Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. IND076627 Lawrence P. Best and Anthony R. Villalobos, Judges.
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Best, Best & Krieger and Kira L. Klatchko for Appellant.
Sheila A. Williams and Laura J. Fuller for Respondent.
OPINION
Richli J.
I
INTRODUCTION
Harriet Himmler (Harriet) appeals from a postjudgment order reducing spousal support to zero but reserving jurisdiction. (Code Civ. Proc., § 904.1, subd. (a)(2).) Her former husband, David L. Himmler (David), urges the order be upheld. We hold the trial court abused its discretion, reverse the trial court’s order, and remand for further proceedings, as guided by the considerations expressed below.
II
FACTUAL AND PROCEDURAL BACKGROUND
The postjudgment proceedings began in February 2007 and concluded in December 2009.
A. Prejudgment Proceedings
Both parties were born in 1937 and are now in their seventies. The parties were married in 1988. They lived in a house in La Quinta, purchased in the late 1990’s with money Harriet inherited from her mother. In 2002, the parties had a taxable income of $18,337 and a nontaxable income of $63,168, a total income of $81,505.
David filed a petition for dissolution in April 2003. David is a retired Lutheran minister and a dance teacher. Harriet does not work but does possess real estate and cosmetology licenses.
In April 2003, Harriet filed an income and expense declaration listing monthly income of $733 in social security payments and monthly expenses of $2,669.42. Part of Harriet’s separate property were the proceeds of $275,830.56 from the sale of the La Quinta property. Her total separate property was valued at $337,830.56.
The Dissomaster for May 2003 listed David’s monthly net income as $4,773 and Harriet’s as $761. David’s separate property was his pension plan and four insurance policies worth $80,000.
The parties executed a marital settlement agreement in which they effectively agreed to split their property and financial resources. Each person agreed to relinquish his or her respective community property interests in David’s retirement benefits and insurance policies and in the La Quinta property. Additionally, to equalize the division, David agreed to pay spousal support of $1,400 per month, subject to further order of the court. A judgment of dissolution was entered in October 2004.
B. Postjudgment Proceedings
In February 2007, David filed an application for an order to show cause seeking a Gavron warning and compelling Harriet to file an income and expense declaration.
In re Marriage of Gavron (1988) 203 Cal.App.3d 705.
In March 2007, Harriet filed an income and expense declaration claiming an average monthly income of $1,400 for spousal support and $722 for social security payments. Her monthly expenses were $2,394.
A bank deposit shows a social security payment of $744.
Judge Dale Wells conducted a postjudgment hearing. Although Harriet was not present, the court issued a Gavron warning: “It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in [Family Code section 4320]. The failure to make reasonable good faith efforts[] may be one of the factors considered by the court as a basis for modifying or terminating support.” Judge Wells also explained the Gavron warning was not binding on the court.
In April 2008, David filed an application for an order to show cause regarding modification or termination of spousal support. David stated that Harriet was living with and being supported by her boyfriend. David was employed as an instructor of ballroom dancing, earning an average of $687 monthly. He was also receiving an average of $4,783 monthly in salary, pension or retirement, and social security payments. His total average monthly income for 2007 was about $5,470, or the taxable amount of $65,643 annually. His total average monthly expenses were $3,884. His 2007 tax returns, however, showed an annual income, taxable and nontaxable, of $85,856, or about $7,154 monthly.
Harriet’s income and expense declaration of May 2008 listed her monthly income as about $3,715: spousal support of $1,400; social security of $837.50; and an annuity of $1,477, which she began collecting in September 2007. The annuity had been purchased in July 2004 with the separate property proceeds from the sale of the La Quinta real property. Her total average monthly expenses were about $4,242.
Although we deny Harriet’s request for judicial notice of the annuity contract because it was not part of the record in the trial court, we observe there is no dispute that Harriet began receiving annuity payments about three years after purchasing the contract.
Harriet declared: “I am 70 years old and I am in poor health. I am under the care of [a doctor] for a chronic pulmonary condition and I am unable to work.” She was living with her son and family in Philadelphia and paying him a monthly rent of $1,200. Until April 2008, she had previously lived with Alan Micklin as a roommate, sharing expenses, but not as a boyfriend. She contended David’s average monthly income was actually about $7,154. Harriet asked for an increase in spousal support and attorney’s fees of $5,000.
$7,365.50 is a mathematical error.
In a supplemental declaration, David repeated his assertion that Harriet was cohabiting with a boyfriend. He disputed her claim of not being able to work and contended she had assets of $400,000, much greater than his of less than $100,000. Harriet disagreed that her assets exceeded $400,000. Her assets were about $16,000 plus the annuity worth about $250,000.
Harriet’s chiropractor described her “lumbosacral spinal condition” in June 2008 as “degenerative and permanent.” In September 2008, the monthly annuity she receives was reduced to $1,353.08. Her monthly expenses had increased to $4,600.60.
David submitted a medical opinion, contradicting Harriet’s contentions about her poor health.
Harriet submitted another declaration in October 2008, in which she explains she has three bulging disks in her back, recurring bronchiectasis, fainting spells, and ongoing medical tests. She was unable to work as a real estate agent due to the economic climate. She could not work as a cosmetologist because of having to stand for long periods and the exposure to chemicals. Her total monthly income was $3,592 a month. Her total expenses averaged $4,200 a month. She estimated David’s monthly income was $7,154. She requested an increase in spousal support to $1,900 monthly.
At the hearing in November 2008, the court found that the marital standard of living was based on an annual income of about $80,000 and that the parties agreed that $1,400 monthly support was sufficient to satisfy “a moderate and comfortable standard of living” for Harriet. The court found that the annuity payment of “approximately $1,300 and $1,400 does take the place of that spousal support.” The court ruled that the spousal support should be reduced to $700 between December and May 2009 and beginning June 2009 spousal support would be reduced to zero while the court reserved jurisdiction.
In June 2009, Harriet submitted a final income and expense declaration listing monthly income of about $2,213, without spousal support, and expenses of about $3,500.
In various hearings before Judge Anthony Villalobos, David’s attorney represented to the court that, since 2007, his income from dance lessons had dissipated due to the economy. In its written statement of decision in September 2009, the court also found that, given their ages, Harriet should not be required to look for employment and David should not be compelled to keep working or to look for further employment. The court expressly found the annuity being paid to Harriet “replaces” the amount of the previous spousal support award, which the parties had agreed to in the 2004 marital settlement agreement based on the marital standard of living. The court reaffirmed its order reducing spousal support to $700 for six months and then to zero. The court ordered David to pay attorney’s fees of $3,400 to Harriet.
III
ANALYSIS
The standard of review for modification of a spousal support order is abuse of discretion: “‘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.’ (Fn. omitted.)” (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235, quoting In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47.)
An abuse of discretion is not easily demonstrated: “‘The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.] “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason....’” [Citations.]’ (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)” (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1386.) In Mosley, for example, the appellate court held it was an abuse of discretion for the trial court to base its decision on speculation and unproved assumptions about a husband’s future income.
Furthermore, a decision to modify support involves consideration of the factors set out in Family Code section 4320. (In re Marriage of West (2007)152 Cal.App.4th 240, 247; In re Marriage of Shaughnessy, at p. 1235; In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.) A change of circumstances justifying modification of support means a reduction or increase in the supporting spouse’s ability to pay or in the supported spouse’s needs. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.)
Are there changed circumstances justifying the extreme reduction of David’s spousal support obligation to zero? David argues that there is a change of circumstances because the annuity payment has reduced Harriet’s need for support. Harriet argues that, because the monthly annuity she receives was generated from separate property-the source of which was her inheritance, the annuity should not be considered in deciding spousal support.
Under the marital settlement agreement, Harriet received a spousal support payment of $1,400 a month, in addition to the La Quinta sales proceeds. After the settlement agreement was executed in May 2004, she purchased the annuity, allowing her to increase her monthly income. To do so, however, she converted the sales proceeds into what was in effect a lifetime pension.
The threshold issue involves how to treat income received from Harriet’s separate property. “In this regard, it must be kept in mind that spousal support considerations are separate and distinct from property division concepts.... An award of spousal support... is broadly discretionary.” (In re Marriage of White (1987) 192 Cal.App.3d 1022, 1026, citing In re Marriage of Davis (1983) 141 Cal.App.3d 71, 77.) In determining permanent spousal support, it is proper to consider income from property awarded in the dissolution as separate property. (In re Marriage of White, at p. 1027.) “‘The existence and not the source of sums of money or services available is the relevant factor.’” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 10 (investment income), quoting Fuller v. Fuller (1979) 89 Cal.App.3d 405, 410.)
In In re Marriage of Sammut (1980) 103 Cal.App.3d 557, 563, the supporting spouse received an inheritance paying $5,618 per month. Nowhere is it suggested such income should be exempt from support consideration. In fact, the court expressly determined the husband “was now adequately able to meet the wife’s needs.” (Id. at p. 564.) Somewhat similarly, in White, the court included pension payments that had been designated as separate property in assessing the amount of support payments. (In re Marriage of White, supra, 192 Cal.App.3d at p. 1026.)
In numerous other cases, courts have approved spousal support based on a separate property source. (In re Marriage of Tapia (1989) 211 Cal.App.3d 628, 631 (investment income); In re Marriage of Fransen (1983) 142 Cal.App.3d 419, 424 (military pension); In re Marriage of Webb (1979) 94 Cal.App.3d 335, 345-346 (disability benefits).) In the case of Reynolds v. Reynolds (1998) 63 Cal.App.4th 1373 [4th Dist., Div. 2.], this court found that spousal support could be based upon a husband’s net income from interest earned on investments but support could not be based upon the underlying investment.
We distinguish the cases relied upon by Harriet. Those cases involved community property, not separate property, that had already been considered in the property settlement and as part of the support calculation. As the court commented in In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1081: “It makes no more sense to reduce wife’s spousal support because she received her rightful share of the community property than it would to increase wife’s spousal support because husband received his rightful share of the community property.” In In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 632, 635, the court held the former wife could use the proceeds from the sale of community property, undeveloped real property, to buy gold and silver and she did not have an obligation to invest in income-producing assets. But if income is received from a community property source that was awarded in the property settlement, it should not be considered a change of circumstances. (In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1062, citing Kuppinger, at p. 635; In re Marriage of Dietz, supra, 176 Cal.App.4th at pp. 398-400.) Separate property, as we have already discussed, is treated differently than community property and, hence, income derived from separate property may constitute changed circumstances in deciding whether to modify spousal support.
Based on the foregoing, we conclude that the trial court could consider income generated by separate property, which was awarded to the supported spouse, in deciding the amount of support Harriet is entitled to receive. Nevertheless, we may still decide whether the trial court’s decision to reduce her support to zero was an abuse of discretion in view of the diminishment of her assets by the purchase of the annuity.
In its statement of decision, the court found that the original spousal support for $1,400 was based on a marital standard of living under which the parties had an annual income of $80,000 and no house or car payments. Harriet claims a fairly modest monthly expense of about $3,500, including $1,500 for rent and food and utilities, and $700 for a car payment and automobile expenses. Meanwhile, David had an annual income of almost $86,000 in 2007 and monthly expenses of $3,884.
The court also found that “Harriet has undisclosed sources of income and assets, ” particularly a deposit of $30,000 (which she immediately loaned to her son.) We are satisfied, however, that the record establishes that all deposits to Harriet’s accounts, including the $30,000, came from identifiable sources, either social security payments, spousal payments, or payments from Harriet’s separate property stocks. In fact, the record shows, as reflected in the chart included in Harriet’s reply brief, that Harriet’s financial resources were continuously depleted from May 2004 until May 2008 when her assets had been reduced from about $326,000 to $8,000.
Nor does the record support the trial court’s finding discrediting Harriet’s claim that she pays or intends to pay her son rent, groceries, and utilities. The court characterizes her son’s generosity as a benefit to her, but even if that arrangement exists based on Harriet’s present necessity, we cannot assume it will always continue and we do not agree it should be counted against Harriet’s interest. Finally, we are unconvinced by the trial court’s finding that “it would not be a hardship to Harriet if spousal support were reduced or terminated” because she collects $2,213 per month, $1,353 from her annuity and $860 from social security, allowing her the same standard of living contemplated under the marital settlement agreement. Based on a monthly income of that amount and without living in a house that she owned, Harriet would not enjoy a standard of living close to that she experienced while married. Without the benefit of her son’s largesse she would be living in severely reduced circumstances, far below the contemplated marital standard of living.
On the other hand, the record establishes that Harriet would have a monthly income of about $2,300 without spousal support and $3,700 with support of $1,400. If David has a monthly income of $5,470 and pays spousal support of $1,400, he would have a net income of $4,070. If his monthly income is $7,154 and he pays spousal support of $1,400, his net income would be $5,754.
The court could properly consider the annuity income as a change of circumstances in deciding David’s request for modification. Nevertheless, after full consideration of the complete record as well as the facts of this case, we conclude the trial court abused its discretion when it entirely eliminated Harriet’s spousal support. (In re Marriage of Dietz, supra, 176 Cal.App.4th at pp. 398-403.) Therefore, we remand to the trial court to further exercise its discretion in deciding the spousal support issue.
IV
DISPOSITION
Harriet’s arguments about Gavron and her obligation to become self-supporting are not relevant because, according to the trial record, the court specifically found she was not obligated, due to her age, health, and other circumstances to obtain employment. In light of our conclusion, other issues are secondary and need not be discussed.
We reverse the postjudgment order and remand to allow the court to exercise its discretion. The parties shall bear their own costs on appeal.
We concur: Ramirez P. J., Hollenhorst J.