Opinion
B227970
09-19-2011
In re Marriage of JACOB and ROBYN BERNSTEIN. JACOB BERNSTEIN, Respondent, v. ROBYN BERNSTEIN, Appellant.
Law Office of Robert M. Levy and Robert M. Levy for Appellant. Jacob Bernstein, in pro. per., 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BD399585)
APPEAL from an order of the Superior Court of Los Angeles County, Thomas Trent Lewis, Judge. Affirmed.
Law Office of Robert M. Levy and Robert M. Levy for Appellant.
Jacob Bernstein, in pro. per., for Respondent.
Appellant Robyn Bernstein appeals from a postjudgment order denying her request for modification of spousal support paid by respondent Jacob Bernstein. Robyn contends: 1) the dissolution judgment permitted modification of the spousal support order without showing a "change of circumstances"; 2) the conversion of her disability status from an unknown duration to permanent disability constituted "good cause" to order an extension of spousal support; 3) the trial court's finding that there was no evidence of the marital standard of living was not supported by the evidence or law; and 4) in light of the length of the parties' marriage of nearly 10 years, it was an abuse of discretion to vacate jurisdiction over spousal support after 6 years. We conclude that the termination of the companion child support order by operation of law provided the change of circumstances necessary for reconsideration of the spousal support order. However, we find that the trial court carefully considered the relevant factors under Family Code section 4320 and did not abuse its discretion in denying the request for modification of the spousal support order based on Robyn's failure to demonstrate a need for additional spousal support. Therefore, we affirm.
Because the parties share the same last name, they will be referred to individually by their first names for ease of reference.
All further statutory references are to the Family Code unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
The Dissolution Judgment
The parties have a daughter born in May 1992. They married on September 12, 1993. Robyn and Jacob were both employed at Cri-Help, Inc., during their marriage. Jacob worked as the chief executive officer, and Robyn was the director of marketing. Robyn's salary was close to the amount that Jacob earned. In December 2002, Robyn was unable to continue working due to disability. In 2003, she had surgery to address a bulging or herniated disc that was causing lower back pain. As a result of complications, Robyn suffered permanent nerve damage. The parties separated on September 1, 2003. Jacob filed a petition for dissolution of the marriage on March 23, 2004.
Jacob's income and expense declaration filed on August 27, 2004, stated that he was 57 years old, his salary was $14,433 gross per month, and his total monthly expenses were $5,768.
Robyn's income and expense declaration filed December 20, 2004, stated that she was 42 years old. As the director of marketing for Cri-Help, she had earned approximately $8,600 gross per month. At the time the declaration was filed, she was receiving disability payments of $5,164.
Robyn estimated that her total monthly expenses were $11,064, including a mortgage payment of $2,716, homeowner's insurance of $203, health-care costs not covered by insurance of $1,367, expenses for dining out of $200, utilities of $416, telephone and e-mail of $322, laundry and cleaning of $200, clothing of $300, education expenses of $65 for her daughter, entertainment, gifts, and vacation expenses of $300, auto expenses and transportation of $350, charitable contributions of $800, monthly payments on credit card and medical debts of $2,100, and miscellaneous expenses of $925 for therapy and personal grooming services. She listed no amount for groceries, savings or insurance other than auto, home, or health.
A trial was held before Judge Michael I. Levanas. No reporter's transcript of the trial has been provided in connection with the modification proceedings in the trial court or on appeal. On July 29, 2005, Judge Levanas entered a judgment of dissolution. Pursuant to the parties' stipulation, the court ordered Jacob to pay $1,079 per month in child support and maintain health insurance for the parties' minor child until she reached the age of majority in May 2010. However, in accordance with section 3901, the court ordered child support extended until the minor child completed the 12th grade or attained the age of 19, whichever occurred first. Robyn was allocated the tax exemption for their daughter.
The dissolution judgment noted that the parties' marriage was nearly 10 years. Judge Levanas found Robyn suffered from medical ailments that impaired her daily activities to a degree and for which she was receiving disability payments. Robyn had stated a desire to go back to work and explored the possibility of returning to work with her prior employer. However, Judge Levanas stated, "Whether, and when [Robyn] will be able to return to work is not clear to the Court, as here was no medical evidence presented by either party [regarding] her medical condition and/or prognosis. In light of this, the Court Orders that spousal support, in the amount previously stipulated by the parties ($1,643.00), will terminate after [Jacob] makes 72 consecutive payments to [Robyn or on August 31, 2010], unless, prior to that date, [Robyn files] a motion and shows good cause to modify the amount, or duration of spousal support." The trial court divided and confirmed the parties' debts and assets as well, including a condominium as Jacob's separate property and a home in Stevenson Ranch as Robyn's separate property.
No appeal was taken from the dissolution judgment. Robyn subsequently filed a petition for bankruptcy and was granted a discharge in March 2006.
Request for Modification of Spousal Support
On June 7, 2010, a few days after her daughter's graduation from high school, Robyn filed an order to show cause for modification of the spousal support award. Robyn declared that she is permanently disabled as a result of chronic pain and numbness in her legs. She filed supporting documentation and medical reports from her treating physician and requested permanent spousal support.
Robyn filed an income and expense declaration in support of her request. She was 48 years old. Robyn stated that there had been no prior determination concerning the standard of living during the marriage, but she was not living at the parties' standard of living during the marriage. Supporting documentation showed that she received disability payments from social security and private insurance of $6,037 per month. Her daughter lived with her, did not earn any income, and did not contribute to household expenses. Her 92-year-old grandfather also lived with her and had a monthly income of $490, which he contributed to pay for some of the household expenses. Robyn had a total of $740 in checking or savings accounts. She estimated that the debt on her real property was $255,000 more than the value of the property.
Robyn estimated her total monthly expenses were $9,023, including a mortgage payment of $2,779, property taxes of $429, homeowner's insurance of $415, health-care costs not covered by insurance of $768, groceries of $400, expenses for dining out of $50, utilities of $305, telephone and e-mail costs of $275, laundry and cleaning expenses of $125, clothing expenses of $200, education expenses of $85, entertainment, gifts, and vacation expenses of $200, auto expenses and transportation of $645, insurance expenses (other than auto, home, or health) of $511, savings and investments of $500, charitable contributions of $110, monthly payments on credit card and medical debts of $666, and miscellaneous expenses of $350 for personal grooming and dog-related services.
Jacob filed a responsive declaration opposing modification. He filed an income and expense declaration dated July 27, 2010. He was 63 years old and had remarried. His 51-year-old wife and his 17-year-old stepson lived with him, neither of whom worked or contributed to household expenses. His average monthly salary was $13,333. He had a total of $7,456 in checking and savings accounts. His stated that the fair market value of his real property was equal to or less than the encumbrance on the property.
Jacob estimated that his total monthly expenses were $10,755, which included a mortgage payment of $3,161, property taxes of $450, homeowner's insurance of $300, health-care costs not covered by insurance of $150, groceries of $1,600, expenses for dining out of $300, utilities of $500, telephone and e-mail expenses of $150, laundry and cleaning expenses of $100, clothing expenses of $200, education expenses of $100, entertainment, gifts, and vacation expenses of $350, auto expenses and transportation of $600, insurance expenses other than auto, home, or health of $180, charitable contributions of $500, monthly payments on credit card and medical debts of $950, and miscellaneous expenses of $864. He listed no amount for savings or investment.
On July 30, 2010, Robyn filed a "rebuttal declaration." She stated that the marital standard of living had not been determined as part of the dissolution judgment, but it had been very high. She stated that the parties had a combined annual income of $300,000 during the marriage. They had savings of $100,000 and a home with equity of $400,000. They had a daily housekeeper and went to Canada, Australia, and Hawaii for vacations. Robyn drove a 2001 Volvo in 2004, while Jacob drove a new Cadillac. Their daughter owned a horse and they paid for the maintenance. They ate out three times per week, never used a budget, and bought nice presents for each other.
A hearing was held on August 9, 2010, before Judge Thomas Trent Lewis. Robyn noted that her daughter had recently moved out of the house and her grandfather had passed away. Judge Lewis noted that no change in circumstances had been shown since entry of the dissolution judgment. Robyn argued that the judgment permitted modification of spousal support in the event that Robyn continued to be disabled without requiring a change of circumstances. She also argued that her continuing disability established good cause to modify the amount or duration of spousal support as a matter of law. Jacob argued that the judgment required a change of circumstances, which Robyn had failed to show.
After the parties submitted the case for decision, Judge Lewis made findings as to the factors set forth under section 4320. He noted that the marital standard of living was not an absolute measure of reasonable need, but merely a reference point and a general description of the station in life that the parties achieved prior to the date of separation, against which other statutory factors were to be weighed. However, he found Robyn "really provided the court with no evidence concerning what the marital standard of living was at the time of separation[.]"
Judge Lewis stated that Robyn's income and expense declaration included estimated expenses for three people, two of whom no longer resided with her. He noted that simply dividing Robyn's itemized household expenses of $9,023 into thirds showed that her reasonable needs totaled $3,000 and she had no need for spousal support. However, he conducted a more precise analysis as well.
Judge Lewis found no evidence that Robyn's stated expense of $511 for insurance other than auto, home, or health was for a policy held at the time of separation. There was no evidence from which to determine whether the insurance payments were a reasonable expense consistent with the marital standard of living. He similarly found that there was no evidence of the parties' contributions to savings or charity during the marriage. Therefore, the court could not determine whether Robyn's monthly contributions to savings and investments of $500 or charitable contributions of $110 were reasonable.
The court found Robyn's monthly healthcare expenses of $768 and clothing expenses of $200 were reasonable. However, the monthly telephone, cell phone, and email expense of $275 and the monthly utilities expense of $355 were not reasonable for one person, and the education expense of $85 was an expense of the parties' daughter, not Robyn. The expense of $666 for monthly payments on debts was either duplicative of other expenses listed or had no bearing on Robyn's reasonable living expenses. For example, one of the debts listed was taken out in the name of Robyn's grandfather.
Judge Lewis noted that Robyn was collecting disability payments at the time of the dissolution judgment and at the time of the modification request. The court found Robyn had no earning capacity and there was no need to consider her marketable skills or need for training. The court determined Robyn's income was $6,037 per month, without any tax liability, because Robyn's tax refund had offset the amount withheld from her disability payments for taxes.
Judge Lewis mentioned the factors enumerated in section 4320 on which no evidence had been presented. He noted that in the dissolution judgment, Judge Levanas had not found the parties' marriage to be one of long duration as defined by the Family Code. Judge Lewis acknowledged that the length of the marriage was simply one of many factors to consider. He found Robyn's statements credible that her residential property had a negative net value due to the economy's decline and took into consideration that moving would impose a hardship on Robyn.
Judge Lewis found that the dissolution judgment contained a clear provision for the termination of spousal support, unless extended. The judgment did not provide a "step down" provision for spousal support. Instead, the judgment articulated an expectation that support would continue for a specific period of time, with the expectation that support for a reasonable period of time as articulated by Judge Levanas would be sufficient to meet all the considerations with respect to whether support should continue beyond a fixed date. Judge Levanas did not state in the dissolution judgment any expectation that Robyn would do anything, and there was no evidence that Judge Levanas had any evidence that Robyn would be employable at any date. Robyn's physical condition remained largely the same as it was on the date of the dissolution judgment. Judge Lewis noted that the dissolution judgment did not state the findings upon which the court divested itself of jurisdiction over spousal support.
Judge Lewis concluded that Robyn had failed to meet her burden to show a rational basis upon which to extend spousal support. After deducting expenses that were not supported by the evidence, the court stated Robyn's monthly expenses with three people living in her residence were approximately $7,400. The court concluded Robyn's actual expenses for one person living alone would be lower than the amount reflected in her June 1, 2010 income and expense declaration.
Judge Lewis noted that although it might appear equitable to consider Robyn's difficult and burdensome medical condition, Robyn had failed to meet her burden of proof to support extending spousal support beyond the period stated in the dissolution judgment. She failed to show that her expenses exceeded the amount that she receives from the combined payments of social security and private disability insurance. Therefore, the court denied the request for modification of the spousal support order. The court found Robyn's request for modification had been reasonable and she was not in a position of parity with Jacob. Therefore, the court ordered Jacob to contribute $2,500 to Robyn's attorney fees.
On October 14, 2010, Judge Lewis entered an order denying the request for an extension of spousal support and terminating jurisdiction over spousal support. The order contained the findings of the court, including that the dissolution judgment provided for the termination of spousal support unless extended, the spousal support order had not been based on any evidence or expectation that Robyn would be employed in the future, Robyn failed to provide any evidence concerning the marital standard of living at the time of separation, Jacob had the ability to pay spousal support, and Robyn failed to show a continued need for spousal support.
Robyn filed a timely notice of appeal.
DISCUSSION
Standard of Review
We review the trial court's denial of a request to modify spousal support for an 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." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.)
"'Whether a modification of a spousal support order is warranted depends on 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.' [Citation.] An abuse of discretion occurs 'where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.' [Citation.]" (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) The reviewing court "'must accept as true all evidence tending to establish the correctness of the trial judge's findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn. 5.)
Change of Circumstances
On appeal, Robyn contends that the dissolution judgment did not require her to show a change of circumstances in order to support modification of the spousal support award. We need not address this argument, because section 4326 supplies the change of circumstances necessary for reconsideration of the spousal support order in this case. Section 4326, subdivision (a), provides that except in certain circumstances, "in a proceeding in which a spousal support order exists . . . , if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support." In this case, the child support order terminated by operation of law pursuant to section 3901 as stated in the dissolution judgment. This constituted a sufficient change of circumstance to support Robyn's request for modification of the spousal support order.
Exercise of Discretion
Robyn contends that in denying her request for modification of the spousal support order, Judge Lewis did not properly consider the factors under section 4320 and the totality of the circumstances. For example, Robyn contends the evidence that her disability was permanent constituted good cause for an extension of spousal support and the trial court's finding that there was no evidence of the standard of living at the time of separation was unsupported by the evidence. We find no abuse of discretion in the trial court's order denying modification of spousal support.
In considering a request to modify or terminate a spousal support order, "the court considers the same criteria set forth in section 4320 as it considered when making the initial order . . . . [Citation.]" (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.) These factors include the parties' respective earning capacity, the supporting party's ability to pay spousal support, the parties' respective needs, their ages and health, the duration of the marriage, the supported spouse's ability to engage in gainful employment, the balance of the hardships to the parties, and any other factor the court finds just and equitable. (§ 4320.) Further, in considering these factors, the trial court must keep in mind "[t]he goal that the supported party shall be self-supporting within a reasonable period of time," which, "[e]xcept in the case of a marriage of long duration," is generally "one-half the length of the marriage." (Id., subd. (l).)
We are satisfied that the trial court appropriately considered the factors set forth in the Family Code in light of the admissible evidence offered by both parties. "A reviewing court must start with the presumption that the record contains evidence to support every finding of fact; the burden is on the party attacking a finding of fact for lack of evidentiary support to demonstrate that there is no substantial evidence to support the challenged finding . . . ." (Orange County F/ood Control Dist. v. Sunny Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758.) Robyn has not carried her burden of demonstrating error.
The trial court conducted a detailed analysis and found that Robyn's reasonable monthly expenses are met by her monthly disability income of $6,037, a finding which Robyn has not disputed on appeal. She argues that the trial court erred in stating that there was no evidence presented as to the marital standard of living. However, as to the expenses at issue, there was no evidence of the marital standard of living. For example, there was no evidence of the parties' charitable giving habits during the marriage from which to determine whether Robyn's charitable contributions today are consistent with the contributions that the parties made during the marriage and reasonable in light of the goal to become self-supporting. There was no evidence of the parties' contributions to savings and investments from which to compare Robyn's monthly contributions to savings. Robyn declared that the parties' gross combined income during their marriage was $300,000. However, the evidence showed that she worked throughout the marriage or received disability income, contributing close to half of the parties' income. Her salary prior to her disability was $8,600. Based on common sense and experience, it was reasonable for the trial court to conclude that $6,037 per month with no tax liability is comparable to the salary that Robyn earned during the parties' marriage which was subject to the highest income tax levels.
Neither Judge Levanas nor Judge Lewis found the Bernstein's marriage to have been one of long duration. Jacob made spousal support payments that equaled more than half the length of the marriage. There was no evidence to suggest that Robyn will not receive disability income sufficient to meet her needs for the rest of her life. The trial court did not abuse its discretion in denying Robyn's request for an extension of spousal support payments.
Robyn notes that she did not receive a "Gavron warning." (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.) A Gavron warning "is a fair warning to the supported spouse [that] he or she is expected to become self-supporting." (In re Marriage of Schmir, supra, 134 Cal.App.4th at p. 55.) A Gavron warning is irrelevant in this case, however, because the trial court found Robyn was self-supporting and failed to demonstrate a need for additional spousal support.
Termination of Jurisdiction Over Spousal Support
Robyn relies on section 4336 to argue that the trial court should have retained jurisdiction over the issue of spousal support based on the length of the parties' marriage and Robyn's disability. We disagree with her analysis.
Section 4336 provides that after a marriage of long duration, the court retains jurisdiction over the dissolution proceeding indefinitely, unless the parties have a written agreement to the contrary or a court order terminating spousal support. "For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. . . . Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration." (§ 4336, subd. (b).) "Nothing in this section limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances." (Id., subd. (c).) The trial court must consider the totality of circumstances and weigh the factors set forth in section 4320 before terminating jurisdiction. (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 920.)
Section 4336, subdivision (a), provides in pertinent part: "Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration."
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In this case, neither court found the Bernstein's marriage to be one of long duration. The dissolution judgment terminated jurisdiction and payment of spousal support after 72 months, unless Robyn showed good cause to modify the amount or duration. Robyn did not appeal from the dissolution judgment. In the modification proceedings, Robyn failed to demonstrate a need for spousal support which justified extending payments or jurisdiction over the issue of spousal support. Robyn failed to show that her disability income did not meet her needs. We find no abuse of discretion.
DISPOSITION
The order is affirmed. Respondent Jacob Bernstein is awarded his costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.