Opinion
F071544
01-18-2017
In re the Marriage of MYRON A. and VALERIE V. DICKERSON. MYRON A. DICKERSON, Respondent, v. VALERIE V. DICKERSON, Appellant.
Valerie V. Dickerson, in pro. per., for Appellant. Brian H. Fray 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CEFL03420)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Francine Zepeda, Judge. Valerie V. Dickerson, in pro. per., for Appellant. Brian H. Fray for Respondent.
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INTRODUCTION
Appellant Valerie V. Dickerson appeals the trial court's award of permanent spousal support in the amount of $400 for the duration of four years, and the court's immediate termination of its jurisdiction over spousal support. She contends the amount and duration of spousal support awarded to her is insufficient to meet her basic financial needs and was an abuse of the trial court's discretion. She further contends the trial court erred in immediately terminating its jurisdiction to modify or extend spousal support. We agree the record supports both claims and will therefore reverse the judgment and remand this matter back to the trial court.
FACTUAL AND PROCEDURAL HISTORY
In July 1991, Valerie and respondent Myron A. Dickerson were married. During the marriage, Valerie devoted her time principally to maintaining the home and raising the couple's four children, all of whom are now young adults. Myron worked outside of the home for BNSF Railway, eventually promoting to the position of a "RoadMaster." Valerie and Myron separated in February 2009.
Because the parties previously shared the same last name, we refer to them by their first names throughout this opinion. No disrespect is intended.
On April 9, 2014, following a request by Valerie for child support and spousal support, the trial court awarded her temporary spousal support in the amount of $1,000 per month. The court reserved jurisdiction over the issue of permanent spousal support and the division of retirement accounts and personal loans. The court also issued a "Gavron warning" to Valerie pursuant to In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron) advising her to undertake reasonable efforts to become self-supporting.
On December 22, 2014, the court held a contested hearing on the issues of spousal support, the division of property, attorney fees and costs, the division of retirement accounts, and the allocation of community debt. There is no reporter's transcript or settled statement from this hearing.
At oral argument, Valerie explained that only she and Myron testified at the contested hearing.
At the time of the dissolution proceedings, Valerie was 39 years old, in good physical health, had obtained a bachelor of science degree in business administration, and was working toward a career in education. She was employed as an office assistant, earning $1,368 per month from minimum wages. In her financial declaration, Valerie claimed expenses in the amount of $3,868 per month, $500 of which are paid by others. Myron earned $6,250 per month as a RoadMaster, and his claimed expenses totaled $5,560 per month.
In a written March 17, 2015, ruling after hearing, the court awarded permanent spousal support to Valerie in the amount of $400 per month, beginning May 1, 2015, and continuing until April 30, 2019. The court stated its jurisdiction would terminate over spousal support "upon the filing of the judgment here." Judgment was entered in this matter on March 17, 2015. The community debt of $9,699 was apportioned equally between the parties, as was the parties' personal property, with the exception of a slight offset in favor of Myron in the amount of $988. The parties were ordered to bear their own attorney's fees and costs. With respect to the retirement accounts, the court ordered the parties to hire an attorney to ascertain the amounts to be awarded to each party. As a result, the court retained jurisdiction over the property matters.
ANALYSIS
I. Voluntary Dismissal
Valerie contends the amount and duration of the spousal support awarded, as well as the trial court's termination of its jurisdiction over spousal support, was an abuse of discretion. Myron asserts this court is entitled to dismiss Valerie's appeal because there is no reporter's transcript available and there are defects in Valerie's appellate brief. We conclude the record is sufficient for purposes of appellate review. We further conclude the alleged defects in Valerie's appellate brief do not necessitate dismissal of her appeal.
Ordinarily, an appellant must provide a reporter's transcript so the appellate court has an adequate record for meaningful review of the errors complained of on appeal. Here, however, the clerk's transcript was provided and this record is suitable for purposes of our review. The clerk's transcript contains the trial court's ruling after hearing, the parties' financial declarations, and evidence supporting the declarations. Although the record does not show either of the parties requested a statement of decision, the trial court's ruling explains the factual and legal basis for its decision to award Valerie spousal support, which is similar to a statement of decision. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590; A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1282 ["'If a statement of decision is given, it provides us with the trial court's reasoning on disputed issues and "is our touchstone to determine whether or not the trial court's decision is supported by the facts and the law"'"].)
Generally, the judgment of the trial court is presumed to be correct, and the party challenging the judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Although a record on appeal may be incomplete, such as the record before us, that does not mean it is inadequate for purposes of appellate review. Rule 8.163 of the California Rules of Court provides: "The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter's transcript, this presumption applies only if the claimed error appears on the face of the record." The consequence of this rule is that if the record on appeal does not show error on its face, the Court of Appeal will presume, in the absence of a reporter's transcript, that the trial court did not err. (Dumas v. Stark (1961) 56 Cal.2d 673, 674.)
Here, because the manner in which the trial court erred is readily apparent on the face of the record provided, the presumption of correctness does not apply. With respect to the amount and duration of spousal support awarded, the error lies not in the quantum of evidence supporting the trial court's determinations or the statutory authority relied upon by the court in reaching its decision. The issue is whether, in light of the evidence in the record, as well as the findings of fact and statutory authority relied upon by the trial court in its ruling after hearing, the amount and duration of support awarded are so illogical, "'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.'" (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.) Here, the reporter's transcript is unnecessary to show error because error is apparent upon the record before us.
As to the trial court's termination of its jurisdiction over spousal support, the error committed by the court is also apparent from the trial court's ruling after hearing. The trial court made a finding that the Dickersons' marriage "was a long term marriage of eighteen years." Without any explanation, the court "terminate[d] its jurisdiction over spousal support upon the filing of the judgment." As we explain in part III, post, this was error as a matter of law.
Because the errors Valerie complains of on appeal are apparent from the record as presented, the reporter's transcript is not necessary for this court to analyze the issues she raises. Further, while Valerie's opening brief lacks citation to legal authority, this did not preclude Myron from receiving notice of and addressing her arguments, nor did it prevent this court from ascertaining the nature of her arguments. We decline to dismiss her appeal.
II. The Amount and Duration of the Spousal Support Awarded Was an Abuse of Discretion
Valerie asserts the trial court abused its discretion in awarding her only $400 in spousal support for four years. We agree that the trial court abused its discretion as to the amount and duration of spousal support awarded.
In ordering permanent spousal support, the trial court must consider and weigh all relevant factors under Family Code section 4320. Under section 4320, the marital standard of living "'is relevant as a reference point against which the other statutory factors [of section 4320] are to be weighed.'" (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1585.) Other relevant statutory factors include: 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 (§ 4320, subd. (b)); the supporting spouse's ability to pay (id., subd. (c)); the needs of each party, based on the marital standard of living (id., subds. (a), (d)); the obligations and assets of each party (id., subd. (e)); the duration of the marriage (id., subd. (f)); the ability of the supported spouse to engage in gainful employment (id., subd. (g)); the age and health of the parties (id., subd. (h)); documented evidence of any history of domestic violence (id., subd. (i)); the immediate and specific tax consequences to each party (id., subd. (j)); the balance of hardships to the parties (id., subd. (k)); the goal that the supported party be self-supporting within a reasonable period of time (id., subd. (l)); and any other factors the court deems just and equitable (id., subd. (n)).
All undefined statutory references are to the Family Code unless otherwise stated.
The trial court has discretion to determine the appropriate weight to give to each factor. (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) As long as the trial court considers and weighs the statutory factors, "'the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.'" (In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.) An abuse of discretion is shown "'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.'" (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480; see In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 829.)
In reaching its decision to award Valerie $400 per month in permanent spousal support, the court weighed the relevant statutory factors of section 4320, explaining:
"This was a long term marriage of eighteen years. During the marriage, [Myron] was employed by the railroad and [Valerie] worked in the home, assuming responsibility for the care of the four minor children. The parties had a middle class marital standard of living. They owned a home, each had a vehicle and were occasionally able to take vacations as a family. The parties cared for the needs of the four minor children on [Myron]'s income. There are no minor children of the marriage at this time. [Valerie] contributed to [Myron]'s career advancement at BNSF as he was able to be gone for long periods of time while she cared for their family.
"[Valerie] did not work outside the home at a career for the majority of the marriage. Since separation, [Valerie] has received an associate's degree and a bachelor of science in business. She recently entered the work force in a minimum wage position. She has no separate property assets. [Valerie] is minimally self-supporting and has a need for permanent spousal support to assist her in maintaining the marital standard of living. [Myron] has the ability to pay spousal support. The Court will order spousal support in the amount of $400 for a period of four years to commence on May 1, 2015, and continuing until April 30, 2019. The Court will terminate its jurisdiction over spousal support upon the filing of the judgment here."
As can be seen, while the court weighed many of the section 4320 factors in Valerie's favor, it nonetheless concluded an award of $400 per month for a period of four years was appropriate. There is no explanation in the trial court's ruling as to how the facts, as determined by the court, support the minimal amount and duration of spousal support awarded. From the parties' financial declarations and other evidence supplied in the record, the court's ruling raises some question as to whether it in fact weighed or gave due consideration to all of the section 4320 factors it discussed, or whether the court merely paid these factors lip service.
The trial court initially noted the marital standard of living during the parties' marriage was commensurate with a middle-class lifestyle. According to the sworn income and expense declarations by the parties, Myron makes approximately $6,250 per month working at BNSF Railway, a job he has been working at since 1993. During the parties' 18-year marriage, Valerie assumed all homemaking responsibilities, including the maintenance of the home and the care of the children. This enabled Myron to work away from home. While Valerie has earned a bachelor of science degree in business in 2014, after the parties separated, she had been a homemaker for the duration of the parties' marriage and has little, if any, marketable work experience. At the time of the hearing, Valerie was making $1,368 a month earning minimum wage working as an office assistant.
Without spousal support, Valerie's income amounts to 22 percent of Myron's. After the trial court's award of $400 per month spousal support (and without considering tax consequences of the award), Valerie's combined monthly income comes to 30 percent of Myron's: $1,768 compared to $5,850.
Valerie intends to pursue a career in the field of education, and she is currently working towards obtaining her master's degree and teaching credentials so she can find a teaching position. Valerie is now 41 years old, she is in good physical health, and is therefore very likely to obtain a teaching credential, and perhaps, eventually obtain a full-time teaching position. However, she will also have to compete with younger and more experienced candidates in her field to find a permanent, full-time teaching position. Realistically, this will require her to take part-time positions or temporary assignments to gain the relevant experience she needs.
While Valerie will receive some portion of her community property share of the retirement accounts, these funds are modest and exhaustible, and it is not clear to this court when these funds will be distributed. In any event, given the share of community debt Valerie owes to Myron, $4,849 plus interest, a significant portion of the retirement funds will likely be depleted by Valerie to pay her debt. Even considering the value of the personal property awarded to Valerie, it appears unlikely she will be self-supporting within a reasonable period of time. Indeed, Valerie's income and expense declaration states her expenses amount to $3,368 per month, including the portion of her expenses paid by others. Valerie's expenses significantly exceed her income.
While Myron's total expenses nearly exhaust his total income based on his income and expense declaration, the trial court nonetheless concluded "[Myron] has the ability to pay spousal support." This conclusion is supported by the fact that temporary spousal support was awarded to Valerie in the amount of $1,000 per month. Moreover, in Myron's income and expense declaration, he offered to pay Valerie $600 per month in spousal support until she completed her education, "not to exceed six years." Thus, while temporary spousal support awards tend to be higher than permanent support awards (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525-526), the drop between the awards here was marked, precipitous, and was reached without any explanation by the trial court's ruling. Absent a reasonable explanation, and under the circumstances just outlined, the $400 support order appears arbitrarily low.
The disproportionate amount of the spousal support award relative to the parties' financial circumstances is further called into question by the duration of the award. Temporary spousal support is intended to maintain the parties' standard of living as closely as possible pending disposition of the case. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637.) By contrast, "permanent spousal support is supposed to reflect a complex variety of factors established by statute and legislatively committed to the trial judge's discretion, including several factors which tend to favor reduced support, such as the 'goal' that the supported spouse should become self-supporting within a reasonable period of time." (In re Marriage of Schulze, supra, 60 Cal.App.4th at p. 525; see § 4320, subd. (l).) In marriages that are not long term, however, a "reasonable period of time" is still generally one-half the length of the marriage. (§ 4320, subd. (l).) Here, Valerie and Myron's 18-year marriage was indisputably a long-term marriage (§ 4336, subd. (b)), but Valerie was awarded spousal support for only four years, less than one quarter of the length of the marriage. Again, the court provided no explanation for why a marked departure from the norm was warranted in this case. Absent a reasonable explanation, this departure appears arbitrary, especially when considered in conjunction with the order terminating jurisdiction over spousal support upon filing of the judgment.
Based on the factual determinations made and legal authority relied upon by the trial court, we conclude the amount and duration of spousal support awarded are such that "'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.'" (In re Marriage of Reynolds, supra, 63 Cal.App.4th at p. 1377.) The trial court abused its discretion with respect to the amount and duration of spousal support awarded. We will remand this matter back to the court for further proceedings.
III. The Trial Court Abused Its Discretion in Terminating Jurisdiction
Valerie also challenges the trial court's immediate termination of its jurisdiction over spousal support. She asserts a trial court may not terminate jurisdiction over spousal support in a long-term marriage without evidence the party to whom support is awarded will be self-supporting by the date of termination. Myron contends the trial court did not terminate its jurisdiction but, rather, issued a Richmond order pursuant to In re Marriage of Richmond (1980) 105 Cal.App.3d 352 (Richmond), warning Valerie jurisdiction would be terminated at some future date. We agree with Valerie.
It is well-settled that "termination of jurisdiction over spousal support after lengthy marriages should not occur without proof the supported spouse can provide for his or her own reasonable needs." (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 661 (Prietsch), citing In re Marriage of Morrison (1978) 20 Cal.3d 437, 452 (Morrison).) Accordingly, in marriages of a long duration (presumptively 10 years or longer), the court is deemed to retain spousal support jurisdiction indefinitely, even in the absence of an express reservation of jurisdiction, unless there is a stipulation by the parties to the contrary, or a court order terminating spousal support. (§ 4336, subds. (a), (b).) The parties do not dispute their 18-year marriage comes within the statutory definition of a "marriage of long duration."
Here, the immediate termination of jurisdiction over the issue of spousal support was error. Although the trial court ordered spousal support payments to terminate on April 30, 2019, the trial court terminated its jurisdiction over spousal support "upon the filing of the judgment ...." Thus, while the court set a future date for spousal support to cease, it terminated its jurisdiction to modify, alter, terminate, or extend spousal support once the judgment in this matter was filed, which occurred on March 17, 2015. This would leave both parties without recourse to modify the spousal support award in the event Valerie or Myron were to experience a material change in financial circumstances. This could not have been what the parties intended.
The parties' marriage lasted for 18 years, a lengthy marriage within the meaning of section 4336, subdivision (b). "'A trial court should not terminate jurisdiction to extend a future support order after a lengthy marriage, unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction.'" (Prietsch, supra, 190 Cal.App.3d at pp. 659-660, some italics omitted.) Whether a supported party will be able to meet his or her future needs must be based on evidence in the record and the reasonable inferences that may be drawn therefrom, rather than speculation. (Morrison, supra, 20 Cal.3d at p. 453.) "If the record does not contain evidence of the supported spouse's ability to meet his or her future needs, the court should not 'burn its bridges' and fail to retain jurisdiction." (Ibid.; see In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1022, fn. 15 [noting that after Morrison, a very high burden must be met to automatically terminate jurisdiction at some future date].)
In In re Marriage of Christie (1994) 28 Cal.App.4th 849, the trial court retained jurisdiction to alter, terminate or modify spousal support prior to the date support was set to terminate, but the court terminated its jurisdiction to extend support payments beyond that date. (Id. at p. 856.) The appellate court affirmed the order with respect to the date set for termination of support, but reversed the part of the order immediately terminating the court's jurisdiction to extend spousal support beyond that future date. (Id. at p. 861.) The court noted the California Supreme Court's decision in In re Marriage of Vomacka (1984) 36 Cal.3d 459, 467, which strongly disapproved "orders providing for absolute termination of spousal support on a specified date, particularly with respect to lengthy marriages." (Christie, supra, at p. 865.)
Here, not only did the trial court terminate its jurisdiction to modify or alter the spousal support award, it terminated its jurisdiction to extend support payments beyond the future cutoff date. Thus, the trial court's termination of jurisdiction was not only contrary to what the parties intended as demonstrated by their pleadings, it was also error as a matter of law. (In re Marriage of Christie, supra, 28 Cal.App.4th at p. 861.)
As the trial court noted, Valerie did not work outside of the home for the majority of the marriage, she has no separate property assets, and she is minimally self-supporting. Although she has received an associate degree and a bachelor of science degree in business since the parties separated, she is currently working in a minimum wage position and her expenses exceed her income. The conclusion that Valerie will be able to support herself at this future date appears likely, considering her age, good physical health, and level of education, but this does not justify terminating jurisdiction to modify, terminate, or extend the support award.
Upon remand, it is possible Valerie may be able to demonstrate good cause as to why spousal support payments should continue beyond April 30, 2019. The aforementioned principles and cases will guide the court's determination in deciding the appropriate termination date, if any, of the trial court's jurisdiction over spousal support. In any event, the trial court may not terminate its jurisdiction to alter, modify, or terminate spousal support prior to the date spousal support payments are scheduled to terminate.
Rather than finding the trial court terminated its jurisdiction over spousal support, Myron contends this court could infer that the trial court issued a Richmond order. While a Richmond order would have been appropriate, that is not what occurred here.
Under a Richmond order, the trial court will set a future date for termination of spousal support. However, the date of termination is modifiable so the supported spouse can, upon a showing of good cause, request a change in the original order as to the amount or as to the term for jurisdiction over the issue of spousal support. "The effect of a 'Richmond' order is to tell each spouse that the supported spouse has a specified period of time to become self-supporting, after which the obligation of the supporting spouse will cease." (Prietsch, supra, 190 Cal.App.3d at p. 665.) "A Richmond order may be appropriate 'even upon the dissolution of a "lengthy" marriage.' [Citation]" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 311.) It is only appropriate, however, "[w]here ... 'it can reasonably be inferred from the evidence that the supported spouse is capable of self-support ...." (Ibid.)
It appears Myron asserts this court may infer the trial court issued a Richmond order because the court issued a Gavron warning to Valerie. However, such a conclusion cannot be reasonably drawn based on the plain language of the trial court's ruling. As we have explained, there was no contingent termination of jurisdiction here. Instead, the trial court unambiguously terminated its jurisdiction over the issue of spousal support as of March 17, 2015, the date the judgment was filed. This precluded the trial court from altering, modifying, terminating, or extending the spousal support award. (§ 4336, subd. (c); In re Marriage of Christie, supra, 28 Cal.App.4th at p. 858.)
Further, while Myron makes much of the fact the court issued a Gavron warning to Valerie, the trial court's issuance of a Gavron warning does not support the inference the court also issued a Richmond order. A Gavron warning refers to the court's notice to the recipient of spousal support that he or she should make reasonable efforts to become self-sufficient. In Gavron, the court held that in the absence of a "reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences," the burden of justifying termination of spousal support is on the party seeking termination. (Gavron, supra, 203 Cal.App.3d at p. 712.) The trial court's immediate termination of its jurisdiction here cannot be reconciled with the fact it issued a Gavron warning to Valerie because the warning was irrelevant in light of the fact the court foreclosed its ability to modify, terminate, or extend the spousal support award altogether.
DISPOSITION
The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein. Appellant is awarded costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.