Filed 10/12/18 Marriage of Yang and Mou CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Chin-Li Mou appeals from an order modifying the spousal support obligation of respondent Li-Jau Yang. Mou has failed to show that there was insufficient evidence to support the trial court’s findings or that the trial court abused its discretion in its award of spousal support. Accordingly, we affirm the order.

1. Procedural and Factual Background

Mou and Yang were married in May 1988 and separated in October 2005. They have no children. In April 2006, a judgment of dissolution, which incorporated a marital settlement agreement (MSA), was entered.[1] The MSA provided that Yang would pay as spousal support: the monthly premium for Mou’s dental and medical insurance and co-payments for office visits; the property tax on her condominium; the homeowners association fees and utility bills for this property; tuition for her bachelor of science degree in engineering and “for studying for law school;” and one-half of the money or stocks received from Ho Tien-Fa. The MSA also provided that “support will terminate—when [Mou] is [e]lgible for Medicare or Social Security Insurance or wife remarries—whichever comes first;” and Mou “has the right to choose appropriate medical and dental coverage.”

In order to obtain modification of a spousal support order, a party must show a material change in circumstances since the last order, that is, “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” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246 (West).) Thus, “ ‘[i]n general a change of circumstances may be [i]anything that affects the financial status of either party.’ [Citation.]” (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173.) “However, the mere passage of time is not alone a sufficient basis for modification. [Citation.] With the passage of time, changed circumstances may occur, but it is the change in circumstances and not the passage of time which is material. [Citations.]” (In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1202 (Heistermann).)

In deciding a motion to modify a spousal support order, the trial court is required to consider the factors set forth in section 4320. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) As relevant here, these factors include: the parties’ earning capacity to meet the marital standard of living; the supported party’s marketable skills; the supported party’s contribution to the supporting party’s education; the ability of the supporting party to pay spousal support; the needs of each party; the obligations and assets of each party; the duration of the marriage; whether the parties had children; the age and health of the parties; the balance of hardships; the goal that the supported party shall be self-supporting; and any other factors. (§ 4320, subds. (a)-(n).)

This court reviews a trial court’s decision to modify spousal support for abuse of discretion. (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1480.) “In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.) In conducting this review, “all conflicts must be resolved in favor of the prevailing party, and all legitimate and reasonable inferences must be indulged in order to uphold the trial court’s finding. [Citation.] In that regard, it is well established that the trial court weighs the evidence and determines issues of credibility and these determinations and assessments are binding and conclusive on the appellate court.” (In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051-1052 (Hill & Dittmer).) If a finding of a material change of circumstances is unsupported by substantial evidence, “an order modifying a support order will be overturned for abuse of discretion. [Citation.]” (West, supra, 152 Cal.App.4th at p. 246.)

Mou contends that Yang failed to meet his burden of showing a material change of circumstances. She points out that his monthly salary, which was currently $13,750, had greatly increased since 2006, his monthly expenses were significantly less than his income, and he had substantial savings.

The trial court found that there had been a material change of circumstances based on the passage of time, Yang’s significant period of unemployment, and his family obligations that he did not have previously. As to the passage of time, the trial court explained: “We are past the one half the length of the marriage. That doesn’t mean that support should terminate in any type of way, but it does mean that the Court is looking to how long should support continue and what is the appropriate thing for the Court to do in terms of that.” Thus, the trial court recognized that the “passage of time [was] not alone a sufficient basis for modification.” (Heistermann, supra, 234 Cal.App.3d at p. 1202.) As to the other factors, Yang was 52 years old and had been out of work for over a year. After a lengthy search for employment, he had recently been hired by a company that was not financially stable. He was also helping to support his wife, stepson, and niece. Thus, there was substantial evidence to support the trial court’s finding that there had been a material change of circumstances.

Mou contends that the trial court failed to consider the factors set forth in section 4320.

Mou argues that the marital standard of living was “upper/upper middle class” and “high income class.” The trial court found that the marital standard of living was middle class. Since both Yang and Mou had agreed at the hearing that the marital standard of living was middle class, Mou has forfeited any challenge to this finding on appeal. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912.)

Mou also relies on In re Marriage of Andreen (1978) 76 Cal.App.3d 667 to support her argument that the trial court’s order reduces her standard of living to low income. In that case, the Court of Appeal found that the trial court had abused its discretion in awarding the wife only $500 per month for five years, $1 per month for the next five years, and automatic termination after 10 years. (Id. at p. 671.) The duration of the marriage was 27 years and the parties had an upper middle class lifestyle. (Ibid.) The Andreen court reasoned that the award provided the husband with a standard of living much higher than the wife’s and assumed that the wife, who was then 50 years old, would reenter the job market and earn enough to afford an upper middle class lifestyle. (Id. at p. 672.) The wife also had no assets to augment her earnings. (Ibid.) Andreen is distinguishable from the present case. Here, the trial court’s order did not provide for automatic reduction and termination of spousal support. Moreover, unlike the wife in Andreen, Mou received substantial assets in the dissolution proceedings.

Mou claims that the trial court failed to consider certain factors under section 4320, that is, Yang’s ability to pay support, her age and health, and her contributions to Yang’s education.

The trial court found: (1) though Mou was once employed in the technology field, she had not worked in many years and suffered from PTSD and depression, and thus she was unable to work and had no marketable skills (§ 4320, subd. (a)(1)); (2) Mou gave up her career and educational opportunities in favor of Yang’s career (§ 4320, subd. (b)); (3) Yang could pay support since he made $13,750 as an engineer and had expenses of $7,231 (§ 4320, subd. (c)); (4) Mou had no income stream but owned her home without any mortgage or debt, had modest needs of $920, which included homeowners association fees, property taxes, and other expenses, received government assistance for medical care, and Yang paid about $1,200 per month for Mou’s expenses (§ 4320, subd. (d)); (5) each party owned real property and Yang paid monthly mortgage and taxes on his residence in the amount of $2,518 as well as education expenses of $2,700 for children in his household (§ 4320, subd. (e)); (6) the parties had a long-term marriage of 17 years, five months (§ 4320, subd. (f)); (7) the parties had no children (§ 4320, subd. (g)); (8) both parties were 52 years old and Yang had no health issues while Mou had recently broke both legs in a car accident and suffered from PTSD and depression (§ 4320, subd. (h)); (9) in balancing the hardships, Mou had greater need than Yang, but Mou received almost all of the community assets in the dissolution, including $1,091,000 in cash and stocks and her residence, which was valued at $570,000 in 2006 (§ 4320, subd. (k)); and (10) Mou was unlikely to obtain employment due to her current and long-term disabilities (§ 4320, subd. (l)).

The trial court also considered other factors under section 4320, subdivision (n): “At the time Husband filed his request to modify long term support, he was unemployed. At the time of the hearing in August, Husband had obtained employment appropriate for his engineering career. Husband has the ability to pay support and Wife has the need in order to maintain the marital standard of living. The issue therefore before the Court is what continued support Husband should pay and for what period. The parties stated a preference that any support order be in ‘like/kind’, i.e. not monetized and expressed concerns that Wife not lose her MediCal eligibility as a result of the Court’s orders. The Court finds that Husband should continue to provide the equivalent of a very modest support amount for a longer period of time given the length of the marriage, Wife’s lack of income stream, her apparent disabilities, her modest expenses, the monetary assets she received at the time of the 2006 judgment, and Husband’s current income. To eliminate any ambiguity, which has caused conflict between the parties, the Court will order very specific obligations and will eliminate those without fixed costs attached to them.”

Thus, the record establishes that the trial court expressly considered each of the relevant factors under section 4320. There was substantial evidence to support these findings. We understand that Mou would have preferred that the trial court had given greater weight to certain factors and reached a different result. However, she has failed to establish that the trial court abused its discretion.

Mou argues that the trial court improperly relied on Yang’s argument that he had paid her legal fees in 2006 and 2007 and thus should not pay spousal support. Nothing in the record supports this argument.

Relying on In re Marriage of Morrison (1978) 20 Cal.3d 437, Mou also contends that the trial court abused its discretion when it set a jurisdictional termination date, because there was no showing that she would be able to work and support herself. In Morrison, the trial court reserved jurisdiction to award spousal support for 11 years. (Id. at p. 441.) The California Supreme Court held that “[a] trial court should not terminate jurisdiction to extend a future support order after a lengthy marriage, unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction.” (Id. at p. 453.) The present case is readily distinguishable from Morrison. Here, the trial court did not set a time to terminate jurisdiction. Though it found that Yang would no longer be required to pay homeowners association fees, property taxes, and other monetary support as of November 1, 2020, it ordered that the amount of spousal support would not be reduced to $0 if Mou could establish good cause to modify the amount and/or duration of spousal support prior to December 1, 2020. The trial court also specifically retained jurisdiction over spousal support under section 4320.

Relying on In re Marriage of Richmond (1980) 105 Cal.App.3d 352, Mou next contends that “the lower court illegally set a deadline to spous[al] support to 2020 and granted $0 for spous[al] support after close to 18 years of marriage.” Mou is mistaken. In Richmond, the trial court ordered that spousal support would terminate on a particular date unless the supported spouse made a showing to extend spousal support beyond that date. (Id. at p. 354.) The Richmond court held that the trial court did not abuse its discretion when it: postponed the determination on whether to continue or postpone spousal support until a later date; and required the supported spouse to make a showing of good cause to extend spousal support. (Id. at p. 356.) Similarly, here, the trial court did not abuse its discretion when it postponed the determination of whether to continue the determination of spousal support to a future date. Given Mou’s substantial assets and minimal expenses, the trial court might well have concluded that she would be self-supporting at that time unless she made a contrary showing.

Mou contends that Yang should be ordered to name her as a beneficiary under a life insurance policy, a trust fund, or an annuity. Mou’s reliance on In re Marriage of O’Connell (1992) 8 Cal.App.4th 565 is misplaced. In O’Connell, the husband brought a motion seeking a reduction in child and spousal support due to disability. (Id. at p. 570.) The former wife agreed to a reduction if she or she and her children were named as beneficiaries of the husband’s life insurance policy. (Ibid.) The trial court ordered, among other things, that the husband name his former wife and their minor son and his current wife as beneficiaries of his life insurance policy. (Id. at p. 571.) After the husband died without changing his beneficiaries, the former wife brought a motion to enforce the order modifying the life insurance policy. (Ibid.) The O’Connell court affirmed the order denying the current wife’s motion to vacate the life insurance modification order. (Id. at pp. 580-581.) Here, Mou did not seek to be named a beneficiary under a life insurance policy, a trust fund, or an annuity in the trial court. Thus, there is no merit to her contention.

Mou argues that the trial court abused its discretion by using a computer program. There is nothing in the record to support this argument.

3. Disposition

The order is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.

Yang v. Mou

H043262