Marriage of Perry and Bierbaum

Filed 8/21/06 Marriage of Perry and Bierbaum CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Michael Bierbaum (husband) appeals from the portion of a dissolution judgment awarding him $450 in spousal support with a step-down to zero support after six months. He argues that more support should have been awarded given his physical disabilities and limited earning capability. We conclude there was no abuse of discretion.

BACKGROUND

Husband was married to Erin Perry (wife) for 29 years. They have two children who are out of high school. Husband has a bachelor's degree in music with a lifetime teaching credential in music, history and social studies. Most of husband's employment history has been in the field of music or theatre. He has worked only sporadically and has not earned more than $12,000 annually since the early 1980's. He has sung for churches, performed in operas and other productions, and knows how to use a computer. Husband claims to suffer from chronic pain. He has had wrist and knee injuries and suffers from obesity and diabetes. He claims that these conditions limit his ability to work in his chosen field.

Wife was a stay-at-home mother while her children were younger, but became a librarian in the early 1990's. She earns approximately $3,200 in gross income each month, which is sufficient to cover her expenses.

In 2001, husband and wife each inherited approximately $175,000 from wife's brother. Conservatively, husband can draw interest and dividend payments of about $425 per month from his fund without invading the principal. He also receives tax-free disability income from Social Security at a rate of over $500 each month and has health benefits through Medicare.

Wife filed for divorce in 2003. Husband was awarded $600 in temporary spousal support. Connie Hanretty-Church, a vocational rehabilitation counselor, evaluated husband to assess his earning capacity. She concluded that with his skills, he could reasonably be expected to earn $1500 a month as a voice teacher or $80 a day as a substitute teacher. Hanretty believed that husband was in a better position to earn a living than most people with similar disabilities but was not motivated to do so.

Husband sought permanent spousal support from wife, arguing that he was unable to support himself due to his disabilities. Following a contested hearing, the court made a support order in the amount of $450 per month, with a step-down to zero after six months, and a reservation of jurisdiction. Its statement of decision explains: "Michael's disabilities do not keep him from all work. As noted, he is employed by local churches to sing at services and he is also capable of teaching voice for pay. He is a member of a fitness club and exercises regularly at home and occasionally at the gym. Michael's abilities include spending hours each day working on one of the three computers he owns to do on-line research and writing. Michael is capable of most sedentary and semi-sedentary activities such as reading, writing, planning musical productions, walking and driving a motor vehicle. He is able to care for himself and to attend the usual activities of daily living. There is no reason he cannot teach voice or work for pay at least a few days each month and in that way earn what it takes to be self-sufficient."

DISCUSSION

Husband argues that he was entitled to spousal support for more than six months because his physical disabilities and poor earning history render him incapable of supporting himself without wife's assistance. He claims the trial court did not adequately consider the facts relevant to spousal support. We disagree.

Spousal support is not mandatory in a dissolution proceeding. (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.) The trial court has broad discretion to fashion an award so long as it considers the factors set forth in Family Code section 4320. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 131-132.) These factors include the parties' earning capacity and their ability to pay, taking into account income, assets and standard of living; duration of the marriage; the needs and marketable skills of the supported party; and the goal that the supported party become self-supporting. (§ 4320; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) The court must consider each of the relevant circumstances, but has the discretion to determine the appropriate weight to accord to each. (Ibid.) A "stepdown" order automatically decreasing or terminating support on a future date must be based on evidence that the supported spouse's needs will be less on that date. (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 656.)

The court in this case considered all the factors relevant to the support order. It aptly described the standard of living during most of the marriage as relatively low, and observed that husband's standard of living has not changed. (§ 4320, subds. (a), (d).) It concluded that husband had marketable skills in the fields of education and music, although he had elected not to take advantage of those skills to support himself. (Id., subd. (a)(1).) It acknowledged that the case involved a long-term marriage. (§ 4320, subd. (f).) It noted the parties' relative incomes and expenses, including their "substantially equal separate property estates" deriving from the significant inheritance left by wife's brother.

Husband complains the trial court abused its discretion because no judge presented with the facts of this case would have reasonably made the same order in light of his physical ailments, which rendered him disabled and eligible for Social Security benefits. (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50.) The court was well aware that husband was awarded partial, permanent disability benefits, but it concluded that he was able to work enough to adequately supplement those benefits and his interest/dividend income. Hanretty-Church's vocational rehabilitation assessment supported the conclusion that husband's problems in securing employment were largely motivational. The court reasonably concluded that husband could remedy this situation during the six-month period before support terminated.

Husband argues that reversal of the spousal support order also requires reversal of the order denying him attorney's fees. Our affirmance of the spousal support order makes it unnecessary to address this claim.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

E. Jeffrey Burke, Judge

Superior Court County of San Luis Obispo

______________________________

Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Appellant.

John F. Hodges for Respondent.

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