Marriage of Munro

Filed 5/1/07 Marriage of Munro CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Lantz Lewis, Judge. Reversed.

Julie A. Munro appeals from an order refusing to increase her temporary spousal support and imputing income to her. She contends the trial court abused its discretion in not modifying temporary spousal support after she lost her job and by imputing full-time minimum wage income to her for the purpose of determining temporary spousal support. We agree and reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

Steven and Julie were married in September 1986 and separated in July 2004. In February 2006, Steven filed a petition for dissolution of the marriage and an order to show cause seeking child support, exclusive use of the family residence and a truck, and primary custody of Krista, their 14-year-old daughter. Julie filed a motion seeking spousal support. At a hearing in April 2006, the parties stipulated that Julie would receive temporary use of a Honda automobile and Steven would have full physical custody of Krista and temporary use of the truck and the family residence, with the obligation to pay the mortgage and taxes and the right to obtain the corresponding tax deductions. Julie was to receive $500 per month in spousal support and Steven was to receive the same amount from Julie in child support, with no money changing hands. At this time, the parties had monthly incomes of $5,614 for Steven and $3,344 for Julie.

On May 14, 2006, Julie's existing contract as a floral sales associate with her employer expired and she learned that the contract would not be renewed. Because Julie was an independent contractor, she was not eligible for unemployment compensation. The following week, Julie filed an order to show cause seeking a temporary modification of child and spousal support and attorney fees because she had no monthly income.

At a hearing on the matter, the trial court found that Steven had gross monthly income of $6,200 and granted him a mandatory retirement deduction of $203 per month. It ordered Julie to undergo a vocational evaluation and make five job contracts per week and imputed to her $1,170 in monthly full-time minimum wage income. These facts yielded a guideline child support obligation of $256 per month from Julie and $1,300 per month in spousal support from Steven. While the court lowered Julie's monthly child support payment to $256, it left in place the previous temporary spousal support order of $500 per month, resulting in Julie receiving $244 a month in spousal support from Steven. Julie timely appealed.

DISCUSSION

I. Imputed Income

The trial court may consider a party's present or future "earning capacity" as a factor in determining permanent spousal support. (Fam. Code,  4320, subds. (a), (c).) "Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [Citation.]" (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338, internal quotation marks omitted.) However, use of the earning capacity standard is inappropriate where a party lacks either the ability or the opportunity to work. (In re Marriage of Everett (1990) 220 Cal.App.3d 846, 860.)

The trial court may also consider a party's earning capacity in fixing temporary spousal support, subject to the same limitations on imputing income that apply in adjudicating permanent spousal support. (In re Marriageof Wittgrove (2004) 120 Cal.App.4th 1317, 1329.) Generally, the proponent of the earning capacity standard must introduce competent evidence demonstrating the other party has both an ability and opportunity to earn the attributed income sought to be imputed. (Ibid. [husband presented no competent evidence to warrant imputing additional income to wife]; In re Marriage of Henry (2005) 126 Cal.App.4th 111, 120 [husband urged use of wife's earning capacity, but presented no evidence of wife's job qualifications, salary payable and job opportunities].)

Steven did not ask the trial court to apply the earned capacity standard and presented no evidence of Julie's job qualifications or available job opportunities. At the hearing, the trial court sought no information from Julie or her counsel on the propriety of imputing income; rather, it simply imputed the income. However, "the imputation of minimum wage, like any other amount, must be supported by the evidence." (State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1128, fn. 2.) Here, the record is devoid of any evidence showing Julie had the ability and opportunity to earn minimum wage. In fact, the trial court ordered Julie to undertake a vocational evaluation to assess her employability.

Although a finding of bad faith or malingering is not required for a trial court to impute income (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216 [addressing child support]), we find it significant that Julie found herself unemployed without warning and less than two months had elapsed from the date of her termination and the date of the hearing. As the trial court noted, Julie had previously earned a good salary and we believe it is counter-productive to essentially force a relatively recently unemployed spouse to immediately obtain full-time minimum wage employment without knowing anything about her employability or her ability and opportunity to earn minimum wage or a significantly higher salary if given a reasonable amount of time to find such employment. It does not appear that two months is a reasonable time to obtain similar employment. Based on this record, we conclude the trial court abused its discretion when it imputed full-time minimum wage income to Julie.

II. Temporary Spousal Support

Temporary spousal support is intended to preserve the standard of living enjoyed by the parties pending final division of their assets. (In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932 (Winter).) Unlike permanent support, an award of temporary support may be ordered in "any amount" subject only to the supported party's needs and the supporting party's ability to pay. (Fam. Code,  3600; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) Trial courts are permitted and encouraged to use standard guidelines, based solely on income, in setting temporary spousal support to promote consistency and predictability. (Winter, supra, 7 Cal.App.4th at p. 1933.) A trial court, however, may take into account any unusual factors (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5-6, fn. 3; Winter, supra, 7 Cal.App.4th at p. 1933) and we review a temporary spousal support order for an abuse of discretion. (Winter, supra, 7 Cal.App.4th at p. 1933.)

Here, the trial court lacked any evidence as to Julie's earning capacity. Despite this evidentiary void, the trial court imputed $1,170 per month in full-time minimum wage income to her and used the imputed income to calculate the guideline amount of temporary spousal support at $1,300 per month. The trial court, however, left the temporary spousal support order of $500 per month unchanged despite Julie's drastic change in circumstances and justified its deviation from the guideline amount on the ground Julie had a very economical place to stay, would be employed shortly and was previously a high wage earner.

At the time of the hearing Julie was living with her retired parents, paying $500 in rent and attempting to keep current on $1,068 in monthly installment obligations. Julie's declaration stated that she was making job contacts, had no objection to being ordered to make job contacts, was in "somewhat desperate straits" and requested the increase in temporary spousal support "until [she could] get back on [her] feet." During the hearing, counsel represented that Julie hoped to be employed in two to four months. Even with the imputed income, Julie had suffered a salary decrease of 65 percent. However, if the erroneously imputed income is subtracted, Julie was left with a mere $244 per month. Notably, during the same time period Steven experienced an increase in his salary of almost $600 per month.

Given Julie's significant change in circumstances and absent any evidence or a finding by the trial court that Steven lacked the ability to pay more in temporary spousal support, we fail to see how the order maintained the status quo, which is the benchmark for temporary spousal support. (See Winter, supra, 7 Cal.App.4th at p. 1932.) Although the court's discretion is wide, it is not unlimited and the order here failed to allow both parties to maintain their living conditions and standards as close to the pre-separation standard as possible. Accordingly, the order is reversed.

DISPOSITION

The order is reversed. Julie is entitled to her costs on appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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