Opinion
H050571
09-14-2023
In re the Marriage of SHALOM and RENEE R. DAHAN. v. RENEE R. DAHAN, Respondent. SHALOM DAHAN, Appellant,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 2010-1-FL-156485)
BROMBERG, J.
Appellant Shalom Dahan appeals from a post-judgment order denying his request to terminate spousal support for respondent Renee Dahan. Shalom contends that the trial court erred by continuing his spousal support obligation at the same level as previously until October 2027 and that the court was biased in favor of Renee's counsel. We disagree and affirm.
Because the parties share the same surname, for the sake of convenience and clarity, we refer to them by their first names. In so doing, we intend no disrespect.
I. Background
Shalom and Renee, who have three now-adult children, separated in 2010, ending a 19-year marriage. In 2011, Shalom filed a petition for dissolution of marriage. In September 2013, the court issued a judgment for dissolution of marriage, which incorporated the parties' stipulated judgment (the Stipulated Judgment).
The Stipulated Judgment required Shalom to pay $1,821 per month in spousal support to Renee. These payments were to "continu[e] until the death or remarriage of [Renee], or further order of the Court, whichever event shall first occur." The Stipulated Judgment also permitted Renee to earn up to $1,490 per month without affecting the level of support payments or obligation to report those earnings to Shalom. Shalom was also required to pay up to $2,500 for job placement assistance for Renee.
The Stipulated Judgment incorporated the findings of the trial court in its tentative statement of decision. Those findings included the parties' stipulation that during marriage the parties enjoyed a middle-class standard of living. The trial court additionally found Shalom's earning capacity to be $13,125 monthly, based on his recent employment as a software engineer; that Renee's reasonable economic needs were approximately $5,000 to $6,000 per month; and that Renee could expect to earn approximately $36,708 to $40,075 per year after one to three years of work experience.
In April 2022, Shalom filed a request to terminate spousal support. In support of his request, Shalom argued that he was 62 years old and had retired in December 2021. He also claimed that Renee had failed to become self-supporting since the parties' separation in 2010, estimating her income to be approximately $40,000 per year; that Renee was cohabiting with another person; and that, since the parties' separation, he had paid a number of their children's expenses. In support of his request to terminate, Shalom filed a series of income and expense declarations. In each of these, Shalom stated that he had most recently worked as a software engineer from August 2014 to early December 2021, but provided no salary information for that role. Shalom also asserted ownership of $2.1 million in real property, including eight rental properties, as well as various levels of monthly rental income (ranging from $3,300 to $9,984), monthly expenses (ranging from $6,700 to $7,819), and assets in cash and bank accounts (ranging from $1,500 to $30,000). In August 2022, Shalom reported owning two additional properties in Ohio, which he asserted were "part of [his] self-directed IRA," and he represented that the income and expenses from those properties "stay within the self directed IRA." Finally, Shalom stated that he had been approved for social security benefits in the amount of $2,092 monthly, beginning in September 2022, but that Renee was entitled to half this benefit.
Renee opposed Shalom's request to terminate spousal support. Renee asserted, albeit without supporting documentation, that in February 2021 she had signed a letter agreeing to a reduction in spousal support from $1,821 per month to $1,000 per month on the understanding that Shalom would not "take [her] back to court for any reason and that support would continue at the reduced rate indefinitely." In light of Shalom's failure to honor this agreement, Renee requested that the court order payment of $13,136 in arrears ($821 per month for 16 months), and that, to adjust for inflation since 2012, it prospectively increase spousal support to $2,293 monthly. Renee also sought payment of her attorneys' fees and an award of sanctions against Shalom for purportedly understating his income and making false allegations to the court. Finally, Renee attached an income and expense declaration and paystubs showing her monthly income to be $3,800.
While the record contains no formal agreement regarding a reduction in spousal support, it does contain a February 19, 2021 email from Renee to Shalom stating "I was thinking of lowering the [a]limony to $1000. I'm ending up paying more in taxes than [I] can afford. We can start this month if you'd like." Renee does not dispute sending this email but asserts that Shalom "intimidated" her into the reduction and that he had sought a reduction "for years."
At a hearing on August 17, 2022, the court granted Renee's request for attorneys' fees in the amount of $8,000 but denied her request for sanctions. On August 22, 2022, Shalom requested reconsideration of the court's attorneys' fees order and offered revised expense calculations, including a "clarification" concerning his rental property income.
The parties filed trial briefs in September 2022. In his brief, Shalom argued that continuing spousal support would be "punitive" given that he had paid support for ten years and Renee had not obtained a higher salary in that time. He also argued that he had retired from his job as a software engineer "after he noticed a considerable drop in his performance" and "his ability to comprehend" tasks and to complete tasks "in a reasonable amount of time." Finally, Shalom contended, without support, that Renee had or would receive a substantial inheritance from her parents who had passed away. Shalom also attached a number of exhibits to his trial brief, including his 2020 and 2021 federal tax returns showing adjusted gross incomes, respectively, of approximately $241,000 and $258,000, a "property report summary" showing ten properties with a total market value of approximately $3.38 million and monthly rent of approximately $27,000, and a Vanguard IRA account statement with approximately $57,000.
In her trial brief, Renee argued that circumstances had not changed sufficiently to warrant a decrease in permanent spousal support and requested that the support increase from $1,821 to $2,293 per month. Renee also argued that Shalom was in arrears because until February 2021 he had paid only $1,800 per month, rather than the court-ordered amount of $1,821, and then had reduced payment to $1,000.
On October 5, 2022, after holding a hearing without a court reporter, the trial court denied Shalom's request to terminate spousal support and his request to reconsider the fee award. However, the court set Shalom's spousal support payments to terminate five years later on October 5, 2027. In addition, the court denied Renee's request to increase support payments, leaving them at $1,821 per month, and awarded only $5,747 in arrears beginning on May 1, 2022 for the reduction in support to $1,000.
The trial court entered its findings and orders after a hearing on November 10, 2022. Shalom did not request a statement of decision. On November 18, 2022, he timely noticed an appeal from the October 5, 2022 order denying his request to modify spousal support.
II. Discussion
A. Modification of Spousal Support Awards
"The trial court has broad discretion in deciding whether to modify a spousal support order based upon changed circumstances." (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 836 (Swain).) Even where the prior amount was established by agreement, modification of spousal support requires a material change of circumstances since the last order. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) A change of circumstances means a reduction or increase in the supporting spouse's ability to pay or an increase or decrease in the supported spouse's needs. (Ibid.)
In exercising its discretion to modify or terminate spousal support," 'the trial court is required to reconsider the same standards and criteria set forth in . . . Family Code section 4320 it considered in making the initial long-term [support] order at the time of judgment and any subsequent modification order.' [Citation.] These criteria include, among other things, the earning capacity of each party, the ability of the supporting party to pay spousal support, the needs of each party, the age and health of the parties, the balance of hardships to the parties, and any other factors the court determines are just and equitable." (In re Marriage of Berman (2017) 15 Cal.App.5th 914, 920; see also In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.)
Subsequent undesignated statutory references are to the Family Code.
B. Principles of Appellate Review
As the Supreme Court has recognized, "it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct ...." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) Consequently, "the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Id. at p. 609.) In addition, the appellant" 'has the burden of providing an adequate record'" (ibid.), and is required to support all of its factual arguments with citations to the record. (See Cal. Rules of Court, rule 8.204 (a)(1)(C); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 (City of Lincoln).) Parties representing themselves in propria persona are not excused from these requirements. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
We review rulings on requests to modify or terminate spousal support for abuse of discretion. (In re Marriage of T.C. &D.C. (2018) 30 Cal.App.5th 419, 423.) Under this standard, if a trial court follows" 'established legal principles and base[s] its findings on substantial evidence . . . 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 Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) A trial court abuses its discretion in making findings only if those findings are wholly unsupported. (Swain, supra, 21 Cal.App.5th at pp. 836-837.) In addition, where a party contends that the trial court abused its discretion by failing to make a finding, it bears an even greater burden: It must show that" 'the evidence compels a finding in favor of the appellant as a matter of law.'" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic Manufacturing).)
C. Analysis
Shalom argues the trial court erred in denying his request to terminate spousal support because the court ignored the "profession dependent" retirement age for a software engineer, Shalom's reduced income, Renee's request to reduce support, her right to retirement benefits, her inadequate efforts at self-sufficiency, and her financial recklessness. None of these arguments demonstrates that the trial court abused its discretion.
1. Failure to Supply Record Support
At the outset, we note a potentially fatal procedural defect in Shalom's appeal. As noted above, in light of the presumption of correctness afforded trial court rulings, appellants are required to support their factual arguments with citations to the trial court. (See Cal. Rules of Court, rule 8.204(a)(1); City of Lincoln, supra, 102 Cal.App.4th at p. 1239.) Shalom has not satisfied this requirement. In his reply brief and to a lesser extent in his opening brief as well, he fails to include citations to the record and, indeed, appears frequently to rely on evidence not presented to the trial court. For this reason alone, we may reject Shalom's arguments. (See, e.g., In re Marriage of Carlisle (2021) 60 Cal.App.5th 244, 254, fn. 11 [appellant bears the burden of presenting "legal authority and analysis on each point made, supported by appropriate citations to the material facts in the record, or else the argument may be deemed forfeited."]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
For example, in addition to documents that were included in the record, Shalom's opening and reply briefs attach an excerpted IRA account statement from Equity Trust Company showing a portfolio of cash and real estate valued at approximately $340,000; online reviews of the trial court judge; a summary of Chase Bank transactions related to his rental properties; property management and income expense statements for his Ohio properties; and excerpted internet search results for customer service and medical receptionist salaries. While Shalom offers some of these documents in support of the income and expense declarations submitted to the trial court, it does not appear that these documents were themselves presented to the trial court. (See fn. 5, infra.)
2. Changed Circumstances
Even if we were to overlook Shalom's failure to support his arguments with record citations, his appeal still would fail because he has not shown that the evidence he presented to the trial court compelled it to terminate spousal support.
a. Retirement
Shalom contends that the trial court abused its discretion by refusing to accept the "profession dependent retirement age for a software engineer." There is, however, no absolute right to terminate spousal support upon retirement, and in any event the trial court was not compelled to accept the evidence that Shalom presented concerning the retirement age of software engineers.
In appropriate circumstances, a supporting spouse's retirement may constitute a change in circumstances that justifies modification or termination of spousal support. "[N]o one may be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he was employed." (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1378.) When there is a "bona fide retirement, . . . the trial court may determine that there has been a material change in circumstances to justify a modification of support." (Id. at p. 1379.) "Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires." (Ibid.) Conversely, however, a supporting spouse cannot retire prematurely in order to avoid paying spousal support. (Ibid.) Moreover, even where there is a bona fide retirement, retirement does not necessitate termination of support: It merely "warrants an examination by the trial court to determine if there has been a material change of circumstances to justify a modification in support." (In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 594 (Sinks).)
Shalom has not yet reached the usual retirement age of 65, and while he asserted below that the quality of his work has decreased considerably, he provided no evidence to support this assertion, much less evidence that the quality of his work had decreased so much that he could no longer continue to work. Shalom also cited to several online surveys concerning the age of software engineers, but he failed to offer any meaningful explanation of the results of the surveys and how they impact the retirement age of a software engineer, much less a description of their methodology and demonstration of their reliability. Such conclusory references to survey evidence are not"' "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Sonic Manufacturing, supra, 196 Cal.App.4th at p. 466.) As a consequence, the trial court was not compelled to find that Shalom's retirement justified termination of support.
b. Reduction in Income
Even assuming Shalom had shown that his retirement was bona fide, it would not follow automatically that support for Renee should be terminated or even reduced. (See Sinks, supra, 204 Cal.App.3d at p. 594.) Retirement only prompts a reassessment of income and earning capacity. (Ibid.) The record, however, does not compel a conclusion that, even with retirement, Shalom's earning capacity has substantially changed from the $13,125 per month that the trial court found in approving the spousal support payments in the Stipulated Judgment. To the contrary, the record contains evidence that by 2022 Shalom owned ten properties worth over $3.38 million which generated gross rental income of nearly $27,000 per month. (While Shalom asserts that two of these properties were purchased with 401K funds and part of a "self directed IRA," he failed to present any evidence supporting these assertions. As a consequence, the trial court was not compelled to accept these assertions.) Shalom represented that he was making mortgage payments on two properties, but those payments are only $4,131 per month, one of those properties is shared as Shalom's primary residence, and it is not clear that Shalom's other expenses reduce his net rental income to less than $13,125 per month. Indeed, without the mortgage payments, Shalom's net income is about 50 percent of his gross income, and the net income is over 40 percent on other properties.
In addition, Shalom became eligible to receive social security benefits of over $2,000 a month in September 2022, though on appeal he asserts-once again without evidentiary support-that he deferred these benefits after the trial court's ruling. In light of this evidence and evidence of Shalom's other assets, the trial court reasonably could have concluded that Shalom failed to show any material change in his earning capacity.
Contending that there were errors in the rental income and expense reports that he submitted in the trial court, Shalom filed a motion to augment the record with additional documents. Because it is unclear whether these new documents were submitted to the trial court, we denied such motion without prejudice to a further showing that the requested documents were filed in the trial court. Shalom also attached various documents to his opening and reply briefs. As Shalom has not demonstrated that these materials were before the trial court, we decline to consider them. (See In re K.M. (2015) 242 Cal.App.4th 450, 455-456; Cal. Rules of Court, rule 8.155(a).) In response to Shalom's motion to augment, Renee filed a motion to strike appellant's opening brief, dismiss the appeal, and request for attorneys' fees and costs, which we denied.
c. Renee's Conduct
Shalom also contends that the trial court ignored Renee's request in February 2021 to reduce support payments, her failure to make efforts to become self-sufficient, her right to retirement benefits, and her financial irresponsibility. But Shalom fails to explain how any of these considerations compels the conclusion that the trial court should have terminated spousal support.
For example, although Shalom asserts that Renee sought to reduce support payments in order to avoid paying taxes, the sole evidence he offers in support is the February 2021 email from Renee proposing the reduction, which Renee has repudiated. His accusation that Renee failed to make any effort towards self-sufficiency is unsupported and is contradicted by evidence that Renee has achieved the income that the vocational assessment 2011 predicted for her. In addition, Shalom fails to present any support for his assertion that Renee is entitled to social security benefits beyond his "understanding," and in any event he fails to explain how those benefits would justify termination of support. Finally, while Shalom contends that Renee's current financial status demonstrates financial irresponsibility, nothing compelled the trial court to accept that contention.
3. Termination Date for Spousal Support
Although Shalom also objects to the trial court's decision to set support payments to terminate in five years, he fails to persuade us that the trial court abused its discretion in setting this period.
Family courts are authorized"' "to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320." '" (In re Marriage of Deluca (2020) 45 Cal.App.5th 184, 195.) An order setting a future termination date informs "each spouse that the supported spouse has a specified period of time to become self-supporting" and "places the burden of showing good cause for a change in the order upon the one who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order." (In re Marriage of Prietsch &Calhoun (1987) 190 Cal.App.3d 645, 665-666; see also In re Marriage of West (2007) 152 Cal.App.4th 240, 248.)
Although the trial court found insufficient evidence of changed circumstances to terminate spousal support in 2022, there is evidence in the record that, by 2027, Shalom will have obtained the usual retirement age of 65. By that point, Renee will have had sufficient additional time to increase her income, and, as she points out on appeal, will have attained the full retirement age and be eligible for social security benefits. Thus, the future termination date is supported by reasonable assumptions based on the evidence. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 311 [Contingent termination, or "Richmond," orders in which the court sets a future termination date may be appropriate in dissolution of "lengthy" marriages, where" 'it can be reasonably inferred . . . that the supported spouse is capable of self-support.' "].)
We find no abuse of discretion in the period selected by the trial court.
4. Attorney Fees
Shalom also asks that he be reimbursed for some (though not all) of the attorney fees that he paid. These fees were awarded in an order dated August 17, 2022, in which the court considered Renee's request for sanctions. Shalom's notice of appeal, however, states that it is from an order dated October 5, 2022 on Shalom's "request[] an order to eliminate support." There is no mention of the August 2022 order concerning the request for sanctions. We therefore lack jurisdiction to consider Shalom's challenge concerning the trial court's attorney fees order.
5. Bias
On appeal, Shalom asserts that the trial court judge may have had a prior acquaintance or connection with, and therefore was biased in favor of, Renee's counsel. As support for this, Shalom contends that, among other things, the trial court judge ignored evidence that he presented and Renee's failure to present contrary evidence; gave Renee's counsel an improper advantage at oral argument; and conveyed dislike of Shalom through "facial gestures" and tone of voice. In making these allegations, Shalom faces a substantial burden: The Supreme Court has admonished that "[c]ourts must apply with restraint statutes authorizing disqualification of a judge [or arbitrator] due to bias," and allegations regarding the impression of bias "must clearly be established." (In re Scott (2003) 29 Cal.4th 783, 817.) We need not consider, however, whether Shalom's assertions-which, like many of his other arguments, are not supported by any authority or citation to the record-satisfy this burden because Shalom has forfeited this contention by failing to file a disqualification motion in the trial court under Code of Civil Procedure section 170.3. (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337-1338.)
D. Renee's Arguments
Renee argues on appeal that the family court should have increased her spousal support and not set a termination date for such support. These arguments are not properly before us. As a general rule, respondents who fail to file a cross-appeal cannot claim error in connection with the opposing party's appeal. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439; see Drell v. Cohen (2014) 232 Cal.App.4th 24, 31.) To obtain affirmative relief by way of appeal, Renee must herself file a notice of appeal and become a cross-appellant. (Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1090, fn. 4.) Because Renee has not done so, and because we do not find reversible error as to appellant (see City of Santa Maria v. Cohen (2017) 11 Cal.App.5th 96, 107), we do not reach Renee's claims of error.
Renee also requests that Shalom be ordered to pay $10,000 for attorney fees incurred on appeal. She asserts that such an order is permitted by sections 2030 and 271, which authorize attorney fees awards in "proceeding[s] for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment" (§ 2030, subd. (a)), and as a sanction where a party's conduct "frustrates the policy of the law to promote settlement of litigation." (§ 271, subd. (a).) Because Renee fails to otherwise support this argument with legal authority, we deem it forfeited and decline to award attorney fees incurred on appeal. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 947.)
III. Disposition
The November 10, 2022 order denying Shalom's request to change spousal support is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., GROVER, J.