Filed 9/29/17 Marriage of Sim CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Edward W. Sim appeals from a judgment of dissolution. Appellant contends that the trial court erred when it failed to require respondent Elisa M. Rah to appear at trial. He also argues that the trial court failed to consider the factors set forth in Family Code section 4320[1] and improperly relied on computer calculations in determining the amount of the spousal support order. We affirm the judgment.

I.Factual and Procedural Background

The parties were married in June 2010. In November 2010, respondent was diagnosed with stage IV glioblastoma multiforme, a form of brain cancer. The tumor was inoperable. Her treatment included surgery to relieve pressure on her brain, chemotherapy, and radiation. In January 2011, respondent went to Korea, where her parents lived, for acupuncture and herbal remedies. When she returned to the United States in March 2011, she walked with a cane. Shortly thereafter, she needed a wheelchair. Respondent’s cognitive abilities declined during the summer of 2011. She was confused, forgetful, and unable to carry on complex conversations. In December 2011, she returned to Korea for additional acupuncture treatment.

The parties stipulated that the date of separation was May 15, 2012, which was the date that appellant filed for dissolution of the marriage.

In September 2012, the parties stipulated that appellant would pay respondent temporary spousal support of $1,226 per month plus a percentage of any income he received above $12,070 per month under the Ostler-Smith[2] schedule.

In March 2014, appellant filed a motion for termination of spousal support and reimbursement of overpayment of spousal support.

At the time of trial in January and February 2015, respondent was 33 years old and appellant was 32 years old. At that time, respondent was incapable of working, was living with her parents in Korea, and receiving Eastern medicine treatment. There was no evidence of her life expectancy.

Reagan Wade, a certified public accountant, testified as an expert witness in forensic accounting in the areas of tax issues, Ostler-Smith issues, and the marital standard of living. Based on the parties’ tax returns and W-2 forms from June 2010 through May 2012, Wade concluded that the marital standard of living was $17,449 per month per spouse. The parties’ average annual income was $360,630. Wade adjusted this amount for inflation and concluded their income in fall 2013 was $380,706. She also made an adjustment of 10 percent because “there’s an added cost” when the parties “live in two different households."

Young-Sup Lee, respondent’s uncle, had power of attorney over respondent’s financial affairs. He was involved in preparing her tax returns and her income and expense declarations. According to Lee, respondent had $737,000 in assets: $250,000 in cash and checking accounts; $277,000 in stocks and bonds; $190,000 in retirement accounts; and personal property of $20,000. Her average monthly income from social security and disability insurance was $ 6,033. Her average monthly interest and dividend income was $513. The total amount of her monthly expenses was $7,828. These expenses included $4,000 in health care expenses for acupuncture, Eastern medicines, and physical therapy, which were not paid by insurance. She also paid $1,500 per month for homecare. While living with her parents, she did not have rent or housing expenses.

Appellant testified that the parties prepared a budget in 2011. They were able to keep their expenses down during the marriage and save both the amount of respondent’s net paycheck and respondent’s net income from stock. Neither party contributed to the other’s education or career.

At the time of trial, appellant’s base salary was $133,000 and he received performance-based bonuses of $50,000 per year. He had also received restricted stock units (RSUs) of Twitter stock valued at $206,000. Appellant had $481,000 in assets: cash and checking accounts of $31,000; stocks and bonds of $200,000; and real and personal property of $250,000. In 2012, appellant paid a total of $6,130 in baseline support plus $9,383.29 under the Ostler-Smith schedule. In 2013, he paid a total of $14,712 in baseline support and $9,105.51 under the Ostler-Smith schedule. In 2014, he paid a total of $9,800 in baseline support and $56 under the Ostler-Smith schedule. In November 2014, appellant also paid respondent $39,093 for stock pursuant to a stipulation and order that the parties had entered into in October 2014. His total monthly expenses were $7,740.

Spousal support was currently $1,226 per month plus the amounts under the Smith-Ostler schedule. In the division of property, respondent received approximately $525,000 of separate and community assets while appellant received approximately $189,000. Respondent’s separate property was the basis for the discrepancy in the amounts of the assets.

After trial, the court ordered appellant to pay respondent $1,226 per month from February 1, 2015 until January 31, 2017. Appellant was also ordered to pay to respondent any income he received above $12,070 per month consistent with the previously stipulated Ostler-Smith schedule (39.18 percent) through January 3, 2016. In setting the issue of spousal support for review in two years, the trial court stated: “But I want to very clearly indicate that presumptively I do not think that the support should go beyond two years.” The judgment also required appellant to pay back spousal support in the amount of $81,989.95. The principal amount was $78,958.76: $2,576.69 due April 15, 2013; $1,768.99 due September 6, 2013; $32,273.84 due October 1, 2014; $3,493.04 due December 31, 2014; and $38,846.20 due April 4, 2015. The interest on the principal amount was $3,301.19.

II. Discussion

A.Right to Cross-examination

Appellant contends that the trial court committed reversible error when it failed to require respondent to appear at trial.

Prior to trial, the court held a telephone conference with the parties’ counsel. Respondent’s counsel stated that respondent would not be attending trial, because her doctor recommended that she not travel from Korea to California due to the precarious state of her health. However, respondent was willing to appear by telephone or video. The trial court requested that counsel submit briefing on the issue of respondent’s appearance at trial.

Relying on provisions of the Hague Convention and due process principles, appellant objected to respondent’s request to participate in the trial by telephone or video. He argued that the trial court should allow him to proceed by default. Respondent requested that she be allowed to proceed remotely or that her counsel be allowed to proceed without her personally present. Alternatively, she requested a continuance.

On the first day of trial, the court found that the trial could proceed without the live testimony of respondent. Respondent’s counsel indicated that respondent could testify from Korea if the trial court made the appropriate arrangements. Appellant’s counsel stated: “We can probably, as your honor indicated, proceed without her. I think there’s some unfairness to my client to proceed without her, but I’m sure your honor will take that into account in terms of my inability to question about certain things, such as her income and expense declarations. We have no choice but to take them at face value, despite my need to dig into that.” Respondent’s counsel responded: “We will do whatever we can to cooperate to allow her to testify remotely if the court is so inclined, and if [appellant] wants to do that. We will not raise any issue about her citizenship in that regard. We are prepared to say she can do that, and we will allow her to do that, and we will cooperate in that process if it’s necessary.”

At the conclusion of the first day of trial, the trial court stated that it had “the necessary information that it need[ed] to make the decision on spousal support,” and asked appellant’s counsel whether he wanted to respond. Appellant’s counsel stated: “Other than the general issue of wishing and believing the process that I think the respondent should be here at the trial, but other than that, I think you do have all of the information and the critical piece of information was brought in, which was the total of her assets, and we were able to get that in through the uncle, so we don’t need her testimony on any issue critical to our case.” The trial court then ruled that it would not require respondent to participate by telephone or video.

Relying on Greene v. McElroy (1959) 360 U.S. 474 (Greene) and Pointer v. Texas (1965) 380 U.S. 400 (Pointer), appellant asserts that he was deprived of his due process right to cross-examine respondent about her need for spousal support. Neither case supports appellant’s position.

In Greene, the petitioner worked for a company which manufactured goods for the Department of Defense. After the government revoked the petitioner’s security clearance, he was discharged from his employment. (Greene, supra, 360 U.S. at p. 475.) At the administrative hearings, the government presented no witnesses and relied on confidential reports which were never given to the petitioner. (Id. at pp. 477-488.) The United States Supreme Court held that “in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.” (Id. at p. 508.) Unlike in Greene, respondent was not relying on information that had never been provided to appellant and appellant cross-examined respondent’s witnesses.

At issue in Pointer was whether the Sixth Amendment’s right to confront witnesses against him was applicable to the states under the Fourteenth Amendment. (Pointer, supra, 380 U.S. at p. 401.) The Sixth Amendment applies “ ‘n all criminal prosecutions.’ ” ([i]Pointer, at pp. 400-401.) The present case did not involve a criminal prosecution.

In considering appellant’s claim that due process required that respondent “make herself subject to cross-examination,” we note that respondent did not testify. Appellant has failed to cite any authority that compelled respondent’s counsel to call her as a witness. If appellant believed that her testimony was vital to his position, he could have called her as a witness. However, he never served written notice in a timely manner on respondent or her counsel and requested that she appear at trial. (Code Civ. Proc., § 1987.) Accordingly, his due process claim has no merit.

Even assuming that the trial court erred, appellant has failed to demonstrate prejudice. Here, it is undisputed that respondent was willing to participate by telephone or video. Appellant, however, indicated at trial that the court had “all of the information” and he did not “need her testimony on any issue critical to our case.” The record supports this concession since appellant had access to respondent’s financial records as well as the opportunity to cross-examine her expert witness on the marital standard of living and Lee, who held respondent’s power of attorney for financial matters. Appellant does not identify on appeal any unavailable evidence that hindered his ability to present his case. Thus, appellant has failed to establish that any error resulted in a miscarriage of justice. (Cal. Const. art. VI, § 13; Code Civ. Proc., § 475.)

B.Section 4320

Appellant next contends that the trial court failed to consider the factors set forth in section 4320.[3]

The trial court included an attachment to the judgment which states: “The Court determined that [Appellant’s] Request for a Statement of Decision was untimely but recited the rationale for its ruling orally in Court on February 6, 2015. The Court stated that there was no controlling preceden[t] for this case involving a short term marriage, a disabled supported spouse and a supporting spouse with the clear ability to pay. This is a matter that falls within the clear discretion of the Court. The Court considered all 14 factors of Family Code §4320, but subdivision (l)’s language regarding half the length of marriage is a guide only and not mandatory. [Appellant] has the ability to pay. The Court struggled with Respondent’s needs. She has substantial assets. She is living in Korea with her parents but has medical and other expenses. The [Court] concludes that she has ongoing need. The question is how long should support continue, and the Court finds that within its discretion and therefore orders support at $1226 per month with the Ostler-Smith provision for 1 year and without the Ostler-Smith provision for an additional year. A review shall be set in 2 years, with a reservation after 2 years. A further explanation of the Court’s reasoning is reflected in the Transcript, a copy of which is attached hereto.”

“[T]he ‘purposes of spousal support inevitably vary from case to case, depending upon the parties and the facts and circumstances of the case.’ [Citation.] ‘The facts and the equities in one case may call for no spousal support, or for very short-term support. . . . At the other end of the spectrum are cases where the purpose of spousal support is to provide financial assistance to the supported spouse until . . . death. . . . In between are the myriad of factual circumstances which the trial court must consider in making its order for purposes which vary from case to case.’ [Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312 (Cheriton).)

“Spousal support is governed by statute. [Citations.] . . . The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed. [Citations.]” (Cheriton, supra, 92 Cal.App.4th at pp. 302-303.) The other statutory factors which are relevant to the present case include: the supporting party’s ability to pay support; the needs of each party based on the marital standard of living; the assets of each party; the length of the marriage; the age and health of the parties; and the balance of hardships to the parties. (§ 4320.)

“ ‘In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.’ [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the ‘court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.’ [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations].” (Cheriton, supra, 92 Cal.App.4th at p. 304.)

The standard of review for an order of permanent spousal support is abuse of discretion. “ ‘In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]’ [Citation.]” (Cheriton, supra, 92 Cal.App.4th at p. 283.) “ ‘An abuse of discretion will be perceived if, after calm and careful review of the entire record, it can fairly be said that no judge would . . . make the same order under the same circumstances.’ [Citation.]” (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 917 (Wilson).)

Appellant first claims that the trial court “simply glossed over the 14 factors upon which it is required to make specific findings in every case where support is a trial issue.” Section 4320 does not require that the trial court make specific findings on each of the enumerated factors. It requires the trial court to “consider” the 14 factors. (§ 4320.) In the present case, the trial court expressly stated that it had considered the factors set forth in section 4320. Where there is no “indication to the contrary, we are required to presume [the trial] court was aware of, and followed, the applicable law and considered all the relevant facts and arguments. [Citations.]” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 447.) Thus, appellant’s claim is without merit.

Appellant argues that the trial court stated its “incorrect position” when he was attempting to present evidence on the section 4320 factors. Appellant has misstated the record. The trial court stated: “I don’t want to restrict you from presenting any evidence that you want to present. . . . [¶] The 4320 analysis presumes a supported spouse who needs to be questioned about the ability to return to the workforce, et cetera. That’s not an issue here. [¶] The Court has no evidence here to suggest that [respondent’s] condition will improve. So, the sole inquiry here is whether there should be any continuation of spousal support given the length of the marriage and given her medical condition. [¶] So, I don’t find the rest of the 4320 factors to be pertinent, but at the same time I don’t want to restrict either counsel from presenting any evidence that they want to present.” Thus, the trial court was indicating to counsel that the focus should be on the relevant section 4320 factors.

Appellant next claims that the trial court understood that respondent did “not have real, measurable need” and it wanted appellant to “ ‘share’ his earned income years after separation.” He relies on the following statement by the trial court: “This case strikes me as one where the need of [respondent] is very hard to measure and there are a number of improbables. And [appellant] clearly has the ability to pay, so, in, in a philosophical sense, the question that I think I have to wrestle with to make my decision is subsequent to the parties[’] separation, [appellant] has proceeded to have a successful career with very good income and is it appropriate given all of the uncertainty about [respondent’s] need for some small portion of that to be shared with [respondent] by way of ongoing spousal support. That’s how I am viewing the decision that I have to make here.” After both counsel focused their arguments on the marital standard of living, the length of the marriage, respondent’s disability, and her need for spousal support, additional testimony was presented. We disagree with appellant’s characterization of this portion of the record. In our view, the trial court had not yet reached a decision on the issue of spousal support and was commenting on the difficulty in reaching an equitable result.

Appellant also argues that the trial court made “it abundantly clear that the judge’s own prejudices regarding Silicon Valley income and opportunities skewed the Court’s thinking and led to the erroneous decision.” The trial court stated: “I can’t help but reflect on the fact that we live in a time and place where people have the opportunity to parlay great education and skills into jobs that pay remarkable amounts of compensation at a young age and allow, allow a level of living that the rest of the world envies. [¶] I also have a hard time separating myself from the human factors here and I’ve gone back and back to Exhibit A and the picture of [respondent] at her wedding. And what a vibrant, beautiful woman she is and how sad it is that she was afflicted with an inoperable brain cancer at her age.” We fail to understand how these statements demonstrate prejudice or affected the trial court’s exercise of its discretion.

We now consider the relevant section 4320 factors and whether the record supports the trial court’s exercise of its discretion. As to the marital standard of living, respondent’s expert witness testified that the marital standard of living was $17,449 per month per spouse. Her determination was based on the parties’ tax returns and W-2’s from June 2010 through mid-May 2012. In adjusting for the cost of two households after the parties separated, she took into account respondent’s lower cost of living in Korea. She also used the consumer price index to adjust for inflation.

Appellant did not offer an expert on the marital standard of living. He testified that the parties saved respondent’s “entire net paycheck” during the marriage. Thus, it was appellant’s position that the money that they had saved should not become part of the marital standard of living. He also argued that respondent’s separate property income, which she received in the parties’ stipulated property settlement, should not be included in calculating the marital standard of living. The trial court properly rejected these arguments since a couple’s income, whether it is saved or spent during the marriage, is part of the marital standard of living. (In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1097-1098.)[4]

In sum, the record supports the trial court’s finding that the marital standard of living was $17,449 per month per spouse.

The next relevant factor was appellant’s ability to pay spousal support.[5] (§ 4320, subd. (c).) Appellant’s base salary at the time of trial was $133,000. He also received performance-based bonuses of $50,000 per year and RSUs of Twitter stock valued at $206,000. His monthly expenses were $7,740. He had $481,000 in assets. He had agreed to paying temporary spousal support to respondent in the amount of $1,226 per month plus 39.18 percent of any income he received above $12,070 per month. There was no evidence that the amount of spousal support had any impact on his standard of living. Thus, the record supports the trial court’s finding that appellant had the ability to pay spousal support.

As to respondent’s needs based on the standard of living established during the marriage, appellant contends that respondent’s needs are currently met by her family, her disability income, and the increase in her net worth of approximately $190,000 since the date of separation.

Here, even with her family providing shelter and inexpensive homecare, respondent had expenses of $7,828 per month. In the event that her family did not continue to provide assistance, the record established that respondent’s expenses would have doubled to over $15,000 per month. As respondent’s illness progressed, her expenses could reasonably be expected to increase. However, since her average monthly income was $6,546, including her income from her assets, her expenses exceeded her income. Thus, the record supports the trial court’s finding that respondent had “some ongoing need for support.”

Regarding the parties’ assets, appellant had $481,000 in assets and respondent had $737,000 in assets. In considering this factor, the trial court stated: “It is true that [respondent] emerged from this marriage with a substantial amount of assets. It is also true that those assets have increased in value, although the evidentiary basis of that is open to question, right. . . . I don’t view that point as being dispositive, though. I think whether or not she has a significant amount of assets that survived her marriage does not overcome the discretion of the Court to consider her need in the broad context.” Appellant argues that the amount of respondent’s assets obviated any need for spousal support. However, respondent’s average monthly income from her assets was $513.[6] In addition, as the trial court correctly observed, section 4320 requires that all of the applicable factors be considered.

Two of the section 4320 factors refer to the length of the marriage as a consideration in setting spousal support. Subdivision (f) states that the duration of the marriage is a factor. Subdivision (l) states: “The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.”

Appellant emphasizes that the judgment extended spousal support approximately five years beyond the date of separation and ordered payment of the Ostler-Smith percentage of his bonus and stock-based income approximately four years beyond the date of separation. Relying on section 4320, subdivision (l) and Wilson, supra, 201 Cal.App.3d 913, he argues that he was required to pay spousal support for only 11 months since the length of the marriage was 23 months.[7] We disagree.

“Statutory language is to be given plain and commonsense meaning consistent with the apparent intention of the lawmakers. [Citation.]” (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 286.) Here, section 4320, subdivision (l) states that “generally” one-half of the length of the marriage is a reasonable time for spousal support in a short-term marriage. But the statute also states that “nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.” Thus, the plain language of section 4320, subdivision (l) refutes appellant’s argument.

Nor does Wilson, supra, 201 Cal.App.3d 913 persuade us that the length of the marriage is determinative in the present case. In Wilson, the parties were married for 70 months and had no children. The wife had been injured two years before the date of separation and she was no longer able to be employed. The parties initially stipulated to spousal support for two years. The wife later sought continued spousal support. The trial court awarded spousal support for a total of 58 months. In terminating spousal support, the trial court considered the following factors: the husband had the ability to make the payments; the wife needed such payments due to her permanent disability; it was not a lengthy marriage; and the wife had received spousal support for 58 months. (Id. at pp. 914-916.)

The Wilson court concluded that since the trial court had properly considered the requisite factors, it had not abused its discretion in terminating spousal support. (Wilson, supra, 201 Cal.App.3d at pp. 917-918, 920.) The Wilson court also noted: “[The wife] attempts to demonstrate self-support is the key to termination of jurisdiction over spousal support even in short marriages. [The husband] suggests duration of the marriage is paramount. While we understand why each seeks to emphasize that factor most favorable to his or her argument, this approach misses the forest for the trees.” (Id. at pp. 919-920.) Thus, the Wilson court emphasized that the trial courts are required to “consider the totality of the circumstances . . . .” (Id. at p. 920.) Wilson does not stand for the proposition that spousal support after a short-term marriage where the supported party is disabled can never exceed the length of the marriage. Instead, “Wilson tends to demonstrate the breadth of the trial court’s discretion in a case where termination of ongoing spousal support is in issue. Wilson suggests that so long as there is a proper weighing of the appropriate factors, it is likely the trial court’s exercise of its discretion in the matter will be upheld.” (In re Marriage of Christie (1994) 28 Cal.App.4th 849, 861.)

Here, the trial court considered the length of the marriage in setting spousal support and correctly noted that subdivision (l) of section 4320 was not mandatory. The trial court also stated, “And I agree with the premise that a person who has a total disability at some point becomes the burden of society rather than of the former spouse, but the question is at what point that occurs.”

Regarding the age and health of the parties, the record establishes that both appellant and respondent are in their early 30’s. No issue has been raised as to appellant’s health. However, respondent has lost her motor skills and cognitive abilities due to her brain cancer.

As to the balance of the hardships, this factor weighed in favor of respondent. Appellant’s ability to pay is undisputed and the duration of support is limited. Respondent suffers from a terminal illness and her need for spousal support was reasonable. Thus, the record supports the trial court’s implicit finding.

Here, the trial court considered the relevant factors in section 4320. The marital standard of living was $17,449 per month per spouse. Appellant had the ability to pay spousal support. Respondent’s expenses exceeded her average monthly income by $1,282. While respondent had assets of $737,000, they produced an average monthly income of $513, which had been included in her total income. Appellant was healthy, but respondent suffered from brain cancer. Awarding respondent spousal support would not impose a hardship for appellant. In a marriage of 23 months, the judgment provided respondent with monthly spousal support of $1,226 for approximately 56 months beyond the date of separation and 39.18 percent of any income appellant received above $12,070 per month for approximately 44 months after the date of separation. There was no evidence in the record that these amounts had or would exceed the marital standard of living. We also note that in setting the issue of spousal support for review in two years, the trial court expressly stated its presumption that spousal support would not be extended at that time. As this court stated in Cheriton, “ ‘the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]’ [Citation.]” (Cheriton, supra, 92 Cal.App.4th at p. 283.) Under this standard, an abuse of discretion occurs when “ ‘it can fairly be said that no judge would . . . make the same order under the same circumstances.’ [Citation.]” (Wilson, supra, 201 Cal.App.3d at p. 917.) Applying this standard of review, we conclude that there was substantial evidence to support the trial court’s exercise of its discretion in awarding spousal support to respondent.

C. Calculation of Amount of Spousal Support

Appellant contends that the trial court improperly used the DissoMaster to set the amount of spousal support.

“In light of the different legal purposes for each kind of support order and the reality that temporary support will tend to be higher than permanent support, In re Marriage of Olson [(1993)] 14 Cal.App.4th 1, specifically warned against using temporary spousal support guidelines in a computer program assigned the task of determining permanent support. After noting the absence of legal authority to use a computer program for even temporary support unless they incorporate guidelines adapted by local court rule, Justice King, writing for the Olson court, observed: ‘An even greater danger is that the trial judge may use the results from a computer program designed for temporary spousal support to determine permanent spousal support. The purposes of temporary and permanent support are vastly different. . . . For this reason, using a computer program based on the court's guidelines for temporary spousal support is inappropriate for fixing permanent spousal support.’ [Citation.] Permanent spousal support, noted the Olson court, cannot be reduced to a computer program, because permanent support must be ‘fixed only after consideration of the applicable’ statutory factors. [Citation.]” (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525-526.)

Here, the trial court expressly stated that it had considered the factors set forth in section 4320 at conclusion of the hearing and in the judgment. After discussing some of the factors at the hearing, the trial court stated: “With respect to the base amount of support, I think under all the circumstances the amount that [appellant] has been paying of $1200 a month, actually, precisely 122[6], is fair and appropriate and I would continue that for the next two years.” There is no indication that the trial court relied on improper factors. The amount of spousal support indicates that the trial court intended to ensure that respondent’s monthly needs continued to be met by her disability and interest income as well as spousal support from appellant.

Appellant also argues that “using a percentage calculation for future stock-based bonuses received by [him], without reference to the marital standard of living cap, is simply capricious.”

“Generally, the use of percentages to determine support will beneficially remove the need for further litigation with its attendant costs, and oftentimes, emotional upheaval. [Citation.]” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 95.)

Though appellant argues that the trial court should have placed a cap on the Ostler-Smith award, he offered no evidence that the award would ever exceed the marital standard of living of $17,449 per spouse per month. Under these circumstances, we find no abuse of discretion.[8]

III. Disposition

The judgment is affirmed. Respondent is awarded her costs on appeal.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.