Opinion
F074166
06-19-2018
In re the Marriage of WILLIAM and CONNIE HARTMAN. WILLIAM HARTMAN, Respondent, v. CONNIE HARTMAN, Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Alexander N. Newsum for Appellant. Stringham and Stringham and Zachary W. Stringham 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VFL212083)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Antonio A. Reyes, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Alexander N. Newsum for Appellant. Stringham and Stringham and Zachary W. Stringham for Respondent.
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In this family law case, appellant Connie Hartman (Connie) appeals from the trial court's order reducing the amount of spousal support payable to her each month by her former husband, respondent William Hartman (William), from $3,700 to $3,500. Connie contends the trial court abused its discretion in modifying the support order because (i) William failed to show a material change of circumstances, and (ii) the trial court failed to consider all of the factors set forth in Family Code section 4320. We agree with both contentions and, therefore, reverse the trial court's order.
We refer to the parties by their first names for convenience and ease of expression; no disrespect is intended.
FACTS AND PROCEDURAL BACKGROUND
Original Spousal Support
William and Connie were married on August 21, 1983, and separated on December 1, 2003. William commenced dissolution proceedings in 2004. On July 6, 2005, the trial court entered a judgment of marital dissolution. At that time, there were no minor children of the marriage. The parties entered a marital settlement agreement, which became the order of the court. According to the terms of the marital settlement agreement, William was to pay Connie $5,300 per month for spousal support starting on April 1, 2005. The spousal support was based on the fact that Connie's salary from the couple's Tulare County business enterprise, Sierra Dairy Lab, was to terminate upon tender of an equalization payment to her made by William. At that point, she would have "zero wage income." Connie acknowledged in the marital settlement agreement that she had a responsibility to seek and maintain gainful employment with the goal of becoming self-supporting. As a result of the division of the community property set forth in the marital settlement agreement, William became sole owner of Sierra Dairy Lab and Connie received an equalization payment of $433,349 from William. Connie was also granted sole ownership of the parties' home located in Pismo Beach, California.
2014 Spousal Support Support Order
On April 8, 2014, William petitioned for a modification of spousal support. In his supporting declaration, William stated he believed that Connie had become or should have become "self-supporting" based on her employment income and other assets. He noted that Connie had received assets upon division of the parties' community property valued "in excess of $1.5 million." Further, he asserted that Connie was "gainfully employed" and could be earning more if she applied herself more diligently. William conceded that his ability to pay spousal support was not at issue. His business was doing quite well. In his income and expense declaration, he stated that he earned approximately $19,500 in salary the prior month with an average monthly salary of $32,312. Nevertheless, he was requesting a reduction of his spousal support obligation to facilitate his ability to pay off debts and save for retirement.
On May 14, 2014, Connie filed a declaration in response to William's petition to modify spousal support. Connie explained that she and William had built Sierra Dairy Lab into a successful business during their marriage. She had been the business manager of the business, although she did not have a college degree. When the parties divorced, William kept the business, the only substantial income-producing asset. Although the assets she received in the community property distribution were of equal value, they were not income producing, other than accumulating interest or appreciation of stock value. One of the assets she received in the divorce was the parties' vacation home in Pismo Beach, but she had found it to be very expensive to maintain. In late 2005, she refinanced the home and purchased an existing business for $250,000, a Cold Stone Creamery franchise in Arroyo Grande. The business suffered from competition with a local WalMart, and in late 2008 she sold it for $60,000.
Connie's declaration further explained that because her lack of a college degree hindered her ability to obtain employment, she had enrolled in Cuesta College. School was very difficult for her, and she was diagnosed with having a processing deficit. Due to these difficulties, she remained without a college degree. Connie admitted that she had struggled with dependence on alcohol and prescription drugs, both during the parties' marriage and after their divorce. She became clean and sober in 2009, and continued to be actively involved in Alcoholics Anonymous. After selling the Cold Stone Creamery franchise, she was not employed much over the next three years. She stated: "Attempting to go to school, staying clean and sober, and returning to Tulare County frequently to assist my father during the year and a half of my mother's final illness, was as much as I could handle." She also developed an acute hearing loss and had to wear hearing aids. Consequently, she experienced difficulty hearing and understanding conversations in public places where there was ambient noise. This also affected some of her job prospects.
Connie stated that she found employment with California Fresh Brands in November 2012, where she currently worked making fudge, roasting and grinding coffee and stocking shelves. She originally earned $10 per hour, but received a raise to $11 per hour. She did not receive health care coverage through her employer at the time of her declaration, and she had been purchasing her own coverage privately since losing her coverage after the marriage dissolution. She had discussions with her employer about the possibility of taking on more responsibilities and moving toward a management position. She further stated in her declaration that while she was grateful for her employment, she had to supplement her employment income with withdrawals from the retirement accounts that she received in the marriage dissolution.
Finally, Connie's declaration provided her assessment of the Family Code section 4320 factors. Among other things, she pointed out that the parties' standard of living during the marriage was upper class, adding that William had the income to continue a lifestyle in the standard of the marriage, but she did not. She noted her relative lack of marketable skills and that further education was problematic. When the factors of need and the standard of living during marriage were considered, she concluded that she "continue[d] to need spousal support at the existing level to maintain a lifestyle above the poverty level, let alone the standard of the marriage."
Connie also filed an income and expense declaration with the court. According to the income and expense declaration, she was earning $11 per hour at California Fresh Brands Pismo LLC. Her gross wages were $1,525 per month in the month prior to submitting the declaration, with a monthly average of $960 per month. Her only other income sources were spousal support of $5,300 per month, and the amounts she withdrew from her pension/retirement fund. Her medical, hospital, dental and other health insurance premiums were $432.77 per month. She stated she had $1,600 in cash accounts, and that the value of all other real and personal property (calculated as fair market value minus indebtedness) was $888,000. Her total expenses each month were $5,942.
Subsequently, William filed points and authorities in support of his petition to modify spousal support, arguing there was a material change in circumstances; namely, "[Connie's] income has increased from $0 to $1,525 per month as a result of part-time employment ... [and] [i]f working full time she would earn $1,892 per month." On August 26, 2014, the trial court heard testimony from both parties on William's petition to modify spousal support. On September 9, 2014, the trial court heard further argument from counsel on the matter.
On October 20, 2014, the trial court issued its written order granting William's petition for a modification of spousal support. The trial court reduced William's spousal support obligation from $5,300 per month to $3,700 per month. The trial court explained: "The former award of spousal support was made pursuant to stipulation of the parties at $5,300 per month which was presumptively sufficient to meet the respondent's needs.[] The parties further stipulated that respondent had zero income at that time. [¶] Respondent now earns taxable income from employment of $1,600 to $1,800 per month, working an average of 33 hours per week and sometimes as much as 40 hours per week. [¶] Respondent made attempts on her part to increase her income but did not make good decisions. She is currently seeking a better employment position." The trial court also found that Connie "has marketable skills, is able to work full-time and has substantial assets." In its order, the court reminded Connie of her continuing responsibility to use her best efforts to become self-supporting, and to seek and maintain gainful full-time employment.
As will be seen, the trial court appears to have settled upon this $5,300 figure, the amount of monthly spousal support provided in the 2005 marital settlement agreement, as presumptively sufficient to meet Connie's needs in 2014, without any meaningful consideration of the required statutory factors to determine Connie's actual need at that time.
As part of its 2014 order, the trial court reduced spousal support by $1600 per month and directed Connie to notify William if she secured new employment providing monthly income in excess of $1,600. Moreover, the trial court expressly retained jurisdiction to order further reductions in spousal support if and when Connie's employment income exceeded that $1600 threshold. In retaining that jurisdiction, the court proposed to make further "dollar for dollar" reductions in the event that threshold was exceeded, nunc pro tunc to the date of that event, and authorizing William to bring a new motion for modification on the occurrence of that event.
Finally, due to the substantial income disparity between the two parties, the trial court ordered William to pay Connie's attorney fees in the sum of $5,000.
2016 Spousal Support Order
On February 4, 2016, William filed a petition for modification of the 2014 spousal support order. William's 2016 petition asserted that Connie was earning considerably more employment income than she had been at the time of the prior order. That is, instead of earning approximately $1,600 per month, Connie was allegedly now earning $2,129.20 per month. Based on this purported increase in Connie's income, William requested a dollar-for-dollar decrease in his spousal support obligation to the extent Connie's income now exceeded the $1600 threshold previously set by the court.
On March 18, 2016, Connie filed opposition to the petition, including an income and expense declaration. Her income and expense declaration showed that she was paid a monthly average of $1,865 gross income per month for her continued employment at California Fresh Brands. Adding the $3,700 in spousal support each month, her total monthly income reflected on the income and expense declaration was $5,565. She claimed a deduction from income of $163 for monthly health insurance premiums. Finally, Connie's income and expense declaration asserted total monthly expenses of $5,680.
In her separate declaration in opposition to the petition to modify spousal support, Connie asserted that "since the court last addressed this issue, there has been no change of circumstance." She stated that while she had earned on average $1,865 in employment income per month, that amount was based on her attempts to work 40 hours per week, which level of hours may be difficult to maintain. Connie pointed out that although her employer, a grocery store, had been flexible with her in allowing additional hours, the employer considered 36 hours to be full time and could not guarantee more than that. Additionally, Connie noted that her physician had recommended that she not work more than 30 hours per week, due to injuries to her knees and hips. Letters from both her physician and her employer on the above matters were attached as exhibits to Connie's declaration.
Evidentiary objections were apparently made to the letters by William's attorney, but there is no indication in the record that the trial court ever ruled on those objections. The doctor's letter was given brief mention by the trial court during oral argument.
Connie further stated in her declaration as follows: "Currently, I am averaging approximately $1,630.00 net per month from my employment. As indicated in my Income and Expense Declaration, my monthly expenses exceed $5,600.00. I, CONNIE HARTMAN, declare and state that I am in need of the full current Order of Spousal Support in the amount of $3,700.00 per month. Even with the current support, my expenses exceed my income on a monthly basis and I am forced to consistently withdrawal [sic] from my IRA to pay my monthly expenses. This has created an undue hardship in that my limited retirement (approximately $240,000.00 as of the end of January 2016) is rapidly being depleted and will not provide me income into my retirement."
On April 11, 2016, William submitted his income and expense declaration to the trial court. It showed an average monthly gross income of $26,062.50, which he characterized as salary. He also listed average investment income of $20,299 per month. His checking and other deposit accounts contained $58,000, and all other real and personal property totaled $1,250,000 in value.
On April 25, 2016, Connie submitted her 2015 W-2, which showed total employment income in 2015 of $22,383.97, resulting in a monthly average income of $1,865.33.
The hearing on William's 2016 petition to modify spousal support was conducted by the trial court on April 28, 2016. No testimony was introduced at the hearing. Instead, the hearing consisted of extensive argument by the parties' attorneys.
At the hearing, Connie's trial attorney (John Bianco) argued that the trial court could not simply do a dollar-for-dollar reduction, but would have to consider the relevant statutory factors under Family Code section 4320 to determine whether a material change of circumstances occurred. William's attorney argued that there was no need to reconsider section 4320 factors because the trial court had retained jurisdiction to reduce spousal support, even a reduction on a dollar-for-dollar basis, in the event that Connie's monthly income increased over the threshold amount of $1,600.
Unless otherwise indicated, all further statutory references are to the Family Code.
During the course of oral argument, the trial court noted that it had considered the section 4320 factors in 2014 and opined that "I don't think we need to go through those again." The trial court described the sole basis for the modification request as the fact that "Ms. Hartman is earning more than $1,600 per month." Later in the hearing, the trial court acknowledged it still needed to find that Connie's increased earnings amounted to a material change of circumstances, stating: "Previously the Court made a finding that her income was $1,600. We're speaking of approximately $250 difference from 2014. [¶] Now, is that a sufficient amount to show a change of circumstances for the Court to modify the previous spousal support order? That's the issue." However, without giving any express answer to the question it had framed, the trial court proceeded to modify support: "I'm going to reduce support by $200. That will be $3,500 per month."
At that point in the hearing, the following exchange occurred:
MR. BIANCO: "What's the basis your Honor? Is it simply because her income went up $200?
THE COURT: It went up.
MR. BIANCO: The Court is not considering the factors under -
THE COURT: I made my ruling, Mr. Bianco. I considered all of the factors. I considered all of your arguments."
Thereafter, the trial court made the reduction in spousal support retroactive to January 1, 2015. Finally, due to the huge disparity of income, the trial court stated it would award Connie attorney fees in the amount of $4,000.
On May 18, 2016, the trial court issued its written order after hearing. The order was consistent with what the trial court stated from the bench at oral argument. In that written order, the trial court ruled: "Spousal Support payable to [Connie] is reduced to $3,500.00 per month effective January 1, 2015." The order also required William to pay Connie's attorney fees in the amount of $4,000.
On July 15, 2016, Connie timely filed her notice of appeal from the 2016 order reducing spousal support from $3,700 to $3,500. Connie substituted the law firm of McCormick, Barstow, Sheppard, Wayte & Curruth as new counsel of record for her appeal.
DISCUSSION
I. Standard of Review
We review an order modifying spousal support for abuse of discretion. (In re Marriage of Berman (2017) 15 Cal.App.5th 914, 919 (Berman).) "In exercising its discretion, the trial court must follow established legal principles and base its findings on substantial evidence." (Ibid., citing In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 (Schmir).) An abuse of discretion will be found where the trial court modified spousal support without substantial evidence of a material change of circumstances or where the court failed to weigh the required factors set forth in section 4320. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1272-1273 (Shimkus); In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982-983 (McCann).)
The same statutory criteria set forth in section 4320 for determining an initial award of spousal support must be reconsidered and reweighed in determining each subsequent request to modify spousal support. (Berman, supra, 15 Cal.App.5th at p. 920; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 77 (Stephenson).) These criteria include, among other things, the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, the ability of the supporting party to pay spousal support, the needs of each party based on the standard of living established during the marriage, the age and health of the parties, the balance of hardships to the parties, the ability of the supported party to engage in gainful employment, the goal that the supported party shall be self-supporting within a reasonable period of time, and any other factors the court determines are just and equitable. (§ 4320.) As noted, a failure by the trial court to weigh the section 4320 criteria is an abuse of discretion. (Shimkus, supra, 244 Cal.App.4th at p. 1273.)
II. No Material Change of Circumstances
Connie argues that the trial court erroneously modified spousal support in the absence of a material change of circumstances. We agree.
Spousal support may only be modified if there has been a material change of circumstances since the last support order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 (Tydlaska); McCann, supra, 41 Cal.App.4th at p. 982.) The party seeking the modification bears the burden of establishing a material change. (Berman, supra, 15 Cal.App.5th at p. 920.) A change of circumstances means a reduction or increase in the supporting spouse's ability to pay or an increase or decrease in the supported spouse's needs, and it includes all factors affecting need and ability to pay and/or an increase or decrease in the supported spouse's needs. (Shimkus, supra, 244 Cal.App.4th at pp. 1272-1273; In re Marriage of West (2007) 152 Cal.App.4th 240, 246 (West); In re Marriage of Smith (1990) 225 Cal.App.3d 469, 482 [material change of circumstances test "[takes] into consideration both the needs of the supported spouse and the ability of the supporting spouse to meet those needs"].) The trial court should consider section 4320 criteria even in connection with the threshold decision of whether there has been a material change of circumstances. " 'In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in ... Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order.' " (Berman, supra, 15 Cal.App.5th at p. 920; Stephenson, supra, 39 Cal.App.4th at pp. 77-78.) Where there is no substantial evidence of a material change of circumstances, an order modifying a support order will be overturned for abuse of discretion. (West, supra, 152 Cal.App.4th at p. 246.)
Here, in making its assessment of whether a material change of circumstances occurred since the prior support order, the trial court announced that it was relying solely on the slight increase to Connie's average monthly income. At the hearing, the trial court framed the change-of-circumstances issue as follows: "Previously the Court made a finding that her income was $1,600. We're speaking of approximately $250 difference from 2014. [¶] Now, is that a sufficient amount to show a change of circumstances for the Court to modify the previous spousal support order? That's the issue." Of course, the trial court apparently believed that it was sufficient, by itself, to show a material change of circumstances, because it immediately proceeded to rule on the modification portion of the motion.
Connie argues the trial court failed to consider other factors bearing on whether her needs as the supported spouse had materially decreased since the prior order, which was the pivotal issue for purposes of the change-of-circumstances analysis in this case. Connie's point is well-taken. It is established that a " '[c]hange 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. It includes all factors affecting need and the ability to pay.' " (Shimkus, supra, 244 Cal.App.4th at pp. 1272-1273, italics added; West, supra, 152 Cal.App.4th at p. 246.) William's ability to pay support at any level was never in question; thus, the only question was whether Connie's need had decreased to a material degree. By focusing exclusively on the $265 increase in monthly income in isolation, it appears the trial court failed to consider any other factors bearing on whether a material change of circumstances occurred relating to Connie's need for support.
In any event, on the record before us we are unable to conclude that substantial evidence demonstrated a material change of circumstances since the prior order. In the 2014 order, the trial court found that Connie was earning "income from employment of $1,600 to $1,800." By the time of the 2016 hearing, Connie's monthly employment income was only very slightly higher (i.e., $1,865). Moreover, if the trial court had considered other evidence relating to Connie's need - as it was required to do in its change-of-circumstances assessment - it would have been apparent that Connie's monthly expenses had continued to exceed her income (even with spousal support of $3,700) and she still had to prematurely draw money from retirement accounts to pay her regular expenses. (See Schmir, supra, 134 Cal.App.4th at p. 50, fn. 11 [In determining sufficiency of evidence an appellate court views the whole record, not merely isolated bits of evidence].) Thus, it appeared Connie's situation overall had not appreciably changed. On the entire record, then, the extent of any actual change of financial circumstances relating to Connie's need for support between the 2014 support order and the 2016 petition to modify support was at most uncertain and equivocal, and arguably virtually nonexistent. (See In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1480 ["Modification of spousal support based on consideration of the section 4320 factors constitutes error where the evidence does not show a material change of circumstances"]; Tydlaska, supra, 114 Cal.App.4th at pp. 575-576 ["The burden of showing a material change of circumstances necessitates comparing financial information on which the original support order was based with the most recent financial information relevant to a new order"].) We conclude the trial court abused its discretion because there was no adequate showing of a material change of circumstances since the prior order.
III. Failure to Apply Section 4320 Factors
Connie further argues the trial court abused its discretion by failing to consider the section 4320 factors in its spousal support modification analysis, but instead imposing a dollar-for-dollar reduction in support based on a preconceived formula that any income earned by Connie over a $1,600 threshold would automatically reduce support by that same amount. We agree with Connie's argument.
"[A] sustainable exercise of discretion [to modify support] requires that the trial court have considered and applied all relevant factors under section 4320." (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1106; cf., In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 132 [a trial court addressing spousal support must consider and weigh all of the circumstances enumerated in the statute, to the extent they are relevant to the case before it].) In exercising its discretion whether to modify spousal support, the trial court "must consider the required factors set out in section 4320. [Citation.] The court has discretion as to the weight it gives to each factor [citation] ... Failure to weigh the factors is an abuse of discretion." (Shimkus, supra, 244 Cal.App.4th at p. 1273, fn. omitted, italics added.) Because the trial court " ' "may not be arbitrary," ' " and must exercise its discretion " ' "along legal lines," ' " it must " ' "[take] into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities." ' [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error.' " (Id. at p. 1277.)
To reiterate, the mandatory statutory criteria include, among other things, the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, the ability of the supporting party to pay spousal support, the needs of each party based on the standard of living established during the marriage, the age and health of the parties, the balance of hardships to the parties, the ability of the supported party to engage in gainful employment, the goal that the supported party shall be self-supporting within a reasonable period of time, and any other factors the court determines are just and equitable. (§ 4320.)
As noted, in its 2014 support order, the trial court indicated that if Connie's future employment income exceeded the threshold figure of $1,600 per month, William could bring a motion for a reduction in support in which every dollar Connie earned over $1,600 would be available to reduce the spousal support paid to her by William. In assessing whether William had shown a change of circumstances existed, the trial court looked solely at Connie's increased income over the $1,600 threshold. In summarizing the basis for William's 2016 modification petition, the trial court stated: "So the modification request is based on Mr. Hartman's argument or position that Ms. Hartman is earning more than $1,600 per month, basically, is what he's saying." When the trial court was queried about the ground for its ruling to reduce spousal support by $200 each month, the court explained simply that Connie's income "went up." Nothing in the record reveals the trial court's actual consideration of any other section 4320 factors. Thus, the record reflects that the trial court considered and applied only one factor, Connie's slight increase in income, but failed to consider or apply any other section 4320 factors. That was an abuse of discretion.
We note that in some circumstances a trial court may issue what is known as a "step-down" support order that automatically provides for future reductions of support, such as orders based on foreseeable earnings expectations or upon the occurrence of an anticipated event that would substantially increase income or reduce need. (See, 33 Cal. Jur. 3d 2013 Family Law § 1098, pp. 592-593; West, supra, 152 Cal.App.4th at p. 248; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 309-310.) Such orders are not per se objectionable, but must be based on reasonable inferences drawn from the evidence concerning anticipated future events, not on mere hopes or speculative expectations. (West, supra, 152 Cal.App.4th at p. 248; In re Marriage of Rising (1999) 76 Cal.App.4th 472, 477 [there must be evidentiary basis in the record to show supported spouse's needs will decrease in future to justify an automatic step-down].) One reason such orders are not per se objectionable is that the parties would still have an opportunity to seek a modification thereof in court as long as the court retains jurisdiction. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 740 [risk minimized because court retains jurisdiction to modify if expectations prove unjustified].) The 2014 support order does not appear to have been a true step-down order because it was not automatic but contemplated the filing of a subsequent motion, and there was no indication or any evidence that Connie's needs would be expected to decrease in the future. In any event, our review concerns the subsequent motion to modify support filed by William, to which the section 4320 factors would clearly be applicable, not rigid formulas.
It is also apparent that the trial court had adopted a rigid formula, dating back to its 2014 order, to the effect that any employment income earned above the $1,600 threshold would result in a dollar-for-dollar reduction in Connie's support. However, regardless of this pronouncement in the 2014 order, once a subsequent petition to modify support was filed, as occurred here in 2016, the trial court was obligated to reconsider and reapply the criteria set forth in section 4320. That being so, it was improper for the trial court to impose a preconceived formula that bypassed the weighing and applying of the required statutory criteria. A number of appellate decisions have soundly rejected the use by trial courts of mechanical formulas or computer programs in deciding modification motions, where such means operated as a substitute for exercising discretion based on the statutory criteria. (See, e.g., In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1083 [reversal warranted where court plugged numbers into "DissoMaster" and made some sort of "dead-reckoning adjustment," but no indication in the record that the judge considered section 4320 and exercised independent judgment]; In re Marriage of Olson (1993) 14 Cal.App.4th 1, 9 [court may not substitute the use of a computer program for the required consideration and appropriate weighing of the statutory factors]; In re Marriage of Fransen (1983) 142 Cal.App.3d 419, 425 [mechanical application of only a single factor to the exclusion of other factors was abuse of discretion].) Here, while the reduction was not precisely dollar-for-dollar, it was clear from the record that the $200 reduction was based on nothing more than the fact Connie was earning more. When challenged by Connie's counsel at the hearing, the trial court rejoined that it had considered all the factors after all. We conclude the court's rejoinder is belied by its express intention set out in the 2014 order and its statements and actions at the 2016 hearing, all unequivocally demonstrating that its order reducing Connie's support was based solely on the increase in her income above the $1,600 threshold, without any consideration of her needs. Nothing in the record indicates the trial court actually considered any other section 4320 factors.
Apparently built in to the trial court's thinking was a fixed assumption, arrived at without application of section 4320 criteria, that $5,300 total monthly income (i.e., support plus employment income) was per se sufficient.
For all of these reasons, we conclude the trial court abused its discretion by modifying spousal support without weighing and considering the section 4320 statutory criteria.
DISPOSITION
The May 18, 2016 order modifying spousal support is reversed. Connie is awarded her costs on appeal.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------