Opinion
B227271
10-24-2011
In re Marriage of ALAN and GLORIA OLINEY. ALAN OLINEY, Appellant, v. GLORIA OLINEY, Respondent.
Richard T. Smith for Appellant. Macksoud & Macksoud, Alexander E. Macksoud and Alexander E. Macksoud II for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SD012555)
Appeal from an order of the Superior Court of Los Angeles County, David J. Cowan, Judge. Reversed and remanded with directions.
Richard T. Smith for Appellant.
Macksoud & Macksoud, Alexander E. Macksoud and Alexander E. Macksoud II for Respondent.
Alan Oliney appeals from a postjudgment order denying his request to terminate or modify spousal support. Because the trial court improperly considered Gloria Oliney's expenses in caring for the parties' incapacitated adult child in concluding no modification was warranted, we reverse and remand for the trial court to reconsider the request.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Stipulated Judgment of Dissolution; the Stipulated Order Modifying the Judgment of Dissolution
Alan and Gloria married in June 1967 and separated in February 1996 after more than 28 years of marriage. In May 1997 Alan filed a petition for dissolution of marriage.
As is customary in family law proceedings, we refer to the parties by their first names for clarity and convenience. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Based on the parties' marital settlement agreement, on June 21, 2001 the trial court entered a stipulated judgment of dissolution requiring Alan, who worked as a stunt man and coordinator, to pay Gloria $3,000 per month in spousal support until her death or remarriage or upon further order of the court. For purposes of determining the marital standard of living, the judgment stated Alan's annual income at the time of separation was $150,000 and Gloria had monthly income of $1,200 from her employment as a caretaker for the parties' disabled adult son, Lamonte, who lived at home with Gloria. It also included a Gavron warning, in accordance with Family Code section 4330, '"[E]ach party shall make reasonable good faith efforts to become self supporting as provided for in [s]ection 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.'"
The parties' martial settlement agreement, attached to the judgment, provided Alan's retirement 'from his current occupation as a stunt coordinator and commencement of retirement benefit payments to both parties (which is contemplated by the parties to occur within the next two years) shall constitute a change in circumstances entitling [Alan] to seek a termination or downward modification of spousal support."
Statutory references are to the Family Code unless otherwise indicated.
The judgment, among other things, awarded to each party one-half the community interest in Alan's pension plan to be divided in-kind by a qualified domestic relations order and ordered the family home and adjoining vacant lot to be listed for sale with the proceeds to be divided equally. (The judgment provided the home and vacant lot could be sold separately.) Alan was ordered to arrange for home repairs deemed necessary to effectively market the home; and Gloria, who was permitted to occupy the home, was ordered to cooperate and make the home available for repair. Gloria was also awarded a 100 percent interest in a residential rental property they owned, which had an unencumbered value of $175,000.
In August 2002 Alan filed an application for an order to show cause on grounds including Gloria had refused to sign a listing agreement for the sale of the home, had failed to pay the mortgage, taxes or insurance for the home as the stipulated judgment required and had removed draperies, chandeliers and other fixtures without Alan's consent.
At a December 2, 2002 hearing the parties entered into a stipulated order awarding the home to Gloria, who did not want to move, and the pension to Alan. The order stated, "For the purposes of spousal support there is imputed to [Gloria] an income of $1,875 per month based on 41 [percent] of the anticipated monthly payment of $4,573 to [Alan] from his pension upon retirement." The parties further stipulated the hearing would be continued to February 2003 at which time the trial court would consider several additional issues that had arisen, including Alan's request for a downward modification of spousal support based on his stated intention to retire at the end of 2002.
For the first seven months of 2003 Alan and Gloria engaged in protracted litigation over disposition of the vacant lot adjacent to the home, whether Alan had omitted assets from the community estate, each party's request for attorney fees and Alan's request to reduce spousal support. On August 22, 2003, after several evidentiary hearings, the court issued its ruling. With respect to spousal support, the court found a change of circumstances warranted decreasing the amount of spousal support from $3,000 per month to $1,000, explaining, "[Alan's] average monthly income has decreased, [and Gloria's] income and imputed income has tripled since entry of Judgment."
We affirmed the trial court's order directing Gloria to execute documents to permit the sale of the vacant lot. (In re Marriage of Oliney (Jun. 7, 2004, B167811) [nonpub. opn.].)
We affirmed the trial court's order denying Gloria's request to declare three parcels of real estate and a stunt equipment rental business unadjudicated assets of the community estate and directing her to pay $15,000 in attorney fees and costs. (In re Marriage of Oliney (Oct. 25, 2005, B171212) [nonpub. opn.].)
The court found Alan had a current monthly income of $3,345.75 from retirement benefits and $3,343 from residuals and noted "evidence was presented that [Alan] continues to receive income from other sources in the entertainment industry . . . ." Pursuant to the terms of the stipulated modification, the court imputed $1,371.75 per month to Gloria as her share of retirement benefits and found Gloria had a monthly income of approximately $1,462.50 and $591.50 per month as net rental income, for a total of $3,425.75 averaged income per month.
2. Alan's 2006 Attempt To Reduce or Terminate Spousal Support
On February 21, 2006 Alan filed a new application for an order to show cause to terminate or further reduce his spousal support obligation. In support of his request, Alan alleged his residual income from films made during his career had declined since the court last reduced spousal support, he was unable to obtain work as a result of injuries he had sustained during his career, Gloria had had almost 10 years since the parties' separation to become self-supporting and Gloria owned two homes, recently refinancing one of them for $680,000.
In response Gloria contended she believed Alan's income was greater than he was declaring because she had seen him on various television shows and based on certain lifestyle choices he had made. She also explained, "I have been unable to obtain full time employment due to the extra-ordinary illness of our son, Lamonte Alan Oliney. While [Alan] has done nothing to care for him, I have dedicated much of my time in the past 12 years to care for Lamonte. I do not have the skills or profession that is available to [Alan]."
On September 26, 2006 the trial court denied Alan's request to modify spousal support. Although the court found Alan's residual income had decreased and Gloria, whose caretaker income had increased to $1,800 per month, had "refinanced each of her two real properties over the past three years receiving at least $600,000.00 from that refinance," the court nevertheless concluded, "in balancing all of the factors, . . . [Gloria] has a continuing need for support and . . . [Alan] has the ability to pay the support." The court, however, advised Gloria pursuant to section 4320, subdivision (l), "she shall be self supporting within a reasonable period of time."
3. Alan's Current Attempt To Reduce or Terminate Spousal Support
On March 3, 2010 Alan, now 64 years old, filed another application for an order to show cause for termination of spousal support or a downward reduction to $200 per month with termination in one year. Alan alleged his residual income, which had declined since 2006 and which he expected to decline even further, was not sufficient to enable him to pay spousal support. Alan also argued the "practical effect" of the parties' December 2002 stipulation awarding Gloria the home and him the pension, but with 41 percent of the income imputed to Gloria, was to "foreclose the pension from consideration for purposes of spousal support." Additionally, although admitting he had no information about Gloria's financial condition or whether she was employed, Alan asserted she had not made reasonable efforts to become self-supporting despite two warnings to do so by the court. Alan argued, "I have propped [Gloria] up for long enough, and it is time she made her own way."
In response 63-year-old Gloria contended Alan had a continuing ability to pay spousal support and accused him of grossly exaggerating his monthly expenses. Gloria also argued Alan, who had not reached retirement age, had failed to establish he could not work in any capacity because of total disability and his new wife had an income of more than $4,000 per month. Gloria disclosed she had finally obtained full-time employment as a security officer, but claimed her expenses still exceeded her total income in significant part because of the cost to care for Lamonte. Gloria explained she had incurred substantial debt, including refinancing the home, in an effort to maintain a reasonable standard of living over the years for her and Lamonte.
Gloria earned $10 an hour as a security guard, totaling $1,733 per month. In addition to that income and spousal support of $1,000 per month from Alan, she received $2,140 per month as Lamonte's caretaker and was able to use Lamonte's Social Security disability benefits of $850 per month.
The expenses Gloria attributed to caring for Lamonte included one half of the monthly mortgage payment and utilities.
With her response Gloria also filed her own application for an order to show cause seeking incapacitated adult child support for Lamonte pursuant to section 3910, which sets forth the duty of parents to support "a child of whatever age who is incapacitated from earning a living and without sufficient means." Gloria alleged Lamonte had suffered at least three seizures before Gloria and Alan separated in 1996 and, as a result, "is basically 'child like' and has been determined by the Social Security Administration as being totally disabled and unable to be employed in any capacity."
The parties appeared on July 1, 2010 for an evidentiary hearing on Alan's request to terminate or modify support. At the outset Gloria's counsel dismissed her request for an order for incapacitated adult child support. Gloria acknowledged, as Alan had argued in a motion to dismiss, the court lacked jurisdiction to modify the judgment to provide for such support because Lamonte's alleged disability had occurred during the marriage and the issue had not been raised during the dissolution proceedings.
With respect to the merits of Alan's request, a central issue addressed at the hearing was the extent to which Alan's pension income could be considered in determining his ability to pay spousal support. Alan's counsel argued the pension should be disregarded or, alternatively, the court was required to deduct from Alan's income the 41 percent of monthly pension income imputed to Gloria. Counsel explained, "[W]hat we were attempting to do is to allow [Gloria] to purchase the residence—which she wanted to do—and yet leave the pension as a neutral. . . . Because, otherwise, [Gloria] receives a portion of the pension and receives the house."
The court asked why the parties' intent was not satisfied by simply imputing the 41 percent to Gloria without deducting it from Alan's income. Alan's counsel responded, "I'm concerned if you do that, that you are giving . . . [Alan] income which is available for support which shouldn't be. In other words, the . . . pension income was not supposed to be available for support—that was the intent of the order." The court found, however, imputing 41 percent of the pension income to Gloria gave Alan "the credit based on [Gloria's] purchase of the [home] as part of the earlier settlement."
The bench officer who presided at the 2010 hearing had not participated in prior proceedings in this matter. Gloria's counsel was also new to the case, but Alan's counsel had represented him in the original dissolution hearing and the subsequent modification proceedings.
Gloria and Alan each testified on a number of topics including Lamonte's current needs and the fact their other adult son, Rachada, was temporarily living with Gloria. Ultimately, the court denied Alan's request to reduce spousal support. Describing the case as a "close call," the court found, "On the one-hand, we have a woman who's looking after an adult child of the marriage who has difficulties. That issue may not have been raised before, but it seems to me that's a relevant consideration. She's not quite self-supporting, because she is borrowing money from her sister, she's refinancing her house to make ends meet. Two children—adult children—living with her—admittedly, they are adults—well, both of them apparently are disabled. While that's not per se [Alan's] legal responsibility—and spousal support, I think the court has to go into a variety of factors even if he is not technically liable for child support or adult child support, still . . . her expense situation has to be considered and to what extent he's contributing his share of those expenses voluntarily or otherwise. She has gotten a job, which the court had indicated she should do previously, and that's still not quite doing it."
With respect to Alan's circumstances, the court found, although his residual income was declining, he was receiving cost of living adjustments to his pension and social security benefits so "he's in a net better situation than he was when he was here four years ago." The court also found Alan and his new wife had significant equity in their home while Gloria had assets of only $20,000.
Balancing the factors as required under section 4320, the court found the evidence weighed "slightly" in Gloria's favor. The court warned, however, it "does not want to leave the impression that this means that [Alan] should have to pay spousal support forever. The question then becomes, well, when should he be able to come back. I don't know the answer to that question. I'm not the lawyer here, but I am mindful of the fact that there should be some end . . . . [A]t some point—in particular if the residual income goes down, as is believed—that may well be a change of circumstances."
CONTENTIONS
Alan contends the trial court erred by failing to deduct from his income the amount of pension income imputed to Gloria in determining his ability to pay spousal support and by considering Gloria's financial burden in caring for Lamonte.
DISCUSSION
1. Standard of Review
"[W]hether a spousal support order should be modified is a matter within the sound discretion of the trial court, predicated upon a showing of a material change of circumstances since the last spousal support order." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76-77.) Generally, a "[c]hange of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs." (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) "The moving party bears the burden of establishing a material change of circumstances since the last order was made in order to obtain modification of the spousal support order. [Citations.] In determining whether a change of circumstances has occurred, 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 order at the time of judgment and any subsequent modification order." (In re Marriage of Stephenson, at pp. 77-78, fn. omitted.) However, even if the moving party demonstrates a material change of circumstance, the court may nevertheless deny modification of spousal support. (See In re Marriage of Poppe (1979) 97 Cal.App.3d 1, 10.)
The factors identified in section 4320 include the duration of the marriage, the earning capacity of each party, "the needs of each party based on the standard of living established during the marriage," "[t]he marketable skills of the supported party," "the possible need for retraining or education to acquire other, more marketable skills," "[t]he extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties" and the age and health of the parties. Additionally, section 4320, subdivision (l), identifies as a factor, "[t]he goal that the supported party shall be self-supporting within a reasonable period of time," but cautions "nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties."
"Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court[,] the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357-358.) An abuse of discretion occurs when there is no substantial evidence of a material change of circumstances (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398) or the trial court "misperceives the law." (Los Angeles Times Communications LLC v. Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313, 1327.) Thus, "'[a]s long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.'" (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.)
Absent conflicting extrinsic evidence, we review de novo any questions of interpretation of the parties' marital settlement agreement. (See Lucas v. Elliot (1992) 3 Cal.App.4th 888, 892 ["as no extrinsic evidence as to the meaning of the parties' property settlement agreement was admitted, we are not bound by the trial court's construction of the agreement," fn. omitted].)
2. Alan's Pension Income Must Be Considered in Determining His Ability To Pay Spousal Support
Alan contends, in consenting to allow Gloria to purchase his interest in the family home, he was "determined not to allow Gloria to receive an additional share of pension income as spousal support in the manner approved" in In re Marriage of White (1987) 192 Cal.App.3d 1022. In that case the court held income from the husband's pension, which had been awarded to him in full pursuant to the parties' stipulation, "must be considered along with other appropriate factors when gauging his ability to pay just and reasonable spousal support" and that failure to do so is an abuse of discretion. (Id. at p. 1029.) In reaching this conclusion the court rejected the husband's argument it would be improper "'double dipping'" to do so. (Id. at p. 1027.) The court explained, "[I]t must be kept in mind that spousal support considerations are separate and distinct from property division concepts. Because the division of community property is premised on absolute ownership of community assets by both parties, each must receive a respective full share. An award of spousal support, in contrast, is broadly discretionary," and is based on equitable considerations including the needs and incomes of each party. (Id. at p. 1026.)
While Alan now insists he intended to preclude entirely any consideration of his pension income for purposes of spousal support as mandated by In re Marriage of White, that is not what the stipulation provides. It merely states, "For the purposes of spousal support there shall be imputed to wife an income of $1,875 per month based on 41 [percent] of the anticipated monthly payment of $4,573—to be received from his pension upon retirement." By imputing income to Gloria equal to 41 percent of the pension benefit, Alan has effectively precluded consideration of a portion of the pension benefit in determining his spousal support obligation. If Alan and Gloria had in fact agreed to do more—to exclude the entire pension benefit from any consideration—it would have been easy to have provided for that: Their stipulation could have expressly stated the pension benefit would not be considered for any purposes or waived application of the rule set forth in In re Marriage of White. (See Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9 ["In construing a contract, it is not a court's prerogative to alter it, to rewrite its clear terms, or to make a new contract for the parties. [Citations.] Courts will not add a term to a contract about which the agreement is silent."].)
The fundamental goal of contract interpretation is to give effect to the mutual intention of the parties as it existed at the time they entered into the contract. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865; see also Civ. Code, § 1636.) That intent is interpreted according to objective, rather than subjective, criteria. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126.) When the contract is clear and explicit, the parties' intent is determined solely by reference to the language of the agreement. (Civ. Code, §§ 1638 ["language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity"]; 1639 ["[w]hen a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible"].) The words are to be understood "in their ordinary and popular sense" (Civ. Code, § 1644) and the "whole of [the] contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.)
Our conclusion it was proper to consider Alan's total pension benefit in determining spousal support, based on the plain meaning of the language in the parties' stipulation, is reinforced by the fact, when the court modified Alan's support obligation in 2003, it imputed 41 percent of his current pension benefit to Gloria but considered the full amount of that benefit in calculating average monthly income. (See fn. 6, above.) In addition, Alan himself apparently did not seek to exclude those sums or even have the amount of income imputed to Gloria deducted from his income when he sought to reduce spousal support in 2006. (See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 393 ["[a] party's conduct occurring between execution of the contract and a dispute about the meaning of the contract's terms may reveal what the parties understood and intended those terms to mean"]; Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 753 ["'[t]he acts of the parties under the contract afford one of the most reliable means of arriving at their intention'"].)
3. The Trial Court Abused Its Discretion by Considering the Cost To Care for Lamonte in Determining Gloria's Need for Spousal Support
a. Law generally governing the support of incapacitated adult children
Parents have a basic duty to support their minor children, which generally ends at the latest when a child turns 19. (§§ 3900, 3901, subd. (a); see § 4326 [allowing the court to consider able-bodied adult child expenses under limited circumstances].) Section 3910, subdivision (a), however, obligates parents to equally support an adult child who is incapacitated from earning a living and "without sufficient means."
The duty of parents to support an incapacitated adult child "is legislatively designed 'to protect the public from the burden of supporting a person who has a parent . . . able to support him or her.'" (In re Marriage of Lambe & Meehan (1995) 37 Cal.App.4th 388, 393.) Thus, the duty arises only if the child is both incapacitated from earning a living and without sufficient means. Whether the child is without sufficient means is predicated on "the likelihood a child will become a public charge." (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1154.) Once an adult child is deemed incapacitated within the meaning of section 3910, subdivision (a), support is determined pursuant to the Family Code support guidelines for minor children (§ 4050 et seq.) (In re Marriage of Drake, at pp. 1155-1156.)
Although the duty of support runs to the incapacitated child (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1152), it is enforceable by either a parent or the child in an independent civil action. (§ 4000.) It is also enforceable by a parent in any marital proceeding or other action under the Family Code where child support is at issue. (See § 4001 ["[i]n any proceeding where there is at issue the support of a minor child or a child for whom support is authorized under Section 3901 or 3910, the court may order either or both parents to pay an amount necessary for the support of the child"]; In re Marriage of Lambe & Meehan, supra, 37 Cal.App.4th at p. 392 [parent may "file a motion for an adult child support order in a pending family law action and avoid the delays and expense of a separate civil suit"].)
b. Incapacitated adult child support may not be indirectly awarded under the guise of spousal support
Alan contends the trial court violated the rule prohibiting an indirect award of adult child support under the guise of spousal support in considering the cost to care for Lamonte as a factor relevant to whether Gloria had a continued need for spousal support. (See In re Marriage of Serna (2000) 85 Cal.App.4th 482, 487-489.) In In re Serna the trial court had considered the expenses of the parties' adult able-bodied children, as well as two grandchildren, in determining the wife's continuing need for spousal support. (Id. at p. 485.) On appeal the court held permitting consideration of able-bodied adult children's expenses in determining spousal support is a "naked circumvention of a decision that has already been made by the Legislature—namely, that child support ends at age 19 at the latest, absent incapacity to earn a living." (Id. at p. 491.)
Gloria contends the rule In re Serna is distinguishable because it proscribes indirect support for able-bodied adult children, unlike the case at bar in which there is substantial evidence Lamonte is disabled and unable to earn a living. To be sure, there was no issue of incapacity in In re Serna. Nevertheless, its fundamental principle—a supported party cannot obtain indirectly what he or she is not entitled to directly—is instructive. If Lamonte is not incapacitated within the meaning of section 3910, the expenses associated with caring for him cannot be taken into consideration in assessing Gloria's need for support. To the extent Lamonte meets the section 3910 criteria for incapacity, there is a legislatively mandated procedure for making the required determination and specific guidelines for calculating the amount of support each parent is required to contribute if incapacity is found. The trial court is not authorized to ignore those procedures, regardless of the expense to the parties in properly pursuing appropriate relief. The decision to modify spousal support requires the court to evaluate a wide range of matters and to balance the parties' respective burdens and hardships (see § 4320, subds. (k) & (n)), but an impermissible factor may not be included in the analysis in the guise of acting equitably.
The trial court appears to have considered the cost to care for Lamonte regardless of whether he was incapacitated as provided for in section 3910, which squarely violates the rule in In re Serna, supra, 85 Cal.App.4th 482. As discussed, the court explained the cost to care for Lamonte should be considered regardless of whether it is Alan's "legal responsibility" to do so. If Lamonte is incapacitated pursuant to section 3910, then it is Alan's legal responsibility to share in those costs. Absent such a determination of incapacity, the cost to care for Lamonte—as well as Rachada, whom the court also mentioned in its ruling—simply cannot be taken into consideration.
Alan seems to question the extent to which Lamonte is disabled and suggests he may be able to function better with proper care, which Alan contends is not being provided.
While we are sympathetic, as apparently was the trial court, that Gloria was precluded from pursuing relief in these family law proceedings because she had previously failed to raise the issue of incapacitated adult child support, limits on jurisdiction cannot be circumvented. Gloria still retains the right to enforce Alan's duty, if any, to share in the financial responsibility for caring for Lamonte in a civil action.
After Gloria's counsel dismissed Gloria's application for an order to show cause regarding incapacitated adult child support, conceding the trial court lacked jurisdiction to hear it, the court asked whether she would file an independent action. Counsel responded Gloria did not have the funds to do so. This may have also influenced the court in its well-intentioned, albeit improper, effort to ameliorate the hardship to Gloria of paying for Lamonte's living expenses.
c. A remand is necessary for the court to properly evaluate Alan's request for termination or further reduction of his spousal support obligation
As discussed, modification of spousal support requires both proof of a material change of circumstances since the last support order and a determination an increase or reduction in the amount of support is warranted, with both evaluations based on consideration of the criteria set forth in section 4320, including "the ability of the supporting party to pay; the needs of each party based on the standard of living established during the marriage; the obligations and assets of each party; and the balance of hardships to each party." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928; see In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 ["'[a] trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order'"].) Here, the court denied Alan's request for termination or modification of his spousal support obligation without clearly stating whether it had found no material change in circumstances or, notwithstanding such a change, believed continued support at the level ordered in 2006 was appropriate based on the section 4320 factors.
Without knowing the basis for the court's denial of Alan's request, it is impossible for us to evaluate whether the trial court's improper consideration of Gloria's costs in caring for Lamonte was prejudicial or harmless error. (Cf. In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524 [absent showing of prejudice, error in family law proceedings is generally not reversible]; Burkle v. Burkle (2006) 144 Cal.App.4th 387, 403 [same].) The trial court apparently rejected Alan's claim his ability to support Gloria had materially diminished since the 2006 support order because he was now totally retired, finding, although his residual income was decreasing, "he's in a net better situation than he was when he was here four years ago" because of cost of living adjustments to his pension and his receipt of Social Security benefits. Yet the court found Gloria is finally employed outside the home on a full time basis and also continues to receive direct payments for providing care to Lamonte, although it noted, "she's not quite self-supporting." Whether, in light of other factors, that is a material change warranting a downward reduction or even termination of Gloria's spousal support if Lamonte's living expenses are disregarded must be left in the first instance to the discretion of the trial court. (See In re Marriage of Stephenson, supra, 39 Cal.App.4th at pp. 76-77.) Accordingly, we remand the matter to the trial court with directions to reconsider Alan's request and in its ruling to clearly state whether it finds a material change of circumstances since the last support order and, if there has been such a material change, the basis on which it concludes termination or modification should be granted or denied.
The minute order entered after the hearing simply states, "Respondent's request for termination of spousal support is denied."
In view of the passage of time since the July 1, 2010 order denying any modification of Alan's spousal support obligation, we suggest the trial court invite the parties to file supplemental declarations and briefing to permit a full evaluation of their current financial condition and needs, as well as to allow them to raise any additional issues they believe should be considered by the court. (See In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 ["'a modification order must be based on current facts and circumstances'"].)
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DISPOSITION
The order is reversed and the cause remanded for further proceedings not inconsistent with this opinion. The parties are to bear their own costs on appeal.
PERLUSS, P. J.
United States We concur:
WOODS, J.
ZELON, J.