Marriage of London




Filed 3/9/11 Marriage of London 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 GARY and MICHELE L. LONDON.
GARY H. LONDON, Respondent, v. MICHELE L. LONDON, Appellant.	D056555 (Super. Ct. No. D467927)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Lisa A. Foster, Judge. Affirmed.

Michele L. London (Michele) appeals from a postjudgment order entered on May 11, 2009, modifying a 2003 judgment that required her former husband, respondent Gary H. London (Gary), to pay her spousal support.^[1] Michele and Gary were married almost 25 years and had no minor children at the time of judgment. In the 2009 order modifying the judgment, the trial court reduced spousal support by $1,300 per month, after finding Michele's income had increased by $1,500 per month.
On appeal, Michele claims the court erroneously failed to consider all of the required statutory factors for modification of spousal support, including Gary's ability to pay. (Fam. Code, § 4320; all statutory references are to the Family Code unless noted.) We conclude the court properly considered the relevant section 4320 factors and did not abuse its discretion in determining a material change in circumstances had occurred, justifying a reduction in spousal support.
FACTUAL AND PROCEDURAL BACKGROUND
The parties separated in June of 2001 after a 25-year marriage. In January of 2003, they resolved the issues raised by the petition for dissolution through a special master, and a stipulation and order was prepared. At that time, Gary had a monthly income of $16,667 from his real estate consulting company, The London Group. Michele worked as a social worker with a monthly income of $3,500, and her estimated monthly expenses were $5,881.
In 2003, based on their respective monthly incomes, the parties agreed that Gary would pay spousal support of $3,800 per month to Michele. The parties had no minor children at the time of this agreement. On March 7, 2003, their marital status was terminated.
The parties' spousal support agreement was incorporated into a supplemental judgment dated July 16, 2003. The supplemental judgment also stated that, during their long term marriage, the parties maintained an upper middle class standard of living.
In early 2008, Gary requested that the court reduce his spousal support to Michele by at least $1,000 because her monthly income had increased by at least $1,500, although his income had also grown since the time of the judgment. Gary withdrew his motion after meeting resistance from Michele. The parties agreed that Gary would pay her costs and attorney fees in any future motion brought by him to modify spousal support.
In February 2009, Gary sought an order eliminating his spousal support payment to Michele. In support of his position, he stated his business income had decreased to $10,000 per month due to the effect of the economic situation on the real estate market, and he claimed that Michele's income had increased at least $1,500 per month. Gary further explained that while he was forced to use credit to cover his business and personal expenses, Michele's savings had grown. Thus, he argued, a material change of circumstances had taken place such that his spousal support of Michele should be terminated.
At the order to show cause hearing, Gary focused on Michele's income, which he claimed was over $6,000 per month. Gary initially took the position that his income did not matter to the motion. The court agreed that his precise income did not matter if he was conceding that he had the ability to pay, but was arguing that the current amount of spousal support was still not warranted, because of a material change in circumstances resulting from Michele's increase in income. However, the court explained Gary's income level mattered, if Gary were seeking a reduction in spousal support because he could not afford the current amount.
At that point in the hearing, Gary admitted his average monthly income in 2007 was $18,798, but he explained he had not calculated any 2008 figure. When the court pressed Gary for an estimation of his 2008 and 2009 income, he admitted that he was earning at least as much as the $16,667 per month he earned at the date of separation. Consequently, the court found that he had the ability to pay the current level of spousal support and therefore his actual present income level was deemed irrelevant. The court explained that, as a result of Gary's admission regarding ability to pay, "the only question . . . is has there been a change in circumstances on Ms. London's part that would warrant a change in spousal support."
In spite of the court's stated approach that the only relevant remaining issue was Michele's change in circumstances, Michele continued to state her belief that Gary's income over the past 15 months was approximately $40,000 per month. Michele estimated her monthly income to be $5,060 from her employment as a social worker for Jewish Family Service, her private social work practice (for which she claimed to have losses), and her job teaching at University of Phoenix. She claimed that her monthly expenses had increased to $10,370. Even so, she sought only to prevent a reduction in spousal support, not to receive an increase.
The court found Michele's monthly income had increased by at least $1,500 since the time of judgment, when it was $3,500. The court considered that this increase should qualify as a change in circumstances that warranted a modification of spousal support. The court reasoned that the initial agreed upon sum of spousal support, together with her income at the time of separation (amounting to a total of $7,300), had enabled Michele to continue an upper middle class standard of living, and there was no current indication that amount was insufficient to achieve an upper middle class standard of living. Also, the court assumed that she would continue to have income from teaching and private practice. Because that previous monthly income had supported her lifestyle, and because Michele's income had increased by at least $1,500 per month, the court decided to reduce the spousal support order to $2,500 per month, a decrease of $1,300. This would give Michele a total monthly income of at least $5,000 plus $2,500, for a total of about $7,500.^[2] Gary was ordered to pay $10,000 of Michele's attorney fees.
DISCUSSION
I
STATUTORY STANDARDS
Michele appeals, arguing the court abused its discretion by failing to consider statutory factors other than the increase in Michele's income, in determining whether to modify her spousal support.
The factors set forth in section 4320 apply both in a court's initial determination of spousal support and in modifying spousal support. (In re Marriage of Kacik (2009) 179 Cal.App.4th 410, 422.) The factors are "mandatory guidelines" that the court must consider in determining or modifying spousal support. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).)
Section 4320 requires the family court to "consider all of the following circumstances," including, as relevant here:
"(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage. . . . [¶] . . . [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] . . . [¶] (h) The age and health of the parties. [¶] . . . [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time . . . . [¶] . . . [¶] (n) Any other factors the court determines are just and equitable."

To modify spousal support, the party seeking modification must demonstrate a material change of circumstances since the last order was issued, in the relevant factors that affect need and ability to pay. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz), citing In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) The moving party carries the burden of proof to demonstrate a material change in circumstances. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303.) The trial court has broad discretion in determining if such material change in circumstances exists. (Kerr, supra, 77 Cal.App.4th at p. 93.) Such a change of circumstances finding is justified in the case of "a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs." (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.)
II
STANDARD OF REVIEW
Upon proper consideration of the factors set forth in section 4320, abuse of discretion in a court's modification of a spousal support order occurs only when the court did not have substantial evidence on which to base its determination of material change in circumstances. (Dietz, supra, 176 Cal.App.4th at p. 398.) Such an abuse of discretion occurs where " ' "the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances." ' " (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899, citing In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) In our review, we " ' "accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment." ' " (Bower, supra, 96 Cal.App.4th at p. 899, citing In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn. 5.)
Michele argues we should review her appellate claims de novo because the basic facts are not in dispute and the issue is whether the court properly applied the section 4320 factors for modification of spousal support. However, de novo review is not appropriate here. (See In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235 (Shaughnessy).) The family court was not required to select or interpret basic legal principles, but instead was exercising its broad discretionary power to evaluate evidence and determine the existence or nonexistence of a material change in circumstances, within the statutory guidelines. (See Dietz, supra, 176 Cal.App.4th at p. 398.)
Where no statement of decision was requested after a modification ruling, an appellate court will presume the ruling is correct and may imply such findings as support the order. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647; § 3654.)
As long as the record supports a conclusion that there existed a material change in circumstances, the court's discretionary ruling will be reversed on appeal only for abuse of discretion. (Kerr, supra, 77 Cal.App.4th at p. 93.) The court has discretion to determine the weight of each factor in its section 4320 balancing analysis. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 (Cheriton).) The court may not exercise its discretion arbitrarily, but must do so along "legal lines." (Ibid.) A court's failure to consider all of the relevant statutory factors, however, may in itself be considered an abuse of discretion. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479 (Smith).) Failure to consider each applicable factor is reversible error. (Cheriton, supra, 92 Cal.App.4th at p. 304.)
III
APPLICATION OF THE SECTION 4320 FACTORS
Michele contends the court erred by failing to consider all of the relevant section 4320 factors in determining whether to modify the spousal support order. She asserts that the statute requires, but the court failed to perform, a "nuanced evaluation" of these factors. (See Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 254 (Alan S.) [stating that when "section 2032 [is read] together with section 4320, one cannot escape the idea that a pendente lite fee award should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case"].) In addition she claims Gary had the burden to prove these factors and in some cases made no attempt to do so.
Michele specifically claims the court failed to consider the following set of factors enumerated in section 4320: (1) the ability of the parties to maintain the marital standard of living based on their respective earning capacity and need; (2) Gary's ability to pay spousal support based on his income, assets, and standard of living; (3) other factors, including the parties' assets and obligations; the age of the parties; the balance of hardships to each party; and any other factors the court determines just and equitable.
Before we evaluate the record regarding these disputed factors, we first take note that the court was not required to make an explicit, in depth analysis and finding regarding all 14 factors, where some of the factors are clearly irrelevant to the case. The requirement of a "nuanced" evaluation of factors stated in Alan S., supra, 172 Cal.App.4th at page 254, which dealt with pendente lite fees under both sections 2032 and 4320, does not control in a spousal support case under only section 4320.
A. Marital Standard of Living
Subdivisions (a) and (c) of section 4320 require the court to consider the ability of both parties to maintain the marital standard of living based on their respective earning capacities and needs. Michele claims the court failed to properly consider her ability to maintain an upper middle class standard of living, when it decided to reduce spousal support. She further contends Gary had the burden, but made no attempt, to prove she could maintain the marital standard of living with reduced support.
Marital standard of living is a "general description of the station in life the parties had achieved by the date of separation," rather than a "mathematical standard." (Smith, supra, 225 Cal.App.3d at p. 491.) The marital standard of living serves as "a 'basis' or reference point" to determine reasonable need. (Id. at p. 484.) The importance of the marital standard of living factor may decrease as time passes since the date of separation. (Shaughnessy, supra, 139 Cal.App.4th at pp. 1247-1248.)
At this 2009 hearing, the court took note that Michele's total monthly income at separation (2003) was $7,300, consisting of $3,500 from her job and $3,800 of spousal support, and that income had enabled her to preserve her marital standard of living, and nothing indicated that amount was insufficient. The court's conclusion that $7,300 was sufficient to meet that marital standard of living demonstrates the court did in fact consider her ability to maintain her standard of living. (§ 4320, subds. (a), (d).)
As a result of that conclusion, the court next found that once Michele's income increased, she could still meet the marital standard, even with an equivalent reduction in spousal support. Her income had increased by at least $1,500 and the court reduced her support by $1,300. Therefore, her total monthly income, including spousal support, increased by at least $200, to $7,500, since separation, and that income evidently allowed her to meet the previous marital standard of living. Her earning capacity was not in issue, as the court recognized that she worked nearly a full time work week as a social worker, plus she taught classes and maintained a small private practice. Thus Michele had reached her maximum earning capacity with her monthly income of about $5,000.
The court's assumption that a previous total monthly income of $7,300 had enabled Michele to maintain an upper middle class standard of living was a reasonable approach for applying the marital standard of living factor. The term marital standard of living is an indefinite, general term, rather than a technical, specific one. Courts have no figures or guidelines on which to base a determination of what constitutes an upper middle class standard. (See Smith, supra, 225 Cal.App.3d at p. 491.) The court could only base its determination on the information, often conflicting, that the parties provided. The previous $7,300 figure of monthly income was the result of Michele's agreement to receive $3,800 in spousal support in 2003, at the time of the judgment. With an income of $16,667, Gary likely could have afforded more than $3,800 in support. Michele's agreement to that amount, in settlement, suggests she determined $7,300 per month in total income would meet her reasonable needs.
Additionally, the supplemental judgment, in the sentence immediately preceding the sentence settling the amount of spousal support, states that the parties had an upper middle class standard of living. Although the supplemental judgment does not contain an explicit finding that such spousal support allowed Michele to meet the marital standard of living, it was reasonable for the court to assume a support amount of $3,800 was sufficient to maintain the standard of living therein described. Finally, Michele lived on $3,800 in spousal support between the parties' agreement in 2003 and the court's modification of spousal support in 2009, during which time she did not seek additional spousal support to meet the marital standard of living.
Michele also claims the court erroneously shifted the burden of proof onto her to prove she could not maintain the marital standard of living with reduced support. Michele correctly points out that Gary, as the moving party, had the burden to prove a material change in circumstances that would justify a reduction in spousal support. (Bardzik, supra, 165 Cal.App.4th at p. 1303.) That burden, however, extended to demonstrating a material change in the circumstances as a whole, based on the showing of all the relevant section 4320 factors together, not any individual factor. (Cheriton, supra, 92 Cal.App.4th at p. 304.) Further, while Gary carried the burden to prove a material change in circumstances, both parties contributed information on which the court could evaluate all of the relevant factors in this opposed motion.
The record before the family court included the supplemental judgment, which stated the agreed upon amount of spousal support and the marital standard of living. Based on all the evidence, the court made a reasonable determination that $7,300 had been sufficient to meet the marital standard of living. Gary presented evidence of Michele's increase in income, implying she could maintain that marital standard of living even with reduced spousal support. He conceded that his income stayed the same, and he did not have the burden to prove that Michele's reasonable needs, in accordance with the marital standard of living, had not risen above $7,300 per month since their agreement.
Given the current record demonstrating Michele could meet the marital standard of living at the previously agreed upon total income, and the flexibility of the rules defining marital standard of living, we cannot conclude the court abused its discretion by finding Michele could maintain the marital standard of living with increased income from her job, together with the reduced spousal support, which still amounted to an overall increase in her monthly income. (Bower, supra, 96 Cal.App.4th 893, 899.)
B. Gary's Ability to Pay Support; Assets and Obligations
Michele next argues the court erred by failing to determine Gary's exact income for the purposes of applying section 4320, subdivision (c). At the hearing, the court accepted Gary's concession that he had the ability to pay at the current level. Under all of the circumstances and in light of the conflicting evidence, we believe that was a reasonable approach for the court to take.
The family court was presented with several different representations by the parties of their incomes and assets at different times. Originally, the basis of Gary's motion to modify support was an inability to pay based on a decrease in his monthly income to $10,000 per month. However, at the OSC hearing, Gary admitted his income was at least $16,667. Michele claimed Gary's monthly income had increased to up to $40,000.
The parties provided some information regarding their assets and obligations. Gary's income and expense declaration from March 2008 listed over $1 million in debt. Michele claimed Gary had approximately $150,000 in cash in various bank accounts. Gary responded that he "tapped out his credit lines and put that money into his bank accounts." Michele had taken over the $1,664 per month mortgage of the parties' house, but her mortgage payments had decreased by $168 per month since separation. Michele's savings increased from $3,000 in 2002 to over $21,000 in 2009.
Based on these conflicting representations, the court was aware of the possibility that Gary's income had increased dramatically. Nevertheless, the court decided it was unnecessary to determine Gary's income once he conceded that he had the ability to pay. The court then took the position that other circumstances in this case, namely Michele's increase in income, justified a modification of support based on a material change in circumstances.
On a related point, Michele argues that the court erroneously made no finding on the factor of assets and obligations of the parties. (§ 4320, subd. (e).) The court did not make any such explicit finding. However, the statute does not require that the court make a finding on each factor, if they have not been shown to be significant. Here, the crucial factors were Michele's ability to maintain the marital standard of living and Gary's ability to pay the current level of spousal support, and they were adequately addressed. Neither party argued that assets and obligations affected the existence or nonexistence of a material change in circumstances, and no such finding was required. The court's statement that "the only question" was whether Michele's increase in income was a material change in circumstances demonstrates the court determined the factor of assets and obligations irrelevant to the case based on the approach taken by the parties at the hearing. The court's decision was reasonable and was supported by findings implied from the record.
Further, even if the court had further inquired into Gary's income and assets, and then had determined that his ability to pay had risen, the court still had some discretion to reduce his spousal support obligation, based on other circumstances of the case. The court in In re Marriage of McCann (1996) 41 Cal.App.4th 978, 984 (McCann), similarly faced an appeal of a reduction in spousal support where the payor husband's ability to pay had increased. The court noted that the increased ability of the supporting spouse to pay "alone will not bar a reduction in spousal support if the circumstances of the case otherwise permit." (Ibid.) In so concluding, the court quoted In re Marriage of Catalano (1998) 204 Cal.App.3d 543, 551 (Catalano): "Adults who separate and dissolve their marriage do so with eyes open, each choosing a separate course and appreciating the possibility that the other will go on to attain a far more comfortable standard of living." Similarly, in In re Marriage of Weinstein (1991) 4 Cal.App.4th 555, 566, the appellate court explicitly stated the trial court was not "required to consider respondent's post-separation income in determining the level of appellant's support."
In our case, the court did not err by determining a further inquiry into Gary's income was unnecessary. First, only Gary's ability to pay the current level of support mattered in this case because the court only needed to decide whether to decrease spousal support or keep it the same. As Michele states, she did not seek an increase in spousal support based on greater need. Second, as demonstrated by McCann, supra, 41 Cal.App.4th 978, 984, the court had discretion to order the same reduction in support even if Gary's income had dramatically increased, if other factors warranted.
Additionally, in a motion to modify spousal support, requiring an inquiry into the supporting spouse's income after he concedes he has the ability to pay would not serve the purpose of the statute, as suggested by the court's comment in Catalano, supra, 204 Cal.App.3d at page 551, quoted above. The policy behind section 4320, subdivision (l) provides the goal that the supported spouse become self-supporting over time, with the hope that she will no longer have to rely on spousal support. Michele, admirably, has taken a step in that direction by earning more income. The court appropriately took her success into consideration, as required by the statute.
The court's consideration of Gary's concession that he had the ability to pay the current level of spousal support was not inconsistent with the requirements of section 4320, subdivision (c).
C. Additional Factors
In the appellant's opening brief, Michele focuses her discussion mainly on the criteria we just addressed, specifically Gary's ability to pay and Michele's ability to maintain the marital standard of living. In the conclusion of her opening brief, Michele further contends the court failed to adequately consider the balance of hardships to the parties, or any other factors the court decides would be "just and equitable." Finally, in her reply brief, Michele claims the court did not sufficiently consider the age of the parties.
Michele argues that her age, 59, is a significant factor under section 4320, subdivision (h), because the reduction in spousal support damages her ability to fund a retirement. In this respect, the family court could have found that Michele is no worse off after her increase in earned income and the modification of spousal support than she was at separation, based on her earned income and the previously agreed on amount of spousal support. She has come closer to retirement age since separation, but that factor was foreseeable when she agreed on that amount of spousal support. The court thus had discretion to find a material change in circumstances that justified a reduction of spousal support, in spite of Michele's age.
Similarly, under section 4320, subdivision (n), the court did not abuse its discretion by not considering other "just and equitable" factors, not listed in the statute. No such factors were argued or presented to the court, nor were they omitted under a reasonable interpretation of the evidence. Likewise, Michele cannot now claim the court abused its discretion by not making an explicit finding regarding hardship. (§ 4320, subd. (k).) The court made the implicit finding that because Michele had more total income after the reduction in spousal support than she did at separation, she did not face any hardship with the reduction in spousal support.
For all of the above reasons, the court did not abuse its discretion in its consideration of the relevant section 4320 factors. We cannot say no reasonable judge could have concluded Michele's increase in income supported a finding of a material change in circumstances, given all of the information available and the properly implied findings. (Bower, supra, 96 Cal.App.4th at p. 899.) Once the family court obtained Gary's concession that his income was at least as great as the time of judgment, the court took a reasonable approach to this case. Although a different approach might have been warranted, any deficiencies in the court's analysis do not constitute an abuse of discretion. (Smith, supra, 225 Cal.App.3d at p. 479.)
DISPOSITION
The order is affirmed. Each party to bear his or her own costs on appeal.


HUFFMAN, J.

WE CONCUR:



BENKE, Acting P. J.



McINTYRE, J.


Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---