Opinion
A160594
06-21-2022
In re Marriage of KARIN URSULA and GARY LEE LaMUSGA. v. GARY LEE LaMUSGA, Appellant. KARIN URSULA PETERSON, Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSD14-03779
STREETER, ACTING P.J.
The trial court denied Gary LaMusga's motion to modify permanent support obligations to his former spouse Karin Peterson, and LaMusga now appeals. He contends the court (1) erred in applying the factors governing spousal support determinations under Family Code section 4320, and (2) displayed bias by, among other things, asking questions during the examination of LaMusga "on behalf of" Peterson. We reject both lines of argument and affirm.
Subsequent undesignated statutory references are to the Family Code.
I. BACKGROUND
Gary LaMusga is an insurance and financial advisor who owns his own business. Karin Peterson, his former spouse, worked as a hairdresser for 46 years. In the past decade, Peterson suffered from various health problems, including neck injuries and carpal tunnel syndrome in her hands. These health issues affected her ability to continue working.
In 2015, Peterson and LaMusga entered into a marital settlement agreement, resolving various issues in their marital dissolution, including spousal support. As part of their agreement, LaMusga agreed to pay Peterson $7,200.00 per month in spousal support. In October of 2016, LaMusga's support obligation was reduced to $6,450 per month.
In 2018, LaMusga applied to the court for a further reduction in his spousal support obligations, claiming that certain changed circumstances in his life impaired his ability to continue paying support at the adjusted 2016 level. For instance, LaMusga's salary declined from $205,014 in 2015 to $107,862 in 2018. Although LaMusga's employment did not change and he retained ownership of his company, he stated he was suffering from health complications such as prostate disease, hearing impairment, vision issues, and problems relating to a knee replacement. Due to his health and age, LaMusga argued he is unable to work the same number of hours he once did during his marriage. As a result of his reduced work hours, LaMusga claimed he lost 15 out of 250 clients. Further, in March of 2019, LaMusga's disabled adult daughter began to live with him, causing, he claimed, an increase of approximately $400 a month in costs.
The trial court denied LaMusga's request for a modification of the spousal support order, finding there was no significant change in circumstances to justify a reduction of monthly support. In particular, the trial court found LaMusga voluntarily cut back on his work hours. Although LaMusga cited numerous health concerns, the court further found he did not produce sufficient documented medical evidence to indicate any physical limitation that might affect his ability to work.
To address LaMusga's 2019 spousal support reduction request, the parties appeared pro se for a long-cause hearing that began in March 2019 and concluded in January 2020. Over the course of five hearing days, the court heard testimony from the parties and admitted into evidence numerous documentary exhibits. On July 7, 2020, following submission of the cause, the trial court denied LaMusga's request for a modification of spousal support, finding there was no significant change in circumstances to justify a reduction. The court filed a detailed and thorough statement of decision explaining its reasoning.
In its statement of decision, the court systematically reviewed each of the relevant section 4320 factors bearing on its spousal support determination, essentially adopting Peterson's position that, as framed in Peterson's trial brief, LaMusga "has failed to meet his burden of proving there has been a substantial change in circumstances that could warrant a change in permanent spousal support. He has not provided any evidence he is unable to work and he has not provided any evidence that his income has substantially changed, and has literally provided no evidence at all to support his request."
We summarize the findings and conclusions in the court's statement of decision, organized factor by factor, adding additional particulars to the findings noted above, as follows:
Section 4320, subdivision (a)(1): This provision calls for evaluation of the marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. Here, the trial court found that, due to Peterson's age (then 69 years old), in addition to her physical injuries relating to carpal tunnel in her hands and neck surgery, it is not "equitable or realistic" to expect her to seek work. The court found that Peterson can no longer physically perform her skilled trade of hairdressing, is limited in her knowledge of computers, cannot sit for long periods of time and cannot compete with younger people for open employment positions. It further found that it believed Peterson was not" 'slacking'" and that if she could work, she would do so.
Section 4320, subdivision (a)(2): This provision calls for consideration of the 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. Here, the court found that while she was married to LaMusga, Peterson worked part-time while providing care for the family's children.
Section 4320, subdivision (a)(2)(b): This provision requires the court to consider the extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. Here, the court found that during the marriage, LaMusga pursued various programs for continuing education, attending conventions and acquiring extra professional licenses. During this time, the court found, Peterson supported LaMusga by taking care of the home and children.
Section 4320, subdivision (c): This provision calls for consideration of the ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. In assessing this factor, the court considered LaMusga's tax returns and found that he reported gross income of $205,014 in 2015, $228,686 in 2016, and $107,862 in 2017. The court found that, for 2018, LaMusga's personal tax return listed a gross income of over $107,000. The trial court also specifically found that LaMusga is the owner of his own company and that he himself determines how much he works.
Section 4320, subdivisions (d) and (e): These provisions require consideration of the obligations and assets of the respective parties and of the needs of each based on the standard of living established during the marriage. Here, based on LaMusga and Peterson's home location at the time of the marriage, their past vacation trips, vehicles, and children in private school, the trial court concluded the marital standard of living to be upper middle class. For a total family of six, their average annual income during the last three years of the marriage (2012-2014) was $280,683. Following the marriage, the court found that (i) Peterson had very few assets; (ii) to maintain the standard of living to which she had been accustomed, she had to move out of the Bay Area (where she lived most of her life) to Tulare County; and (iii) her sole source of income was the spousal support from LaMusga, in addition to Social Security benefits. By contrast, the court found that (i) LaMusga still owned a home in Martinez with substantial equity in it; (ii) earned income on rental property; and (iii) had investment assets.
Section 4320, subdivision (f): This provision requires consideration of the duration of the marriage. The court found that the parties were married for over 15 years, making theirs a long term marriage, concluding with a period of separation of over five years.
Section 4320, subdivision (h): This provision requires consideration of the age and health of the parties. Here, the court found that, while Peterson was generally in good health, she suffered from multiple physical issues in her hands and her back, which severely limit her ability to work. For LaMusga, on the other hand, the trial court found he was in good health and specifically rejected his claim that health conditions caused him to cut his work hours from 50-60 a week to fewer than 40. LaMusga told Peterson during the marriage that he would never retire, and the court found, he hasn't. Although LaMusga provided medical documentation of some claimed prostate cancer issues, hearing difficulties, vision problems, and necessary recovery from knee replacement surgery, the trial court found that none of these documents were probative of a significant health problem that could affect his ability to work. The court acknowledged that LaMusga's then-scheduled knee replacement surgery in December 2019 might be significant and the time LaMusga needed for recovery from the surgery could, potentially, be reason to adjust his spousal support. But without further supporting documentation of how long the anticipated recovery from the surgery would be, the court did not find that to be a basis for modifying his spousal support.
Section 4320, subdivision (k): This provision requires a weighing of the balance of the hardships to each party. Here, the court specifically found that paying spousal support to Peterson does not create hardship for LaMusga and that he has the ability to meet Peterson's need for assistance. The court also found no serious health-related obstacles to LaMusga's ability to work at the "rate and pace he has worked up until this time." The court found, on the other hand, that reducing spousal support would result in hardship for Peterson, who suffers from back and hand injuries that prevent her from working as a hairdresser. The court specifically found that Peterson should not be obligated to seek work, given her age, physical impairment, and limited employable skill-set.
Section 4320, subdivision (n): This provision requires consideration of any other factors the court determines are just and equitable. In assessing it, the court found LaMusga worked fewer hours voluntarily and not for health reasons. In calculating LaMusga's earnings, the trial court found his monthly income of $15,550 in 2018 was only 7% lower than his monthly income of $16,666 in 2017 (in both years as reported for tax purposes). Whether LaMusga's true monthly income was $15,550 or higher than that- as the evidence suggested it might have been-the court found that he could afford the spousal support payments he was obligated to make without the reduction he requested. The court arrived at this conclusion while noting that there were significant credibility questions surrounding LaMusga's claimed expenses. The evidence showed that some of his expense obligations had increased ($400 per month in support expenses for the care of his adult daughter), and some had decreased ($700 per month in support expenses that were eliminated when his adult sons began supporting themselves). Overall, however, on the expense side of the ledger, the court found "several of LaMusga's representations to the court" concerning his expenses were "inaccurate" and that he "overstated his expenses by $9,000 a year."
The court assumed the $15,550 per month was accurate for 2018 but observed that that dollar amount did not take into account additional investment income of $8,300, which, if it were accurate, would bring LaMusga's monthly total income up to $23,850. The "discrepancy" between LaMusga's reported income for tax purposes in 2018 and the evidence that he received additional income that year "was not resolved at trial."
The court concluded as follows, weighing everything: "[LaMusga] claims he is not able to make" his spousal support payments "due to his decreased income, but the court finds that this was a choice [he] made to bolster his plea for a reduction in spousal support, and not a situation caused by his alleged health concerns. The court does not find [LaMusga] credible as to his assertion that he had to cut back on his work due to health concerns. He did not and does not have cancer, has not undergone medical treatment for cancer, and produced no medical evidence of any physical limitation on his ability to work."
This timely appeal is from the above-summarized statement of decision.
LaMusga appears pro se on appeal, as he did in the trial court. Peterson made no appearance. LaMusga's opening brief is the sole brief that has been submitted in this appeal. Because there was no responding brief, there was no occasion for a reply brief.
II. DISCUSSION
A. Standard of Review
"The trial court has broad discretion to . . . modify a spousal support order." (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 595-596.) In resolving a request to modify a spousal support order, the court must consider the factors set out in section 4320, and in doing so, it has discretion "as to the weight it gives to each factor." (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273, citing In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) Our review is for abuse of discretion. We may find an abuse of discretion only when" 'it can fairly be said that no judge would reasonably make the same order under the same circumstances. [Citation.]'" (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377, quoting In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 591.)
"In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981; see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.)
B. The Trial Court Appropriately Applied the Family Code Section 4320 Factors
Having reviewed the trial court's statement of decision declining to modify spousal support, we see no legal error; we find ample evidence to support its factual determinations; and we conclude that its judgment on each of the relevant factors, and on all of the relevant factors as a whole, was well within its discretion.
Based on Peterson's age and health, the trial court's determination that she has no obligation to pursue employment is supported by the record. The record also supports the court's rejection of LaMusga's contention that his health issues justify reducing the level of his spousal support obligation. It is undisputed that there was a decline in LaMusga's income, but we cannot second-guess the trial court's assessment that the decrease in income was insubstantial and that he cut back his hours voluntarily.
The court appropriately analyzed the evidence, and the lack of evidence, in arriving at its bottom-line conclusion. The trial court rejected LaMusga's primary argument, finding that he is in good health, and declining to credit the claims he made about various ailments and potential ailments such as prostate cancer. The trial court acknowledged medical documentation suggesting LaMusga had a risk of prostate cancer but found that he currently has no confirmed diagnosis and does not require medical treatment for any related condition.
The trial court acknowledged LaMusga's knee replacement surgery as a potential change in circumstances that could be reason to reduce the spousal support order. But without further documentation detailing the extent of the physical limitations the surgery would cause, the trial court was within its discretion to conclude that is not a justification for reduction of spousal support either, while indicating a willingness to revisit the issue should circumstances change. All of the findings underpinning the court's exercise of discretion here-on the cancer issue, and on the knee surgery issue-are supported by the record.
The court's findings with respect to LaMusga's claimed hearing and vision issues are also supported by the record. According to LaMusga's optometrist's report, his vision has been corrected to 20/20 in each eye and is within normal limits. We agree with the trial court that the audiologist report he provided is unclear and inconclusive. The audiological examination shows several charts with markings in hearing level and frequency. But this document does not contain any sort of clear statement or conclusion from a medical expert that can explain what these charts mean. LaMusga submitted no evidence that his hearing-as enhanced by a hearing aid-is so poor that it interferes with his income-earning ability.
In his brief, LaMusga cites case law stating that a supporting party who retires or stops working should not be compelled to pay the same spousal support as if he was employed. Since LaMusga is past the "usual retirement age" of 65, he contends he should not have to return to working 50-60 hours a week in order to pay spousal support to Peterson. The argument is overstated, among other reasons, because the court specifically found that Peterson is unable to work or reenter the job market. Nor has LaMusga retired or stopped work, a fact the court emphasized. Nor are there any facts here to suggest that LaMusga cannot retire if he changes his mind and chooses to do so.
This dispute turned largely on credibility, and LaMusga lost the battle. It is not our role on appeal to second-guess credulity issues. As between two former spouses, one of whom the court found cannot physically work or support herself, and the other of whom it found is able-bodied and still fully capable of supporting himself as well as his former spouse, the court found for the former spouse. Substantial evidence in the record supports that decision.
C. We See No Basis in the Record To Support a Claim of Judicial Bias or Any Other Grounds for Judicial Disqualification
Throughout his brief, LaMusga argues the trial court made errors of law, displayed bias against him, and violated his constitutional rights. We reject these various arguments. The trial court appropriately applied the law and considered all the relevant evidence submitted. Beyond that, LaMusga's claims of judicial bias and other assertions of judicial misconduct are baseless and were not properly presented to the trial court in any event. LaMusga appears to confuse the fact that the trial court ruled against him with evidence of bias. On this record, we have nothing close to what is required to warrant disqualification for bias, even assuming a motion seeking that remedy had been timely filed, which it was not. (Code Civ. Proc., § 170.3, subd. (c)(1); see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 994 ["the complaining party must seek disqualification [for cause] at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification"]; Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337 ["This strict promptness requirement is not to be taken lightly, as a failure to comply constitutes forfeiture or an implied waiver of the disqualification"].) The issue has been forfeited for failure to raise it in a timely manner.
D. A Trial Judge Has Broad Leeway To Direct Questions to a Witness During or After the Examination of the Witness
LaMusga argues the trial judge demonstrated a lack of impartiality when she assisted Peterson in trial while cross-examining LaMusga as if she were Peterson's attorney. Under California Rules of Court, rule 5.113(g), however, it is elementary that "[w]henever the court receives live testimony from a party or any witness it may elicit testimony by directing questions to the parties and other witnesses." LaMusga acknowledges this rule, but he contends the trial court "egregiously abused [it] by repeatedly interrupt[ing] the flow of the testimony and inserting her own questions into the record." We do not agree. The "flow of the testimony" is for the court to control. And it is an oxymoron to say that a trial judge-who presides over the proceeding-"interrupts" anything when she chooses to speak.
What LaMusga complains about appears to be this. After Peterson finished her cross-examination of LaMusga on August 12, 2019, the trial judge asked him questions relating to how many hours he works per week, the value of his properties, and his health. These questions were plainly relevant to his age and health, assets, and his ability to pay spousal support, all of which are factors a court must consider when making its ruling under section 4320. Similarly, on September 9, 2019, the trial court asked some questions about LaMusga's expenses such as car payments, insurance, phone bills, his children's loans, his property, and his tax documents. These questions, too, were plainly relevant to various financial issues in play under section 4320.
As is often the case with evidentiary presentations by pro se litigants, the judge appears to have found that there were gaps in the testimony presented to her and things that were in need of clarification. That is unsurprising in a proceeding at which the litigants are unrepresented by counsel, since they are, naturally, untrained in the rules of evidence and the techniques of courtroom advocacy. (See, e.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337.) Having reviewed the record, we conclude that the trial court was well within its discretion to intercede and supplement the record with its own examination of LaMusga. It may have been discomfiting for him to face questions from the judge, but he fails to understand that, in a proceeding in her own courtroom, the judge is not simply a spectator.
Evidence Code section 765, subdivision (a), provides that "[t]he court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment." There is nothing in the record to indicate that the trial court overstepped the boundaries of exercising such "reasonable control" over the proceeding that would ensure the record was useful in ascertaining the truth. As the finder of fact, the judge sought more information after Peterson's initial cross-examination, which she was not only allowed to do but had a duty to do if necessary to elicit a complete set of pertinent facts. Accordingly, the judge was well within her discretion to conduct the proceeding as she did. (Evid. Code, § 765, subd. (a); Cal. Rules of Court, rule 5.113(g).)
III. DISPOSITION
The trial court's order denying LaMusga's postjudgment motion for modification of spousal support is affirmed. Costs on appeal shall be awarded to respondent.
WE CONCUR: BROWN, J., DESAUTELS, J. [*]
[*]Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.