Filed 4/6/22 Marriage of Taylor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Teresa S. Bennett, Judge. Affirmed.

Regina P. Taylor, in pro. per., for Appellant.

No appearance for Respondent.

In 2009, Regina and LaRon Taylor were divorced by a judgment that disposed of community property and awarded child support for the couple’s then minor children, as well as spousal support for Regina.[1] The marriage had lasted for 11 years and 4 months, but the spousal support continued, until, in 2019, the trial considered cross motions by the parties and ordered a gradual reduction in spousal support, with a goal of terminating it in due course. Regina, who has made no effort to seek or obtain employment or to apply for disability, appeals that judgment.

On appeal, Regina argues that the trial court abused its discretion in denying her most recent application to order an increase in spousal support, as well as in ordering a decrease of support with further reductions leading to termination of spousal support. We affirm.

Background

In 2009, the trial court entered a judgment of dissolution, ending the 11-year, 4 month marriage of the parties. In the judgment, which confirmed the division of community property, awarded child custody, and ordered child support, the court ordered only temporary spousal support, reserving jurisdiction over a permanent award of spousal support.

In 2012, after a temporary order had been implemented increasing support, a court trial was held on the issues of permanent spousal support, culminating in a final order for spousal support in the amount of $1000 per month, based on LaRon’s inability to pay the increased amount sought by Regina. The statement of decision was issued on August 30, 2012, and the court did not set a date for termination of support due to Regina’s then current medical issues affecting her employability, but observed she had not introduced any evidence she was permanently unable to work. It therefore included a “Gavron” warning (ref. In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron)), admonishing Regina that, “It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable, good faith efforts may be one of the factors considered by the court as a basis for modifying, reducing or terminating spousal or partner support.”

On April 22, 2013, before the final judgment was entered, Regina sought another modification of the spousal support, seeking an increase to $2700 per month. The final judgment, which included the reduction of spousal support to $1000 per month, was entered on May 13, 2013.[2]

The same day as the final judgment was entered, Regina filed an amended request for order, supplementing the request made the month before to show the LaRon’s expenses (on which the court based its decision to reduce the amount ordered in the temporary support order) had decreased. However, LaRon had to discontinue working overtime for his own health reasons, resulting in reduced income and inability to continue paying spousal support as directed in the temporary order.

The hearing on this application for modification occurred in March 2014, and in its statement of decision, issued on July 18, 2014, the trial court observed that while Regina continued to require support because of medical issues that negatively impacted her ability to earn, she had failed to take concrete steps toward “self dependency” such that a neutral observer could easily opine her intent was to support herself by litigation of this case. The court also observed wife had engaged in some discovery gamesmanship to prevent disclosure of her full medical records. The court determined that $1000 was an adequate support order because Regina had presented no evidence of a permanent inability to work, whereas LaRon did not have ability to pay the increased support sought by Regina. The findings and order after hearing were filed on September 18, 2014.

Four months later, on January 23, 2015, Regina filed a new request for order seeking an interim increase on spousal support from $1000 to $2600 per month, and an increase in permanent support to $2990. In her supporting declaration, Regina explained she was still undergoing medical treatment and was scheduled for another surgery. In March 2015, the court ordered temporary spousal support in the amount of $2000 per month, pending trial. We filed our opinion affirming the 2012 judgment on March 5, 2015. (In re Marriage of Taylor, E059177 [nonpub. opn.].)

After the filing of our opinion in the first appeal, extensive discovery proceedings were undertaken by both parties, with cross motions to compel various discovery matters. On November 17, 2015, LaRon filed a request for order seeking an independent medical examination of Regina, but this was denied on December 4, 2015.

On October 18, 2016, LaRon filed a request for order re spousal support seeking a reduction in the temporary spousal support order. Regina opposed his request and more discovery disputes ensued. Following hearings spanning several days, the court took the matters under submission and issued its tentative ruling on October 31, 2018. In the tentative ruling the court noted that LaRon had been paying $2000 per month since March 2015, pursuant to the temporary order, but that $1000 per month was deemed appropriate at two prior proceedings.

In the tentative ruling, after reviewing the history of the case and the evidence adduced at the court trial, the court denied Regina’s request for an increase in spousal support and terminated the temporary support effective November 30, 2018. Effective December 2018, support would be reduced to $1000 per month, effective until November 2019; effective December 2019, support would be reduced to $750 per month, effective until November 2020; effective December 2020, support would be reduced to $500, effective until November 2021, and effective December 2021, support would be reduced to zero. The court again included a Gavron warning. Regina objected to the findings and order.

After addressing Regina’s objections to the tentative decision, the trial court issued its final ruling/statement of decision confirming the schedule of reduced payments, which were ordered to remain in effect until the death of either party, remarriage of Regina, or further order of the court. This judgment, like those that preceded it, included a Gavron warning and a step down reduction of support, culminating in termination of spousal support. The final ruling was filed on February 28, 2019.

On April 8, 2019, Regina filed the instant appeal.

Discussion

Reginal argues, under separate headings, that the trial court abused its discretion in (a) denying her request for increased spousal support, and (b) for decreasing support in step-down fashion leading to termination of her spousal support by 2021.[3] Both claims are subject to the same standard of review.

1. General Principles and Standard of Review Pertaining to Spousal Support Orders.

“An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines.” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, citing In re Marriage of Smith (1990) 225 Cal.App.3d 469, 481 (Smith) [applying the guidelines of former Civ. Code, § 4801, subd. (a)].) In making its spousal support order, the trial court possesses broad discretion to fairly exercise the weighing process contemplated by Family Code section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. “The issue of spousal support, including its purpose, is one which is truly personal to the parties.” (Smith, supra, 225 Cal.App.3d at p. 481.)

“Family Code section 4320 lists a number of circumstances to be considered by the trial court in awarding spousal support. These include ‘[t]he needs of each party based on the standard of living established during the marriage’ [citation], [which has been interpreted to refer to the] ‘reasonable needs commensurate with the parties’ general station in life. [Citation.]’” (In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1095-1096, quoting Smith, supra, 225 Cal.App.3d at p. 491.) However, in evaluating the relevant statutory factors to determine permanent spousal support, “the actual marital standard of living” is not “an absolute measure of reasonable need, but merely a ‘basis’ or reference point for determining need and support.” (Smith, supra, at p. 484.)

While the trial court must consider the statutory guidelines, the ultimate decision rests within its broad discretion. “The purposes of spousal support inevitably vary from case to case, depending upon the parties and the facts and circumstances of the case.” (Smith, supra, 225 Cal.App.3d at p. 480.) The trial court, in exercising its discretion by weighing the statutory factors and by following case law, must endeavor to make an order which will achieve a just and reasonable result in each case. (In re Marriage of Drapeau, supra, 93 Cal.App.4th at p. 1096, citing Smith, supra, at p. 482.)

In reviewing a trial court’s orders and judgment, we begin with the well-established rule that the judgment or order of the lower court is presumed to be correct on appeal, and all intendments are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “‘“Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.” [Citations]’” (In re Marriage of Drapeau, supra, 93 Cal.App.4th at p.1096, quoting In re Marriage of Kerr, supra, 77 Cal.App.4th at p. 93; see also, In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50.) We therefore review spousal support orders for abuse of discretion. (In re Schleich (2017) 8 Cal.App.5th 267, 276; In re Marriage of Kerr, supra, 77 Cal.App.4th at p. 93; see also, In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1145.)

2. The Trial Court Did Not Abuse Its Discretion by Denying Regina’s Request to Increase Spousal Support.

Regina claims the trial court abused its discretion in denying her request for an increase in spousal support. She acknowledges the standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order, and that the policy was not designed to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) But she maintains that the Gavron advisal given to her by the trial court only required her to seek employment “if” she were medically able, she would then be obligated to begin efforts to find employment. We disagree.

Family Code section 3651, subdivision (a) provides that, with certain exceptions not applicable here, a support order may be modified or terminated at any time as the court determines to be necessary. Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1475, citing In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) The moving party has the burden of showing a material change of circumstances since the last support order was made. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)

Family Code section 4326, subdivision (a), provides that in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support. However, a trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order. (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p.1475, citing In re Marriage of West (2007) 152 Cal.App.4th 240, 247.)

“In other words, in considering a spousal support modification request . . . given the predicate of a change of circumstances—the trial court looks at the various factors bearing on spousal support under section 4320.” (In re Marriage of Kacik (2009) 179 Cal.App.4th 410, 422.) “[A]n increase in the husband’s ability to pay may be considered a change in the circumstances of the respective parties sufficient, if there is also a showing of need, to justify an increased spousal award.” (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173.)

Thus, in considering a request to modify spousal support, the court engages in a two-step analysis. First, the court examines whether there has been a change of circumstances that might warrant a modification of support. “Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order.” (Smith, supra, 225 Cal.App.3d at p. 480.) Second, the court determines the amount of spousal support by analyzing the 14 factors listed in Family Code section 4320. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273.) However, “[e]ven upon proof of a change of circumstances, ‘modification is not necessarily mandated given the court’s obligation to reconsider the statutory standard.’ . . . [Citation.]” (In re Marriage of Berman (2017) 15 Cal.App.5th 914, 920.)

Family Code section 4320, subdivision (a) requires that in awarding spousal support, the court consider the extent to which the supported party possesses, or may come to possess, marketable employment skills sufficient to achieve the marital standard of living. Family Code section 4320, subdivision (l) directs that the court also consider “[t]he goal that the supported party shall be self-supporting within a reasonable period of time.” (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at pp. 1237-1238.) This is referred to as a Gavron warning or advisal, after the case of the same name. Regina has applied her own interpretation to the Gavron advisal, arguing it only required her to make such efforts if she were medically able, and she has tirelessly sought to prevent the occurrence of that condition.

In 1996, the Legislature codified the Gavron warning in Family Code section 4330, subdivision (b). The statute now reads: “When making an order for spousal support, the court may advise the recipient of support that the recipient should make reasonable efforts to assist in providing for their support needs, taking into account the particular circumstances considered by the court pursuant to [Family Code] section 4320, unless, in the case of a marriage of long duration as provided for in [Family Code] section 4336, the court decides this warning is inadvisable.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55-56.)

Thus, “in determining spousal support, a court is to consider as a factor the supported spouse’s marketable skills and ability to engage in gainful employment.” (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1388.) At the original trial on the issue of spousal support, which we previously affirmed, the trial court based its spousal support order on an expert vocational evaluation of Regina which determined that while she was then currently unable to work due to treatments she was undergoing, “it is anticipated that she will at some time in the future be capable of returning to work whether on a full-time or part-time basis” and listed a number of jobs to which she “might be well-suited.”

“A trial court acts within its discretion in denying spousal support where the supported spouse has failed to diligently seek employment sufficient to become self-supporting.” (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th 1225, 1237-1238, quoting In re Marriage of Sheridan (1983) 140 Cal. App. 3d 742, 749.) In the present case, the 2012 order for spousal support recognized that Regina had the capacity to work such that it included a Gavron advisal regarding her obligation to become self-supporting. We affirmed that judgment on appeal. In each order relating to spousal support, Regina was given a Gavron advisal relating to her duty to take steps to become financially independent. Yet, in her current request for an increase in support, as well as on appeal, Regina did not demonstrate that she was disabled, or that she had made any effort to seek employment, or to acquire vocational or other training or education to facilitate supporting herself.

In her brief on appeal, she adds her own interpretation of the Gavron advisals she has been given, arguing that it required her to only make efforts to become self-supporting “if [she] became medically able.” It thus appears she has devoted the past several years to seeking medical treatments to further avoid the occurrence of what she perceives is a condition precedent to her seeking financial independency. However, while the court accepted the fact Regina could not work during convalescence from certain medical procedures at various junctures in the proceedings, Regina has never introduced evidence that she was permanently disabled from working. And she has never sought employment.

It was this circumstance that caused the court to state in 2014 that it was convinced she had some degree of employability, although she was at that time in need of spousal support due to then ongoing medical treatment. This situation persists; to date, Regina has still not demonstrated that she has a permanent medical condition or a disability preventing her from being employed, and she introduced no evidence of any efforts to seek any kind of employment, nor evidence of any attempt to acquire training or education to improve the marketability of her skills. There is no reason to deviate from the legislative and decisional policy requiring good faith efforts to become financially independent within a reasonable period of time and to eventually terminate spousal support.

Thus, while the trial court could consider LaRon’s increased ability to pay as a change of circumstances in support of a modification of Regina’s support, it was also required to consider the factors enumerated in Family Code section 4320 to determine whether Regina had made a showing of demonstrable need. Regina has not shown a change in her needs or in her efforts to become financially independent. She has undergone certain medical treatments for various conditions, but she has not produced any expert opinion that she was permanently disabled or unable to ever seek employment.

Because the trial court was required to view the request for modification in light of circumstances that have arisen since the last order, Regina did not meet her burden of proof. Thus, even though LaRon is taking home a slight increase in disposable income (by radically reducing his overhead), the trial court had to weigh that showing against Regina’s needs, as changed from the last order. Because she did not demonstrate an inability to work at all, or seek a determination that she is disabled, her circumstances were not changed from the last order and she was obligated to make good faith efforts to find employment. Refusing to do so, the trial court acted within its discretion to deny her request to increase her spousal support.[4]

3. The Trial Court Did Not Abuse Its Discretion by Granting LaRon’s Request to Reduce Spousal Support.

In October 2016, while Regina was pursuing an increase in spousal support, LaRon filed a request for order to modify spousal support arguing that he can no longer afford to pay the amount ordered as temporary support and that Regina had ignored the Gavron warning to seek employment. Regina argues the trial court erred in granting LaRon’s motion, which resulted in stepdown support payments, culminating in termination of spousal support, because the order was not supported by evidence that her needs would be less. In addition, she points to LaRon’s agreement that she was medically unable to work since the last order in arguing the court abused its discretion by failing to consider her needs. We disagree.

In deciding a motion to modify a spousal support order, the court is required to address the same factors it must consider under Family Code section 4320 in making an initial spousal support order. (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1235.) Those statutory factors include (1) “[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage” (Fam. Code, § 4320, subd. (a)); (2) the supporting party’s ability to pay support, based upon his or her “earning capacity, earned and unearned income, assets, and standard of living” (id., subd. (c)); (3) the parties’ respective needs, “based on the standard of living established during the marriage” (id., subd. (d)); (4) the parties’ respective assets and liabilities, ‘including separate property’ (id., subd. (e)); and (5) “[t]he balance of the hardships to each party” (id., subd. (k)). The court must also consider “[a]ny other factors the court determines are just and equitable.” (Fam. Code, § 4320, subd. (n).)

“[T]he trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.]’” (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297, citing In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304, original italics.) The moving party bears the burden of demonstrating that “the economic situation of the parties has changed since it is the economic relation which is to be affected by the proposed modification. [Citations.]” (In re Marriage of Clements (1982) 134 Cal.App.3d 737, 745-746.)

“[A] spousal support order may, in a proper case, be fashioned so as to encourage such supportive self-reliance, and to discourage delay in preparation for or in seeking, or refusal of, available employment.” (In re Marriage of Richmond (1980) 105 Cal.App.3d 352, 356 (Richmond).) An order providing for contingent termination of spousal support on a specific date unless, before that time, the supported spouse brings a motion to modify for good cause is referred to as a Richmond order after the decision of In re Marriage of Richmond, supra. The function of the Richmond order is to limit the duration of support so that both parties can develop their own lives, and be free from obligations to each other. (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at pp. 1476-1477, citing In re Marriage of Morrison (1978) 20 Cal.3d 437, 452.)

Such a spousal support order may encourage supportive self-reliance and discourage delay in preparation for or in seeking, or refusal of, available employment. (Richmond, supra, 105 Cal.App.3d at p. 356.) The Richmond order is made with the expectation that with reasonable diligence, the supported spouse will have become self-supporting by the date set for support payments to end. (In re Marriage of Berland (1989) 215 Cal.App.3d 1257, 1260.)

Here, the court denied LaRon’s request for order to the extent it sought a forthwith termination of support. However, LaRon’s income and expense declaration showed he did not have the ability to pay the amount ordered as temporary support pending the hearing on Regina’s request for increased permanent support, and other evidence supported his assertion that Regina was not seeking employment in good faith. Based on the evidence presented by both parties, the trial court determined that the amount of permanent support ordered in prior judgments was appropriate, and it maintained the level of support at $1000 per month, with a Richmond order for gradual step-down reductions leading to eventual termination of support. Because Regina had no ability to reimburse LaRon for the overages paid pursuant to the temporary support order, the court ordered that the order would be prospective.

The court acted well within its discretion to make the order because Regina has had many years to prepare for the eventuality of becoming financially independent and to take steps to make herself so, but took no steps toward that goal. She also failed to show she was permanently disabled from working, such that she should not be required to become self-supporting. The judgment was a proper exercise of judicial discretion.

Disposition

The judgment is affirmed. No costs are ordered because respondent, LaRon, did not participate in the appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.

[1] Because the parties share the same surname, we use first names in this opinion. We intend no disrespect.

[2] Regina appealed this judgment, and on March 5, 2015, we affirmed. (In re Marriage of Taylor (Mar. 5, 2015, E059177) [nonpub. opn.].)

[3] We observe that the support order may have terminated already, barring further post judgment efforts to remain dependent on her former spouse.

[4] In a 2014 order relating to spousal support, the trial court observed that Regina’s intent was to support herself by litigation of this case. That time must end.