Filed 8/8/17 Marriage of Dixon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of HEATHER and ARTHUR DIXON.

HEATHER DIXON,

Respondent,

v.

ARTHUR DIXON,

Appellant.
D070687


(Super. Ct. No. D524075)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Affirmed.
Linda Cianciolo for Appellant.
Niddrie Addams Fuller and Rupa G. Singh for Respondent.
I
INTRODUCTION
Arthur Dixon (Husband) appeals a postjudgment order denying his request to modify the amount of monthly spousal support he must pay Heather Dixon (Wife). He contends we must reverse the order because the court did not consider and apply the factors in Family Code section 4320 (section 4320 factors). He additionally contends we must reverse the order because the court erred by imputing income to him after he decided to leave a higher paying management job for a significantly lower paying job as a commercial airline pilot. Finally, he contends we must reverse the order because the court failed to properly calculate Wife's actual income using a 51-week work year rather than a 48-week work year.
We conclude the record shows the court considered and applied the relevant section 4320 factors. We further conclude the court acted within its discretion and consistent with its credibility determinations, which are not challenged on appeal, when it imputed income to Husband and calculated Wife's income using a 48-week work year. We, therefore, affirm the order.
II
BACKGROUND
Husband and Wife divorced after 18 and a half years of marriage. Under the terms of their mediated marital settlement agreement (agreement) and in exchange for Wife receiving 60 percent of certain community assets, Husband was not required to pay Wife spousal support for a six-month period. The agreement was based on findings Wife had monthly gross income of $4,000 and Husband had monthly gross income of $1,157.
Before the parties entered into the agreement, Husband had been paying monthly spousal support of $2,120. This amount was based on Husband's monthly earnings of over $11,000 from his employment as an active duty military pilot. At the time the parties negotiated the agreement, Husband expected his active duty military employment would soon end, at which time he would enter the military reserves at substantially reduced pay while he looked for other work.
When permitted by the terms of the agreement, Wife filed a request for an order modifying spousal support to $1,500 a month. In support of her request, she submitted an income and expense declaration indicating she worked 30 to 32 hours a week as a dental hygienist, was paid $45 an hour, and her average monthly wages were $3,900, although she had been paid $4,082 the prior month. She had assets totaling $11,000, average monthly expenses totaling $6,661, and monthly installment debt of $511. She was also the sole caregiver to the parties' two children.
Husband opposed the request, arguing spousal support was unnecessary because, based on the report of a vocational counselor, Wife had the ability to be self-supporting. The vocational counselor concluded Wife's earning capacity as a dental hygienist was between $69,552 and $74,000, assuming she worked 32 hours a week over a 50-week work year. However, the 50-week work year did not account for scheduled office closures around holidays or for sick, vacation, or personal time off for Wife to attend to the needs of the children, all of which was unpaid.
As part of his opposition, Husband submitted an income and expense declaration indicating he earned $12,232 a month as a manager for a large company. He had assets totaling $34,637, monthly expenses totaling $10,980, and monthly debt payments totaling $1,200.
After considering the parties' arguments and the section 4320 factors, the court ordered Husband to pay monthly spousal support of $1,500. The court based its decision on findings the parties had a long-term marriage with an upper middle class standard of living, Husband had monthly earnings of approximately $12,500, and Wife had monthly earnings of approximately $4,000. In addition, the court made the following findings under section 4320:
"A. Earning Capacity to maintain [Marital Standard of Living].
"1) The marketable skill of the supported party is dental hygienist. Wife had some exposure to the work force during the marriage as she was employed sporadically as a dental assistant but not as much as Husband because he was in the workforce about 25 years. Wife returned to school to receive an education as a dental hygienist and has taken on that debt. Wife has done what she was asked to do to become self-supporting in getting a career. Wife's current income is approximately $46,000/year.
"2) Husband was in the military for 25 years. The parties were married for 18 years and for a good portion of that Husband was in the military and Wife was moving around.
"B. Contribution by supporting party. Husband lived [out of state] so that the family did not have to move very much but Wife was primarily responsible for the children and was not able to work on her career.
"C. Ability to Pay. Husband's current income is approximately $145,000/year. Husband has the ability to support and based on his bills, including … child support, he still has the ability to pay spousal support.
"D. Needs based on the Marital Standard of living. The court notes that it did look at the Marital Settlement Agreement and there was no reference to the marital standard of living. The parties have an upper middle class standard of living. The parties owned homes [and] cars, took vacations and had a relatively good standard of living during the marriage. Wife is currently living in a rental home, has an older car and is not living at the standard of living. Husband is living at about the standard of living.
"E. Obligations and Assets of each party. Wife has over $25,000 in loans for dental hygienist school and rents. Husband has taken on debt since he began the dissolution process or has been divorced but some of that debt is by choice. Husband has purchased a new home and also owns a condominium ….
"F. Duration of Marriage. This is an 18[-]year marriage.
"G. Needs of the Children: Based on the age of the children Wife can work at least part time and up to 32 hours a week is not going to hurt the children.
"H. Age and Health. Wife is 45 and Husband is 45. Wife has the ability to work and is in good health.
"I. There is no history of domestic violence.
"J. Tax consequences. Spousal support is deductible to Husband and income to Wife.
"K. Hardships: Wife is really experiencing a hardship now with the amount of her bills. She needs spousal support.
"L. Goal of being self-supporting. [Wife] is ordered to seek as much full-time work as possible under the circumstances of her current vocation and is aware that she has [a] duty to become self-supporting. In due course, a year or two, Wife should become self-supporting. This applies to spousal support, not child support. [The court issued Wife a "Gavron warning" and admonished her she needed to work more than 20 hours per week. ]
"M. There are no criminal convictions."
The court further found that even with monthly spousal support of $1,500, Wife would still be living below the marital standard of living.
Two months later, Husband filed a request for an order modifying spousal support. He argued the court should impute income to Wife based on at least a 35-hour work week because Wife had not done enough to obtain full-time work and become self-supporting. In support of his request, he submitted an income and expense declaration indicating he earned $12,232 a month working as a program manager for a large company, had deductions for retirement and healthcare totaling $811 a month, assets totaling $34,637, average monthly expenses totaling $12,975, and monthly installment debts totaling $1,200.
Wife opposed the request and instead requested monthly spousal support remain at $1,500. She argued she had been diligently working and made progress toward self-sufficiency, she obtained employment as a dental hygienist within two months of being credentialed, full-time employment for dental hygienists is 32 hours a week, and she worked an average of 31 hours a week. However, she did not get paid when patients cancel, or when she had to take sick or personal time off. Consequently, she estimated she was only paid 48 weeks a year, making her projected earnings $66,960 a year or $5,580 a month.
In support of her request, Wife provided an income and expense declaration indicating she worked between 30 to 32 hours a week and was paid $45 per hour. Her average monthly wages were $4,500, although she earned $5,580 the prior month, and she expected to receive an additional $1,808 each month for her share of Husband's military retirement. She had monthly deductions for health care totaling $400 and assets totaling $11,000. Her average monthly expenses were $6,661 and she had monthly installment debts of $511.
In reply, Husband continued to assert Wife should no longer receive spousal support because she was self-supporting, especially since she was receiving a portion of his military retirement pay. In addition, he indicated he had been trying to find and had finally been offered an entry-level position in the commercial airline industry. He provided an updated income and expense declaration indicating his average monthly income from his new job would be $1,915. In addition, he received monthly military retirement benefits of $2,580. He had deductions for union dues, health insurance premiums, and job-related expenses totaling $2,090, saleable assets of $600, and real property assets in an undetermined amount. He had average monthly expenses of $13,552 and monthly installment payments of $1,330.
After considering the parties' papers and arguments and the section 4320 factors, the court ordered spousal support to remain unchanged at $1,500 a month. The court made the following findings in support of its order:
"A. At the time that [Husband] filed a motion to modify support …, he had no basis for filing it and it was just harassment. The court did not dismiss the motion because as of the date of the hearing there were some changes in [Wife's] income and the payment of retirement income.
"B. [Wife] has done what is required under the Gavron warning. [Husband's] complaints that [Wife] is not working hard enough or fast enough when she just started her career is not reasonable based [on] the law [or] the facts in this particular situation. This is supported by the vocational evaluation.
"C. [Wife] is not living at the [marital] standard of living.
"D. [Wife's] earning $5580/month is reasonable. It is a bit below the 48[-]week earning standard but the court considered the cancellation of patients over which she has no control. Requiring [Wife] to obtain a second job is not in the best interest of the children.
"E. It is not in the best interest of the children to impute income to the custodial parent.
"F. The result of [the prior] support hearing displeased [Husband]. He then made an effort to decrease his income and managed to do so rather substantially.
"G. There is no evidence that [Husband] wasn't qualified for [his former program manager job] or that he shouldn't be keeping [that job].
"H. [Husband] chose to become purposefully unemployed. The court finds [Husband] cannot make such a choice at the expense of the children and meeting his obligations.
"I. Evidence was presented to support imputing income to [Husband] at the level he was earning [at the program manager job].
"J. Based upon the consideration of the [section] 4320 factors and the particular facts of this situation, spousal support remains the same because although [Wife's] income has increased by the military retirement, so has [Husband's]."
III
DISCUSSION
"The modification of a spousal support order is reviewed on appeal for abuse of discretion. In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir, supra, 134 Cal.App.4th at p. 47, fn. omitted.)
A
In deciding whether to modify a spousal support order, the court must consider and weigh section 4320 factors to the extent they are relevant. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302 (Cheriton).) The first factor, "the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed." (Cheriton, supra, at p. 303.)
Husband contends we must reverse the order because neither the order nor the court's findings show whether or how the court applied the section 4320 factors. However, as Wife points out, most of the section 4320 factors were not relevant because very little had changed in the short time between when the court first ordered Husband to pay Wife monthly spousal support of $1,500 and when Husband sought modification of the order.
The length of the parties' marriage, their marital standard of living, Wife's marketable skills, her work history during the marriage, her contribution to the family and to Husband's career, the absence of documented domestic violence, and the absence of criminal convictions all remained the same. (§ 4320, subds. (a)(1)–(2), (b), (f), (i), (m).) The parties' ages and health and the tax consequences of a spousal support order were also essentially the same. (§ 4320, subds. (h), (j).) Consequently, none of these factors would have warranted a modification of the court's spousal support order.
Of the remaining section 4320 factors, the evidence in the record, the court's order and findings, and the court's remarks at oral argument collectively show the court considered the parties' respective obligations and assets as well as Husband's ability to pay spousal support given his earning capacity, earned and unearned income, assets, and standard of living. Indeed, the court expressed particular concern with what it found to be Husband's unreasonable decision to leave a well-paying job to pursue his substantially lower paying dream job of being a commercial airline pilot given his support obligations and other financial obligations. (§ 4320, subds. (c), (g), (n).) The court also considered Wife's successful attainment of employment as a dental hygienist, which would allow her to be self-supporting, while recognizing Wife was still not living at the marital standard of living, she was sole caregiver to the parties' children, and she was not paid for patient cancellations or for sick, holiday, or personal time off. (§ 4320, subds. (a), (d), (g), (k), (l), (n).) Finally, the court considered the recent increase in both parties' incomes from the receipt of proportional shares of Husband's military retirement benefits. (§ 4320, subds. (c), (k), (n).) As the record does not show the court failed to consider any relevant section 4320 factors, Husband has not established we must reverse the court's order on this ground.
B
Husband further contends we must reverse the court's order because the court erred by imputing income to him based on his decision to leave a higher paying management job for a lower paying job as a commercial airline pilot. In his view, the job change did not justify imputing income to him because he had always professed a long-term goal of becoming a commercial airline pilot and he presented evidence the management job was temporary and would have soon ended.
However, the court's findings indicate the court did not credit Husband's evidence about the temporary nature of the management job. Rather, the court found, notwithstanding Husband's long-term career goals, Husband made an unreasonable choice to accept the substantially lower paying commercial airline pilot job given his support obligations. Although Husband ignores these findings, he does not contend, nor could we conclude, there is insufficient evidence in the record to support them.
Husband also has not established the absence of any legal basis for the court's decision. To the contrary, where a reduction in the supporting spouse's income was within the supporting spouse's control, a court may properly exercise its discretion to deny a requested downward modification in spousal support and instead keep the spousal support amount at the same level based on the supporting spouse's earning capacity. (See In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1633–1634, 1638–1639 [husband unsuccessfully sought spousal support reduction based on fact he quit his job as a pharmacist to pursue his lifelong dream of attending medical school]; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 80 [a court may properly impute income to a supporting spouse who elects to retire early and not seek reasonably remunerative available employment].) Accordingly, Husband has not established the court abused its discretion in imputing income to him based on his pay at his former program manager job.
C
Finally, Husband contends we must reverse the court's order because the court failed to properly calculate Wife's actual income. More particularly, he contends the court should have based its calculation on Wife working 32 hours a week for 51 weeks a year. When thus calculated, Wife's income, coupled with her share of Husband's monthly military retirement benefits, would have allowed the court to find Wife was self-supporting at the marital standard of living.
Husband is essentially asking us to reweigh the evidence before the court because the court did not resolve the evidentiary conflicts more favorably to him. This is not our function. We review the court's order for abuse of discretion. To the extent the court's exercise of discretion is based on the facts of the case, we will uphold the court's determination as long as the determination is within the range of the evidence presented. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)
The court opted to calculate Wife's income based on Wife working 32 hours a week for approximately 48 weeks a year because the court credited Wife's evidence showing she was not paid when patients cancel, when the dental office where she worked was closed for holidays, or when she had to take time off work for sick or personal reasons, including to attend to the needs of the parties' children, for whom she is the sole caregiver. As this determination is within the range of the evidence presented, Husband has not shown the court abused its discretion in calculating Wife's income in the manner it did.
IV
DISPOSITION
The order is affirmed. Wife is awarded her appeal costs.


MCCONNELL, P. J.

WE CONCUR:



HALLER, J.



AARON, J.