Opinion
B308248
03-10-2022
MELISSA BELOUSOFF, Petitioner and Appellant, v. MONTE MCCONNELL, Respondent.
Stephen Temko and Dennis Temko for Petitioner and Appellant. Gary Mitchell for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. LD071480 Rolf Michael Treu, Judge.
Stephen Temko and Dennis Temko for Petitioner and Appellant.
Gary Mitchell for Respondent.
MOOR, J.
Petitioner and appellant Melissa Belousoff appeals from a post-judgment order denying her request for modification of spousal support awarded to her former husband Monte McConnell. In the family law court, McConnell had the burden under Family Code section 4323 to show that cohabitation with his girlfriend did not reduce his need for spousal support. The family law court denied Belousoff's request for modification after finding that McConnell and his girlfriend divided their contributions to household expenses under a written agreement in good faith, McConnell's needs had not decreased, and McConnell had not suppressed a meaningful contribution from his cohabitant in order to show a continued need for support. On appeal, Belousoff contends that section 4323 requires the family law court to modify or terminate spousal support based on cohabitation, and McConnell failed to meet his burden because his evidence was not credible. We conclude the ruling was well within the family law court's discretion, and therefore, we affirm.
All further statutory references are to the Family Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Dissolution Judgment
Belousoff and McConnell married in August 2000. They have three children, born in 2002, 2004, and 2010. During the last three years of their marriage, the parties lived in a very large house in a gated community that they could not afford. Wife filed a petition for dissolution in May 2015. At the time of trial, McConnell lived with his mother in her one-bedroom apartment and contributed $500 per month to expenses. McConnell needed to spend at least $3,000 per month to lease a four-bedroom house to exercise his custodial time with the children.
The family law court entered a dissolution judgment on July 3, 2017. Belousoff's monthly gross income was $27,712, which included monthly distributions of $25,712 from a trust and imputed monthly income of $2,000 based on her ability and opportunity to work as a teacher. McConnell's monthly gross income was $6,033, which included $5,200 from his employment as a heating and air system control technician for Environmental Automation and $833 from music endeavors. The number of hours that McConnell worked for Environmental Automation fluctuated based on the contracts secured by the company.
The judgment provided for shared custody of the children and ordered Belousoff to pay monthly child support to McConnell totaling $563. In addition, the judgment ordered Belousoff to pay monthly spousal support of $3,000 to McConnell until the death of either party, McConnell's remarriage, or further order of the court. The court found that while married, the parties lived in upper class housing beyond their means. Although their other living expenses were middle and upper-middle class, their combined income was not sufficient to allow them both to live at the marital standard while apart. The family law court noted McConnell was currently living with his mother in her one-bedroom apartment. The family law court found McConnell's reasonable needs to provide for himself, including providing adequate independent housing to allow him to exercise his custodial time, was in the range of $6,500 to $7,000. McConnell had sufficient income to satisfy his personal needs, but did not have sufficient income to provide adequate housing. The court anticipated the spousal support and child support awards together would provide McConnell with net spendable income of $7,100, which would be sufficient to address his reasonable needs and provide adequate independent housing to accommodate his children during his custodial time.
Purchase of Residential Property
McConnell's girlfriend Naoko Okumura was paying approximately $1,100 per month to rent a one-bedroom apartment. McConnell had allocated $2,600 per month in his budget to rent a home for himself and his children. In March 2018, McConnell and Okumura purchased a four-bedroom home for $750,000, taking title to the property as tenants in common in equal shares. Each of the children has a bedroom in the home, as they do at Belousoff's home. McConnell paid the good faith deposit of $22,515, which he had saved while living with his mother, but he did not have enough money for the down-payment. Okumura paid the down-payment of $147,064, in exchange for McConnell's agreement to pay a larger portion of the mortgage payments, until his additional payments are equal to Okumura's contribution.
McConnell and Okumura entered into a detailed written ownership agreement. The monthly mortgage payment is $3,735.38. Under their arrangement, McConnell pays $2,600 per month, which is equivalent to the amount he had allocated to rent a home, and Okumura pays $1,135.38, which is equivalent to the amount that she paid to rent a one-bedroom apartment.
McConnell and Okumura pay proportionate amounts for utilities, insurance, groceries, and other household bills. McConnell pays two-thirds of the expenses, which consists of one-third for his expenses and one-third for his children's expenses, while Okumura pays one-third of the expenses for herself. For example, Okumura pays an average of $300 per month for the food that she consumes, which is about what she paid when she lived alone, and McConnell pays approximately $500 for the food that he and the children consume. Okumura maintains a spreadsheet of the payments made by each of them toward various expenses. At the end of each month, they exchange funds to reconcile payments in accordance with the agreement. The costs of home improvement or repairs will be divided equally.
Request for Modification
On January 11, 2019, Belousoff filed a request to modify the spousal support order based on McConnell's cohabitation with Okumura. Belousoff argued that cohabitation resulted in cost sharing that reduced or eliminated McConnell's reasonable need for spousal support. She also filed an income and expense declaration.
McConnell filed a response in February 2019. He explained his cost-sharing arrangement with Okumura to show that cohabiting had not reduced his needs. McConnell and Okumura were not splitting expenses, but proportioning the expenses among themselves.
McConnell filed an income and expense declaration on February 13, 2019. His average gross monthly salary was $3,522, which was slightly lower than it had been at the time of the judgment. He had been unable to continue earning income as a musician. Okumura's gross monthly income was approximately $6,300. McConnell's monthly expenses were $7,416, without including Okumura's share of expenses. McConnell filed a substantially similar income and expense declaration on July 13, 2020.
The parties filed trial briefs. In his brief, McConnell asserted that he tried to rent at least fifteen different homes after the judgment was entered. Property managers said his income did not qualify him to rent a four-bedroom home and they would not consider his spousal support as income. Housing that was affordable was located in undesirable neighborhoods with high crime rates.
After a hearing on July 30, 2020, the family law court denied the request for modification on August 5, 2020. The court found McConnell rebutted the presumption that cohabitation decreased his needs. The court found McConnell and Okumura contractually and actually divided their contributions to common expenses in good faith. They entered into a written contract regarding the home purchase, mortgage payments, and living expenses. To verify compliance with the contract, McConnell and Okumura meticulously catalogued their respective monthly contributions. Based on the evidence, the court found McConnell's needs had not decreased since the date of the judgment by reason of cohabitation, and he had not suppressed a meaningful contribution from Okumura to the household expenses in order to show a continuing need for spousal support. Belousoff filed a timely appeal from the post-judgment order.
DISCUSSION
Standard of Review
A party moving to modify or terminate spousal support usually has the burden to show a material change in circumstances since the time of the last support order. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) A change in circumstances means a change in the supporting spouse's ability to pay or the supported spouse's needs. (Ibid.)
"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.) In exercising its discretion, the trial court considers the same criteria set forth in section 4320 as it was obligated to consider in making the initial support order. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) "These factors include 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. [Citation.]" (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.)
"An order regarding the modification of spousal support is reviewed for abuse of discretion. [Citation.]" (In re Marriage of Samson (2011) 197 Cal.App.4th 23, 29.) "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." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.)
Cohabitation
Belousoff contends McConnell's cohabitation with Okumura was a material change in circumstances reducing his need for spousal support as a matter of law. We find no abuse of discretion in this case.
Section 4323, subdivision (a)(1), provides a rebuttable presumption that cohabitation decreases a supported party's need for spousal support. The statute does not require the family law court to reduce or eliminate spousal support in every case of cohabitation by a supported spouse. (In re Marriage of Leib (1978) 80 Cal.App.3d 629, 635 [discussing former Civil Code section 4801.5, which was substantially similar to current section 4323].) Rather, the statute shifts the burden of proof to the supported spouse to show that there has been no material change in circumstances despite cohabitation. If the court determines circumstances have changed, the court may modify or terminate spousal support. (§ 4323, subd. (a)(1).)
Section 4323, subdivision (a)(1), provides in full: "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1." (Fam. Code, § 4323, subd. (a)(1).)
A supported spouse cannot overcome the presumption of section 4323 by making a gift to a cohabitant to create the appearance of continuing need. (In re Marriage of Leib, supra, 80 Cal.App.3d at p. 643.) The contract between cohabitants, whether express or implicit, "must be fair and reasonable with respect to the rights of a supporting spouse." (Ibid.) The underlying issue is whether the supported spouse has suppressed a meaningful financial contribution from a cohabitant in order to show continuing need for spousal support. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1161 [discussing former Civil Code section 4801.5, precursor to current section 4323].)
In this case, McConnell rebutted the presumption that his needs had decreased as a result of cohabitation. McConnell's monthly mortgage payment of $3,735.38 was larger than the amount anticipated at the time of the judgment, but he reduced his expense by $1,135.38 through cohabitation with Okumura, and as a result, McConnell's share of the mortgage expense was equivalent to the housing expense anticipated by the spousal support award in the judgment of dissolution. The home purchase provided a bedroom for each of his children and a steady, reliable housing expense. McConnell's monthly payment of $2,600 was the same amount that he had budgeted to rent a home. McConnell's payment of a greater share of the mortgage payment than Okumura was rationally based on the number of bedrooms that he required for his children. The higher payments were also not a gift to Okumura, because he received credit for the excess against the amount of the down-payment that Okumura had covered. The family law court credited the testimony of McConnell and Okumura that each paid his or her share of groceries, utilities, and similar monthly expenses. Their agreement provided for a reasonable apportionment of these expenses based on the proportion of food and utilities that their respective family units consumed. As a result, McConnell's expenses were essentially identical to his needs at the time of trial. The family law court concluded the cohabitation agreement was a reasonable division of expenses and not simply designed to provide an appearance of continuing need. McConnell therefore rebutted the presumption by showing that his need for spousal support had not decreased as a result of cohabitation and that he had not suppressed a meaningful contribution by his cohabitant in order to maintain the appearance of need.
Belousoff's contention that the agreement between the cohabitants is unfair to her as the supporting spouse as a matter of law lacks any merit. Belousoff contends she is effectively paying for McConnell to subsidize Okumura's share of their new home, because Okumura is paying roughly the same monthly amount as she did for her one-bedroom apartment before living with McConnell. The contention wholly ignores that Okumura occupies the new residence as an owner who put down a significant downpayment to purchase the home, not as a renter. Further, Belousoff makes no persuasive case that McConnell is overpaying for his share of the residence to create the appearance of a need for support. The findings in the dissolution judgment, and the evidence in the trial record, support that McConnell would have a housing expense of this amount to meet his needs, personally and as a custodial parent. The determination of whether to modify spousal support in this case was within the discretion of the family law court. We do not simply reweigh the evidence on appeal, and no abuse of discretion has been shown.
DISPOSITION
The August 5, 2020 order is affirmed. Respondent Monte McConnell is awarded his costs on appeal.
We concur: RUBIN, P. J., KIM, J.