Marriage of
Filed 10/17/13 Marriage of Rand
CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of AKIKO
RAND and FREDERICK RAND.
AKIKO MORIMOTO,
Respondent,
v.
FREDERICK RAND,
Appellant.
D061912
(Super. Ct.
No. D469703)
APPEAL from
an order of the Superior Court
of
County, Lorna A. Alksne, Judge. Affirmed.
Stephen
Temko for Appellant.
Garret C.
Dailey for Respondent.
Frederick
Rand (Rand) appeals an order increasing the spousal
support he is obligated to pay to his former wife, Akiko Morimoto
(Morimoto). Rand
contends the court abused its discretion by modifying the spousal support award
because Morimoto did not demonstrate a material change of circumstances. We affirm.
BACKGROUND
The parties
separated in April 2002 after a 14-year, eight-month marriage. The court entered a
2004. The incorporated May 2004 marital
settlement agreement (MSA) set forth provisions regarding spousal support,
child support and custody of the parties' then 13-year-old son and
eight-year-old daughter.
The MSA
required Rand to pay Morimoto $2,400 per month in
spousal support and further provided:
"Wife shall make her best efforts to finish her academic program in
nursing by June 2008. She will make her
best efforts to obtain employment by December 2008. Spousal support shall be reduced to zero as
of June 30, 2009, or one
month after Wife commences employment, whichever occurs first. However, the Court shall thereafter reserve
jurisdiction to modify Wife's spousal support upward for good cause shown upon
the hearing of a properly-filed motion."
The spousal support provision was based on Rand's employment and $16,916
gross monthly income; Morimoto's lack of earned income and status as a student;
the parties' expenses; their equal time with their children; and the income tax
consequences of the spousal support award.
The MSA
provided for joint legal and physical
custody of the children and equal time for each parent. Rand was required to
pay Morimoto a total of $2,400 per month as child support. The support obligation for a child was to
cease when that child turned 18 years old or became emancipated or until
further court order.
In April
2008, the parties' son turned 18 years old.
In May, Morimoto began working as a registered nurse. Later that month, the court entered a
stipulated order requiring Rand to pay Morimoto $1,600
per month for the support of their daughter beginning on July 1. There were no further orders regarding child
or spousal support until the order that is the subject of this appeal. Under the terms of the MSA, spousal support was
reduced to zero on June 1, one month after Morimoto became employed.
In 2010,
Morimoto sought modification of the child custody, child support and spousal
support provisions. Rand
opposed the request. The parties
resolved the custody issue by a stipulation allowing Rand
a 16 percent timeshare with their daughter.
A hearing on the remaining issues took place in May and June 2011.
Morimoto's
most current income and expense declaration showed approximate monthly earnings
of $5,800; monthly investment income of $600; monthly expenses of $13,451 plus
credit card payments; and assets of slightly more than $1 million. The court found her current earnings were
approximately $5,800 and she had other income of $934.
Rand's most
current income and expense declaration showed approximate monthly earnings of
$18,569 and $5,000 in monthly bonuses; $1,293 monthly in investment income;
$145 monthly in other income; monthly expenses of $14,682; and assets of
$2,955,000. The court additionally
imputed $4,783 in investment income to Rand, based on
the uncontroverted evidence of Morimoto's expert (In re Marriage of Destein (2001) 91 Cal.App.4th 1385), and
found Rand had assets worth more than $3,880,000.
In November
2011, the court ordered child support of $2,519 beginning in September 2010 and
spousal support of $3,000 beginning in December 2010. In January 2012, the court issued its
statement of decision.
DISCUSSION
"Spousal
support is governed by statute.
[Citations.] In ordering spousal
support, the trial court must consider and weigh all of the circumstances
enumerated in [Family Code section 4320
to the extent they are relevant to the case before it." (In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302, italics omitted.) "Modification of a spousal support order
may be made only on a showing of a material change in circumstances after the
last order. [Citation.] Consequently, 'a modification order must be
based on current facts and circumstances.'
[Citation.] The moving party has
the burden of showing a material change of circumstances since the last order
was made. [Citation.]" (In re
Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) " 'Change of circumstances' means a
reduction or increase in the supporting spouse's ability to pay and/or an
increase or decrease in the supported spouse's needs. It includes all factors affecting need and
the ability to pay." (
Cal.App.4th 240, 246.) " 'In
exercising discretion whether to modify a spousal support order, "the
court considers the same criteria set forth
in . . . section 4320 as it considered when making the
initial order . . . .
[Citation.]" '
[Citation.]" (
(2006) 139 Cal.App.4th 1225, 1235.) We
review a modification order for abuse of discretion. (Ibid.;
In re Marriage of Tydlaska,
Here, the
spousal support provision in the 2004 MSA was based on three of the statutory
factors: "[t]he extent to which the
earning capacity of each party is sufficient to maintain the standard of living
established during the marriage, taking into
account . . . [¶] . . . [t]he
marketable skills of the supported party; . . . the time
and expenses required for the supported party to acquire the appropriate
education or training to develop those skills; and the possible need for
retraining or education to acquire other, more marketable skills or
employment" (§ 4320, subd. (a)(1)); "[t]he 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" (§ 4320, subd. (c)); and "[t]he immediate and specific
tax consequences to each party" (§ 4320, subd. (j)). The MSA expressly authorized the court to
increase spousal support, and the 2012 statement of decision included a
detailed discussion of virtually all of the statutory factors.
balancing of the hardships to each party (§ 4320, subd. (k)) and other
factors the court deemed "just and equitable" (§ 4320, subd.
(n)). Under section 4320, subdivision
(n), the court found Morimoto acted in good faith and had done extraordinarily
well in obtaining her nursing degree and immediately obtaining fulltime
employment; she did not expect any significant salary increases in the near
future; she was not participating in a retirement plan; and without spousal
support, she could not maintain the standard of living established in the last
few years of marriage and would be unable to stay in her present home when
child support terminated.
Morimoto
obtained employment seven months earlier than the MSA contemplated. By the time of the hearing, her monthly
earnings had increased from zero to more than $5,000. Rand's earnings had increased from
approximately $16,000 to more than $23,000 monthly. Rand's assets were worth more than three
times Morimoto's and his investment income was more than six times hers. Their respective expenses were roughly equal
to each other and equal to their expenses during the last few years of their
long-term marriage.
title="">[5] Thus, since the date of the MSA, the
discrepancy in the parties' income had widened while their expenses had stayed
the same, leaving Rand easily able to maintain the marital upper-middle-class
standard of living they had achieved as a couple, and leaving Morimoto unable
to come close to maintaining that standard.
(§ 4320, subds. (a), (d).)
This constituted a material change in circumstance. (In re
Marriage of Smith (1990) 225 Cal.App.3d 469, 482.)
The court
did not abuse its discretion by increasing spousal support.
DISPOSITION
The order is affirmed.
Appellant to pay respondent's costs on appeal.
HALLER, J.
WE CONCUR:
NARES,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] The nature of this other income is unclear; it may be
related to Morimoto's former employer's contribution to a retirement
account. In any event, no one challenges
the amount.
name="_ftn2" title="">[2] Evidence from Morimoto's expert and Rand's own testimony
showed Rand had assets worth more than stated in his income and expense
declaration.
