Marriage of Bell

Filed 8/7/07 Marriage of Bell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael J. Gassner, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed with directions.

Michael A. Bell, in pro. per., for Appellant.

Samuel R. Wasserson for Respondent.

1. Introduction

Husband has paid support to his wife (respondent) since the termination of their marriage in 1989. Is husband entitled to decrease substantially or cease that support because of his desire to retire at age 70? In objecting to husbands request to do so, is respondent entitled to assert, among other factors, her continuing obligation to care for the parties grandchild?

We reverse the trial court decision, directing the trial court to reconsider its order in light of husbands decrease in income, any additional income received by respondent from her own investments, and our finding that husband has no obligation to provide for the support to his granddaughter.

2. Facts

Husband and respondent terminated their marriage in 1991. In 1996, the parties agreed that husband would maintain life insurance in the sum of $500,000, naming respondent as the beneficiary and would pay respondent spousal support of $1,800 per month until further order of court. In 2004, appellant sought modification of the prior order to reduce support and to terminate his obligation to maintain the $500,000 insurance policy. The trial court reduced the $500,000 insurance policy obligation to $200,000 but denied any modification of spousal support.

In December 2005, appellant filed an additional request for an order terminating spousal support and either terminating the $200,000 insurance policy or ordering respondent to pay the premiums. In support of the December application, husband asserted that he would be 70 in January 2006, he wanted to retire, he had physical problems involving diabetes and coronary stents, that his change in employment made it difficult for him to pay support to respondent and to maintain the insurance policy. The trial court found that husband was 70 years old and was entitled to retire but, as of the date of the hearing, he had not retired.

In response to husbands request for a decrease in his obligations, respondent submitted a declaration in which she asserted she had the sole responsibility for the care of her teenage granddaughter and that care required her to work only half time. Her financial statement indicated the received salary averaged $3,465 per month, $1,800 per month for spousal support, $870 from social security, and $650 for the care of her granddaughter. She also disclosed that she had sold property she received upon the termination of her marriage with husband and that she had reinvested the proceeds but she did not indicate the amount received from the sale or the income she received from the reinvestment. Husband notes that respondent is a licensed registered nurse, has a bachelors degree in psychology, holds an airline pilots license, and is a certified flight instructor.

The trial court refused to modify the spousal support because husband had not yet retired, but did order the insurance policy maintained by husband be reduced to $100,000.

3. Effect of Potential Retirement

Husbands declaration, uncontradicted by respondent, indicates that his salary at his prior law firm had been $10,700 per month plus an auto allowance, gas expenses, medical insurance, contributions to his 401K plan of $500 per month and annual dues for various bar associations to which he belonged. In late 2004, his employment with his prior firm terminated and he was employed by another firm in which he was paid $125,000 per year but was not reimbursed for car allowance, gas, bar association dues, medical insurance, or contributions to his 401K plan. Because of the onset of diabetes, coronary disease, and payment for his own life insurance, husbands income has been severely reduced and due to his age of 70 years, he intends to retire. On the basis of the above facts, husband requests respondents support be terminated along with his obligation to maintain a life insurance policy on his life for respondent.

Respondent does not deny that she is a licensed registered nurse, has a bachelors degree in psychology, has an airline transportation rating, or is a certified flight instructor. Respondent contends that despite her education and certifications, she can only work half time because she must care for the high school child of the parties daughter.

Although there has been a change in the circumstances of husbands employment, the basis upon which husbands support was determined has not been drastically changed. Many of the factors set forth in Family Code section 4320 have remained generally the same. Husband continues to work, albeit at a decreased salary. Husband cannot be compelled to work after the usual retirement age of 65 in order to pay the same spousal support provided when he was employed. (InreMarriageofReynolds (1998) 63 Cal.App.4th 1373, 1379.) But this is not a case in which husband has actually retired. Had he actually retired, he could not be forced to continue working and that change of circumstance would justify a modification of support. (See In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 593-594.)

In this case husband has continued to work, although his change of jobs had resulted in a decrease in his prior income. Whether that is a substantial change in circumstances must be considered with other criteria in determining whether a modification of support is proper. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 4-7.) The trial court should have taken that fact into consideration. In addition, the trial court apparently did not consider the fact that respondent may have unstated income from property she received in the divorce and which she had reinvested.

4. Respondents Care of High School Granddaughter

Respondent admits that she has a pilots license and a flight instructors license, a nursing credential, a bachelors degree in psychology and had begun graduate school aiming at a Masters Degree but stopped that process to attend the needs of a grandchild whose mother is incapable of caring for her. Respondent is employed at Loma Linda Medical Center now, but only part time. Respondent also complains that husbands wife grosses at least $1,674 per month. Even if that fact were true, it cannot be considered in determining spousal support. (Fam. Code, 4323, subd. (b).)

Respondent relies upon her need to care for her teenage granddaughter as a basis for limiting her work to part time and as a consequence, limiting her own income. The result is husband has been required, in effect, to subsidize respondents child support of their grandchild. Husband is under no legal obligation to support either his adult daughter (Fam. Code, 3901) or his granddaughter. (Fam. Code, 3930.) Respondent is therefore seeking, and receiving, income from husband for her refusal to work full time.

5. Disposition

The trial court failed to take into consideration factors that may have required a modification of husbands support obligations to respondent. The decrease in husbands income since his income application for a modification of spousal support, plus respondents income, if any, from her investment of money obtained from the sale of real property obtained in the dissolution, may have significantly altered respondents financial circumstances. Furthermore, husband is not obligated to provide income for the support of his and respondents granddaughter. We reverse the order denying husbands modification request and remand the case to the trial court to reconsider the support order in light of the changed circumstances noted in this opinion. Reduction of support, if any, is within the discretion of the trial court. Husband is entitled to his costs of appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.