan for certain expenditures. Judgment on the reserved issues was entered
on February 7, 2011.
On March
2, 2011 Renee moved to strike or set aside the judgment on the
ground the court lacked jurisdiction because there had been no final appellate
ruling on her writ petition seeking to disqualify the trial judge (Hon. Mark
Juhas). She failed to appear at the April 11, 2011 hearing on her motion,
and it was denied. Renee appealed from
the judgment; we affirmed. (See
2.
The Instant Appeal
Although the issue of spousal support had been
settled as part of the MSA, neither party moved to confirm the settlement under
Code of Civil Procedure section 664.6; and it was not mentioned in the judgment
entered after trial. Alan moved to
confirm the terms of the MSA on March
14, 2011, but the motion was not heard until August 24, 2011, well after Renee had
appealed the judgment. Judge Juhas
declined to rule on the motion pending resolution of Renee’s appeal, which,
among other issues, sought review of her motion to disqualify him.
On October
14, 2011 Alan filed a request for an order to show cause seeking to
reduce his spousal support obligation to $1,881 per month based on his lower
income. On December 19, 2011 Judge Juhas declined to modify support
based on Alan’s inadequate showing under section 4320 but advised Alan he could
supplement his declaration and retain the initial filing date. (See § 4333.)
Renee requested the hearing be set far enough in the future to allow her
to reopen discovery on Alan’s showing of reduced income. Based on Alan’s offer to submit a
supplemental declaration by December 23,
2011, Judge Juhas set the hearing for March 1, 2012.
Alan filed his supplemental declaration,
including an income and expense declaration, on January 26, 2012.
Based on his reduced income since execution of the MSA and a current
DissoMaster calculation,
name="_ftnref3" title="">[3] Alan sought reduction of
his monthly spousal support obligation to $642.
On February 15, 2012
Renee filed a responsive declaration opposing modification of spousal support
on the ground Alan had failed to file his supplemental
declaration within the time limit imposed by the court and requesting his
declaration be stricken.
The March
1, 2012 hearing proceeded before Judge
Michelle Court, who was new to the case. Based on the pending motion to confirm the
terms of the MSA, Judge Court agreed with Alan’s counsel to treat the request
as a pendente lite, temporary support proceeding. Judge Court granted the request for
modification retroactive to October 15, 2011 and directed Alan’s counsel
to prepare a statement of decision as requested by Renee.
Renee filed a notice of appeal on March 2,
2012. Alan’s counsel submitted an order,
signed by the court on March 27, 2012, and a statement of decision, signed on
April 3, 2012. Renee submitted
objections to the statement of decision on April 10, 2012, including, for the
first time, an objection the motion had sought modification of a long-term
spousal support agreement and the court improperly failed to consider the
factors set forth in section 4320.
discussion
1.
Standard of Review
A support order may be modified only if the
moving party demonstrates “a material change of circumstances since the last
order. ‘Change of circumstances’ means a
reduction or increase in the supporting spouse’s ability to pay and/or an
increase or decrease in the supported spouse’s needs. It includes all factors affecting need and
the ability to pay.†(In re Marriage
of West (2007) 152 Cal.App.4th 240, 246 (West); accord, In re Marriage of Khera and Sameer (2012) 206
Cal.App.4th 1467, 1479; In re Marriage of
Dietz (2009) 176 Cal.App.4th 387, 396.)
A showing of changed circumstances is required whether the prior order
contemplated permanent support (see, e.g., In
re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297 (
e.g., In re Marriage of Gruen (2011)
191 Cal.App.4th 627, 638; Dietz,
established by agreement (see § 3591;
West, at p. 247; In re Marriage of
McCann (1996) 41 Cal.App.4th 978, 982). A modification order must be based on
the facts and circumstances existing at
the time the modification is requested.
(In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
“Whether a modification of a spousal
support order is warranted depends upon the facts and
circumstances of each case, and its propriety rests in the sound discretion of
the trial court[,] the exercise of which this court will not disturb unless as
a matter of law an abuse of discretion is shown.†(In re Marriage of Hoffmeister (1987)
191 Cal.App.3d 351, 357-358.) An abuse
of discretion occurs when there is no substantial evidence of a material change
of circumstances (In re Marriage of Dietz, supra, 176 Cal.App.4th at
p. 398) or the trial court “misperceives the law.†(Los Angeles Times Communications LLC v.
Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313,
1327.) Thus, “‘[a]s long as the court
exercised its discretion along legal lines, its decision will be affirmed on
appeal if there is substantial evidence to support it.’†(In re Marriage of Blazer (2009) 176
Cal.App.4th 1438, 1443.)
2.
The Trial Court Erred by Applying the Standard
for a Pendente Lite Temporary Award of Spousal Support To Reduce the Existing
Permanent Award Adopted in the MSA
“Awards of temporary
same purpose, nor are they governed by the same procedures, as awards for
Cal.App.4th 144, 166.) “The purpose of
temporary spousal support is to maintain the status quo as much as possible
pending trial. [Citations.] By contrast, permanent spousal support is
supposed to reflect a complex variety of factors established by statute and
legislatively committed to the trial judge’s discretion, including several
factors which tend to favor reduced support, such as the ‘goal’ that the
supported spouse should become self-supporting within a reasonable period of
time.†(In re Marriage of Schultz (1997) 60 Cal.App.4th 519, 525.)
The issue here is whether the court properly
proceeded by ordering temporary support under section 3600, which is based
solely on the supported spouse’s immediate needs and the supporting spouse’s
ability to pay (see, e.g., In re Marriage
of Samson (2011) 197 Cal.App.4th 23, 29), or was instead constrained by the
provisions of section 4320, which must be considered in modifying an award of
permanent spousal support.
name="_ftnref4" title="">[4] (See, e.g., West, supra, 152 Cal.App.4th at p. 247; Geraci, supra, 144 Cal.App.4th at pp. 1297-1298.) A trial court’s failure to consider the
factors set out in section 4320 in modifying a permanent order of spousal
support constitutes reversible error.
(See Geraci, at p. 1297;
Cal.App.4th 269, 304 [“trial judge must both recognize and apply each applicable statutory factor in setting spousal
supportâ€]; In re Marriage of
Zywiciel (2000) 83 Cal.App.4th 1078, 1081-1082 [abuse of discretion to
substitute computer program (for example, the DissoMaster) for required
consideration and appropriate weighing of statutory factors];
14 Cal.App.4th 1, 9 [same]; see generally Hogoboom & King, Cal.
Practice Guide: Family Law (The Rutter
Group 2012) ¶ 17:146, pp. 17-36.2 to 17-36.3 (rev. # 1, 2012).)
In this case an order of temporary spousal
support was entered in September 2008, not long after entry of the judgment
dissolving the marriage. In January 2010
the parties entered into the MSA, which included an agreement for spousal
support “until the death of either party, remarriage of Renee or order of
court.†The MSA thus contemplated the
court would retain post-judgment jurisdiction to modify the stipulated amount
and provided its terms were subject to enforcement under Code of Civil
Procedure section 664.6. Remaining
issues were then tried to the court, and a final judgment was entered in April
2011. It was the parties’ failure to
confirm the settlement in the judgment that led the court—at the suggestion of
Alan’s counsel—to treat the motion as a request for modification of pendente
lite support.
The failure of the parties to incorporate the
MSA into the judgment, however, did not render it ineffective. Unless otherwise specifically agreed by the
parties in writing or orally before the court, MSA’s providing for spousal
support are subject to modification by the court even though the agreement has
not been approved by the court or merged into a judgment or order. (See § 3591, subd. (a);
1711, 1714-1715 [§ 3591 extends to “private agreements†and is not limited to
agreements that have been approved by a court and merged into a judgment or
order], citing Esserman v. Esserman (1982) 136 Cal.App.3d 572, 577 [“
nor merger into
a decree is
court may exercise
its power to
Alan has failed to cite any authority for his
argument the support provided in the MSA was in the nature of a temporary award
and could be modified under section 3600.
Indeed, the behavior of the parties belies any notion the MSA had no
permanent effect until it had been merged into the judgment. In his original declaration submitted in
support of the request for modification, Alan characterized the MSA as
voluntary and binding and acknowledged he had paid the specified monthly amount
of $5,500.
stayed Alan’s motion to incorporate the MSA into the judgment pending resolution
of the prior appeal, considered the support provision to be permanent in nature
subject to the constraints of section 4320.
Of course, if Alan had objected to the support
provision in the MSA, he could have sought relief from its enforcement. If he had been successful in such a
challenge, Renee might then have been justified in seeking an order of
temporary support pending any appeal from that order. (See In
re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381.) But that is not what happened here. Alan did not attack the validity of the MSA;
he simply sought modification of the support provision according to its
terms. That is, he sought a
post-judgment modification of support.
The record below, including the statement of
decision drafted by Alan, demonstrates the order modifying support was based
solely on the DissoMaster calculation he provided and the imputation of $2,000
in monthly income to Renee. It failed to
reflect the mandatory consideration and findings based on the factors contained
in section 4320. Accordingly, remand for
consideration of the factors set forth in section 4320 is necessary. (See Geraci,
supra, 144 Cal.App.4th at p. 1299.)
disposition
The order granting modification of the existing
spousal support agreement is reversed.
The matter is remanded to allow the court to consider the factors set
forth in section 4320. Renee is to
recover her costs on appeal.
PERLUSS,
P. J.
We concur:
WOODS, J.
SEGAL,
J.
name="_ftn1" title="">[1]
Although Renee and Alan no
longer share the same last name, the matter was filed under Renee’s married
name. Accordingly, we refer to them by
their first names for convenience and clarity.
(See Jones v. ConocoPhillips Co. (2011)
198 Cal.App.4th 1187, 1191, fn. 1.)
name="_ftn2" title="">[2]
Statutory references are to the
Family Code unless otherwise specified.
