Opinion
C074446
06-06-2018
In re the Marriage of ELLEN and KIRK BROWN. ELLEN BROWN, Appellant, v. KIRK BROWN, Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FL336551)
Ellen and Kirk Brown separated after a 20-year marriage. Pursuant to the agreement of the parties, Kirk paid spousal support to Ellen in the amount of $3,000 per month. Nine years later, the trial court reduced Kirk's spousal support obligation to zero and discontinued his obligation to pay for Ellen's health insurance, after finding a change of circumstances as to both parties' incomes.
Ellen's appeal asserts numerous and somewhat repetitive claims, but her arguments largely fall into two categories. She argues the stipulated judgment the parties entered into in 2006 was intended to provide that spousal support was not modifiable, even though the stipulated judgment did not specifically so provide. She also asserts that there was not sufficient evidence to support the trial court's finding that there was a change of circumstances justifying modification of spousal support, because Kirk was not making less money.
We conclude the spousal support agreement was modifiable, and there was substantial evidence to support the trial court's finding of changed circumstances. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Browns had a 20-year marriage from 1984 to 2004. The couple had three minor children at the time of separation. Ellen was a stay-at-home mother, and Kirk earned over $17,000 per month as a technical manager with Sun Microsystems. The parties agreed to a stipulated order, by which Kirk would pay Helen $5,400 per month for temporary child support and $3,000 per month for temporary spousal support.
In 2006, Kirk applied for a modification of his support obligations because Ellen had obtained a job. The parties eventually entered into a stipulated judgment regarding support. Kirk would pay monthly child support in the amount of $1,750 per child for the two remaining minor children until they reached the age of majority. As to spousal support, the judgment provided: "[Kirk] shall pay to [Ellen] as and for spousal support the sum of $3,000 per month and payable until the death of either party, the remarriage of [Ellen], cohabitation of [Ellen], involuntary loss of employment by [Ellen], or upon the change of circumstances articulated herein, or further order of the Court." No other "change of circumstances" was "articulated" in the judgment. The judgment provided that any bonuses Kirk received would be his sole and separate property. The income and expense declaration Kirk filed in 2006 indicated his monthly gross income as technical director with Sun Microsystems was $15,725.
In March 2010 Kirk applied for a modification of child and spousal support because he lost his job with Sun Microsystems. Kirk informed the court in April of 2010 that he no longer needed to modify support because he had received a severance package from his former employer. Two months later, in June 2010, Ellen filed an application for modification of support payments because she lost her job. Ellen had been earning $6,944 per month. At that point one minor child remained at home. Ellen requested that child support be increased from $1,750 to $3,000, and requested spousal support be increased from $3,000 to $5,000. Kirk filed a responsive declaration in July stating that he had been terminated from his prior job but had been paid one and one-half years of salary. Then, in October 2010, Kirk obtained a new job which paid less that his prior job, and for that reason he requested a modification of child support from $1,750 to $500 per month and requested spousal support be terminated. His new job provided a base salary of $7,000 per month, plus commissions, with an opportunity for bonuses.
In January 2011 Ellen obtained a temporary job earning $1,600 per month. In June 2011, the parties reached a stipulation. They agreed spousal support would continue in the amount of $3,000 per month. By this time the youngest child had reached her majority, thus Kirk's child support obligations had terminated. The parties otherwise agreed to incorporate the 2006 order.
In 2012 Kirk again applied for a modification of spousal support because he lost his job. Kirk asked that the spousal support payments be terminated or substantially reduced. Kirk declared he had filed a petition in bankruptcy, and was receiving unemployment benefits in the amount of $1,950 per month. The court suspended spousal support without prejudice in December 2012, and continued the matter to February 2013.
Kirk began a new job in January 2013, which paid $10,833 per month. The job offered the possibility of a $60,000 bonus if he reached 100 percent of his quota. Ellen's income and expense declaration filed in advance of the hearing indicated she earned $6,250 per month. On May 16, 2013, the court ordered spousal support be reduced to zero, and that Ellen be responsible for the costs of her own health insurance. Ellen has appealed from this order.
Ellen's request for judicial notice of the United States Department of Labor, Bureau of Labor Statistics' occupational employment statistics for the years 2010 through 2013 is denied.
Ellen filed a motion for new trial. After hearing, the court denied the motion. Ellen has also appealed from this order.
DISCUSSION
I
Spousal Support was Modifiable
Ellen argues the parties intended that spousal support would be unmodifiable, unless Ellen's earnings decreased, in which case spousal support would be modifiable upward. Ellen argues she should have been allowed to present extrinsic evidence of the parties' intentions. She claims (without any support in the record) that when her attorney signed the stipulated judgment in 2006 she did so on condition the judgment would be corrected to indicate spousal support would be without modification, and that the failure to include that provision went unnoticed for four years.
Family Code section 3651, subdivision (a), which applies to modifying or terminating support orders whether or not they are based upon agreement, provides in pertinent part: "Except as provided in subdivision[] . . . (d) . . . a support order may be modified or terminated at any time as the court determines to be necessary." Subdivision (d) states: "An order for spousal support may not be modified or terminated to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination." "Thus, under express terms of section 3651, all support orders, even those based upon the agreement of the parties, are modifiable prospectively except spousal support orders that the parties have agreed may not be modified." (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 727, italics omitted.)
Further statutory references to sections of an undesignated code are to the Family Code.
There is no indication from the language of the parties' stipulated judgment that spousal support could not be modified. The 2006 stipulated judgment contained the following provision regarding spousal support: "[Kirk] shall pay to [Ellen] as and for spousal support the sum of $3,000 per month and payable until the death of either party, the remarriage of [Ellen], cohabitation of [Ellen], involuntary loss of employment by [Ellen], or upon the change of circumstances articulated herein, or further order of the Court." Clearly the parties agreed spousal support would be modifiable under the circumstances set forth in the agreement.
Ellen claims that the parties' intent was that neither her increase in income, nor Kirk's decrease in income would be grounds to modify spousal support, and that under the legal principles applicable to contracts generally, the trial court should have allowed extrinsic evidence to establish the intent of the parties. Kirk argues that pursuant to In re Marriage of Wright (1976) 54 Cal.App.3d 1115, 1121, extrinsic evidence of intent is inadmissible where the parties rely on an agreement that is incorporated in an interlocutory judgment of dissolution, and the agreement does not specifically state that it is not modifiable.
We conclude extrinsic evidence that the parties intended spousal support to be nonmodifiable was not admissible. " 'An MSA [marital settlement agreement] is governed by the legal principles applicable to contracts generally. [Citation.] "Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs [its] interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.]" [Citation.]' [Citation.]" (In re Marriage of Davis (2004) 120 Cal.App.4th 1007, 1018.) In this case, the law requires that an agreement regarding spousal support specifically state that it is nonmodifiable. (§ 3651.) There is no language in the stipulated judgment that is susceptible to the interpretation that spousal support was nonmodifiable. The parol evidence rule " 'generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument.' [Citation.] The rule does not, however, prohibit the introduction of extrinsic evidence 'to explain the meaning of a written contract . . . [if] the meaning urged is one to which the written contract terms are reasonably susceptible.' [Citation.]" (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343.) Because the stipulated judgment specifically provided that spousal support could be modified upon changed circumstances or by further order of the court, the stipulated judgment is not reasonably susceptible to an interpretation that it could not be modified. Accordingly, no parol evidence could be introduced to show that the parties intended that spousal support be nonmodifiable.
II
Substantial Evidence of Changed Circumstances
A spousal support order is modifiable only upon a material change of circumstances. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) "Change 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 trial court found there had been a change of circumstance as to both parties' incomes. Ellen's claim with respect to her increased income is not that it does not constitute changed circumstances, but that pursuant to the parties' agreement, spousal support was not modifiable. We rejected that claim in part I of the opinion. We thus turn to her claims that there was not substantial evidence to support Kirk's loss of income.
Section 4320 sets forth a number of factors a trial court must consider in making an order for spousal support. One of the factors includes an examination of the supporting party's earning capacity. (§ 4320, subd. (c).) As an initial matter, Ellen claims the trial court erred when it granted Kirk relief from his spousal support obligations at the December 19, 2012, hearing without requiring him to establish his inability to earn more money. That hearing resulted in an interim order on the same date, from which Ellen has not appealed. We turn instead to whether there were sufficient facts to support the court's May 16, 2013, order from which Ellen has appealed.
The factors to be considered pursuant to section 4320 are: (1) the extent the earning capacity of the parties is sufficient to maintain the living standard during marriage; (2) the extent to which the supported party contributed to the attainment of an education or career position for the supporting party; (3) the ability to pay spousal support; (4) the needs of the parties based on the marital standard of living; (5) the obligations and assets of each party; (6) the duration of the marriage; (7) the ability of the supported party to work; (8) the age and health of the parties; (9) any evidence of domestic violence; (10) the tax consequences to each party; (11) the balance of hardships; (12) the goal of the supported party becoming self-supporting; (13) any criminal conviction; (14) any other factors the court determines to be just and equitable.
Ellen argues that when Kirk made an application to decrease spousal support because of his decreased earnings, not only did he have the burden of establishing his lower earnings, but he also had the burden of establishing he had neither the ability nor opportunity to earn more. Ellen argues Kirk "held back" facts about his job seeking efforts and about turning down higher paying jobs. We review the trial court's decision for substantial evidence, regardless of the burden of proof in the trial court. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 682.) There was no evidence in the record that Kirk turned down higher pay or failed to look for jobs, thus there was no evidence for the trial court to consider.
Kirk began working for his new company (Net IQ) on January 2, 2013. His employment agreement provided he would earn a base compensation of $10,833 per month. The agreement further provided: "Your targeted annualized incentive opportunity, at 100% quota attainment, is $60,000. Targeted annual total cash compensation at 100% of plan is $190,000." Ellen argues the trial court should have found Kirk's annual earnings to be $190,000. The court issued its order on May 16, 2013. Thus, the trial court had no history to consult in determining whether Kirk would earn his bonuses. A trial court properly refuses to base support on future bonuses where they are discretionary and it is speculative whether they will ever materialize. (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 41-42; In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1387.)
The court has discretion to determine the prospective earnings of the parties. (In re Marriage of Mosley, supra, 165 Cal.App.4th at p. 1385.) " 'Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court's exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.] " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . .' " [Citations.]' [Citation.]" (Id. at p. 1386.)
A support order must be based on the facts existing at the time it is made. (In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 592.) Since Kirk had just been hired at a new job and had no history of earning incentive pay with his new company, the court did not abuse its discretion in determining his compensation without consideration of bonus pay.
Kirk's request for judicial notice of two certified copies of documents in the superior court's file in this case in support of his motion to strike portions of the appellant's appendix and opening brief is granted. Kirk's motion to strike portions of appellant's appendix on the grounds the documents were either not filed with the trial court until after trial, or not filed with the trial court at all, is granted. His motion to strike portions of appellant's opening brief (AOB) relying on said documents is granted in part as follows: (1) AOB page 1, last sentence beginning with the word "Despite" and ending on page 2 with the word "support" plus the record reference; (2) AOB page 6, "when Kirk's attorney drafted, re-drafted and finalized it. (AA, 30-50.)" in the last paragraph; (3) AOB page 11, the sentence in the first paragraph beginning with the words "The order" and ending with "judgment" plus the record reference; (4) AOB page 12, the "AA" reference at the end of the first partial paragraph, and the phrase "which the parties had estimated to be an additional $2,000 monthly value. (AA, 254-255)" in the first full paragraph, and the sentence beginning "Ellen made" and ending "mom" plus the record reference, and the sentence in the last paragraph beginning with "The parties" and ending on page 13 with "support" plus the record reference; (5) AOB page 13 the first sentence of the first full paragraph; (6) AOB page 14, the phrase "and 'without modification' in draft #2, 47:22.)" at the end of the first paragraph; (7) AOB page 15, the first sentence of the last (partial) paragraph plus the record reference; (8) AOB page 16, the (partial) sentence, "This was corroborated at the time by Kirk's I & E, dated July 2010, (AA 98);" in the first full paragraph; (9) AOB page 21, last partial sentence beginning with "This Kirk" and ending on page 22, plus the record reference; (10) AOB page 24, the first two sentences of the second paragraph, plus the record references to pages 254 and 37, and the record reference to pages 254 and 255 in the next paragraph; (11) AOB page 35, the sentence "In fact, we know in Kirk's first year he received $47,000 of his $60,000 incentive pay." plus the record reference; (12) AOB page 37, the phrase at the end of the second paragraph beginning with "and he still managed" and ending with "unemployment." (13) the chart at AOB page 39.
The settled statement on appeal provided in pertinent part: "[Kirk] stated that the March 2, 2006 order had been based on his making $15,715 per month. Although he had lost that job, he had received a severance package in February 2010. He claimed support was then based on his severance package, which he claimed was 'no longer relevant.' " Kirk's evidence at the time of the hearing indicated his base compensation was $130,000 per year ($10,833 per month), plus a "targeted annualized incentive opportunity, at 100% quota attainment, [of] $60,000."
Ellen argues the trial court erred in finding Kirk's earnings were one-third less than they had been at the time of the last order. She argues the trial court based its finding on Kirk's testimony at the February 21, 2013, trial that his support obligation had been based on his severance package. Kirk's testimony is not a part of the record. Kirk did file a declaration on July 6, 2010, in which he stated that his former employer paid him severance pay in the amount of "1.5 years of salary." She claims the issue turns on whether Kirk was competent to testify as to his employer's purpose and intentions in paying Kirk his severance pay. She argues Kirk was not competent to testify unless he had personal knowledge of the matter, and he had no personal knowledge of why his company gave him severance pay, or how the company intended the pay to be broken down.
Ellen's motion to strike portions of the respondent's brief on the ground it raises new issues on appeal is denied. Nevertheless, this court disregards any statement of fact or procedure in the briefing of either party that is not supported by a citation to the record. Ellen's motion to strike the documents in the respondent's appendix is denied.
This argument is nonsensical. Whether or not Kirk knew why he was given severance pay or how his company intended the pay be allocated, he knew how much he was paid and how many months of his prior salary such pay would cover. The court was justified in crediting the severance pay to Kirk's income on a monthly basis.
We reject Ellen's claim that the trial court did not consider all of the section 4320 factors, all of which were expressly set forth in the court's written order. Her claim is belied by the extensive analysis of the section 4320 factors in the May 16, 2013, order. Absent a contrary indication in the record, we assume the trial court followed established law. (People v. Lucas (2014) 60 Cal.4th 153, 331, disapproved on another issue in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
III
Judicial Estoppel and Res Judicata
Ellen argues Kirk is judicially estopped from claiming his prior earnings were based on his severance package, because he stated for purposes of the June 9, 2011, hearing that he earned only $3,000 per month. Presumably, unless the prior order included Kirk's severance pay, there would be no change of circumstances because he would not now be receiving less pay.
Judicial estoppel prevents a party from asserting an inconsistent position from one asserted in the same or an earlier legal proceeding. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The doctrine applies when: "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." (Id. at p. 183.)
The doctrine is inapplicable here. The record does not clearly indicate that Kirk earlier asserted his income should be based only on earnings of $3,000 per month. Certainly, he did not mislead the court or Ellen in this regard. On April 12, 2010, Kirk informed the court that he was withdrawing his motion to modify support because he had been paid a severance from his former employer to cover 1.5 years of salary. Kirk's July 6, 2010, declaration in response to Ellen's motion to modify support filed in June 2010 stated that his former employer had paid him 1.5 years of salary. Kirk's income and expense declaration filed in October of that year indicated his new employer paid him $7,000 per month. Kirk's agreement with his new employer, Talkwheel.com, Inc. (Talkwheel), also indicated he was paid a base salary of $7,000 per month plus commissions and bonuses. Kirk filed another declaration in October 2010 stating that he had received a severance package from his former employer, and that his job with Talkwheel would pay him $3,000 per month. Clearly, this statement was made in error, as both the income and expense declaration and supporting document from Talkwheel showed a salary of $7,000 per month. Thus, the record does not show that Kirk misled the court into believing his income should be based only on the $3,000 per month or on the $7,000 per month he was earning from Talkwheel.
For the same reason, Evidence Code section 623, which provides "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it," is inapplicable. --------
Furthermore, judicial estoppel requires the party be successful in asserting the first position. Ellen claims she agreed to drop her motion to increase support based on Kirk's representation that he earned only $3,000 per month. We would expect a successful claim of that amount of income would have resulted in a reduced support obligation. Instead, the record indicates that the parties agreed and the trial court ordered Kirk to continue to pay spousal support in the same amount he had been paying. It was only later, in December 2012 (and after the severance package would have run out), that the court suspended spousal support.
Ellen also argues the 2006 support judgment was res judicata on the issue of whether an increase in her earnings could support a material change of circumstances. She is wrong. A judgment or order does not operate as res judicata of an issue the court did not determine. (Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 307.) The 2006 stipulated judgment, which Ellen points to as the judgment setting spousal support, did not indicate that an increase in her income was not a ground for modifying spousal support. Instead, it stated that the order of spousal support was "without prejudice" and listed several grounds upon which it could be modified. The 2011 stipulated judgment merely incorporated the 2006 order, continued spousal support, and made no determination that Ellen's increased income was not a ground for modification of spousal support.
IV
Impact of Decreased Child Support on Spousal Support
Ellen claims the trial court committed prejudicial error when it refused to consider the impact of discontinued child support on the parties' finances. She concedes that the court could not consider the decreased child support pursuant to section 4326, which states that a motion to modify spousal support because of the termination of a child support order must be filed no later than six months from the termination of the child support order. Here, the last child support order terminated when the youngest child reached 18, and Kirk's motion to modify spousal support was filed approximately 19 months later. She nevertheless argues the court should have considered the fact that Kirk had $3,500 per month more available to pay spousal support than he did in 2006.
Ellen forfeited this claim by failing to raise it below. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) She claims she raised the issue in her posttrial brief. She did not. Her posttrial brief argued merely that she would be deprived of the benefit of the parties' agreement "while giving [Kirk] the benefit of the lower support of $3,000 from not including his bonuses and commissions in calculating the support [she] was otherwise entitled."
V
The Record Supports the Trial Court's Finding of the Marital Standard of Living Ellen argues the record contains no evidence of the marital standard of living (MSOL) and that the trial court made no specific findings of the MSOL. This is incorrect. The trial court made the following finding: "There is no dispute that Husband was the primary breadwinner during the marriage, earning over $17,000 per month at the time of separation, while Wife was the primary caretaker of the children. . . . Although little evidence was presented at time of trial regarding the marital standard of living, the parties owned a home with a mortgage of over $3,500 per month and several vehicles with car payments of over $1,000 per month. Wife estimated her monthly expenses to be over $9,000 at time of separation -- all of which was paid by Husband's wages. Based on the same, it appears that the parties enjoyed an upper middle class standard of living."
The court's finding regarding the MSOL is supported by evidence in the record that Kirk earned an average of $17,216 per month in the 12 months prior to August 2004, that Ellen was a stay-at-home mother, that the monthly mortgage on the home was $3,574, that the monthly payments on the two vehicles between the parties totaled $1,050, and that Ellen estimated her total monthly expenses to be $9,924.
VI
Evidentiary Issues
Ellen argues there were evidentiary failures, including the failure to move Kirk's income and expense declarations into evidence and the admission of inadmissible hearsay about the parties' needs. Evidence Code section 353 provides that a judgment may not be reversed by reason of the erroneous admission of evidence unless an objection or motion to strike was "timely made and so stated as to make clear the specific ground of the objection." Thus, a party's failure to make a timely and specific objection on the ground raised on appeal makes the issue not cognizable on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) In this case the record contains no indication that a timely and specific objection was made to the evidence of which Ellen now complains. In fact, no transcript of the February 21, 2013, hearing, on which the May 16, 2013, order was based, has been provided to the court. Ellen has forfeited her evidentiary claims.
VII
Suspension of Spousal Support Was Not Abuse of Discretion
Citing In re Marriage of Schmir (2005) 134 Cal.App.4th 43 (Schmir), Ellen argues the trial court abused its discretion when it suspended her spousal support without sufficient notice that she was expected to become self-sufficient. Schmir does not support Ellen's argument. In that case, the wife did not have a job and had not worked for 14 years when the court imputed income to her and terminated support. (Id. at pp. 53-54.) Although the court found no error in the termination of support, it held that under the circumstances "the trial court abused its discretion in terminating Judy's support without affording her a reasonable advance notice and opportunity to secure employment." (Id. at p. 54.) In this case, Ellen has been working since the divorce, and there is no need to afford her an opportunity to secure employment.
Moreover, both the 2006 and 2011 judgments contain a so-called "Gavron Warning" stating that: "It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 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 spousal or partner support." Thus, Ellen had advance warning that "after an appropriate period of time [she] was expected to become self-sufficient or face onerous legal and financial consequences." (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.)
VIII
Substantial Evidence Supports Health Insurance Order
Although the 2004 stipulated judgment provided that Kirk would maintain health insurance for Ellen and the children as long as possible, the 2013 order after hearing provided that Ellen would be responsible for the costs of her own health insurance. Ellen argues there was no substantial evidence to support the court's order terminating Kirk's obligation to pay for Ellen's health insurance. We disagree. The trial court found that, "[a]fter deducting the [adult] children's car and telephone expenses from [Ellen's] expenses [it] leaves the parties with comparable expenses and thus, comparable need." The record supports the trial court's findings.
Ellen testified she paid $450 for telephone, cell phone, and email which included a group cellular plan for herself and her adult children. She testified she paid $465.70 per month in car payments for her adult daughter, who at age 24 was employed as a mechanical engineer. Ellen further testified she made car payments of $341 per month for her adult son, and paid his car and health insurance as well. The trial court concluded that Ellen's expenses incurred on behalf of her adult children were not the intended purpose of spousal support, and that Kirk should not be responsible for them. The court further concluded that the combination of the children's car and telephone expenses left the parties with comparable expenses.
The trial court's findings are supported by the record. Accordingly, the trial court did not abuse its discretion in terminating Kirk's obligation to pay for Ellen's health insurance. (Schmir, supra, 134 Cal.App.4th at p. 47.)
IX
No Request to Reopen Evidence
Ellen argues the trial court erred in denying her request to reopen evidence. She cites two documents in the record, her posttrial brief and her attorney's declaration, which supposedly contain the request to reopen evidence. These documents contain no motion to reopen evidence. Ellen cites to no authority supporting her argument that the trial court erred in failing to reopen evidence after the trial. Her argument is not well taken.
X
Motion to Vacate and for New Trial
Ellen argues the trial court erred in denying her motion to vacate and for a new trial for three reasons. First, she argues there was no evidence to support Kirk's income being one-third less. We addressed this claim in section I, ante. Second, Ellen claims the trial court did not address the points she raised in her "Chart of Authorities," which was attached to her memorandum of points and authorities in support of her motion to vacate the judgment or for new trial. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We presume that the trial court considered and rejected the arguments made and information presented in Ellen's "Chart of Authorities." Finally, Ellen argues she relied on Schmir, supra, 134 Cal.App.4th at page 48 for the proposition that she was entitled to warning before any reduction in her spousal support. As stated in section VII, ante, the case does not support Ellen's argument.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.