Opinion
G060313
08-18-2022
In re the Marriage of NANCY and ROBERT K. BURGER. v. ROBERT K. BURGER, Respondent. NANCY BURGER, Appellant,
The Law Offices of Patrick A. McCall and Patrick A. McCall for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall, and Erica M. Baca for Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 13D006020, Sandy N. Leal, Judge. Affirmed. Motion to augment granted in part and denied in part.
The Law Offices of Patrick A. McCall and Patrick A. McCall for Appellant.
Law Offices of Lisa R. McCall, Lisa R. McCall, and Erica M. Baca for Respondent.
OPINION
SANCHEZ, J.
FACTS AND PROCEDURAL HISTORY
Appellant Nancy Burger and respondent Robert K. Burger were married for approximately 26 years before separating in 2013. Respondent is an airline pilot, while appellant stayed at home with their five children. The parties' divorce became final in 2015. At that time, two of the five children were still minors. Respondent began paying child and spousal support to appellant in the amounts of $2,328 per month for child support and $2,000 per month for spousal support, respectively.
In 2016, appellant began working as an instructional assistant with the Saddleback Valley Unified School District, earning $14.25 per hour, working 25 hours per week with summers off. Later that year, after one of the children aged out of child support, the court increased mother's spousal support by $1,000 per month.
In 2020, the parties' youngest child also aged out of child support. Appellant applied to the court for an increase in spousal support. In support of her application, appellant pointed out that the court had expressly found her previous spousal support amount did not meet the marital standard of living. Appellant also requested respondent pay her attorney fees.
Respondent opposed appellant's request. Respondent argued appellant was underemployed, as she continued to be employed as an instructional assistant, working 25 hours per week with summers off, now making $15.00 per hour. Appellant underwent a vocational evaluation at respondent's request. The vocational expert reported appellant (who holds a bachelor's degree and master's degree in education) was healthy and not receiving medical treatment, had not attempted to renew her teaching certification, had not sought additional education, and had not looked for full-time work "in any capacity." The vocational expert concluded appellant was underemployed, working at 62.5 percent capacity.
Respondent also argued appellant had significant assets, which could both allow her to support herself while rebuilding her earning potential and pay for her attorney fees. Respondent contended the marital lifestyle and standard of living was built on unsustainable "deficit spending," which respondent argued arose from appellant's refusal to work. Respondent also provided an income and expense declaration, which included a line item for $7,000 per month in college tuition for his children.
A short hearing was held, during which (among other things) appellant's counsel argued consideration of respondent's college tuition payments would be inappropriate and contrary to law. The court took the matter under submission and issued a written ruling. After analyzing the statutory factors, the court found appellant had established a material change in circumstances, but nevertheless denied appellant's requests to increase spousal support and for attorney fees. The court also issued a warning under In re Marriage of Gavron (1988) 203 Cal.App.3d 705 that appellant should seek full-time employment, based in part on the finding that "[r]espondent is paying a large portion of college tuition each month." Appellant timely appealed.
Appellant omitted her notice of appeal from her original appendix on appeal. Appellant filed a motion to augment the record to include this document, as well as a supplemental fee declaration filed in the trial court. We grant the motion as to the former document, which establishes the timeliness of appellant's appeal, but deny the motion as to the latter document because it is irrelevant to our analysis.
DISCUSSION
Appellant contends the trial court abused its discretion by considering respondent's payment of college tuition expenses for the parties' adult children, failing to set a spousal support order at a level sufficient to meet the marital standard of living, and failing to consider appellant's request for attorney fees. We conclude the trial court acted within its discretion.
We review a trial court's decision whether to modify a spousal support order for abuse of discretion. (In re Marriage of Maher &Strawn (2021) 63 Cal.App.5th 356, 363 (Maher).) The trial court's spousal support order must be "'"'based on the standard of living established during the marriage, taking into consideration the circumstances set forth in [Family Code] section 4320.'"'" (Ibid.) Similarly, we review refusals to award attorney fees in marital dissolution cases for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)
1. The Trial Court Appropriately Considered Respondent's Payment of College Tuition
Appellant cites our decision in In re Marriage of Serna (2000) 85 Cal.App.4th 482 (Serna) for the proposition that consideration of payment of college tuition for adult children as an expense in making a spousal support order is improper and inherently an abuse of discretion. Against Serna, respondent cites Maher, supra, 63 Cal.App.5th 356 which expressly disagreed with Serna, and In re Marriage of Epstein (1979) 24 Cal.3d 76, superseded by statute on other grounds as stated in In re Marriage of Walrath (1998) 17 Cal.4th 907, 914, in which the Supreme Court concluded the trial court had not abused its discretion in considering payment of college tuition as an expense in determining spousal support.
We apply Maher instead of Serna and conclude the trial court acted within its discretion. As a starting point, Serna and Maher are distinguishable from one another on their facts. In Serna, the supported spouse made regular payments to her adult children and/or paid their expenses and contended her payment of these expenses justified continued spousal support. (Serna, supra, 85 Cal.App.4th at p. 485.) The Serna court concluded this was not a proper consideration in determining the amount of spousal support, criticizing it as requiring the supporting spouse to pay "indirect adult child support ...." (Id. at p. 487; see id. at pp. 488-493.)
By contrast, in Maher and in this case, the supporting spouse paid for college tuition for the parties' adult children and sought to rely on this expense to justify the amount of spousal support to be paid. (Maher, supra, 63 Cal.App.5th at pp. 361363.) Thus, rather than asking the court to require spousal support payments which could arguably constitute "indirect adult child support," the supporting spouse in Maher and respondent in this case simply asked the trial court to consider the reasonableness of one of their expenses (college tuition for an adult child) in setting the amount of child support. Coincidentally, the amount claimed by respondent, a total of $7,000 per month across two children, is substantially similar to the approximately $85,000 per year paid by the supporting spouse in Maher for her two children. (Id. at pp. 361-362.)
As appellant points out, the text of the Serna decision reaches beyond the facts of that case to encompass the situation in Maher and this case: "Suppose, for example, that a supporting spouse were to undertake the 'morally commendable' task of helping the couple's adult child through a very expensive private college which left the spouse without much left to pay spousal support? Most courts, one might hope, would easily recognize that the supported spouse was, in effect, subsidizing the supporting spouse's de facto adult child support to the degree that the expense was factored into the support decision." (Serna, supra, 85 Cal.App.4th at p. 492-493.) However, this portion of the decision was dictum, "'[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).'" (People v. Vang (2011) 52 Cal.4th 1038, 1047 fn. 3 [citing Black's Law Dict. (9th ed. 2009) p. 1177, col. 2].) It did 2 not bind the trial court, and it certainly does not bind us.
Of course, even if it were not dictum, this statement in Serna would not bind us. "[T]here is no horizontal stare decisis in the California Court of Appeal." (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193.)
Moreover, we do not find it persuasive. As the Maher court pointed out, "[T]here is nothing in the broad scope of section 4320 that would compel the court to treat [college tuition] differently than it does any other discretionary expenses incurred by the supporting spouse." (Maher, supra, 63 Cal.App.5th at p. 367.) Instead, Family Code section 4320 arguably requires the trial court to consider a supporting spouse's payment of college tuition for an adult child, whether under subdivisions (d), (e), (k), or (n).
All statutory references are to the Family Code.
"(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." "(k) The balance of the hardships to each party." "(n) Any other factors the court determines are just and equitable."
In reply to respondent's arguments based on Maher, appellant argues Maher also compels reversal of the trial court's decision. Specifically, appellant contends Maher requires a supporting spouse invoking payments of college tuition as an expense to make a rigorous showing of reasonableness, including 10 factors set forth by the Maher court. Appellant argues respondent made no such showing.
In evaluating the reasonableness of college tuition as an expense, "the court should consider all relevant factors, including but not limited to: (1) whether the supported spouse, if still living with the child, would have contributed toward the educational costs; (2) the effect of the background, values and goals of the parents on the reasonableness of the child's expectation of higher education; (3) the amount expended; (4) the supporting spouse's ability to pay that cost; (5) the parents' respective financial resources; (6) the commitment to and aptitude of the child for the education; (7) the adult child's financial resources; (8) the child's ability to earn income during the school year or on vacation; (9) the availability of financial aid including reasonable amount of loans; and (10) the relationship of the education to the adult child's long-range career goals as affected by the family circumstances and values during the marriage." (Maher, supra, 63 Cal.App.5th at p. 366.)
We conclude appellant forfeited this argument at least twice. "A party may not raise an issue for the first time on appeal [citation], and points raised for the first time in a reply brief on appeal will not be considered, absent good cause for failure to present them earlier [citation]." (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) "Ordinarily the failure to preserve a point below constitutes a waiver of the point. [Citation.] This rule is rooted in the fundamental nature of our adversarial system: The parties must call the court's attention to issues they deem relevant." (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28.) Appellant raised no challenge to the reasonableness of any of respondent's expenses in the trial court, when respondent could still have presented evidence of their reasonableness. Instead, appellant's counsel advised the court that the parties were "prepared to do offers of proof" because "95 percent of things are [un]disputed." Appellant's only discussion of the college tuition issue in the trial court was to note on the record that consideration of it was "contrary to law," which cannot be fairly interpreted as a challenge to its factual reasonableness. Moreover, appellant failed to raise this argument in her opening brief on appeal. "Arguments raised for the first time in the reply brief are untimely and may be disregarded." (WorldMark, The Club v. Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7.)
The reporter's transcript indicates appellant's counsel said, "95 percent of things are disputed," but the context demonstrates this was either a reporting error or a slip of the tongue by appellant's counsel.
2. The Trial Court Appropriately Considered the Marital Standard of Living
Appellant contends the trial court failed to consider the marital standard of living, and specifically the prior finding that the existing level of spousal support did not meet the marital standard of living. Failure to evaluate and apply one of the factors enumerated by section 4320 is reversible error. (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 602.) The trial court need not "expressly identify each factor and set forth in writing or on the record how it has weighed each of them." (Ibid.)
Here, the trial court did expressly identify each factor and set forth in its written ruling the facts relating to each. As to the marital standard of living, the court wrote, "In the October 20, 2017 Findings and Order After Hearing, Judge Smith found that the marital standard of living was approximately $9,250 to $9,500 per month and the [marital] expenses were $8,600 per month. The [c]ourt also found that the increased spousal support in the amount of $3,000 per month did not meet the marital standard of living. [¶] This [c]ourt notes that during the time period in which the previous [c]ourt found the marital standard of living, the parties' family home was subject to foreclosure[,] calling [into] question the monthly marital standard of living given the loss of the family property."
Against this factor, the trial court appears to have weighed principally appellant's underemployment and respondent's provision of college tuition for the parties' adult children. The court appears to have been particularly driven by appellant's underemployment-so much so that it warned appellant she was expected to take steps to become self-sufficient and specifically "need[ed] to seek full-time employment consistent with the options described in the Vocational Evaluation." Having considered all the statutory factors, the weight to be assigned to each factor by the trial court was within its discretion. Nothing in the record suggests the trial court declined to consider the marital standard of living; rather, the trial court simply found appellant's underemployment significantly contributed to appellant's situation of not meeting the marital standard of living.
At oral argument, appellant mentioned her health issues as a potential basis for concluding the trial court failed to adequately weigh the section 4320 factors. We conclude appellant forfeited this argument as well. Appellant's briefing is silent on this theory. Moreover, in discussing appellant's health, the trial court's order relies principally upon a vocational evaluation prepared in anticipation of this matter, which, according to the trial court's description, included an admission by appellant that she was "healthy and not receiving any type of medical treatment." Unfortunately, the report was omitted from the record prepared by appellant, even though it appears to have been attached to the trial court's order. To the extent appellant wished to challenge the trial court's factual findings as to her health, it was incumbent upon her to provide an adequate record. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
3. The Trial Court Considered Appellant's Request for Attorney Fees and Costs
Appellant argues the trial court failed to consider her request for attorney fees and costs. Appellant points out that the trial court's written ruling contains no express analysis of the factors governing need-based attorney fee awards under section 2030, and instead contains a summary denial of attorney fees after (and, per the ruling, based on) the facts and spousal support analysis. Appellant argues this amounts to a failure by the trial court to exercise its discretion as to the attorney fee request and requires reversal.
Respondent counters by raising appellant's failure to request a statement of decision. Absent a statement of decision (or an objection to a statement of decision), we imply any factual findings supported by substantial evidence that are necessary to the result. (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) In reply, appellant acknowledges this standard applies here, as she must, given her failure to request a statement of decision but contends substantial evidence does not support the trial court's decision.
This transforms the applicable standard of review from abuse of discretion to substantial evidence. In short, if substantial evidence exists such that the trial court could have properly exercised its discretion against awarding attorney fees, we must affirm. Crucially, this change means we do not consider whether the record reflects the trial court actually exercised its discretion and analyzed all the relevant factors-the standard of review compels us to assume the trial court did so if substantial evidence exists to support its judgment.
Despite respondent's substantially higher income, the parties' income and expense declarations reveal that appellant's assets totaled $623,000, roughly triple respondent's assets of $203,000. The trial court also concluded appellant was underemployed and had ruled against appellant on the merits of her spousal support request. These facts are enough for us to conclude substantial evidence supports the trial court's ruling.
DISPOSITION
The postjudgment order is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., GOETHALS, J.