Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Richard E. Denner, Judge, Los Angeles County Super. Ct. No. BD416369.
Freid and Goldsman and Gary J. Cohen for Appellant.
Silberberg & Ross, Fred Silberberg and Jeremy A. Lane for Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Inese Verzemnieks (Inese) appeals from an order modifying temporary spousal support. She contends that, for a number of reasons, the trial court abused its discretion in decreasing her temporary spousal support after her husband, Jeffrey L. Cummings (Jeffrey), lost a portion of his annual income. We disagree and affirm the order.
As do the parties, for ease of reference we refer to the parties by their first names.
FACTS
Inese and Jeffrey were married on November 9, 1974. Inese filed a petition for dissolution of marriage on November 10, 2004. At that time, Inese was 54 years old and Jeffrey was 56 years old. The two had one adult child.
On February 10, 2005, Inese filed an order to show cause for spousal support. At that time, Jeffrey, a physician specializing in neurology and psychiatry, was employed full-time by UCLA as a professor, vice-chair of the Department of Neurology, and director of the Alzheimer’s Disease Center. He received additional income from speaking engagements, writings and honoraria. A third source of income—and the one at issue here—was consultation fees for treatment of a Saudi Arabian head of state, whom Jeffrey traveled to see several times a year.
Inese was a registered nurse and had M.S. and Ph.D. degrees in nursing and child development. She had worked as a head nurse and research coordinator at UCLA and also been on the faculty of the UCLA School of Nursing. After the birth of the parties’ child, she focused on caring for her family. From 1986 to 2003, she worked only part-time as a nurse educator and researcher. She had been unemployed since 2003.
With respect to the fees Jeffrey received for treatment of the Saudi Arabian head of state, Inese claimed that he received $266,000 per year. Jeffrey noted that “the circumstances under which these consults were done are dynamic and unpredictable. They will now be limited to $35,000 per visit for the four visits I make annually, for a maximum of $140,000 annually. Additionally, these consults have been provided to one individual who has a progressive disease and will soon die. The revenue source will end at that time.”
The trial court found Jeffrey had wages and salaries of $22,468 per month and other income of $31,427 per month. The court imputed no income to Inese. It ordered Jeffrey to pay Inese spousal support of $20,822 per month.
Due to the Saudi Arabian patient’s deteriorating condition, Jeffrey saw him only once during the first half of 2005. In July 2005, the patient died. On August 17, 2005, Jeffrey filed an order to show cause for modification of spousal support based on the loss of income from the Saudi Arabian patient.
In his declaration in support of his request for modification, Jeffrey noted that his UCLA employment was his primary source of income. Since the death of his Saudi Arabian patient, that source of income was terminated. He stated that he had “no present chance of any recurring patients.”
In response to Inese’s suggestion that he could obtain the same income from consultations with other patients, Jeffrey acknowledged in his reply declaration that he had a consultation with a patient in London in September 2005 for which he was paid $2,000. He did not know whether he would be called to consult with this patient again, in that the patient was far advanced with a progressive disease. He anticipated if he obtained future consultations, they would result in income similar to that he had received from the London patient, rather than that he had received from the Saudi Arabian patient. He observed that “[t]he opportunity to have an individual of [the Saudi Arabian patient’s] political and economic stature is rare.” He was only involved with the Saudi Arabian patient through a contact in Houston. He had no other outside patients, although he had looked for them.
In support of his request for modification, Jeffrey submitted the declaration of his forensic accountant, David Blumenthal (Blumenthal). Blumenthal’s calculations as to Jeffrey’s net cash flow excluded consideration of income from the Saudi Arabian patient.
In opposition to the request, Inese submitted the declaration of her forensic accountant, Alfred Warsavsky (Warsavsky). Warsavsky’s calculations as to Jeffrey’s cash flow were based on his income over the past 12-month period.
In ruling on Jeffrey’s motion, the trial court was “not persuaded by” Warsavsky’s analysis and did “not believe that [Jeffrey] has the ability to replace the lost source of income from the Saudi patient.” The court found that Jeffrey’s monthly income was $35,000. It awarded Inese $12,000 per month as spousal support.
DISCUSSION
Inese’s contentions are that Jeffrey had the burden of proof that his lost income could not be replaced; the trial court’s finding that Jeffrey could not replace his lost income was based on speculation and conjecture and cannot support the order; since so little time had passed since the death of Jeffrey’s Saudi Arabian patient, the trial court did not have sufficient evidence from which it could determine what his cash flow would be and therefore should have postponed the hearing until it had more evidence from which it could make that determination; since the presumptively correct period for calculating monthly income was 12 months, the trial court erred in calculating support based on the previous two months; since Jeffrey’s liquid assets had improved since the original support order and his future income decline was based on projection, the circumstances had not changed enough to warrant modification of the support order; and finally, since the modified support order left Inese and Jeffrey in very disparate financial situations, it constituted an abuse of discretion.
Family Code section 3600 provides that during the pendency of a dissolution proceeding, the court may order a spouse to pay child and/or spousal support. Temporary spousal support orders under this section “‘do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support.’ [Citation.] ‘Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ [Citation.] On the other hand, ‘[t]he purpose of permanent spousal support is not to preserve the preseparation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property.’ [Citations.]” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1038.)
Section 3600 of the Family Code allows the court to order payment of temporary support in “any amount that is necessary” for the support of a spouse or child. The court has broad discretion in making the award, subject only to the supported spouse’s needs and the supporting spouse’s ability to pay. (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594.) The court is not bound by statutory factors contained elsewhere in the Family Code. (Id. at pp. 594-595.) We will not disturb an award of temporary spousal support on appeal in the absence of a clear showing of abuse of discretion. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165; In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932.)
The majority of the contentions Inese raises are based upon the statutory factors applicable to a permanent award of spousal support. We therefore decline to address them. Jeffrey’s income decreased with the death of his Saudi Arabian patient. At that time, he had no replacement patients or immediate prospects of obtaining replacements patients. Jeffrey’s ability to pay is determined as of the time the support order is made. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 827.) The facts here justified a reduction in spousal support based on Jeffrey’s reduced income and ability to pay.
The question before us is whether the reduced spousal support award constituted an abuse of discretion because it took into account Jeffrey’s reduced ability to pay but not Inese’s needs, leaving them in very disparate financial situations, as Inese contends.
In making the award, the trial court stated that it had “considered the documentation filed by both parties.” Inese’s documentation very clearly set forth her claimed needs and her expert, Warsavsky’s, calculations as to the amount of monthly support necessary to maintain her standard of living. The trial court considered the decrease in Jeffrey’s income and reduced Inese’s support proportionately.
Inasmuch as the trial court did in fact consider the appropriate factors, i.e., both Jeffrey’s reduced ability to pay and Inese’s needs, and it merely decreased Inese’s support in proportion to the decrease in Jeffrey’s income, it did not abuse its discretion. (In re Marriage of Dick, supra, 15 Cal.App.4th at p. 165; cf. In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
The order is affirmed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.