Opinion
H044040
11-28-2017
In re the Marriage of DEAN GROVER and CAROLYN GROVER. DEAN GROVER, Appellant, v. CAROLYN GROVER, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. FL-1100104)
Appellant Dean Grover appeals from an order reducing but not eliminating his spousal support obligation to his former wife, respondent Carolyn Grover. Dean contends the trial court abused its discretion when it ordered him to pay $800 per month in spousal support, given evidence that Carolyn's monthly income significantly exceeds his own and that his total obligation for adult child support and spousal support exceed his gross monthly income, such that he will have to invade his retirement account to pay them and to support himself. We agree and shall reverse the order and remand with directions.
For ease of reference, we will refer to the parties by their first names, as does Dean in his appellate brief. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
I. FACTUAL AND PROCEDURAL BACKGROUND
Dean and Carolyn married in 1980 and separated in 2011. They have two adult children, including a daughter who lives with Carolyn. Pursuant to a July 2, 2013 judgment of dissolution, Dean was ordered to pay Carolyn $1,000 per month in adult child support and $1,600 per month in permanent spousal support.
Below, the parties debated whether their adult daughter is capable of living independently given certain psychological and emotional issues. We need not elaborate as Dean does not appeal from the adult child support order.
On May 20, 2016, Dean moved for modification of adult child support and spousal support, seeking to have both obligations eliminated. In support of that motion, Dean declared that he was being laid off from his job as a software engineer at IBM and had not yet found new employment. Dean also submitted an income and expense declaration in which he declared that he was 58 years old; he has no college degree; he lives in Utah with his wife, who earns $2,890 per month, and her two minor children; he has $5,447 in monthly expenses before his support obligations; and he has $376,000 in assets. Dean further declared in support of his motion that his assets consist of a 401k worth $238,000; a personal pension worth $57,000; $73,000 in home equity; and $4,800 in other accounts. At the time of the August 23, 2016 hearing on Dean's motion, he was working part time at Costco for $13 per hour; his monthly gross income was $1,350. Dean testified that he had applied for more than 70 jobs and that the only interview he was offered was with Costco. Dean represented that he continued to apply to at least four jobs each week. He was not optimistic about finding employment comparable to his job at IBM. Dean further testified that he was dipping into his retirement to make ends meet.
Carolyn opposed any change in child or spousal support. She declared in an income and expense declaration that she was 55 years old; she has no college degree; she lives in California with her adult daughter; her income is $5,833 per month; her expenses are $6,314.13 per month, including $700 in charitable donations; and she has $292,500 in assets, including $285,000 in home equity.
At the August 23, 2016 hearing, the court indicated its intent to reduce Dean's child support obligation from $1,000 per month to $800 per month and to reduce his spousal support obligation from $1,600 per month to $800 per month. When Dean noted that the total obligation of $1,600 per month would exceed his monthly gross income, the court agreed and stated that Dean may have to invade his retirement account. The court further indicated its "hop[e]" that Dean would "be able to increase [his] salary," as well as the court's "concern[] about [Carolyn's] ability to sustain a greater . . . decrease than [Dean]." The court declined to enter a seek-work order, finding that Dean was "making a huge effort to obtain alternative employment or new employment or replacement employment."
On September 16, 2016, the court issued findings and order after hearing, in which it ordered adult child support reduced to $800 per month and spousal support reduced to $800 per month. No statement of decision was requested or issued. Dean timely appealed.
II. DISCUSSION
On appeal, Dean challenges only the court's spousal support order; he does not address the adult child support order. Accordingly, we shall confine our discussion to the spousal support order.
A. Legal Principles and Standard of Review
Family Code section 4320 sets forth various circumstances courts must consider in ordering spousal support. " 'A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order.' " (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) The circumstances listed in section 4320 include "[t]he 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"; "[t]he needs of each party based on the standard of living established during the marriage"; and "[a]ny other factors the court determines are just and equitable." (§ 4320, subds. (c), (d), and (n).)
All further statutory references are to the Family Code unless otherwise indicated.
Section 4320 provides, in full: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) 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. [¶] (2) 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. [¶] (b) 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. [¶] (c) 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. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. [¶] (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325. [¶] (n) Any other factors the court determines are just and equitable." --------
"The modification of a spousal support order is reviewed on appeal for 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.) " 'An abuse of discretion occurs when, after calm and careful reflection upon the entire matter, 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 (Reynolds).)
" 'Under the doctrine of 'implied findings,' when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence.' " (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248 (McHugh).)
Carolyn has not filed a respondent's brief. In accordance with rule 8.220, subdivision (a)(2) of the Rules of Court, we will decide the appeal on the record, the opening brief, and any oral argument by the appellant. As the appellant, Dean still bears the affirmative burden to show error. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1077-1078.)
B. The Spousal Support Order Is Not Supported by Substantial Evidence
Dean contends the trial court abused its discretion by failing to weigh the factors set forth in section 4320. He also maintains the trial court erred by ordering him to pay Carolyn $800 per month in spousal support despite evidence that her income far exceeds his own and that such an obligation would require him to invade his retirement savings.
Because Dean failed to request a statement of decision, we presume the court considered the mandatory factors of section 4320. (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 270, fn. 2 ["Generally, the absence of a statement of decision means that we must conclude the lower court made all findings necessary to support its order under any theory argued"].) That is, we imply all the findings necessary to support the order. (McHugh, supra, 231 Cal.App.4th at p. 1248.) Here, those findings include an implied finding regarding Carolyn's needs and an implied finding regarding Dean's ability to pay. At issue is whether those implied findings are supported by substantial evidence.
We may infer that the trial court impliedly found that Carolyn needs monthly spousal support of $800. That finding is not supported by substantial evidence. Carolyn makes $5,833 a month, which is $481.13 less than her monthly expenses of $6,314.13. But when her $700 in monthly charitable contributions are excluded from her expenses, there is no shortfall. The foregoing evidence does not support a finding of need for $800 in monthly spousal support.
The implied finding of Dean's ability to pay $800 per month in spousal support likewise lacks substantial evidentiary support. Together, Dean and his wife make $4,240 per month. Their expenses, including the $800 in monthly adult child support the court ordered, are $6,247, or $2,007 more than their gross monthly income.
The court explained that its ruling was based, in part, on its hope that Dean would earn more in the future. We understand the court's statement to mean it imputed a higher income to Dean based on his earning capacity, rather than basing its order on his actual income. "The 'capacity to earn standard' may only be applied where there is evidence of the ability, opportunity, and willingness to work." (Reynolds, supra, 63 Cal.App.4th at p. 1378.) Opportunity to earn a particular income cannot be demonstrated by " 'evidence establishing merely that a spouse continues to possess[] the skills and qualifications that had made it possible to earn certain salary in the past . . . .' " (Mendoza v. Ramos (2010) 182 Cal.App.4th 680, 685-686.) Dean testified to his ability and willingness to work, but he also testified that he has not found any other work opportunities despite continued efforts to do so. Because there is no evidence that Dean has the opportunity to earn more money, substantial evidence does not support the court's finding that Dean has the capacity to earn more than his current income. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928 ["Use of the earning capacity standard is inappropriate where a party lacks either the ability or the opportunity to work"].)
The court found that Dean was "making a huge effort" to find more lucrative employment. Accordingly, this is not a case in which using the earning capacity standard was appropriate because of an intentional attempt by the supporting spouse to "shirk[ his] family obligations." (In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1373.)
The court also noted that Dean may have to invade his retirement account to meet his support obligations. Courts have held that "ordering a payor of spousal support to withdraw funds from his or her retirement plan prior to age 59 ½ and incur" taxes and early withdrawal penalties would be justified only in "extreme circumstances." (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 13; see Reynolds, supra, 63 Cal.App.4th at p. 1380 ["Only investment income, not investment principal, should be available to pay spousal support [citation], especially in this case where the subject retirement assets represent Husband's residual share of the community property awarded to him as part of the dissolution"].) Substantial evidence does not support the implied finding that the circumstances of this case justify requiring Dean to invade his retirement account to pay spousal support to Carolyn, who makes significantly more than he does and whose expenses (excluding charitable contributions) do not exceed her income.
III. DISPOSITION
The order modifying spousal support is reversed and the matter is remanded to the trial court with directions to enter a new order after considering and applying all the section 4320 factors. In the interests of justice, the parties will bear their own costs on appeal.
/s/_________
ELIA, ACTING P. J.
WE CONCUR:
/s/_________
BAMATTRE-MANOUKIAN, J.
/s/_________
MIHARA, J.