Marriage of Howell

 

 

 

 

 

 

 

 

 

 

Filed 10/18/13  Marriage of Howell CA2/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SECOND APPELLATE
DISTRICT

 

DIVISION THREE

 

 

 
>

In re the Marriage of PATTI HOWELL and DOUGLAS HOWELL. _____________________________________   PATTI HOWELL,               Appellant,               v.   DOUGLAS HOWELL,               Respondent.

B241152         (Los Angeles County       Super. Ct. No. BD404294)

 

 

 

            APPEAL
from an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,  Elizabeth R. Feffer, Judge.  Affirmed.

            Trope
and Trope, Thomas Paine Dunlap and Brian P. Lepak for Appellant.

            Wasser,
Cooperman & Carter, Laura A. Wasser, Samantha Klein; and Edward J. Horowitz
for Respondent.

_________________________

 

 

 

            Patti Howell (wife) appeals a href="http://www.mcmillanlaw.com/">postjudgment order pertaining to the
spousal support and child support obligations of Douglas Howell (husband).

We perceive no
abuse of discretion and affirm the trial court’s order in its entirety.

>FACTUAL AND PROCEDURAL BACKGROUND

            Following
a 14-year marriage, the parties separated in 2004.  There are two children of the marriage,
Morgan (born 1993) and Madison (born January 1996).  Morgan turned 18 and graduated from high
school in 2011, prior to the filing of the subject order to show cause.

Wife filed for
dissolution in 2004, and a judgment as to status only was entered on July 2, 2008.

            1.  The
2009 stipulated judgment.

            In
2009, the parties stipulated to a judgment on reserved issues.

            With
respect to spousal support, the stipulated judgment ordered husband to pay wife
the sum of $8,000 per month, to continue until June 15, 2014, “or the first to occur of the following
terminating events:  either party’s
death, [wife’s] remarriage, or further order of the Court.”  The duration of spousal support was nonmodifiable
unless, prior to June 15, 2014,
wife were to file a motion showing good cause to modify the amount or duration
of support.

The stipulated
judgment provided the amount of spousal support and child support were computed
based upon, inter alia, the following factors: 
husband’s base gross annual income of $525,000 and wife’s imputed gross
annual income of $65,000; custodial timeshare to husband of 42 percent; and
child support “add-ons totaling $5,600, of which $3,600 is for travel expenses
associated with [husband’s] exercising his custodial rights[href="#_ftn1" name="_ftnref1" title="">[1]]and
$2,000 for private school tuition for the parties’ children, for which
[husband] shall be solely and wholly liable without right of reimbursement.”

The stipulated judgment included a
recital of the parties’ conflicting positions as to whether the spousal support
order met the marital standard of living: 
“[Wife] contends that the spousal support order does not meet the
parties’ marital standard of living. 
[Husband] contends that the spousal support order exceeds the marital
standard of living.  No finding is made
as to whether the order for spousal support provided in the Stipulated Further
Judgment does or does not meet the marital standard of living.  In any future proceeding for modification or
termination of spousal support, each party shall be entitled to present
evidence of what he or she contends to have been the marital standard of
living.”

            The
stipulated judgment included a Gavron
warning (In re Marriage of Gavron
(1988) 203 Cal.App.3d 705), advising wife “it is the goal of the >California Family Code that she become
self-supporting within a reasonable period of time.”

            With
respect to child support, the 2009 stipulated judgment provided for >base child support of $2,000 per month
for each of the two minor children, as well as additional child support consisting of 11 percent of any cash bonus
awarded to husband by his employer (5.50% attributable to each of the
children).href="#_ftn2" name="_ftnref2" title="">[2]

            In
addition, the stipulated judgment requires husband:  to maintain health insurance for the minor
children; to pay one-half of all mutually agreed-upon uninsured or
nonreimbursed medical, dental and other specified care needs; and to pay $2,000
per month for private school tuition for the two children, for which husband
was solely responsible.href="#_ftn3"
name="_ftnref3" title="">[3]

            2.  Wife’s
request to modify child and spousal support.

            In
November 2011, wife filed an order to show cause to modify child support and
spousal support; she filed an amended order to show cause the following
month.  By this time, Madison was the
only minor child.  The 2011 order to show
cause is the subject of this appeal.

Wife requested
that spousal support of $8,000 per month be increased to “an amount of spousal
support which is sufficient for [wife] to maintain the marital standard of
living, which was approximately $29,876 per month . . . Said
amount of spousal support takes into consideration sums necessary to pay taxes
on that spousal support, but should be reduced by child support ordered.”

With respect to
child support, wife requested a modification to “guideline, using all of [husband’s]
total income.”

Wife’s supporting
declaration stated, inter alia: 
Husband’s base salary had increased by at least $75,000 per year and
total compensation had increased by $388,000 per year since the time judgment
was entered.  She was unable to earn the
$65,000 income that was imputed to her. 
She had lost half of her child support since June 2011, although her
expenses had not been reduced by 50 percent since that time.  Her interest-only loan on her residence had
converted to a principal and interest loan, increasing her housing expense by
$1,200 per month.  She was unable to
refinance her loan due to her insufficient income and the fact her spousal
support was scheduled to terminate in 2014.href="#_ftn4" name="_ftnref4" title="">>[4]

            3.  Husband’s
response to wife’s modification request.

            Husband’s
papers showed his salary was $50,000 per month or $600,000 per year.  In addition, he received discretionary bonus
income which amounted to $600,000 in 2011.

With respect to
child support, husband’s position was that he should pay guideline support
on his base salary, which would
result in a monthly child support payment of $779 for Madison under the
DissoMaster.  In addition, husband agreed
he should continue to pay 5.5 percent of any bonus income as additional child
support (In re Marriage of Ostler
& Smith (1990) 223 Cal.App.3d 33), which would amount to an additional
$33,000 for 2011.

As for spousal
support, husband disputed wife’s contention that her marital standard of living
was $29,876 per month.  Husband asserted
that during the marriage, his monthly gross income did not exceed $25,750 until
the final 10 months of the marriage. 
Husband argued “it defies reason” that wife would have stipulated to
monthly spousal support of $8,000 if her actual marital lifestyle was $22,000
more.  According to husband, for “most of
the marriage, they lived in the Midwest, did not own a second home, took
reasonably priced family vacations, and did not purchase expensive cars or
jewelry.”

As for wife’s
contention that she should no longer be imputed income of $65,000 per year,
husband relied on the 2008 vocational examination which concluded wife was
readily employable and within a few years should have been able to earn a
salary averaging $67,750 per year. 
Husband asserted that when wife previously appeared in court in 2008,
she was involved in the same fledgling business operation, Health-E-Tips, which
continued to lose money year after year.  
Instead of pursuing that venture, wife should have heeded the trial
court’s Gavron warning in 2009 that
she needed to pursue gainful employment in order to become self sufficient.href="#_ftn5" name="_ftnref5" title="">[5]

4.  Trial court’s ruling.

            On
January 23, 2012, the matter came on for hearing.  Thereafter, the trial court ruled as follows:

Wife’s request for
an increase in child support for Madison was denied.  Husband’s request for a downward modification
of child support was granted, retroactive to November 18, 2011.  Commencing November 18, 2011, child support
for Madison was reduced to $781 per month.

As and for
additional child support of Madison, husband was directed to continue paying
wife 5.5 percent of his cash bonus, pursuant to Ostler/Smith.

“Support for
Madison shall continue until she reaches the age of majority, dies, marries,
becomes fully self supporting or emancipated, or until further order of the
Court, whichever first occurs.  Pursuant
to California Family Code §3901, child support shall continue, as set forth
herein, if Madison has attained the age of 18 and is a full time-high school
student who is not self supporting, until such time as Madison completes the
12th grade, or attains the age of 19, whichever first occurs.”

With respect to
calculation of guideline child support, the trial court found as follows:

Husband’s monthly
income available for support is $50,000. 
The trial court “decline[d] to add back perquisites allegedly received
by [husband].”

The trial court
determined it was appropriate to continue to impute income to wife in the
amount of $65,000 per year, or $5,417 per month.  “The Court finds that no legitimate reason
has been given by [wife] as to why she is not gainfully employed at this
time.  [¶]  c.  The
Court further finds that [wife] has failed to present any competent, admissible
evidence indicating that the vocational analysis conducted by Paulette
Hunnewell in 2008 should be disregarded by the Court.  The Court finds that it is not necessary to
undergo an entirely new analysis of [wife’s] ability to obtain a job, the job
market, and the like.  The Court finds
that it is [wife’s] obligation to show that the previously undertaken analysis
of the vocational skills and opportunities upon which the current imputation of
income is based no longer applies, and that [wife] has failed
to do so.”

The trial court
denied wife’s request that it disregard husband’s travel expenses for purposes
of calculating child support.  The trial
court credited husband with child support add-ons of $4,867 per month. This
figure includes private school tuition of $975, travel expenses of $3,811 and
uninsured health care expenses of $81. 
“The Court finds that the travel expenses incurred by Respondent allow
him to maintain a 42% timeshare with Madison.” 
The trial court denied wife’s request that the Ostler/Smith percentage be calculated at 5.66 percent of husband’s
bonus, rather than 5.50 percent.

The trial court
found “there is more income available to Madison for support under an >Ostler/Smith calculation, as opposed to
if [husband’s] bonus income were included in a guideline child support
calculation.”

            The
trial court directed the parties to “evenly split any cost (such as school
fees, uniforms and extracurricular activities) associated with Madison’s
education over and above the cost of her private school tuition, which at
present is $975 per month. Respondent shall continue to pay Madison’s private
school tuition.”

            The
trial court denied wife’s request to increase spousal support and ordered
husband to continue to pay spousal support in the amount of $8,000 per
month.  The trial court ruled: 

“a.  The Court finds that there is no material change
in circumstances justifying a modification of spousal support, and therefore
the Court need not go through a complete analysis of California Family Code §
4320.

            “b.  The Court finds that [wife’s] claim that the
parties’ marital standard of living was approximately $29,000 per month is not
credible.  The Court finds that this
marital standard of living would have been impossible, as [husband’s] gross
income in 2002, the last year of the parties’ marriage, was only $28,250 per
month.

“c. 
The Court finds that there is no evidence before it that [husband] is
deliberately concealing or reducing his income to evade his support
obligations.

“d. 
The Court finds that there is no demonstrated history of invading
capital asset[s] and using the proceeds to maintain the parties’ standard of
living.

“e.  The Court declines to impute any rate of
return on [husband’s] stock options.

“f.  The Court finds that a future liquidation of
[husband’s] stock could potentially be considered income.  The Court finds that some stock owned by
[husband] may have been purchased by [husband] with his salary, some may be
retirement funds he was awarded at the time of the parties’ dissolution, and
some stock options have been awarded to him as additional compensation by his
employer.  In the event of a liquidation,
the parties are to meet and confer, and [husband] shall provide [wife] with an
accounting.”

            The
trial court granted wife’s request for attorney fees in the sum of $20,000,
finding a clear disparity in income between the parties.

            Wife
filed a timely notice of appeal from
the March 14, 2012 postjudgment order.

>CONTENTIONS

            Wife
contends:  the trial court erred in
reducing guideline child support with a “negative add-on”; there is no
substantial evidence to support imputing income to wife of $65,000 per year for
the purposes of permanent spousal and child support; the trial court erred in
omitting husband’s undisputed perquisites, interest and dividend income from
the computation of child support; and the trial court’s stated reasons for
refusing to modify spousal support are not supported by substantial evidence.

>DISCUSSION

1.  Standard
of appellate review.

The parties agree
the trial court’s determination with respect to both spousal support and child
support is reviewed for an abuse of discretion. 
(In re Marriage of Rosen
(2002) 105 Cal.App.4th 808, 825.)

2. 
Trial court properly continued to
impute $65,000 income to wife.

Wife contends the trial court erred in
imputing income to her of $65,000 per year for the purposes of both permanent
spousal support and child support.  The
contention fails.

By way of
background, the 2008 vocational evaluation by Paulette Hunnewell showed, inter
alia:  Wife, then age 45, had a bachelor
of science degree in business and accounting. 
She had been employed by Hallmark for five years as an internal auditor
and then was promoted to an inventory controller position.  Before that, she worked two years as an
auditor for Price Waterhouse.  Wife was
not precluded from engaging in full-time employment due to child care
responsibilities.  Further, wife
“possesses the necessary capabilities to return to full-time
employment . . . if she were motivated to do so.”

In 2002, wife
began, and continues to operate a home-based business, Health-E-Tips, Inc., an
online wellness newsletter.  Other than a
two dollar profit she reported in 2006, the business lost money every year, and
the losses ranged from $13,000 to $40,000 per year.

Hunnewell opined,
inter alia:  “[Wife] possesses the
necessary education, work history and transferable skills to immediately be
employed as a sales representative or in a related capacity.  [Wife], initially, would earn at least
$60,000 or more a year.  After securing
two to three years of experience in this field [wife’s] earning capacity would
increase to at least $70,000 to $75,000 or more a year.”

Consistent with
the Hunnewell evaluation, the 2009 stipulated judgment contains a finding of
“[i]mputed gross annual income to [wife] of $65,000.”

At the January
2012 hearing on wife’s modification request, the trial court observed there had
been discussion “at the prior hearings in 2008 and 2009 of how long [wife]
would continue to engage in this internet-based venture if it continued to lose
money . . . .  And
[wife] contended that she would spend only about another year at the
endeavor.  [¶]  Currently
it appears that [wife] would be making more money if she just stayed in bed
every day and did not use any of her efforts and talents, which are considerable,
for Healthy Tips.  This is completely
contrary to the policy of the State of California for the supported party to be
self-supporting within a reasonable period of time.  [¶]  It
also shows that the support has been a disincentive for [wife] to be
self-supporting. . . .  
There seems to be no real reason given by [wife] why she cannot be
gainfully employed at this time.” 
(Italics added.)

Given this record,
there is no merit to wife’s contention the evidence is insufficient to support
the trial court’s finding that her imputed income is $65,000 per year.

We also reject
wife’s argument the trial court erred in relying on the 2008 report.  Although wife contends the evaluator’s report
was hearsay and inadmissible absent a stipulation, there is no indication
that wife raised a hearsay objection below. 
(Evid. Code, § 353.)  
Therefore, the evidentiary objection is waived.

Wife also contends
the 2008 Hunnewell evaluation was four years old and outdated by the time of
the 2012 hearing.  The trial court
properly rejected this argument.  To
reiterate the trial court’s ruling:  “>The Court further finds that [wife] has
failed to present any competent, admissible evidence indicating that the
vocational analysis conducted by Paulette Hunnewell in 2008 should be
disregarded by the Court.  The Court
finds that it is not necessary to undergo an entirely new analysis of [wife’s]
ability to obtain a job, the job market, and the like.  The Court finds that it is [wife’s]
obligation to show that the previously undertaken analysis of the vocational
skills and opportunities upon which the current imputation of income is based
no longer applies, and that [wife] has failed to do so.”  (Italics added.)  The trial court’s ruling was correct.  It was wife, as the moving party on the order
to show cause, who had the burden to show a material change of
circumstances.  (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 482.)

For all these reasons, the trial court properly continued to impute
$65,000 in annual income to wife.href="#_ftn6"
name="_ftnref6" title="">[6]

            3.  Trial
court properly denied wife’s request to increase spousal support; wife failed
to meet her threshold burden to show the previously ordered amount of $8,000
monthly was inadequate at the time the award was made.

                        a.  Trial
court’s ruling.

In refusing to increase spousal support from the
baseline level of $8,000 per month, the trial court found “there is no material
change in circumstances justifying a modification of spousal support, and
therefore the Court need not go through a complete analysis of California
Family Code § 4320.  [¶]  b.  The
Court finds that [wife’s] claim that the parties’ marital standard of living
was approximately $29,000 per month is not credible.  The Court finds that this marital standard of
living would have been impossible, as [husband’s] gross income in 2002, the
last year of the parties’ marriage, was only $28,250 per month.”

                        b.  Increase
in spousal support based on increased earnings of supporting spouse requires a
showing the previous support order was inadequate.

            Our
“analysis begins with the general rule that for a court to consider a motion
for modification of spousal support there must first be a showing of a material
change of circumstances since the last prior support order, taking into
consideration both the needs of the supported spouse and the ability of the
supporting spouse to meet those needs. 
[Citation.]  A material change of circumstances may consist solely of an increase in
the supporting spouse’s ability to pay, but if that is the only change, then to
obtain an increase in support there must also be a showing that the amount of
support previously ordered had not been adequate to meet the supported spouse’s
reasonable needs at that time.  [Citations.] . . . [T]his
rule logically permits incremental increases through multiple modifications if
there are gradual increases in the supporting spouse’s ability to pay.”  (In re
Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483, italics added.)

                        c.  We
defer to trial court’s credibility determination that the earlier support order
was adequate.

            Wife
contends the previous spousal support, i.e., the award of $8,000 per month as
set forth in the 2009 stipulated judgment, did not meet the parties’ marital
standard of living.  Wife asserts that
given husband’s 14 percent increase in compensation, the trial court erred in
refusing to increase the level of spousal support.  Wife emphasizes she has lost one-half of her
child support and her housing expenses have risen.

Wife’s arguments are meritless. There
was no material change of circumstances warranting an increase in spousal
support.  The $1,200 monthly increase in
wife’s housing expenses was due to her buying more house than she could afford.  The loss of child support for the older
daughter was foreseeable and expected, as Morgan attained the age of majority.

The only thing
that has changed is the increase in husband’s earnings since the time of the
2009 stipulated judgment.  However, as
the trial court found, wife’s failure to establish the $8,000 per month baseline
was inadequate to meet her reasonable needs in 2009 precludes her from relying
on husband’s increased earnings to obtain an increase in spousal support.  The trial court found wife not credible in
this regard, and that determination is entitled to deference by this court.

Moreover, as
husband has argued “it defies reason” that in 2009 wife would have stipulated
to monthly spousal support of $8,000 if her actual marital lifestyle was
$22,000 more.

On this record,
the trial court properly determined the stipulated judgment’s provision of
$8,000 per month in spousal support was adequate to meet wife’s reasonable
needs as of 2009.  Having determined the
previous support order was adequate, the trial court properly refused to
increase spousal support based on nothing more than husband’s increased ability
to pay.

4. 
Child support issues.

We begin with an overview of the child
support situation.

As discussed, the trial court properly
imputed an annual income of $65,000 to wife for purposes of calculating child
support.  However, wife’s income, apart
from support payments, is essentially nil. 
Therefore, wife is not contributing toward Madison’s support, other than
what she receives from husband.

Madison spends 42
percent, or nearly one-half, of her time with husband.  At this juncture, husband pays wife $781 per
month ($9,372 per year) in base child support for Madison, plus additional
child support of 5.5 percent of his bonus. 
For 2011, the most recent year available, husband’s bonus was $600,000,
giving rise to additional child support payment of $33,000 for Madison for
2011.  In addition, husband pays
Madison’s entire private school tuition ($975 per month), her health insurance,
and one-half of her extracurricular activities and unreimbursed medical expenses.  Wife has not shown Madison’s reasonable needs
are not being met.

            a. 
No merit to wife’s contention the
trial court erred in reducing base child support by husband’s travel expenses.

The record
reflects the trial court reduced the guideline child support figure of $3,215
per month by $2,434 for husband’s travel expenses, resulting in a net figure of
$781 per month (before adding 5.5 percent of husband’s bonus).  Wife contends it was error to decrease child
support by the amount of husband’s travel expenses.  She relies on In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, which held
the trial court lacked authority to reduce the guideline amount of child
support by the amount of father’s expenses to travel to another state to visit
with the parties’ son.  (>Id. at p. 529.)

However, >Wilson v. Shea (2001) 87 Cal.App.4th
887, rejected Gigliotti’s
“hard and fast rule” (id. at p.
893) and stated “we cannot agree with any suggestion that . . 
.visitation cannot be a sufficient reason to vary the guideline amount in
move-away cases.”  (Id. at p. 895.)

In the instant
case, in 2009, the parties entered into a stipulated judgment.  As of that date, both Gigliotti and Wilson were
on the books.  Notwithstanding the
concerns raised by the Gigliotti
decision, the parties agreed to factor husband’s travel expenses into the
calculation of child support.  The
stipulated judgment, with respect to child support, expressly provides for
child support add-ons, “of which $3,600
is for travel expenses associated with [husband’s] exercising his custodial
rights.”  (Italics added.)href="#_ftn7" name="_ftnref7" title="">[7]

On this record,
wife’s contention the trial court erred in reducing guideline child support by
the cost of husband’s visitation is barred by the doctrine of invited
error.  (Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th
657, 667 [invited error doctrine precludes party from taking advantage of any
error committed by court at his request].) 
Having agreed in the stipulated judgment to factor husband’s travel expenses
into the calculation of child support, and that said provision was in the
minors’ best interests, wife cannot complain the trial court adhered to that
formula in modifying support.

            b. 
No merit to wife’s contentions
with respect to husband’s perquisites and interest and dividend income.

Wife contends the
trial court erred in omitting husband’s monthly automobile allowance of $722
and monthly dividend and interest income of $840 from the computation of child
support.

As husband argues,
presumably the trial court disregarded the $722 because it represented
reimbursement for his business use of his personal automobile.

As for husband’s
$840 monthly interest and dividend income listed on his income and expense
declaration, wife asserts there was no justification for the trial court’s
“ignoring the dividend and interest income which [husband] conceded
receiving.”  However, it does not appear
that wife requested the trial court to include this additional $840 per month
in the computation of child support. 
This monthly income of $840 was not even mentioned in wife’s reply
papers below.  Therefore, wife cannot be
heard to complain that husband’s $50,000 monthly income should have been
enhanced by another $840 for purposes of determining child support.

DISPOSITION

The March 14, 2012 order is
affirmed.  The parties shall bear their
respective costs on appeal.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

 

 

 

                                                                                    KLEIN,
P. J.

 

 

We
concur:

 

 

 

                        KITCHING,
J.

 

 

 

 

                        ALDRICH,
J.